The Supreme Court declined to further expand gun rights this past term in the Rahimi case, when a lopsided majority (over Justice Clarence Thomas’ dissent) upheld firearms restrictions for people subject to domestic violence restraining orders. But a new federal appeals court ruling on assault weapons could prompt another test for the justices.
In that ruling on Tuesday, the 4th U.S. Circuit Court of Appeals approved Maryland’s assault weapons ban. The appeals court said the state “was well within its constitutional prerogative to legislate as it did,” despite the Supreme Court’s gun rights expansion in the 2022 Bruen ruling. The high court’s Republican-appointed majority said in that decision that gun regulations can only survive Second Amendment challenges if they’re consistent with the nation’s historical traditions.
“We conclude that Bruen did not mandate an abandonment of our faith in self-governance, nor did it leave the balance struck throughout our history of firearms regulation behind,” Reagan-appointed Judge J. Harvie Wilkinson III wrote for the 4th Circuit majority on Tuesday, noting that “it would have been shocking to the Framers to witness the mass shootings of our day”:
To see children’s bodies “stacked up … like cordwood” on the floor of a church in Sutherland Springs, Texas; to hear a Parkland, Florida high school student describe her classroom as a “war zone” with “blood everywhere”; to be at a movie in Aurora, Colorado when suddenly gunfire erupted, leaving “bodies” strewn and “blood on seats, blood on the wall, blood on the emergency exit door”; to run past “shoes scattered, blood in the street, bodies in the street” while bullets blazed through the sky in Dayton, Ohio; to watch law enforcement officers encounter “a pile of dead children” in Sandy Hook, Connecticut; to stand next to one of those officers as he tried to count the dead children, but “kept getting confused,” as his “mind would not count beyond the low teens.”
“These are not our forebears’ arms, and these are not our forebears’ calamities,” Wilkinson wrote.
Given that the challengers have vowed to appeal to the Supreme Court, it’s important to consider the 4th Circuit dissent, authored by Trump appointee Julius Richardson. In a lengthy writing, Richardson accused the majority of sidestepping the Second Amendment, demeaning weapons’ lawful functions and exaggerating their unlawful uses, and implausibly analyzing the nation’s historical tradition of firearms regulation. Obviously, the two opinions tell different stories with different priorities. The forthcoming Supreme Court appeal will seek to harness Richardson’s dissent to make it the law of the land. The high court has discretion over whether to take appeals, with four justices needing to agree to review them. So the first question will be whether the court wants to take up the contentious issue — and if it does, then the question, left open in the Rahimi case, will be how far a majority of the court wants to take the Second Amendment. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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