Case Analysis

The trifecta of pro-Second Amendment cases

In the 60s, I can remember wrapping Christmas presents and then going to the Greyhound bus terminal with my mother. There, she would pay to have a box shipped to the Midwest. This had to be done weeks in advance.

My relatives would go down to the bus station when the packages arrived to pick them up. There were no tracking numbers, there were no promises to deliver on any particular date.

As regular people, it was how you shipped large boxes safely and “rapidly.” The US Post Office would tell you that by the early part of November you should have mailed all your Christmas presents.

When Federal-Express came into existence, the concept of getting something from here to there in less than 24 hours sprang into existence as well. For a few dollars, you could send your packages in early December and still get them there in time.

On Friday night, near midnight, I ordered a gift. It arrived Sunday morning.

Instant gratification.

The courts still move like it was in the days before the Pony Express. Everything takes more time than you want it to. Everything is slower than it should be. Everything is designed to allow for extensions to file.

Nothing is ever “fast”.

For example, you file a petition for writ of certiorari, the respondent has 30 days to file a reply. If that reply is not “We aren’t going to reply”, the petitioner has 14 days(IANAL) to file their response.

This back and forth always has a built-in delay. In addition, the parties can always ask for an extension. It is unusual for the extension to be denied.

September 16th, Petition for writ of certiorari is filed. It is a month before the state says, “we are not going to respond”.

October 28th, the court “requests” the respondent file a response. It is a month before the respondent asks for another 30 days to respond. They want 60 days to write a response.

The Court says, “No, you can have 14 days.”

The petitioner files their response on the day it is due. Do you think they wrote on the day it was due, or do you think they wrote it back when the request for a response was filed?

By the rules of the Court, the petitioner has 14 days to respond. This would put their due date as the 26th of December, past the date to distribute for the January 10th conference.

The Supreme Court conferences every(?) Friday to discuss which cases they will grant cert. These conferences are just the 9 justices. Nobody else attends them.

If the normal schedule was kept, that would mean that the case would not be conferenced until late January. Which means we might miss the 2024 Supreme Court term.

The lawyers for the petitioner (good guys) filed a short note requesting that the petition be distributed on the 24th of December for the January 10th conference. They promise to file their response on the 20th.

This puts this case on schedule for the 2024 term.

Conclusion

We might not see a response from the Court regarding this letter. What we will see is the filing of the response on the 20th.

What we want to see is the case distributed for the conference on the 24th. We are also hoping to see Snope and Ocean State Tactical distributed as well.

If that happens, then the Justices will be discussing all three Second Amendment cases on the 10th of January.

Out of that Conference, we can expect to see each case either relisted or denied. I do not expect to see any of them denied.

If they are relisted, the most likely reason is that they are being granted cert, barring anything procedurally wrong with the cases. That week, the law clerks will be researching those cases to make sure there are no monkey wrenches to be thrown.

The next week, we should expect another relisting. If we don’t see a relisting, we will see acceptance.

What we do not want to see is more than two relistings. More than two is likely to indicate something is wrong with one or more of the cases, and one or more of the Justices is writing a statement regarding that denial of cert.

This might be the most important case regarding the Second Amendment since Heller.

Kolbe v. Hogan

This case started when the Fourth Circuit Court issued their opinion in Kolbe v. Hogan. Fourteen judges sat, en banc to hear a challenge to Maryland’s “assault weapon ban”. Only four of the judges found that the Second Amendment protected the right of The People to acquire, posses, and use “assault weapons”.

Judge King wrote the opinion of the majority. They start with story telling.

You can always tell that an opinion will be a great legal work when the opinion starts with stories of events taking place, outside the legal system. In this case, they decide that the most professional way to start an opinion is by telling their version of the evil Bushmaster AR-15 type rifle that killed so many children at Sandy Hook Elementary School.

The entire reference to human autonomy is “a gunman” Everything else is the action of those evil “assault weapons”.

They go on to list other mass shootings, all done by evil black rifles.

Using the standard tap dance of the time, the lower court found that the law implicated the Second Amendment and then decided the government should win, so selected “intermediate scrutiny.”

A three judge merits panel of the Fourth Circuit split for The People, vacating the lower court’s rulings and telling them to “do it over, using strict scrutiny.”

The Fourth Circuit could let this stand, so the en banc vacated the merit panel’s opinion and heard the case.

The en banc Fourth Circuit then decided that the proper position wasn’t strict scrutiny, nor even intermediate scrutiny. No, they decided that “large capacity magazines” and “assault weapons” don’t even implicate the Second Amendment because they are “like” “M-16 rifles.”

Bianchi v. Frosh

This Second Amendment Challenge was started as one of the many cases attempting to get another Second Amendment case before the supreme court. It was a direct challenge to Kolbe.

As such, the case barely paused for a rubber stamp at the district level. The district court, correctly, ruled that they had to follow the superior court, the fourth circuit, and found for the defendants (bad guys).

The gist of the court’s opinion was: This question has been asked and answered by the circuit court. You lose.

The plaintiffs filed an appeal, as planned.

This went before a three judge merits panel. That panel did the same thing the district court did. “The en banc has been asked this question and they answered. You lose.”

On December 20, 2021, the plaintiffs filed a petition for a writ of certiorari. At that point, this became one of a half dozen Second Amendment cases waiting for a writ of certiorari.

In the end, the Supreme Court chose to hear New York Pistol and Rifle Association v. Bruen.

Justice Thomas wrote the opinion in Bruen and it was powerful.

On Aug 1st, 2022, certiorari was granted in Bianchi. The Supreme Court vacated the opinion of the Fourth Circuit and remanded the case to “do it right”.

Moving at lighting speed, the Fourth Circuit merit’s panel scheduled and heard the case on Dec. 6th, 2022.

And then nothing. For over a year, nothing.

Then on January 12th, 2024, the Fourth Circuit granted a rehearing en banc. Nobody had requested a rehearing, the Fourth just decided to yank it from the merits panel’s hands before they could issue their opinion.

Reading between the lines and often on the lines, it was clear that the merits panel was going to issue an opinion favorable to The People. The dissenting judge refused to provide the dissenting opinion, keeping the opinion from being published.

The en banc Fourth Circuit heard oral arguments on March 20th, 2024.

The plaintiffs filed another petition for writ of certiorari, but it was denied because the case was still in an interlocutory state.

In a surprising move, the Fourth Circuit published their opinion in only 5 months. It was as bad as we expected.

The majority opinion with respectful consideration and benefit of Bruen” upheld their original judgement. They found that they had done it right in Kolbe and that “assault weapons” are outside the ambit of protection of the Second Amendment.

Snope v. Brown

This case has been going on for so long that the AG of Maryland has changed, and might change again before this case is heard. The original lead plaintiff has left the state of Maryland, making David Snope the lead plaintiff.

The petition for writ of certiorari was filed August 21st, 2024.

The state, waited to the last minute, then filed a motion to extend the time to respond. This should have been a no-brainer. They knew this case was going to be appealed. This is just the state intentionally stalling.

By September 23rd, all the plaintiff and amicus curiae supporting the plaintiff had been filed. Not a single filing by the state.

On October 9th, the state requested another 30 days. This was limited to just two extra weeks. This is a big win for The People.

The Supreme Court is now in the 2024 term. This runs from August 2024 through June 2025. All briefings and arguments need to be completed in time for the court to come to a decision and write their opinions before the end of the term.

This means that any case that will be heard in the 2024 term must be granted cert. before the end of January. With final briefings filed by November 12th, the case is conferenced for December 13th. If the state had gotten a 30-day extension, the case might not have been conferenced until mid-January, pushing oral arguments into the 2025 Term.

Remember, this was before the election. The state was hoping that they could push the case into the next presidential term and hope for a more favorable to the state Supreme Court.

In every case before the Supreme Court, the most important part is making sure the question presented is representative and will focus the opinion correctly.

Here is how the state put the question:

Wow, that is difficult to parse. I think it might be a question, there is a question mark at the end of the paragraph.

Translation:

1. Is Maryland’s assault weapon ban consistent with Heller?
2. Did the Fourth Circuit faithfully apply Bruen?
3. Is there a need to resolve a conflict among the lower courts?

I was once a teaching assistant for a computer science professor. His examines were horrible. He thought I was there to proctor the exam. Instead, I took the exam. Scored my answers against the answer sheet outside in the hall. Then told him which questions he would be throwing out as bad questions.

He loved to add negatives to his questions. I can’t even write a question the way he did. It wasn’t uncommon for one of his multiple choice questions to have four or more negatives in it. I taught the students to count the number of negatives. If it was an odd number, then it is a true negative. If it was an even number, then it was a positive.

This increased the grades of all the students significantly.

As normal, the next lecture was students challenging questions on the exam. After the second challenge, he took my list, read it to the class stating, “These are the questions that Chris said to remove. I’m going to remove them.”

He gained 75% of the lecture time back. After the next exam, he didn’t even let the challenges start. He read the list of questions that were being tossed.

This “question” reminds me of attempting to decode Dr. Reed’s exam questions.

Compare the state’s convoluted “question” with the plaintiff’s question:

Hmm, that is much easier to parse.

Conclusion

We should know by mid-January if this case is granted cert. If it is, you can expect all the usual suspects to jump in with amici curiae briefs. Some will be fun reading, most will be emotional blackmail.

In 2017, Mr. Wilson was arrested for trespass. When searched, it was discovered he had a firearm on him. He did not have a license to carry.

His case was heard in the lower courts of Hawaii, later it was appealed to the Supreme Court of Hawaii.

There, the court found that because he had not attempted to get a carry license, he could not claim a Second Amendment defense. They then took multiple nasty shots at the Supreme Court of the United States and in the Bruen opinion.

Mr. Wilson then filed a petition for writ of certiorari. On the 9th of December, that petition was denied.

Justice Thomas wrote respecting the denial of certiorari. Justice Alito joined him. Justice Gorsuch also wrote a statement.

No justice wrote to say they would have granted cert. Thomas, Alito, and Gorsuch all agreed that cert. should be denied.

Oh my, the Hawaii Supreme Court was spanked, hard.

The Second Amendment litigators were also chastised. Thomas et al. have stated clearly, “We are not going to grant certiorari on cases that are still in an interlocutory posture.”

As a Second Amendment litigator, stop appealing during the interlocutory phase. If you win, great. You can find in the appeals. If you are going to lose, lose as quickly as possible, then appeal.

Appealing TROs and preliminary injunctions just delays getting a win. I’m not even sure it is worth asking for TROs and preliminary injunctions. Again, it is just a delay.

In the jurisdictions where these battles are being fought, the appeals courts are not on our side. If you request a TRO and it is not granted, the appeal to the circuit court will lose, but it will add months of time to the process, and it increases the costs as well.

If you request a TRO, and it is granted, the state is going to appeal. Having appealed, the circuit court will stay the TRO, the case then will be scheduled for oral arguments months later.

We are much better off moving to final judgement as quickly as possible.

If you want to see a case take years and years, it goes something like this:

The plaintiffs file a suit and request a Temporary Restraining Order to enjoin the defendants while the court hears briefings and arguments for a Preliminary Injunction.

If the losing party wishes, they can appeal to the circuit court. This will be placed on the emergency docket. The emergency docket is sometimes called the “Shadow Docket”, if the court leans right because it sounds bad.

There is a three—judge administrative panel which examines these petitions on the emergency docket. They can grant a stay or grant an injunction lasting until the case is resolved at the circuit level. They can also decline to do anything, remanding the case back to the lower court.

If the administrative panel decides to accept the case, they will either grant a stay pending the outcome or leave the case in the same stance as the district court put it. They will then place the case on the schedule for a merits panel to hear the case.

Once the case is docketed for a merits panel, the parties start submitting briefs plus copies of everything filed in the lower court. Amicus briefings will also be filed.

Depending on the urgency the administrative panel placed on resolving the case, the case could be heard in a few months or much later. This is determined by putting the case on the fast track or the normal track.

Once it is in a track, a merits panel will be assigned to the case. They will set a schedule. This will state when they want briefings filed, responses filed, responses to responses filed, and when they want to hear arguments. If one of the parties wants, they can request extensions to the deadlines.

After the panel hears the arguments, they will deliberate. When they have come to an agreement, one of the judges on the winning side will write the court’s opinion. The other judge will write their dissenting opinion. This can take multiple months.

The Fourth Circuit had a situation where they heard the case and the two judges had written the opinion of the court, but the third judge was not willing to provide the dissenting opinion. Per custom, the final opinion was not issued until the dissenting opinion was ready.

This lasted so long that even the Ninth Circuit had heard a 2A case and given their opinion. As had the Seventh, Second, and First circuits had as well.

Once they were ready to release the opinion, the Fourth Circuit pulled the case from the merits panel and re-heard the case en banc.

So the case is now a year from when it was first filed.

After the en banc panel has issued their opinion, the loser can seek certiorari from the Supreme Court. They will not grant it because the case is too young. The case has been going for a year or more at this point, but it is still at the very first stage of the case.

Back at the district court level, the judge could put everything on hold pending the outcome of the appeal process. Or they might move forward with the case.

The next step in a court case is the request for a preliminary injunction. The TRO is designed to stop something while the court has time to evaluate the request for a preliminary injunction.

The purpose of a preliminary injunction is to put something on hold until the court has reached its final judgement.

The case has now spent many, many months in appeals, it is now back in the district court. The court issues its order regarding the preliminary injunction.

And the entire process starts all over again. The losers can appeal, the case then wallows in the quagmire that is the appeals process before the case starts its way through the district court again.

At the point where the case starts to move forward, the state is going to argue that the plaintiffs do not have standing, that the case should be dismissed for reasons. Depending on the state of the law that is being defended, the state might be attempting to delay the case or to move it more rapidly.

A strange thing happens when a law is enjoined, the state moves rapidly and the courts move rapidly to reach a stay or to have the injunction overturned. The same state, with the same players, can’t move at faster than a sloths’ pace when their law is there infringing on The People.

There are multiple paths forward for the court and parties. One is summary judgement. In a summary judgement, the court is asked to decide based on the base filings. This should be how most Second Amendment cases are decided.

Judge, the state is infringing on my right to bear arms. The court: State! Stop infringing! Done.

Both parties can request a summary judgement.

Another path forward is for the case to go to trial. In Second Amendment cases, these are most often bench trials. A bench trial is when the judge acts in place of a jury to make determinations of facts.

Most of the cases we are following are having full trials. The parties involved know that they are developing a facts base to support their appeal.

The bottom line is that these cases take a long time and far too much money.

That is why this case is an outstanding win for us.

They Gave Up!

That’s right. The case was kicked to a magistrate judge for mediation. On September 30th, the Mediator reported that the parties had reached an agreement and the case was settled.

This is a full win. There are still some restrictions on displaying firearms. It is still forbidden for guests to have firearms on CHA property. But this is a win.

B.L.U.F.
Mexico sued S&W and other manufacturers. They claim that but for those evil gun makers, the cartels would not have guns.

The district court said, “PLCAA applies. Get the out of my courtroom”.

Mexico appealed, the First Circuit says the case can go on. The price of your firearms just went up, again.
(1400 words)

The first pages of the opinion issued by the First Circuit court tell us that The People have lost another round. It takes nearly 30 pages to find out why, though.

The Protection of Lawful Commerce in Arms Act (PLCAA) was put in place by a bipartisan congress to stop those anti-gunners that were filing nuisance suits against entities in the firearms’ industry. FFLs and manufacturers, primarily.

Since the PLCAA passed, those same anti-gunners have been trying to find a way around it. On the media front, they make the false claim that “only the gun industry can’t be sued”. This has never been true.

The arms industry is the only industry where people attempt to hold the manufacturer responsible for the acts of a third party. The standard example would be a wife suing Ford because her husband was killed by a drunk driver driving a Ford F-150.

Or worse, suing because her husband was that drunk driver and was killed in a traffic incident which he caused.

It doesn’t make sense. The argument is based on two shaky, and false, foundations: 1) There is no need for guns, 2) If they didn’t make guns, nobody would be killed.

I’m reminded of this quote:

Because the horror of Communism, Stalinism, is not that bad people do bad things — they always do. It’s that good people do horrible things thinking they are doing something great.”

[Six Questions for Slavoj Žižek, Harper’s Magazine, November 11, 2011]

And I’m not sure those who wish to disarm us are “good people”. They do horrible things, though.
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How does this case affect anybody else? It doesn’t. This is an as applied challenge to the 18 U.S.C. §930(a), possessing a firearm in a Federal Facility.

Mr. Emmanuel Ayala was a truck driver hauling mail for the U.S. Postal Service. He had a concealed carry permit from the state of Florida. It appears he was somebody that always carried.

On September 14, 2022, he was carrying as he walked from the employee parking lot and into the post office. Shortly after clocking in, two Post Office cops stopped him and attempted to detain him.

He took off. He was later arrested by the Tampa Police Department.

He was indicted for knowingly bringing a firearm into a Federal facility and for forcibly resisting arrest.

Unfortunately for Mr. Ayala, he is going to get screwed by the state in the end. Not for carrying a firearm, but for resisting arrest. When the cops say they are arresting you, just about any action that isn’t “yes sir, three bags full sir.” and full compliance can get a “resisting arrest” charge piled on.

In some jurisdictions, it is a defense that the arrest was unlawful. In other jurisdictions, Texas for example, it is not.

Once, Mr. Ayala made a motion to dismiss the charges based on a Second Amendment challenge, the court ordered the state to reply.

The state’s reply can be summarized as “The law is constitutional because the Supreme Court said that we can ban guns in government buildings! Besides, we did all the paperwork right!”.

The court was not satisfied with this response.

From our side, once the text of the Second Amendment is implicated in a gun ban case, we only need to look to the Heller methodology and the dicta which says you cannot ban an arm in common use, today.

In other words, we can say that Heller shortcuts the court’s command to do a historical analysis looking for analogous regulations. The Supreme Court says there are none.

The state is arguing, in this case, that they have that shortcut in banning guns in government buildings. The difference is that Heller, McDonald, and Bruen all had as their holdings that gun bans are unconstitutional and that the people have the right to bear arms.

The dicta said how they reached that conclusion and how the inferior courts should do so in the future. A passing reference to not striking down other laws does not mean that those other laws are constitutional.

The Judge had this to say about the state’s first response to the motion to dismiss: … the United States’ response to Ayala’s Second Amendment challenge was “unhelpful in this task.” App. B at 3. That two-paragraph response lacked any “searching analysis into the historical record to determine whether § 930 as applied to Ayala” complies with the Second Amendment.—No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255, slip op. at 85 (4th Cir.)

The state constantly attempts to bring experts into the equation. The judge was having none of that:

She is correct. There are no facts in dispute. He carried the gun into a post office. He says that it is constitutional protected. The plain text of the Second Amendment covers his conduct. The state must present a history and tradition of regulations to support the modern infringement.

The state has failed to provide that history. The experts in questions of law are the lawyers and the judge. “Experts” are not allowed to give legal opinions in court, that is reserved for the lawyers and the judge. The lawyers present the regulations and case law, the judge determines the outcome.

The judge says there are no distinctly similar historical regulations addressing regulating firearms in post offices. Even if the lack of a distinctly similar historical regulation was not dispositive, the United States has offered no relevant historical analoguesMissing citations for CDGJ6CNM

She goes on:

In other words, I must determine “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Missing citations for CDGJ6CNM quoting Bruen

Much of the rest of the judge’s order is her doing the work of the state. She repeatedly states that the United States did not show a history nor a tradition of banning firearms in post offices, or government buildings in general.

She is doing this to provide backing for other Second Amendment challenges.

Her words strongly imply that she expects this case to be appealed.

I’m not sure that it will be. The defendant (good guy) got his win. But that win is an “as applies”, which limits it to just him. This is a district court ruling. This limits this to just the Middle District of Florida.

If the state were to appeal this case, it would go to the Eleventh Circuit court, which is highly likely to rule for The People.

If the Circuit Court rules in favor of The People, then that affects everybody in the Eleventh Circuit. The Eleventh Circuit could easily extend this from an “as applied” to a “facial challenge”. If they do make it a facial challenge, then 18 U.S.C. §930 could be found unconstitutional.

No matter how you slice it, this is a great win for The People.

B.L.U.F.
In reading some recent filings, I came across this excellent take down of the Second Circuit Court’s opinion.
(1550 words)

The following is mostly from plaintiffs (good guys) in Kipke v. Moore in the District Court of Maryland. As mentioned the other day, the state is using the opinion out of the Second Circuit to bolster their arguments. The plaintiffs are having none of it.

NRA v. Bondi was the case down in Florida where the 3 judge panel found that 18, 19, and 20-year-olds were not part of “The People”. They published their opinion. Their opinion was immediately stayed by another judge on the Eleventh Circuit court. The case was then taken up en banc.

We are waiting for the en banc panel to issue their opinion.

Citing to NRA v. Bondi as good case law is a profound error. It is no different than citing to Missing citations for CK44UVC7 to support a current regulation. (Dred Scott was an awful Supreme Court opinion that has been corrected by the Supreme Court.)

The Circuit Courts like to think of themselves as Supreme Courts. Even if the Supreme Court has told the Article III inferior courts how to do something, the Circuit Courts, which are inferior courts, will hold on to their past opinions with a stranglehold.

The Forth Circuit court should have had an easy task when asked if Kolbe is still good law. The Supreme Court just GVRed a case to the Fourth, telling them that using Kolbe they got it wrong. Yes, Kolbe is part of the dung heap of the past.

Depending on decisions, pre-dating Bruen is wrong. The problem that these rogue courts have, is that they don’t have any ground to stand on. Every time they think they are on firm ground, it turns to quicksand. They knew they were infringing when they used the means-end tests. They knew they were ignoring what the Supreme Court wanted. They were more concerned with their agenda.

In Missing citations for S46UYT4P, the Supreme Court clearly stated that the Second Amendment is incorporated. That it applies to the states as well as the Federal government. For the Second Circuit to say that state law is somehow different is an abuse of their authority.
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B.L.U.F.
This is the long-awaited opinion from the Second Circuit court regarding the CCIA challenges. This panel was anti-gun, there is nothing negative in the opinion that is surprising.

What is surprising is that we won even a little bit.

The plaintiffs will either request an en banc rehearing or take it to the Supreme Court. I believe that the Antonyuk case is at final judgement at the district level. If that is the situation, then this case is ripe to be heard by the Supreme Court.
(3100 words)

The Second Circuit Court has finally issued their opinion on New York state’s Bruen tantrum. It isn’t great.

If you are applying for a CCW in New York, you no longer have to give social media information and access, private property no defaults to “carry ok” rather than “gun free zone”, and Pastor Spencer and his church members can carry in religious locations.

Everything else seems to still stand.

Background

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B.L.U.F.
The state filed their reply in opposition to having the Seventh Circuit Court’s denial of an injunction on the Illinois gun and magazine ban overturned.

This was done on the Supreme Court’s emergency docket. Justice Barrett required a response from the state, by 1700 Wed. Which they did file.

The application and reply will be distributed to the Court, which will issue a response in the coming days. I actually expect something by Friday. The court will either grant an injunction or deny the injunction. There maybe an opinion issued with that order.

We live in interesting times.
(2000 words)

History

In September 2022, Robert Bevis and the National Association of Gun Rights filed suit in the Northern District of Illinois federal District court. This was a challenge of the Naperville Municipal Code “assault weapon” ban.

By December, the District court had stayed the implementation of the “assault weapon” ban.

In January 2023, the plaintiffs (good guys) and amended their original challenge to include the state law, PICA.

In February, District Judge Virginia Kendall stated that … although the plaintiffs have standing to bring this lawsuit, they are unlikely to succeed on the merits of their claim because Naperville’s Ordinance and the Protect Illinois Communities Act are consistent with the Second Amendment’s text, history, and tradition.

Virginia profoundly erred when she ruled:

The plaintiffs appealed to the Seventh Circuit court.
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B.L.U.F.
Senior Circuit Judge Keene wrote the dissent in this case. She is unhappy with the majority opinion because that opinion would find most, if not all gun-control regulations, unconstitutional.

Because this goes against her agenda, she latches onto footnote 9 of the Bruen opinion to justify why any set of objective hoops placed to hinder a member of The People from keeping and bearing arms is constitutional. It doesn’t matter how long it takes nor how much money it takes, nor what those hoops are. As long as the state must grant permission at the end, that regime is constitutional.

(4200 words)

On November 21, the Fourth Circuit court issued their opinion on Maryland Shall Issue’s challenge to Maryland’s “Handgun Qualification License”.

This is a permit to purchase. Before you can purchase a handgun in Maryland, you must first submit fingerprints, undergo a background investigation, take a four-hour-long firearms safety training course which includes firing at least one round. After that is completed, you can submit your application for your HQL.

The state has 30 days to approve or deny the application, after they receive the application. We know that “the state” has a habit of not “receiving” things they want to receive. If they haven’t “officially” received the application, the clock hasn’t started. In addition, the 30 days is not clearly defined in law. Is that 30 business days or 30 calendar days? And how long do they have to inform the applicant of the determination? Or, as one state is doing, they are granting appointments for fingerprinting 6+ months in advance.

The reality of this egregious infringement is that it is likely three months from the decision to get an HQL before you have one.

The three judge panel reversed the district court’s “contrary decision”.

This means that the case is not going back to the district court. It can only move forward to the Supreme Court. The state has 21 days to appeal, IIRC. Reversing a decision is “You got it wrong, we don’t need you to mess it up again, it is wrong, and we are setting it right.” This is better than vacating and remanding a decision. When a case is vacated and remanded, the case is sent back to the inferior court where they do the case all over again, collecting new arguments and evidence.

So the Fourth Circuit panel did the right thing the right way in a reasonable amount of time.

Of course, there is always the thorn in your side in a case like this. That thorn is Senior Circuit Judge Barbara Milano Keenan. Born in 1950, making her 73 years old. She was nominated by Obama in 2009 and appointed in 2010. She assumed senior status in 2021.

Yes, that type of judge.

The Dissent

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