The Fourth Circuit Court of Appeals has ruled that military style "assault weapons," including certain semi-automatic weapons, are not protected by the Second Amendment to the United States Constitution. In Kolbe v. Hogan, ___ F. 3d. ____, 2017 U.S. App. LEXIS 2930, (4th Cir. 2017), which may be read here, the Court of Appeals upheld a Maryland law that outlawed certain assault weapons. Md. Code Ann., Crim Law § 4-303. The ban included over 40 identified weapons including the Colt AR-15, the Bushmaster semi-auto rifle, and the AK-47. Md. Code Ann., Crim Law 5-101(r)(2).
In Kolbe, the State of Maryland was sued by a number of gun rights activists supported by the NRA for violated the Second Amendment by enforcing the law. In response, the State of Maryland argued that the targeted assault weapons were weapons of war and therefore not protected by the Second Amendment. Both parties cited to the seminal United States Supreme Court decision of District of Columbia v. Heller, 554 U.S. 570 (2008), authored by Justice Antonin Scalia. The Fourth Circuit agreed with the State of Maryland..
In Justice Scalia's 2008 Heller decision, the issue was whether the District of Columbia's blanket handgun ban implicated the Second Amendment at all. Up until that time, there was a dispute as to whether the Second Amendment gave all citizens the right to "bear arms" or whether that right was limited to that of state militias (the modern day national guard). This argument was centered on the fact that the first clause of the Second Amendment specifically addresses a "well regulated Militia." The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Heller Court concluded that the first clause was a mere "prefatory clause" and did not limit the remainder of the amendment which the Heller Court characterized as the "operative clause." As a result, the Court held that the Second Amendment applied all citizens and not only state militias.
In applying the Second Amendment, the Heller Court was particularly troubled by the fact that the District of Columbia's ban applied to handguns which it described as "the most preferred firearm in the nation to keep and use for protection of one's home and family." 554 U.S. at 628.
Notably, however, the Heller Court made clear that the Second Amendment was not unlimited and "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U.S. at 634-35. The Heller Court specifically held that the Second Amendment "extends only to certain types of weapons" and held that "dangerous and unusual weapons" such as short-barreled shotguns, machine guns, and that weapons that are most useful in military service, such as the M-16 rifle, may be banned. 554 U.S. at 624-627.
It was based on this holding of Heller that the Fourth Circuit concluded that the assault weapons banned by Maryland were not protected by the Second Amendment. In a notable aspect of the decision, however, the Fourth Circuit concluded that even if some of the weapons on Maryland's list did implicate the Second Amendment, the reasons for the ban were sufficiently compelling to outweigh any Second Amendment "right to bear arms." In reaching this conclusion, the Fourth Circuit concluded that the ban was sufficiently narrow because it only banned military styled weapons and not "the right of law abiding citizens to use arms for self-defense in the home," as did the District of Columbia's handgun ban. The Fourth Circuit also cited to Maryland's compelling interest in public safety based on the weapons' ability to inflict mass casualties, such as occurred in Aurora, Colorado (12 killed 58 wounded), San Bernardino, California (14 killed and 20 wounded), Orlando, Florida (49 killed and 53 wounded).
The Plaintiffs may now appeal the decision to the United States Supreme Court.