Fourth Circuit to hear Maryland Second Amendment case En Banc

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On January 11, 2024, the United State Court of Appeals for the Fourth Circuit agreed to re-hear the case of Maryland Shall Issue v Wes Moore

A three judge panel found the Maryland law infringed on Second Amendment rights to acquire handguns and was unconstitutional under the Supreme Court Bruen decision of 2022. The three judge panel filed the split decision on November 21, 2023.

This is a long running court case challenging numerous infringements required by the Maryland law. The case started in 2016. 

On December 5, 2023, the defendants (essentially the government of Maryland), filed for an en banc hearing of the case before the entire Court of Appeals for the Fourth Circuit. The government of Maryland, in their petition for an en banc review, showcase an alarming misunderstanding of the Constitution and the Bruen Supreme Court decision. They claim the Bruen decision actively promoted the concept all "Shall Issue" laws are acceptable under the Second Amendment. This comes from a misreading of Judge Kavanaugh's concurrence. As such, it is only Judge Kavanaugh's opinion. From the Bruen decision, Justice Kavanaugh concurring:

I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.

First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.

Supreme Court decisions only apply to the issues raised in the case. The question of whether Shall Issue laws are constitutional was not raised, which is why the Bruen decision does not prohibit them, at this time.  More from the Kavanaugh concurrence:

Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.

The petition by the government of Maryland makes the claim the Kavanaugh concurrence is a direct endorsement of all "Shall Issue" laws. From the Petition for Hearing En Banc: 

And there is no indication that the Court’s shall-issue discussion was limited to public-carry, as opposed to permit-to-purchase, regimes. Indeed, such a conclusion would be directly contrary to the fundamental principle animating Bruen: that the right to keep and the right to bear are on equal footing. See Bruen, 142 S. Ct. at 2134, 2156 (noting that “[n]othing in the Second Amendment’s text draws a home/public distinction,” and that the right to public carry was “not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’”).

It is an interesting bit of wordsmithing, claiming an infringement on one half of the right to keep and bear arms, justifies the same infringement on the other half. You have to be able to acquire a handgun in order to carry one.  If restrictions are imposed both on acquiring and carrying, as the Maryland law does, the restrictions are additive, not parallel. The government petition claims the Maryland law meets the history test of Bruen, because if it did not, all "Shall Issue" laws would be at risk. Constitutional rights are not bounded by the possibility of upsetting existing law. 

There is no tradition or history of requiring permits, training and permission from a governmental authority in order to acquire handguns. All of those infringements came to the USA very late, as states worked hard to prevent disfavored minorities from acquiring handguns, after the slaves were freed.

The strategic thinking by those who hate limits on governmental power appears to be to delay, delay, delay. If the restoration of Second Amendment rights can be delayed long enough, who knows? Maybe the Democratic Party will be able to pack the Supreme Court with Progressive judges, as was pushed hard just three years ago. Maybe an originalist, textualist judge or two will die, so President Biden can change the court. Maybe someone will find CD's from Epstein's Island, with Justice Roberts on it. Perhaps the horse will learn to sing.

Hatred for the Second Amendment and any limitation on government power is in Progressive DNA.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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