Category: Crap For Brains

The Fourth Circuit ignores Bruen again

The Supreme Court’s 2022 Bruen decision held, with crystal clarity, the Second Amendment is an individual right, which extends to keeping and bearing arms not only in one’s home or on one’s property, but in public, with some limited exceptions. Not only did Bruen reaffirm the Second Amendment as a fundamental unalienable right–no second-class right—it established strict scrutiny, the highest level of judicial analysis, for Second Amendment cases. Equally important was this holding:

When the  Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the  Second Amendment’s “unqualified command.”

In other words, anti-liberty/gun schemes are only constitutional if there was a clear historical analogue at the time of the founding.  As one might suspect, some states—Like Maryland—are determined to ignore the Second Amendment and Bruen.

Under current Maryland law,  no one may own, rent, or even touch a firearm without a 16-hour class which includes live fire. There is an 8-hour class required for each permit renewal. Only upon passing the 16-hour course, can one apply for a permit, and the State Police have 30 days to approve or deny applications. So while Maryland is, at least ostensibly, a “shall-issue” state the state puts as many barriers as possible in the path of gun owners, including a seven day waiting period for purchase, and gun registration.

In 2023 a three-judge panel of the Fourth Circuit Court of Appeals took up a challenge to the licensing law and struck it down in consonance with Bruen:

“The challenged law restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn’t find one.”

On would reasonably think that would have been the end of it. No historical analogue, presumptively unconstitutional. Then the entire Court got into the act (decision available here):

We conclude that the Supreme Court in Bruen foreclosed the plaintiffs’ “temporary deprivation” argument by stating that, despite some delay occasioned by “shall-issue” permit processes, this type of licensing law is presumptively constitutional because it operates merely to ensure that individuals seeking to exercise their Second Amendment rights are “law-abiding” persons.

We hold that the plaintiffs have failed to rebut this presumption of constitutionality afforded to “shall-issue” licensing laws like the handgun qualification statute. So the plaintiffs’ challenge to the HQL statute fails, and we affirm the district court’s award of summary judgment to the state of Maryland.

Continue reading “”

Maryland, AR-15s and the Fourth Circuit

Should you be so unfortunate as to live in Maryland, and more unfortunate as to own an AR-15, you’re a criminal, as the Fourth Circuit Court recently affirmed. This despite the Supreme Court’s Heller, McDonald and Bruen decisions having made clear the Second Amendment acknowledges the individual right to self-defense in one’s home and elsewhere, and common and usual weapons are presumptively constitutional. Unfortunately none of those decisions specifically mention the AR-15, the most popular—common and usual–rifle of its type in America. This opened the gun ban door a crack, which the 4^th Circuit majority used to push the door wide open:

We have described the AR-15’s capacities in abundant detail to demonstrate just how far outside the animating purposes of the Second Amendment this weapon lies. While we know that the AR-15 thrives in combat, mass murder, and overpowering police, appellants have failed to demonstrate that the weapon is suitable for self-defense. This is likely because such a showing would be difficult to make. Indeed, many of the weapon’s combat-functional features make it ill-suited for the vast majority of self-defense situations in which civilians find themselves.

It would be hard to imagine a more deceptive and less informed recitation of legal mush. The majority decision goes on to claim the “heightened firepower” of the AR-15 is a terrible risk of overpenetration, and the 30-round magazine, standard since the Vietnam era, is also useful for mass murder, because self-defense shootings commonly only involve a few shots. The majority would also have us believe the AR-15 is particularly useless for home defense. They conclude their specious arguments with this:

In sum, the AR-15—with its military origination, combat-functional features, and extraordinary lethality—has “the same basic characteristics, functionality, capabilities, and potential for injury as the M-16.” And its all too frequent use in terrorism, mass killing, and police murder shows that the AR-15 offers firepower ill-suited and disproportionate to fulfilling the Second Amendment’s purpose of armed self-defense. Therefore, just like the M16, the AR-15 is “most useful in military service” and “may be banned” consistent with the Second Amendment.

Where to begin? The AR-15 has been on the civilian market since the 1960s, and while Armalite—“Armalite Rifle,” not “Assault Rifle” certainly wanted military contracts, only the Air Force initially adopted the rifle for base defense. The Army eventually adopted it, and after decades of development, the select-fire M4, not available to civilians, is the current issued rifle.

Both the M4 and AR-15, the M4’s semiautomatic only, look-alike cousin, fire the .223/5.56 NATO cartridge, which is of only intermediate power, and has long been known as an unreliable penetrator and man stopper. The Military is currently developing a higher-powered cartridge, and rifle.

Is the AR-15 a “common and usual” arm?  Best estimates place more than 23 million in citizen’s hands. However, Americans have purchased more than a million guns a month for 60 straight months, so that figure is surely low.

“Firepower” is a military concept inappropriately applied to individual arms. The majority’s argument is emotion-laden and obviously taken directly from the writings of anti-liberty/gun cracktivists, while the dissent is well-reasoned, relying on the law, the Founder’s intent and accurate history.

They also hope to ban “large capacity” magazines for the same reasons by using the same tactics. While it’s true most armed encounters involve relatively few rounds fired, attacks by multiple armed thugs are becoming more common, in and out of the home. In such encounters, a 30-round magazine can be the difference between life and death.

Certainly, we carry handguns because it’s difficult to carry long guns of any type as we go about our daily business, but because handguns are more convenient does not make rifles unconstitutional. Anyone knowingly entering an armed encounter with less than a rifle is looking to die. The police are increasingly abandoning shotguns and adopting AR-15s for patrol carry. Are the police now the military? Should citizens be less well armed, less able to defend themselves?

The 4th Circuit has now clearly established a split among the lower courts, which will allow the Supreme Court to grant cert and further define the limitations of the state in banning popular, common and usual guns. In our uncertain times, a decision in line with their Heller, McDonald and Bruen jurisprudence would be welcome, and conducive to the preservation of our representative republic.

Federal Appeals Court Again Upholds Maryland AR-15 Ban

The Fourth Circuit Court of Appeals has once again found Maryland’s so-called assault weapons ban is constitutional.

In a ten-to-five ruling on Tuesday, a full panel of the appeals court determined the Old Line state’s ban on AR-15s and similar firearms does not violate the Second Amendment. It found the banned guns fall outside the protections guaranteed by the Constitution. Using similar reasoning to the last time the panel ruled on the same law in 2021, the majority decided semi-automatic assault weapons are too similar to military weapons to fall under the Second Amendment.

“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,” Judge Harvie Wilkinson wrote for the majority in Bianchi v. Brown. “Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation.”

A lot has changed in Second Amendment jurisprudence since the appeals court ruled on the ban in 2021. The most significant was the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, which established a new test for Second Amendment cases. The Court then vacated the Fourth Circuit’s ruling in Bianchi and sent it back down for reconsideration in light of the new test. The Fourth Circuit delivering the same result once again could provide reason for The Court to take up the case, especially since it has now reached a final conclusion on the merits.

The Supreme Court has been reluctant to take up Second Amendment cases in recent months and declined to grant certiorari in all of its pending gun cases last month. That included denying a request to take up a collection of cases challenging the Illinois assault weapons ban. However, Justice Clarence Thomas suggested that reluctance was based on the fact those cases were at the preliminary injunction stage rather than final judgment.

“This Court is rightly wary of taking cases in an interlocutory posture,” Justice Thomas wrote. “But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment. We have never squarely addressed what types of weapons are ‘Arms’ protected by the Second Amendment.”

The Fourth Circuit did address what types of arms are protected or, at least, which ones aren’t. The majority looked primarily at the Supreme Court’s holding in 2008’s DC v. Heller decision, which recognized an individual right to keep and bear arms while striking down the city’s handgun ban, as well as dicta in the case.

“As recognized in Heller, ‘the Second Amendment right … extends only to certain types of weapons’; it is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,’” Judge Wilkinson, a Ronald Reagan appointee, wrote for the majority. “Arms typically used by average citizens for self-defense are generally within the ambit of the Second Amendment, presumably because these arms had proven over time to effectively amplify an individual’s power to protect himself without empowering him to singlehandedly reign terror upon a community.”

Judge Wilkinson pointed to Heller‘s description of short-barrel shotguns and “M-16 rifles and the like” as weapons the government can ban. He said there was a common thread that connected those firearms, which also extends to semi-automatic AR-15s and the other guns Maryland bans.

“What brings all the weapons beyond the scope of the Second Amendment together, and what separates them from the handgun, is their ability to inflict damage on a scale or in a manner disproportionate to the end of personal protection,” he wrote. “As such, they are weapons most suitable for criminal or military use.”

The majority then turned its attention to the Bruen test, which requires modern gun laws to be rooted in the history and tradition of firearms regulation dating back to the Founding Era in order to withstand scrutiny. In what has become the post-Bruen go-to legal reasoning to uphold modern gun bans, the majority asserted it could take a broader view of historical analogues because it argued assault weapons are a modern invention that has fueled the modern problem of mass shootings. It then pointed to early regulations on gunpowder storage and the carrying of Bowie knives as substantially similar to Maryland’s ban on the sale of modern semi-automatic rifles like the AR-15.

“In sum, then, 18th and 19th century legislatures’ passed laws in a number of states that restricted the use or ownership of certain types of weapons,’ once it ‘became obvious that those weapons … were being used in crime by people who carried them concealed on their persons and were thus contributing to rising crime rates,’” Judge Wilkinson wrote. “These legislatures—in balancing individual rights and public peacekeeping—permitted individuals to defend themselves with firearms, while ridding the public sphere of excessively dangerous and easily concealable weapons that were primarily to blame for an increase in violent deaths.”

Ultimately, as they did before the Supreme Court handed down its Bruen decision and remanded the case, the majority concluded Maryland’s assault weapons ban is constitutional.

“The Supreme Court has made clear that the Second Amendment is an integral component of the Bill of Rights. But as our nation’s history has shown, it is ‘neither a regulatory straightjacket nor a regulatory blank check.’ The Amendment has not disabled the ability of representative democracy to respond to an urgent public safety crisis,” Judge Wilkinson wrote. “To disregard this tradition today—when mass slaughters multiply and the innovation of weaponry proceeds apace—could imperil both the perception and reality of well-being in our nation. We therefore hold that Maryland’s regulation of assault weapons is fully consistent with our nation’s long and dynamic tradition of regulating excessively dangerous weapons whose demonstrable threat to public safety led legislatures to heed their constituents’ calls for help.”

The dissenting judges disagreed with that conclusion and slammed the majority for treating the Second Amendment as lesser than other protections offered in the Bill of Rights.

“The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges. Its mandate is absolute and, applied here, unequivocal,” Judge Julius N. Richardson, a Donald Trump appointee, wrote for the dissent. “Appellants seek to own weapons that are indisputably ‘Arms’ within the plain text of the Second Amendment. 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. In holding otherwise, the majority grants states historically unprecedented leeway to trammel the constitutional liberties of their citizens.”