On August 6, a Fourth Circuit Court of Appeals ruling upheld Maryland’s “assault weapons” ban, putting it on a trajectory directly to the Supreme Court. And because this isn’t an interlocutory case, it is much more likely to be heard by the Supreme Court. SCOTUS routinely denies hearing cases on interlocutory appeal.
The Second Amendment Foundation (SAF) has announced they will seek Supreme Court review in Bianchi v. Brown, a case that challenges Maryland’s “assault weapons” ban. Along with SAF, the case is joined by Citizens Committee for the Right to Keep and Bear Arms, Field Traders, LLC., Firearms Policy Coalition, and three private citizens, David Snope, Micah Schaefer and Dominic Bianchi.
The case is highly unusual in that oral arguments were heard more than a year ago in front of a three judge panel, which had not yet issued an opinion. The Fourth Circuit court proactively decided to hear the case en banc, and issued a resoundingly anti-Second Amendment decision that essentially cast aside well-established precedent.
“Today’s decision from the 4th Circuit is unsurprising given their prior decision in Kolbe,” said SAF Executive Director Adam Kraut, in a statement on their site. “We believe, much like in Kolbe, the court’s analysis is flawed and that the challenged law is unconstitutional. We will be filing a petition for certiorari at the Supreme Court, as this case presents an excellent vehicle for the Court to settle this debate once and for all.”
Setting the stage, the decision admits:
This case is about whether the Act’s general prohibition on the sale and possession of certain military-style “assault weapons,” including the AR-15, the AK-47, and the Barrett .50 caliber sniper rifle, is unconstitutional under the Second Amendment.
The 4th Circuit’s amazing conclusion?
With the respectful consideration and benefit of Bruen, we now uphold the judgment below. 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.
It’s as if the majority had never read Bruen, and is devoid of knowledge of our nation’s text, history and tradition. Or, they are simply activists posing as judges. Either way, the clear misinterpretation of Bruen is unlikely to be looked at favorably by the Supreme Court.
A dissenting opinion, written by Judge Richardson with four others joining, states:
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…In holding otherwise, the majority grants states historically unprecedented leeway to trammel the Constitutional liberties of their citizens.
Bruen references Heller (which itself leans on Miller) and discusses the protection of firearms based upon “common use.” And while the common use doctrine has some weaknesses, there is no doubt that the AR-15 (lawfully owned by tens of millions) falls under the common use protection as defined by Heller: “Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Moreover, the AR-15 can hardly be argued to be “dangerous or unusual” in that it differs only cosmetically from hundreds of other popular semi-automatic rifle models which the law doesn’t attempt to ban.
The self-indulging opinion opines that it is the role of government to protect the people, and exercise their great discretion over what is and is not allowed, and inconceivably dances around the history of why the Second Amendment came to be, and assures us that no right is absolute:
Our friends in dissent would rule the Maryland statute unconstitutional. They would go so far as to uphold a facial challenge to the enactment, meaning that there is no conceivable weapon, no matter how dangerous, to which the Act’s proscriptions can validly be applied. In so doing, they reject the centuries of common law that infused accommodation in the rights our founding generation recognized. And in creating a near absolute Second Amendment right in a near vacuum, the dissent strikes a profound blow to the basic obligation of government to ensure the safety of the governed. Arms upon arms would be permitted in what can only be described as a stampede toward the disablement of our democracy in these most dangerous of times.
Nothing is more dangerous than a government that seeks to suppress the rights of its people.
We will continue to cover this case.
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Would it follow that flintlocks are no longer protected by the 2nd Amendment as they are not commonly owned any more? I don’t have the numbers, but I would wager that there are far more MSRs owned by ordinary Americans than flintlocks today.
Would they argue that a .54 caliber ball is less dangerous than a 5.56mm bullet?