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Breaking: Major Win in 4th Circuit Over Maryland Assault Weapons Ban

Finally, judges who are willing to take Heller and McDonald seriously, and offer us serious Second Amendment protections. In short, the lower court had ruled Maryland Assault Weapons Ban was constitutional, having applied intermediate scrutiny. The three-judge panel of the Fourth Circuit Court of Appeals has now vacated that ruling and ordered the lower court to apply strict scrutiny. Note at least one well-known blog is reporting this ruling struck down the ban, but it does no such thing. It merely vacates the lower court ruling and demands the lower court reconsider with the highest standard of review. Though, it is clear from the Court’s language that they do not look favorably on the ban. Here’s a passage talking about “Large Capacity Magazines.”:

Likewise, the record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States. In fact, these magazines are so common that they are standard.

Finally! A court willing to not only find that they are in common use, but one willing to admit that carries with it serious Second Amendment considerations! Granted, this could still be overturned en-banc, and appealed to the Supreme Court, but if this holds, it will be the end of Maryland’s assault weapons ban. It will be the first instance of an assault weapons ban thrown out by the courts.

Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.

That’s a refutation of the substitution argument that Eugene Volokh is all too fond of. Quite a step for the federal courts to take. This is not a finding of unconstitutionality, it should be noted. They have only directed the lower court to apply the correct standard of scrutiny.

Because the district court did not evaluate the challenged provisions of the FSA under the proper standard of strict scrutiny, and the State did not develop the evidence or arguments required to support the FSA under the proper standard, we vacate the district court’s order as to Plaintiffs’ Second Amendment challenge and remand for the court to apply strict scrutiny in the first instance. This is not a finding that Maryland’s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court. The State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well.

This is still very good. Strict scrutiny is a high level of review. One disappointing thing in the ruling is that they rejected the equal protection argument in regards to exempting retired law enforcement from the ban:

For all these reasons, we affirm the district court’s decision on the equal-protection issue. Retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

There’s that conservative love of law-and-order again. Police can super-citizens. Like you and me, only better. Still, this is a pretty significant win. Let’s hope by the time this bubbles back down and then back up we might have a friendlier Supreme Court.

42 Responses to “Breaking: Major Win in 4th Circuit Over Maryland Assault Weapons Ban”

  1. HSR47 says:

    Hark! A ray of sunshine!

    • 2brknot2b says:

      It’s not a win when the plain language of the Constitution’s Second Amendment should determine whether a law infringes, or not. Further, the article advises the lower court, and the plaintiff/defendant argue, ‘strict scrutiny.’ The problem isn’t with the scrutiny. It’s with the wording of the Second Amendment, to whit, the meaning of ‘infringe.’ Everyone keeps tap dancing around this most important question. What does infringe mean, and how does it relate not only to state & local laws, but what application to federal laws. Since the right is individual, and the 2A says it, “…shall not be infringed,’ What right does the court have in allowing any infringement whatsoever? Does the court not understand the meaning, or do they not even consider it? More importantly, is their non-consideration of the meaning proof that they have no intention of ever accepting that the right is incapable of being limited by either federal, state, or local law, and that any attempt to do so is a tyrannical power grab by said governmental groups?

      • Sebastian says:

        There’s no right enumerated in the Bill of Rights or unenumerated that’s been interpreted as being absolute. Heller largely already outlined that. Strict scrutiny is a pretty high mountain to climb for the government. It’s the standard that defines all other rights, such as free speech. This is the first Circuit court that’s done the right thing and said gun bans are subject to strict scrutiny.

        • aerodawg says:

          What I find interesting is this most definitely, 100% creates a circuit split. SCOTUS doesn’t have to resolve those but it sure puts a lot of pressure on them to do so. It looks bad when the Constitution means different things in different parts of the country.

          • HSR47 says:

            No it doesn’t. Not yet.

            That’s because the appeals court didn’t actually rule on the constitutionality of the statute in question: Instead, it decided that a lower court used an incorrect standard of review, and therefore vacated the ruling. The lower court now has to rehear the case, and make a decision based on a different (and higher) standard of review.

  2. Ian Argent says:

    Well, well, well. Wonder if the lower court will just s/”Intermediate Scrutiny”/”Strict Scrutiny” and republish?

    • Jim Jones says:

      That would be a good way to gaud the Supremes to take take the case.

      • Ian Argent says:

        If the lower court decides the same way under “strict” scrutiny, AND the 4th reverses, AND MD appeals to SCOTUS. Note that the 4th has already passed on one opportunity to rule our way on concealed carry.

        At which point the Heller minority is forked. They can either vote No on cert and let the pro-gun decision stand in the 4th circuit, or they can take cert and hope to convince one of the Heller 5 to change their vote. Which could happen – I’m not too sanguine about Kennedy OR Roberts.

        • Todd says:

          Kennedy is NOT the problem

          • Sebastian says:

            How do we know that? I mean, I suspect it’s Robert’s judicial minimalism at work too, but I don’t really know.

            • Ian Argent says:

              The only thing we know is that 6 or 7 justices are not voting to grant cert to 2A cases. We don’t know who voted to grant cert to Heller/McDonald (though we can assume at least 2 of the Heller 5 did, based on subsequent behavior).

              I assume that Roberts isn’t voting for cert, and may not have voted for cert in either of the two cases that did make it (I suspect at least in Heller several of the eventual minority did)

              • Divemedic says:

                The other possibility is that the supremes that were in the majority in Heller don’t think that they have the votes to get another pro-gun ruling, so they are voting to deny cert until such time as they do.

                SCOTUS likes to pretend that their job is apolitical, but they play just as many politics as the other branches of government.

              • Richard says:

                Granting cert or not is probably the most important vote cast by Supreme Court justices. Yet, it is completely secret. Legislation would probably be declared unconstitutional of just ignored by justices who like their actions secret. Easiest fix would get one justice to start disclosing votes.

                • Patrick Henry, the 2nd says:

                  And really we don’t even know the votes needed to to grant cert. All we have is a guess.

                  There is way to much that is secretive about the Supreme Court, especially given its power.

                  • Ian Argent says:

                    We know it’s more than 2. IIRC it’s known that 4 justices need to vote yea to grant cert.

                    • Sebastian says:

                      I think the intrigues are probably complicated. You could have one justice who’s a problem, and the rest don’t want to take the chance that the five-justice majority breaks if his hand is forced.

                • Sebastian says:

                  It might be in the realm of “interesting things to know,” but it’s not like you can vote them out of office if you don’t like how they are voting.

                  • HSR47 says:

                    “it’s not like you can vote them out of office if you don’t like how they are voting.”

                    There’s always impeachment…

            • aerodawg says:

              Obamacare. Roberts twisted it all to pieces to defer to the legislature. His philosophy is not to intervene unless absolutely necessary. Kennedy on the other hand has more than a little bit of a libertarian streak….

        • HSR47 says:

          “Note that the 4th has already passed on one opportunity to rule our way on concealed carry.”

          Yes, but….

          Heller and McDonald are both cases that spoke almost exclusively to the right to keep arms, while largely sidestepping the issue of the right to bear arms.

          To that end, it leads me to believe that the 4th may be treating these as two distinct issues; This could explain why they ruled against us in Woollard, but appear to be making overtures that they’d rule in our favor in this case: As Sebastian noted above, they drew specific parallels to Heller, and cited the Heller Test (in common use for lawful purposes) as a precedent that would invalidate magazine bans. Their refutation of the substitution argument (i.e. “But what about all the guns we didn’t ban? Why can’t you just use those?”) is, perhaps, further evidence of this.

          Ultimately, this would probably be ideal: A new federal statute to invalidate state-level feature bans is not something we’re likely to see anytime soon, and is thus something we probably will need to get through the courts anyway.

          On the other hand, federal action to force national reciprocity is something that we will likely get before 2020 if we manage to elect a Republican president.

          In the short term, ending feature bans and instituting national reciprocity are the two goals most critical to our future success.

  3. Patrick Henry, the 2nd says:

    That’s a refutation of the substitution argument that Eugene Volokh is all too fond of.

    Good. Its illogical. Its the same as saying “Its not a violation that you can’t drink out of the whites only fountain. You have your own, so just use that!”

  4. Since “strict scrutiny” is often “the government is wrong”, I’m cautiously optimistic.

  5. beatbox says:

    Maryland Homicides

    2014 309 Rifles: 1

    2013 379 Rifles: 0

    2012 365 Rifles: 5

    2011 398 Rifles: 2

    • 2brknot2b says:

      So, statistically, the law has not worked. Unless one wishes to say that 6 ess people died by rifle in the 2 years following the laws implementation. The problem is, there is no determination as to whether the 8 deaths were hunting accidents.

  6. beatbox says:

    I like this nonsense from the dissent:

    Let’s be real: The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war” and as such, he said, not constitutionally protected.

    Okay, so now guns can be banned IF THEY HAVE a militia application?

    And if we are banning “weapons of war,” lets ban Rem 870 shotguns.

    • 2brknot2b says:

      They are, also, fine hunting arms. Chucks, coyotes, fox, ‘coon (racoon for any of you people calling racist all the time out there).

    • Roger Wilson says:

      Lets not forget the Model 70 Winchester or the 700 Remington. Both were used as sniper rifles in Vietnam. There are others. Weapons of war indeed. HAH!

  7. j t bolt says:

    Yeah, I’m tickled

  8. Dave says:

    Fear not. it will go back to the trial court and the law will be found constitutional again. it’s extremely unlikely that the full 4th circus will uphold this. 4th was a strong “collective rights” circus prior to and after Heller and McDonald.

  9. Ollie says:

    So, what’s the next step?

  10. BC says:

    I don’t know anything about the ideological makeup of the Fourth Circuit, but if there’s even a chance that the court as a whole is more anti-gun than the three-judge panel that heard this appeal, I’d expect Maryland to pull a Peruta and petition for rehearing en banc.

  11. Nick L. EMT-P NYC says:

    This nugget I learned from Dave Hardy’s blog:

    “The court finds that AWs are in common use: “we note that in 2012, the number of AR- and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States.”

    And this:

    (The majority’s response to his dissent is worth quoting: “Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this.”)

  12. HappyWarrior6 says:

    Is there a glimmer of hope in the fact that there is a relatively pro-gun Republican in the governors mansion in MD now? Can he stave off an appeal?

    • I Still Know Nothing says:

      No, Attorney General Brian Frosh is a rabid anti-gunner. He hates gun owners in a visceral sense. Gun-control is his one serious driver in life.

      And Governor Larry Hogan has made it clear he has no interest in helping people defend these rights. He has had plenty of opportunity to work on the edges outside the legislative chambers and has done exactly squat. He calls himself a “Chris Christie Republican”, no kidding.

      The irony is that Hogan is governor because the gun groups put up record-breaking crowds in 2013 to oppose the laws he now administers. During those rallies and hearings, the gun groups shared all their info with Hogan’s PAC so that he could join in and help. They targeted and registered voters in critical areas that resulted in a GOP win. It was not an accident – they sat down and used some big-data analytics to find and bring voters to bear in the districts where swaying things could result in a “win”. Hogan did not do this – they did.

      But Hogan has chosen to help himself first and only. Hogan would not be governor were it not for the gun-rights supporters, but he has ignored them from day one. He won’t even give them lip-service.

      • Alpheus says:

        It sounds like using the same tactics to primary Governor Hogan and find a better Republican governor is in order…

  13. Brad says:

    Holy Crap! This could be the big one, this really could.

  14. Jim says:

    Do you think this was done mainly to cause a circuit split?

    I know that we gunnies certainly sit around and talk about stuff like “do you think SCOTUS didn’t take a case this time because there’s no circuit split?” I can’t imagine that federal appellate judges don’t wonder the same thing.

    The main problem is the resistance of the federal judiciary to pro-gun rulings from the supreme court. Until we address that, not much of consequence is going to happen.

    • Sebastian says:

      Could be. If you buy into the theory that Chief Justice Roberts is the problem justice here, and I do, a bunch of circuit splits might force his hand. It could be he’s pretty much on our side, but is reluctant to take a case forward because of his judicial minimalism.

      • Squall says:

        I actually respect that he sticks to his principles like that, even though I disagree with many of the impacts, (or lack there of), its had.

  15. RAH says:

    This was a pleasant surpise Just as Scullin decision was very nice surprise. But to have that win taken away because the judge did not have jurisdiction when that was never argued in the first place was very disappointing Remember that was allowed by Roberts So do not put any hopes on SCOTUS

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