The Supreme Court declined to review a Second Amendment challenge to a Maryland law banning semiautomatic rifles. The decision leaves in place a Fourth Circuit ruling upholding the Maryland law. Three justices indicated they would have granted review of the case—falling one justice short of the required four needed to grant certiorari (higher court review of a lower court decision).

What is this case about?

• In 2013, Maryland passed a law banning many semiautomatic rifles, including the AR-15. 
• The Maryland legislature enacted the law in the wake of the 2012 Sandy Hook Elementary School shooting in Connecticut, where 26 people, including 20 first graders, were killed.
• The AR-15 is one of the most popular firearms in the United States. More than 20 million Americans are believed to own one, but they are currently banned in nine states and the District of Columbia.
• Challengers argue this law violates the Second Amendment, which 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.” 

What happened in the courts?

• In a separate 2017 case, the U.S. Court of Appeals for the Fourth Circuit rejected a challenge to the law, writing, “The banned assault weapons and large-capacity magazines are not protected by the Second Amendment.”
• Challengers filed a new lawsuit amid the Supreme Court’s continued conservative shift and following a landmark decision that reshaped Second Amendment doctrine, prompting the current case. However, the Fourth Circuit once again upheld the ban on semiautomatic rifles.
• In the majority opinion, Judge J. Harvie Wilkinson wrote, “The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.”

How has the Supreme Court ruled in recent Second Amendment cases?

• District of Columbia v. Heller (2008): The Court held, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home,” striking down a District of Columbia law banning handguns. Justice Antonin Scalia, on behalf of the 5-4 majority, wrote, “The right to ‘keep [and bear] Arms’ [is] an individual right unconnected with militia service.” Second Amendment protections may also be extended to weapons not in existence when the Second Amendment was adopted, but limits may be placed on “dangerous and unusual weapons.”
• McDonald v. Chicago (2010): This ruling established that the Second Amendment applies to state and local governments by incorporation through the Fourteenth Amendment’s Due Process Clause.
• Caetano v. Massachusetts (2016): The justices unanimously held that stun guns are included in the Second Amendment’s protections.
• New York State Rifle & Pistol Association v. Bruen (2022): The Court determined that the Second Amendment permits individuals to carry a concealed handgun in public without a license, striking down a 108-year-old New York law that required licenses. The justices also established a new test to determine the constitutionality of a gun regulation. 
  • The Bruen test: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” 

How did the Fourth Circuit apply the Bruen test in the current case?

• Judge Wilkinson wrote, “The Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.”
• The dissenting judges disagreed. Judge Julius Richardson argued, “While history and tradition support the banning of weapons that are both dangerous and unusual, Maryland’s ban cannot pass constitutional muster as it prohibits the possession of arms commonly possessed by law-abiding citizens for lawful purposes.” 

Why did the Supreme Court decline to review the current case?

• Six Supreme Court justices—Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson—voted not to review the law, preferring to let the Fourth Circuit decision stand.
• Kavanaugh, however, wrote a statement emphasizing that denial of cert in this case should not be interpreted as an endorsement of the Fourth Circuit’s decision. On the contrary, according to Kavanaugh, “Under this Court’s precedents, the Fourth Circuit’s decision is questionable.” Kavanaugh continued, “Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment under Heller.” Kavanaugh also posited that the Court might address this question in the “next Term or two” after a few more circuit courts consider the issue.
• Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted certiorari. In a dissenting opinion not joined by his colleagues, Thomas said he “would not wait” to review this matter and indicated he would overturn the Fourth Circuit’s ruling. According to Thomas, this case is especially ripe for review because “lower courts in the jurisdictions that ban AR-15s appear bent on distorting this Court’s Second Amendment precedents.”

What happens next?

• Based on his writing, Justice Kavanaugh appears to be a likely fourth vote to grant review in a future case on this issue. 
• Several circuit courts (First, Second, Third, Seventh, and Ninth) are currently hearing appeals in similar cases involving semiautomatic rifles. Varying rulings could lead to a circuit split—when two or more circuit courts issue conflicting rulings on the same legal question. These cases are often then reviewed by the Supreme Court.
• For now, the Maryland law will remain on the books.