In late November, the United States Supreme Court refused to hear an appeal from the Fourth Circuit Court of Appeals in the assault rifle ban case, Kolbe v Hogan (nee, O’Malley). In doing so, the Supreme Court let stand the appellate court’s ruling upholding the Maryland ban on some assault style rifles and detachable magazines capable of holding more than ten rounds.

The case had many twists and turns, starting with the decision of the United States District Court for the District of Maryland that assault style rifles, in essence, have no legal use, are not commonly owned, and are not protected weapons under the Second Amendment.

In an act of putting suspenders on after the belt is in place, the trial court held that if these weapons were protected, the law would still be constitutional because it would be examined by applying intermediate scrutiny. That means the court only needs to determine there is a relationship between the law and the stated purpose … here public safety.

The case took another turn when a three-judge panel of the Fourth Circuit reversed the District Court, holding that these rifles are protected and that strict scrutiny must be applied to what the court considers a core constitutional right. That meant that if there was another, less invasive, method to accomplish the stated purpose, the challenged law would fail.

The State of Maryland appealed, asking the full Fourth Circuit Court of Appeals to hear the case, en banc, which it did. In its en banc decision, the Fourth Circuit held that these assault style rifles are weapons of war and not protectable under the Second Amendment. If they were, however, protectable, intermediate scrutiny would be the appropriate level of review.

The court went on to explain, erroneously, that the reason these rifles are not protected under the Second Amendment is that they are “like” the M-16 rifles Justice Scalia referenced in District of Columbia v. Heller. In Heller, Scalia determined that M-16s are not protectable under the Second Amendment because they were capable of fully automatic fire.

Likely, had the issue of AR-style semi-automatic rifles been before the court in Heller, instead of or in addition to handguns, the United States Supreme Court would have found them protectable under the Second Amendment because they are guns in common use.

Every other court deciding the constitutionality of laws banning these rifles, including the Seventh Circuit and Second Circuit, has found them protectable under the Second Amendment (although the courts ultimately upheld the bans after applying the intermediate scrutiny test).

For now, this is the law of Maryland and should any state legislature within the Fourth Circuit adopt laws similar to Maryland’s ban, it will be their law also.

However, practically speaking, there are so many carve outs to Maryland’s ban on assault style rifles that any Maryland citizen who is not prohibited from legally owning a firearm under 18 U.S.C. § 922(g), can buy an assault style rifle.
As to high capacity magazines, the Maryland law does not ban possession, but merely transfer in the state. So while these magazines cannot be sold within Maryland’s borders, the law permits a Maryland resident who buys these objects out of state to bring them into Maryland for use.

The Maryland law is a lot of safety theatre. It keeps no one safer than they were. It creates crowing rights for politicians.

If Maryland really wants gun safety, it needs to figure out how to keep guns out of the hands of prohibited persons in cities like Baltimore where the current murder count for 2017 is close to 320, and the year is not over.

If you have questions about Maryland’s gun laws, contact Jim Astrachan at (410) 783-3550 or