Constitution Daily

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Supreme Court Justices allow ban on high-capacity guns

November 27, 2017 by Lyle Denniston


With the nation reaching record levels of mass shootings, the Supreme Court on Monday allowed the state of Maryland to continue to enforce one of the nation’s strictest bans on high-capacity rifles and ammunition clips.

None of the nine Justices recorded a public dissent from the refusal to hear a Second Amendment challenge to the Maryland law that was passed in 2013 in direct response to the Newtown, Conn., shooting massacre in 2012 of 20 school children and six adults by an assailant using a semi-automatic rifle, firing 155 bullets within five minutes.

Because the Court provided no reasons for bypassing review of the case of Kolbe v. Hogan, it was not clear that the series of such shootings across the nation over the past two years had had any influence on the Justices.  The practical reality, though, was that the action left state legislatures with wide authority to react to such incidents.

The denial of review was significant not only because of the wide scope of the state law at issue, but also because of the sweeping rationale a lower federal court had used in upholding the ban against a Second Amendment challenge.

The U.S. Court of Appeals for the Fourth Circuit, dividing 10-to-4, interpreted prior Supreme Court rulings on the protection of gun rights under that Amendment to allow states to ban outright any weapon that is “most commonly useful in military service,” such as the familiar soldier’s rifle, the M-16.  The majority said the Supreme Court had left lower courts with no power to extend constitutional protection to “weapons of war.”

Maryland’s ban applies to what its legislature called “assault weapons,” defined as military-style weapons such as the AR-15 and AK-47.  It also outlaws any ammunition clip (“magazine”) that contained more than ten bullets.

The dissenting judges in the Fourth Circuit Court argued that the ban would apply to guns that account for about one out of every five weapons bought in the nation.  More than 8 million such weapons are now owned, those judges said; they also noted that some 75 million ammunition clips with more than ten rounds are now owned across the country.

Several Maryland gun owners, dealers and gun-rights organizations asked the Justices to strike down the Maryland law, arguing that the definition of weapons that the lower court said could be banned was so broad that it is “a giant step down a slippery slope headed toward denying all semi-automatic rifles and magazines Second Amendment protection.”  The appeal papers contended that the Circuit Court had misread the Supreme Court’s most important modern precedent on the Second Amendment, by relying on “one part of one sentence” written by the Justices in that 2008 decision.

The appeal drew the support from, among others, 21 states and gun-rights groups such as the National Rifle Association.  All of those supporting review by the Justices contended that lower courts have been reaching confusing and conflicting decisions about the scope of the personal right to have a gun, and yet the Supreme Court has repeatedly refused to provide clarity.

Although Justices Neil M. Gorsuch and Clarence Thomas filed dissents last June when the Court previously denied review of a major Second Amendment case, neither of them recorded a dissent from Monday’s order.

In a second action Monday, the Justices continued a well-established pattern of declining to review cases that seek clarification on whether the Second Amendment protects a personal right to carry a gun outside the home.

Without comment, the Court denied review of a separate appeal by a Fort Pierce, Fla., man who was convicted of violating a state law that bans the public carrying of guns if they are not kept concealed.  State law makes it quite easy to obtain a license to carry a gun, but puts the restriction on how that can be done outside of one’s home.

The Florida Supreme Court divided 4-to-2 in upholding that restriction, finding no violation of the Second Amendment.

Since first establishing a personal right to have a gun for self-defense use, the Justices have turned down every case seeking clarification of whether that right applies at all outside of one’s home.  There has been no explanation for those denials.   The new case was Norman v. Florida.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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