Gun rights group: MD gun ban doesn't pass strict scrutiny

AP Photo/Lisa Marie Pane

In Maryland, they’re apparently pretty big fans of gun bans. Maybe not banning all guns–though I don’t rule that out in the least–but at least banning some firearms.

It’s a popular notion in anti-Second Amendment circles, too. After all, their thought is that if the guns are banned, then bad guys won’t have them.

It never works that way.

Yet there are judicial rules in place for how judges should look at such legislation. One gun-rights group says Maryland’s ban doesn’t pass muster.

Maryland’s ban on semiautomatic assault-style weapons violates the constitutional right to bear arms because the blanket prohibition is not narrowly tailored to achieve the compelling governmental interest of public safety, gun rights advocates stated last week in their final bid to have the Supreme Court hear their challenge to the state law.

In papers filed with the justices, the advocates said a lower court has erroneously upheld the ban as constitutional by applying a lower standard of review and holding the prohibition is substantially related to the important safety goal.

This “intermediate” standard is inappropriate in determining whether a law violates a constitutional right, the advocates added in saying the Second Amendment should be on the same constitutional footing as the First Amendment right to free speech.

“The courts would not apply intermediate scrutiny to a ban as burdensome as Maryland’s in the context of any other enumerated constitutional right and the Second Amendment cannot be singled out for special – and specially unfavorable – treatment,” wrote David H. Thompson, the advocates’ lead attorney at the Supreme Court. “A contrary rule would allow the government to eliminate the Second Amendment by degrees – first banning one type of arm, then another, and then another.”

The advocates called the banned guns “a class of arms typically possessed by law-abiding citizens for lawful purposes,” such as self-defense.

The advocates submitted their brief as the high court considers whether to hear their appeal of a 4th U.S. Circuit Court of Appeals decision upholding Maryland’s 2013 ban. The justices are scheduled to vote May 19 on the advocates’ petition for review.

They’re not wrong, either.

In Heller, the Court set the standard. The problem is that lower courts have continually ignored that standard and just went with whatever the hell they wanted.

But strict scrutiny is exactly what they should have been doing.

In fact, in light of the recent leak regarding Roe vs. Wade, I can’t help but wonder if this is where the Court will step up and put an end to this foolishness once and for all.

If so, then goodbye assault weapon bans.

Of course, then state lawmakers will start trying to play games, to eat around the edges of the ruling to restrict guns as heavily as they think they can get away with. The thing is, they wouldn’t be able to outright ban much of anything, and that’s huge.

If Maryland’s gun ban won’t survive constitutional muster–and I honestly don’t see how it would or could–then the truth is that most other states’ gun bans won’t either, but neither will bans on many other types of firearms that could be looming down the road.

And if the lower courts apply that strict scrutiny as they’re supposed to, most cases will never get to the Supreme Court level.

Maybe this time, assuming the Court takes the Maryland case, the lower courts will get the message.

Jun 25, 2022 12:30 PM ET