US Court of Appeals for the Fourth Circuit Strikes Down Infringement of Second Amendment Rights

Maryland state flag 

On November 21, 2023, a three judge panel of the United States Court of Appeals for the Fourth Circuit found the State of Maryland had violated the Constitution with their recent handgun purchase law. The law requires considerable delay and process before a person can legally purchase a handgun. The opinion specifically states the recent add on law enacted in 2016, infringes on the Second Amendment by hindering the right to acquire a handgun. From the opinion:

But—for handguns specifically—before you do any of that, there is an additional, preliminary step: You must also obtain a “handgun qualification license.” See § 5-117.1. Getting that license requires, among other things, submitting fingerprints to undergo a background “investigation” and taking a four-hour-long “firearms safety training course” in which you must fire at least one live round. Then, after submitting your application for this extra license, you must wait up to thirty days for approval before you can start the rest of the process.

Plaintiffs seek to enjoin the state from enforcing only this additional, preliminary handgun-licensure requirement. And Plaintiffs’ challenge must succeed. The challenged law restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn’t find one. Under the Supreme Court’s new burden-shifting test for these claims, Maryland’s law thus fails, and we must enjoin its enforcement. So we reverse the district court’s contrary decision.

The three judge panel was split. Two judges voted for the majority opinion. One judge wrote a dissent against it. The dissenting judge, Barbara Milano Keenan, is a senior judge, which means she is a semi-retired judge who helps out.  She was born in Austria, but schooled in the United States. She was appointed by President Barack Obama. One of the arguments put forward by Judge Keenan, in the dissent, is to claim "infringe" means to totally destroy. It is an exceedingly weak argument. Judge Richardson, in the opinion, comments on the argument in footnote 8, on page 11 of the opinion. He stresses the dictionary meaning from the contemporary Samuel Johnson Dictionary. From footnote 8, page 11, commenting on the dissent.

Compare Samuel Johnson, 1 Dictionary of the English Language 1101 (4th ed. 1773) (“Johnson”) (defining “infringe” as “[t]o destroy; to hinder” (emphasis added)), and Noah Webster, American Dictionary of the English Language (1828) (“Webster”) (defining “infringe” as “[t]o destroy or hinder” (emphasis added)), with Johnson at 1007 (defining “to hinder” as “to cause impediment”), and Webster(defining “hinder” as “to obstruct for a time” and “[t]o interpose obstacles or impediments”). So too do other sources that the Supreme Court has used to interpret the right. See1 St. George Tucker, Blackstone’s Commentaries 143 n.40 (1803) (“The right of the people to keep and bear arms shall not be infringed . . . and this without any qualification as to their condition or degree. . . .” (emphasis added)); Nunn v. State, 1 Ga. 243, 251 (1846) (“The right of the whole people . . . to keep and bear arms. . . shall not be infringed, curtailed, or broken in upon, in the smallest degree.” (third emphasis added));

You can see Judge Keenan uses the same definition from the Johnson dictionary, but puts forward exactly the opposite meaning.  Hinder is far from destroy, yet Judge Keenan would have us believe they are the same thing. From the dissent by Judge Barbara Milano Keenan in footnote 9, page 36:

 9 Notably, some definitions from the Founding era of the term “infringe” support the construction that the Supreme Court appeared to endorse in its discussion of shall-issue regimes, namely, that a particular provision will “infringe” an individual’s rights under the plain text of the Second Amendment only if the statutory condition is so burdensome that it ultimately prevents law-abiding, responsible individuals from possessing or bearing a handgun. Samuel Johnson, 1 Dictionary of the English Language 1101 (4th ed. 1773) (hereinafter Johnson) (defining “infringe” as “[t]o violate; to break laws or contracts” or “[t]o destroy; to hinder”);

Judge Keenan would have us believe the word "infringed" in the Second Amendment is a synonym for "destroyed". This is a word game Progressives love to play. Change the clear meaning of words to achieve political objectives.

The next step in the  Maryland Shall Issue v. Moore case will be up to the State of Maryland. They, as defendants, could ask a for the case to be considered by the Fourth Circuit, en banc (by the whole Court). Such a request may or may not be granted.

It is likely this case will be appealed to the Supreme Court.  Whether the Supreme Court will decide to hear the case is uncertain.

Analysis: Many Second Amendment supporters focus on the phrase "shall not be infringed". Judge Barbara Milano Keenan argues the phase simply means "shall not be destroyed". When you change the meaning of words to win an argument, you are not arguing in good faith.  Progressives have never argued in good faith about the Constitution and the rule of law. They believe both are impediments to unfettered power, wielded by the government. As such, gun control is in the DNA of the Progressive movement.

Progressive judges work exactly the opposite of what the founders believed the role of the Judiciary should be. Instead of a check on governmental power, Progressive judges work to increase governmental power.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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