Lawyers spar over Maryland assault weapon ban in federal court

Lawyers for the state and gun rights advocates debated in federal court Tuesday about the government's power to hem in the Second Amendment to ward off mass shootings.

Spectators crammed into a federal courtroom in downtown Baltimore to watch the hearing regarding bans on the sale or sharing of assault rifles and magazines capable of holding more than 10 rounds. Those provisions, which took effect in October, were among a package of measures enacted to strengthen Maryland's gun laws after 26 people were killed in an elementary school shooting in Newtown, Conn.


Matthew Fader, a lawyer from the attorney general's office, told U.S District Judge Catherine C. Blake that the ban was needed even though such mass gun violence had yet to be visited on Maryland. "We are as much at risk as any state in the country," he said.

But John Parker Sweeney a lawyer for gun sellers, owners and advocates who have sued the state, said the law is based on "junk science" and will do little to improve the public's safety. What it does unquestionably do, he said, is diminish the constitutional rights of people living in Maryland.


"The government does not have any right under the Second Amendment to tell the citizens they cannot choose popular firearms," Sweeney told the judge.

Among the people who showed up to watch the two hours of arguments were Sen. Brian E. Frosh, who helped shepherd the law through the General Assembly last year and is now the Democratic nominee for attorney general, and John Cutonilli, a would-be assault rifle owner.

They were joined by so many other spectators that some had to take seats in the jury box.

There are two key legal issues in the case: whether the banned rifles and magazines are protected by the Second Amendment; and if they are, whether the Maryland government is allowed to ban them.

The Supreme Court ruled in 2008 that the Second Amendment protects private individuals' ownership of guns. But its ruling left much unsaid — including what types of guns are covered and where the right applies — spurring further lawsuits. Those battles have gained new momentum after the Newtown killings, which drove a number of states to tighten their gun laws.

In December 2012, shooter Adam Lanza used a type of rifle now banned in Maryland when he opened fire at the Sandy Hook Elementary School in Newtown, Conn., killing 20 children and six adults. The attack led Maryland and other states to restrict access to some firearms.

Maryland headed into Tuesday's hearing on the back of a victory last year at the federal 4th Circuit Court of Appeals in a case challenging a long-standing law governing the awarding of handgun carry permits. The appeals judges in that case assumed the law did impinge on the Second Amendment, but found that Maryland's limits on issuing the permits were a fair public policy.

But the gun advocates' legal team has argued that because the assault rifle ban reaches inside people's homes it is fundamentally unlike the permit case, which was about having firearms in public.


The new ban covers both the AR-15 and the AK-47, two of the most popular assault rifles owned in the United States, but Maryland's lawyers say they are not commonly owned or used for self-defense. For those reasons, they wrote in briefing papers that despite the Supreme Court's 2008 ruling, the rifles are not covered by the Second Amendment.

"Assault weapons are a subclass of unreasonably dangerous firearms developed and adopted for their military effectiveness, with features appropriate for military and some law-enforcement purposes, but which are not commonly owned generally, or commonly used for self-defense," Fader and his colleagues wrote.

Should Blake decide that the Second Amendment is at play, the state's lawyers have asked her to apply the same standards as the appeals judges in the permit case and find that the ban is constitutional because it serves the government's interest in promoting safety.

But gun advocates who brought the case counter that the ban impermissibly deprives citizens of their access to common sporting and hunting rifles that can also be used for home defense. Should a militia be mustered in Towson today, Sweeney said, many of those answering the call would likely bring AR-15s with them.

"There can be no doubt that the challenged laws prohibit conduct protected by the Second Amendment as it was historically understood," the advocates' lawyers wrote. "Plaintiffs are prohibited from acquiring firearms commonly possessed for lawful purposes, which is precisely what the Supreme Court found to be protected."

Sweeney spent much of his time before the judge arguing that Maryland's law would also do little to enhance public safety. A similar measure passed at the federal level in 1994 showed few effects by the time it expired in 2004, he argued, and Maryland's ban would be weaker because of the continued availability of assault rifles in neighboring states.


Generally, rifles of all kinds are rarely used in homicides. Just five people in Maryland were intentionally killed with a rifle in 2012, according to FBI data. The 2013 package of laws also included new requirements for people buying handguns, which are commonly used in crime.

Buyers must now submit their fingerprints to the state police before making a purchase, a measure supporters of gun control say will cut down on people's buying a gun and passing it on to someone else. The constitutionality of that provision has yet to be challenged in court, and Frosh said it should do much to reduce gun violence.

As for the assault rifles, Fader said that when they are used by criminals the effects are devastating. The guns are disproportionately used in mass shootings and attacks on police officers, he said.

In his final comments Sweeney urged Blake to reject such arguments and protect people from flawed laws in her role as a "gatekeeper."