Attorneys and gun owners who want the Supreme Court to overturn Maryland's ban on assault rifles make an argument that goes something like this: If a gun is popular, the government has no business keeping you from owning one — or 10, or 20. Such rifles might have been used in the nation's horrific mass killings, including the one at a concert in Las Vegas 10 days ago, but they've become so "common" that they ought to be protected under the Constitution.
That's the major point the National Rifle Association makes in support of having the Supreme Court hear arguments for and against Maryland's 2013 post-Sandy Hook ban on assault rifles and ammunition magazines that hold more than 10 rounds.
Having lost in a 10-4 ruling from the 4th U.S.Circuit Court of Appeals in Virginia, the plaintiffs in the case, known as Kolbe v. Hogan (originally Kolbe v. O'Malley), have petitioned the high court to hear their arguments.
On Tuesday, Maryland Attorney General Brian Frosh answered the petition and argued against it. I'll get to that in a minute. It's the NRA's argument I found most fascinating — and, predictably, bizarre.
As far as I can tell, there is nothing in current law known as the "common use doctrine," but if the high court agrees to hear the Maryland case, gun advocates might be able to take credit for it.
"Common use" comes up several times in briefs filed with the court. Assault rifles like the AR-15 and AK-47 are by now in such "common use," argue plaintiffs and supporters, that any state law banning them would violate the right to bear arms.
"Firearms in common use by definition cannot be considered dangerous and unusual," the NRA argues in its amicus brief, suggesting that the nation's most popular guns are used for lawful purposes and "lie at the core of the Second Amendment." So, because millions of Americans own the kind of semiautomatic firearms and magazines that Maryland banned, "it follows that the banned items are protected by the Second Amendment."
I've tried to follow the NRA logic here, and I think it goes something like this: If an item delights a lot of people, even if it is shown to pose a danger to the public, governments and courts cannot restrict its use. Heroin, therefore, should be legal because a lot of people are addicted to it and willing to buy it. A cool-looking automobile might be proved unsafe, but because a lot of customers love it and are willing to buy it, the government has no business restricting its sale and ownership.
Some background: The case against the Maryland General Assembly's bold move to restrict the sale of military-style assault weapons falls back on the 2008 Supreme Court decision — District of Columbia v. Heller — that affirmed a person's constitutional right to own a gun for lawful purposes, including self-defense. The Heller case was a major victory for the NRA.
The challenge to Maryland's ban — brought by gun associations, gun stores and some of their customers — asks whether the Heller decision means the government could exclude the most popular semiautomatic rifles and magazines.
"The state of Maryland has struck at the heart of the Second Amendment by banning a large category of arms that are in common use in the United States," the NRA brief says. "Between 1990 and 2012, American manufacturers produced nearly 5 million AR-platform rifles for the domestic market. ... A survey of firearms retailers found that over 20 percent of all firearms sold in 2012 were 'modern sporting rifles' such as the AR-15s, making them second in popularity only to semiautomatic handguns among all firearms."
So, argues the NRA, something in such "common use" should not be banned.
The state, through its attorney general and his staff, disagrees.
The Heller decision did not mean anything goes, says Frosh, noting that the Supreme Court made clear that the Second Amendment does not guarantee "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
Frosh, a state senator at the time the General Assembly passed the ban, characterizes the guns and magazines prohibited under the law as "dangerous and unusual ... designed for the battlefield."
He cites the 4th Circuit's findings — that assault rifles are "exceptionally lethal weapons of war," essentially the same as military rifles, that are used, disproportionately to their ownership in the U.S., in mass shootings and the shootings of law enforcement officers while offering little usefulness in self-defense.
Frosh's brief says there's no need for the Supreme Court to take the Maryland case because there's little conflict among the federal appellate courts about the state's power to ban assault rifles and large-capacity magazines.
Besides, he says, when it comes to defending themselves and their homes, Marylanders have plenty of other guns to choose from — plenty in "common use."