Bianchi v. Brown, (4th Cir.) status update

On March 9, 2021, the case was docketed coming out of the District Court, District of Maryland. The district court had dismissed their case because [The] plaintiffs acknowledged in their Complaint that Plaintiffs’ theory of liability is foreclosed by the Forth Circuit’s opinion deciding Kolbe v. Hogan 849 F.3d 114 (4th Cir. 2017), and indeed, Plaintiffs’ suit seems to have no grounding in law. — Bianchi v. Frosh, 1:20-cv-03495, (D. Maryland, Mar 04, 2021) ECF No. 28.

In other words, Bianchi brought the suit explicitly to challenge Kolbe, they knew the case would be dismissed by district court, but it was a hoop they had to jump through.

On September 17, 2021, the Fourth Circuit affirmed the inferior court’s order dismissing the case. This was to be expected: As Plaintiffs concede, however, their argument is squarely foreclosed by this court’s decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). — Dominic Bianchi v. Anthony G. Brown, 21-1255, (4th Cir. Oct 12, 2021) ECF No. 26.

The three judge panel stated that they were not authorized to reconsider an en banc holding. Normally, we would expect a request to hear the case en banc, but the plaintiffs (good guys), know that the Fourth Circuit is going to agree with the state.

They have no interest in getting another negative holding from the Circuit Court, this was just another hoop.

Because, on December 20, 2021, the plaintiffs filed a petition for writ of certiorari with the Supreme Court.

And then the Supreme Court just sat on the case. It was one of the cases that was stuck pending a grant of certiorari on Second Amendment challenges.

Instead of Bianchi v. Frosh, the Supreme Court heard Bruen and issued their opinion in June.

On June 30, 2022, just days after the Bruen opinion, this case was also granted certiorari.

That same day, the Supreme Court issued their holdings on Bianchi v. Frosh. The judgment of the [Fourth Circuit] court in this cause is vacated with costs, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ___ (2022).

The short translation: “You done messed up, fix it right, dumb asses.”

At this point, the Fourth Circuit had a couple of choices, they could do the same thing that the Ninth Circuit court did and kick the can down the road by tossing it in the lap of the district court. This would have actually delayed the case considerably more than Duncan v. Bonta because the case was not actually argued at the district court level.

They did not kick it down the road. Instead, they took it up, they allowed the state and plaintiffs to file briefs in light of Bruen, then heard the case on December 6, 2022.

For an anti-gun circuit court, this case was moving at light speed. Oral arguments were heard on the 6th of December.

And then radio silence. NOTHING. For a year and a month, complete silence out of the Fourth Circuit court.

During that same time, Judge Benitez heard new arguments in Duncan v. Bonta. He let that state throw everything plus the neighbors’ kitchen sink at the case. Then he told the state to whittle it down to only 100 best matching regulations.

He heard other cases and issued his order in Duncan, “It is still unconstitutional, you morons.”

The Ninth Circuit court then went into overdrive to snatch victory from the jaws of defeat. They claimed that it was a comeback, took the case en banc, and had oral arguments scheduled.

Today, the Fourth Circuit court caught up with the Ninth. Without issuing their opinion, the three judge panel has had the case moved to an en banc rehearing.

This means that a majority of the judges in regular active service on the Fourth Circuit voted to grant the rehearing.

IANAL, this is actually a good thing for The People.

If the three judge panel had ruled for The People, this would mean that a majority of the court was unwilling to accept The People winning. It will require a massive act of defiance for the inferior Circuit Court to rule that Kolbe is still good law. This means that they have to find a different way of allowing the infringement to continue.

Regardless, this puts it all out in the open. And the case can go to the Supreme Court.

If the three judge panel ruled for the state, this would mean that the majority of the court was for the Constitution and The People. They will then issue a favorable ruling. The state can appeal to the Supreme Court, but the Supreme Court can simply deny certiorari and The People win, and the Supreme Court has told the rest of the inferior courts that the Second Amendment means what it says.

The other possibility is that someone on the Fourth Circuit doesn’t want this to go around in circles, again. So even though they agree with the opinion that was to issue, they want to put the stamp of the entire en banc panel on the case.

It appears to be unusual for a case to be taken en banc without the opinion of the three judge panel being published, but we saw something similar happen in the Eleventh Circuit court where the three judge panel decided that 18,19, and 20 year-olds are not part of The People.