On Tuesday, the U.S. Court of Appeals for the 4th Circuit upheld Maryland's ban on so called "assault weapons" in a 10-4 ruling.
The court stated that 81 weapons, as well as semi-automatics that use detachable magazines, and can sport two or more features such as a flash suppressor, or a folding stock as "dangerous and unusual" and being "exceptionally lethal weapons of war," by majority opinion writer Judge Robert B. King.
The majority is of the opinion that such weapons that look like rifles used by our military in wartime should not be accessible by civilians.
Our ruling on Second Amendment protection is limited and clear: Because the FSA-banned assault weapons and large capacity magazines are like M16s, in that they are most useful in military service, they are not protected by the Second Amendment.
Rather, the issue is whether the banned assault weapons and large-capacity magazines possess an amalgam of features that render those weapons and magazines like M16s and most useful in military service.
The M16 is a fully automatic rifle, seeing use in our military since the Vietnam war. However, none of the banned guns are capable of firing like the M16. A popular rifle civilians tend to use is the AR-15, a semi-automatic. While unable to fire automatically, the Ar-15's high modifiability has arisen concerns amongst lawmakers unfamiliar with how the rifle works.
Regardless, by calling the banned weapons "dangerous and unusual" the 4th Circuit court has utilized Supreme Court language from the District of Columbia v. Heller case to support their ruling. However, as Reason's Jacob Sullum notes, this description of the weapons doesn't add up, and flies in the face of Heller.
The majority's judgment that folding stocks, flare launchers, and flash suppressors make rifles "exceptionally lethal" is dubious. It is also irrelevant, because the Supreme Court did not say the Second Amendment allows bans on exceptionally lethal weapons. It said the Second Amendment allows bans on "dangerous and unusual" weapons that are not "in common use for lawful purposes," and that description plainly does not apply to rifles that are among the most popular in the country. The argument that magazines capable of holding more than 10 rounds are more lethal than smaller magazines is more logical but still irrelevant, since "large-capacity magazines" are very common, sold standard with many handguns and rifles.
This was also seemingly the view of the dissenting judges. Judge William B. Traxler Jr. — joined by Judges Paul V. Niemeyer, Dennis W. Shedd and G. Steven Agee — stated that the majority have “gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.”
“As long as the weapon chosen is one commonly possessed by the American people for lawful purposes — and the rifles at issue here most certainly are. The state has very little say about whether its citizens should keep it in their homes for protection.”
Heller is quite clear that rifles in lawful common use are protected under the 2nd Amendment, however the 4th circuit seems to have ignored this, along with the 75 million magazines that hold ten or more bullets common among the American populace. As National Review Online Editor Charles C. Cooke notes, "...the majority doesn’t care about that, choosing to apply only the “military” standard that it has invented."