The Fourth Circuit Court of Appeals has heard a trio of gun cases over two days, and it demonstrated a shocking failure to function and stunning ignorance about basic firearms facts. This circuit's treatment of challenges to Second Amendment infringement has been so prejudicial to the rights of Marylanders that gun rights groups have petitioned the Supreme Court to reach down and remove the case before judgment.
The cases were Bianchi v. Brown, U.S. v. Price, and Maryland Shall Issue v. Moore. They were all heard en banc, which means the entire circuit listened to the cases – that was 15 judges for the first day and 16 for the second, for over four and a half hours in total of oral argument on gun cases. It's remarkable because it was brought on by the circuit's failure to follow Supreme Court precedent. The 2022 New York State Rifle & Pistol Association v. Bruen case, combined with 2008's District of Columbia v. Heller, leaves little room for allowing Maryland's expansive gun controls – yet this Circuit persists in doing just that, whether by decision or delay.
The Second Amendment Foundation, the Firearms Policy Coalition, and a host of other activist groups have asked the Supreme Court to grant a rare hearing before the lower court has completed its work. It's called a petition for a writ of certiorari before judgment, and four justices need to support the move before the high court will add the case to its docket. Liberty Nation spoke exclusively with David B. Kopel, one of the authors of an amicus brief submitted to the Supreme Court in Bianchi v. Brown.
AR-15 – Low-Powered Rifle
Mr. Kopel is an attorney, law professor, and gun rights activist whose briefs and scholarship have been cited in seven previous Supreme Court opinions. His brief argues that the firearms Maryland bans, namely AR-15 type rifles, are both in common usage and not particularly deadly or powerful compared to other rifles. I asked Mr. Kopel what rule he would have the Supreme Court enact, with specificity, but he refused to draft model language for them:
"They have the judgment to write the opinions. I offer them facts and ideas and precedents, but it's – they're the ones who have to put together what the opinion is and, and decide how far they want to go in any situation. And it would be presumptuous for me to second guess what they'd want to do."
Did he target any particular justice as an audience for his arguments – particularly Neil Gorsuch, who has a pro-gun record and joined the Supreme Court from Colorado, where Kopel is based? The answer is no. Kopel is arguing to the whole court. He said: "I'm not one of those people who's like, oh, I know the inside of Judge X's mind." He said that while he thought they shared "Rocky Mountain values of freedom and liberty," "I wouldn't try to work a John Denver lyric into a brief just to even though he might really appreciate it."
The anti-gunners argue that even though the AR-15 is the most popular rifle in America, it was not in "common use." That term was used in Heller to establish a basis for which the Second Amendment protected firearms. They also play upon popular misconceptions that the AR-15 is a fully automatic machine gun and is somehow especially powerful. Kopel's brief disputes that with a narrative and a chart that explains it was built to fire a low-power cartridge (5.56mm/.223) compared to commonly used rifle cartridges. Will any of that move the Supreme Court? It's tough to say, but the Fourth Circuit has had this case for years.
Seeking Supreme Court Review
The petitioner's brief said the Fourth Circuit's action was "the most brazen" of all the circuit courts, disrespecting the Supreme Court precedent in Bruen. Unlike Mr. Kopel, the authors of that brief had no problem instructing the Supreme Court on a specific course they should take, writing:
"Nearly sixteen years after Heller, the time is ripe for this Court to establish what should have been clear the day that decision was released: bans on firearms commonly possessed by law-abiding citizens are simply ‘off the table.’"
Maryland must respond to the Supreme Court petition by April 12, and then the Supreme Court will act if and when it decides to.
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