Dominic Bianchi, et al. v. Brian E. Frosh,et al. (Maryland AWB)

In 2017 the fourth circuit court heard the case of Kolbe v. Hogan en banc (full court). In that case the court held that “assault weapons” fall outside of the scope of the Second Amendment right to keep and bear arms.

In December of 2020, suit was filed again challenging the Maryland AWB. The plaintiffs (good guys) said that they felt that Kolbe v. Hogan was wrongly decided and “should be overturned by a court competent to do so.” The district court agreed with the defendants (state/bad guys) and in a decision in March of 2021 dismissed the case.

Plaintiffs appealed to the fourth circuit which affirmed the judgement of the district court.

The plaintiffs then appealed to the Supreme Court for certiorari.

The process of getting the Supreme Court to grant certiorari is complex. Papers are filed requesting, this is countered by other filings that say don’t. The court discusses the different cases and then either grants or denies cert. But in this case they didn’t grant or deny, instead they left the case in limbo.

Instead they granted cert. to New York State Rifle & Pistol Ass’n v. Bruen which was decided with a beautifully written opinion by Thomas. This struck down New York’s “good cause” and at the same time restated the Heller decision on text and history as the ONLY way to adjudicate a claim of second amendment infringement.

After that opinion was issued, SCOTUS issued a series of Grant, Vacate and Remand (GVR) in cases that had been in limbo. One of those cases was this one, Bianchi v. Frosh. So now the fourth circuit court has been told “you got it wrong, fix it.” and the state is scrambling to keep the AWB in place.

So the state presenting the issues as:

1. Are “assault weapons” outside of the scope of the Second Amendment right to keep and bear arms?
2. If they are within the scope, should the fourth be hearing the case or should it be remanded back to the district court instead
3. Is MD’s AWB consistent with the historical tradition of prohibiting extraordinarily dangerous weapons?

The state then spends 7 pages telling the court how “extraordinarily dangerous” “Assault Weapons” are and how the state responded with gun safety legislation.

Under Bruen none of this matters. The starting point is “does it infringe” and the ending point is “is there text and tradition for the infringement?”

In the 2017 decision in Kolbe v. Hogan the fourth came up with the bizarre idea that the most common rifle in use in the United States isn’t covered by the Second Amendment, ignoring the Supreme Courts opinion in Heller which was decided 9 years before. The reasoning in Kolbe was that the AR-15 “… are firearms designed for the battlefield.” and because they are so lethal that they are not covered by the Second Amendment.

This ignores the Miller opinion from back in the ’30s where the court said that weapons for the battlefield were covered by the second amendment and that a sawed off shotgun was not within the scope of the second amendment because nobody had told the court that they had any military use.

Again, NONE of this makes any difference post Bruen because how deadly or lethal an arm is doesn’t change its status of being an “arm” and thus part of “the right to keep and bear arms”.

The Kolbe case hinged on the fourth misreading Heller to mean that military weapons could be banned (NFA) and that the M-16 and the AR-15 are the same (except that tricky little fourth hole) and because M-16s can be used in semi-auto mode and the military and police teach their people to use semi-auto the AR-15 is just like an M-16 and ergo can be banned like an M-16.

Under Bruen it is unclear if the ban on post 1986 machine guns is constitutional and we should look forward to a lawsuit challenging all of the NFA in the not distant future. Along with country wide right to carry. Invisible lines should not make felons.

The state is arguing that even thought SCOTUS GVR (you got it wrong, dunces) the fourth actually got it right and that their decision should stand.

But if the court might decide to find for the plaintiffs, they should first send the case back to the district court. Adding another year before the case is heard at the district level and another year before it is heard at the circuit level. All the while leaving the AWB in place.

A long time ago in a school far far away I was told to write a paper. I did and got a poor grade on the paper. The teacher, correctly, pointed out that I made lots of claims in my paper but didn’t back up any of my claims with actual references or facts.

Does this sound similar:

Finally, Maryland’s assault-weapons ban is supported by the Nation’s historical tradition of firearms regulation. The historical record demonstrates a tradition of regulating extraordinarily dangerous weapons (and their modifications) that pose heightened risks, are ill-suited for self-defense, and have a strong connection to criminal uses. Because the assault weapons banned by Maryland’s law are the types of weapons that fall within this tradition, the Firearm Safety Act’s prohibitions do not offend the Second Amendment.

So we now get to the nitty gritty, what laws support the ban?

1647 and 1650 (not 1791) Maryland law banning guns in the legislature), 1874 Georgia’s 1870 ban on weapons in court, and a Virginia 1786 ban on guns in courthouses. This might support courthouses as being a sensitive place. BUT it doesn’t matter, sensitive places are not in question.

And here we get to the crux of the states argument “Third, the most relevant time period for the historical inquiry centers on 1868 and the ensuing decades—when the Fourteenth Amendment made the Second Amendment applicable to the States and state officials familiar with those requirements adopted firearms regulations.”. But Heller says that 1868 laws can only be used to confirm laws from 1791, not to introduce new gun control laws.

Even with all that wordsmithing, the state declined to list any laws that support an AWB.

They then argue that laws against booby-traps allow them to ban “assault weapons.” The gist being that they banned booby-traps because they made weapons “deadlier” (they didn’t) and that means that “deadlier weapons” can be banned.

SUPPLEMENTAL BRIEF OF APPELLEES (Frosh)

The Second Amendment Foundation (SAF) filed a Supplemental Opening Brief as well.

The Bruen decision leads to two important conclusions in this case. First, this Court’s decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), is no longer good law. In its principal holding, Kolbe expressly refused to apply the common use analysis that Bruen has now confirmed is dispositive for establishing constitutional protection for types of arms. See id. at 136 n.10. And Kolbe’s alternative holding relies on the “intermediate scrutiny” analysis that Bruen expressly overruled. Id. at 138. Indeed, the Court in Bruen expressly cited Kolbe as an example of the approach it was explicitly rejecting. 142 S. Ct. at 2126–27. Kolbe has thus been expressly abrogated by Bruen, and it can no longer guide this Court’s analysis of Plaintiffs’ challenge.

Second, Bruen demonstrates that Maryland’s ban on certain semiautomatic rifles is unconstitutional. As explained, in the context of outright bans on a type of arms, like Maryland’s ban on semiautomatic rifles here, the Supreme Court has already analyzed the relevant historical restrictions and concluded that the only justification for banning types of arms is that they are “dangerous and unusual,” meaning they are not “ ‘in common use’ today for self-defense.” Id. at 2143; see also District of Columbia v. Heller, 554 U.S. 570, 627 (2008); Caetano v. Massachusetts, 577 U.S. 411, 411–412 (2016). The rifles banned by Maryland are among the most popular firearms in the country, owned by tens of millions of Americans for lawful purposes including for self-defense and defense of the home. Maryland has made clear that it does not like the people’s desire for these firearms, but that does not change the fact that they are bearable arms that the American people overwhelmingly favor and have a right to possess. Under the Second Amendment, Maryland’s judgment is entitled to no deference at all but the choices of millions of Americans “demand[] our unqualified deference.” Bruen, 142 S. Ct. at 2131. Bruen thus dooms Maryland’s ban and requires judgment for Plaintiffs.

Whereas the State claims three different issues at hand, SAF says there is only one. “Does the MD AWB violate the Second Amendment?”

SUPPLEMENTAL OPENING BRIEF (Bianchi)

The fourth circuit court will hear oral arguments on Tuesday, December 6th. Docket #21-1255