Saturday, February 24, 2024

Strange Events at Fourth Circuit on Second Amendment


Strange events are occurring in the United States Court of Appeals for the Fourth Circuit.  In the Ninth Circuit, it has become clear, when a three judge panel finds in favor of the Second Amendment as a fundamental part of the Bill of Rights, the case will be sent to an en banc panel to be reversed by the full court. Most of the time, the Ninth Circuit would wait for the three judge panel to make a decision and publish it before sending the case to the en banc panel. In the Fourth Circuit, en banc panels are snatching cases away from three judge panels before a decision is made and an opinion is published.

The case of Bianchi v Brown, the Maryland ban on most semi-automatic rifles, was appealed all the way to the Supreme Court of the United States (SCOTUS). SCOTUS decided Bruen, in June of 2022. SCOTUS then granted certiorari to Bianchi v Brown, vacated the Fourth Circuit's decision in the case, and remanded the case back to the Fourth Circuit to be reconsidered, under the Bruen clarification of the Heller decision.

Bianchi v Brown was given to a three judge panel on the Fourth Circuit. The three judge panel heard oral arguments in the case on December 6, 2022.  If you listen to the oral arguments, the case for the State of Maryland seems weak. More than a year later, the three judge panel had not issued a decision. On January 12, 2024, the Fourth Circuit took the case from the three judge panel, moving it to be heard before the entire court (en banc). This could delay the case for another year or more.  The Firearms Policy Coalition (FPC) filed an appeal to SCOTUS, explicitly complaining about the games the Fourth Circuit is playing with the case. From AmmoLand:

“When justice is delayed, justice is denied–this is precisely the issue with what is happening in FPC’s challenge to Maryland’s ban on so-called ‘assault weapons,’” said Cody J. Wisniewski, FPC Action Foundation’s Vice President and General Counsel, and counsel for FPC. “After sitting on this case for over a year, the Fourth Circuit took the extraordinary step of pushing this case to the full Circuit without any party asking it to do so. Worse, the Circuit took this step after the case was already argued before a three-judge panel but before that panel could issue an opinion. This extraordinary action further delaying justice demonstrates that now–not later–is the time for the Supreme Court to step in.”

In another case in the Fourth Circuit, a similar situation is playing out.  Shortly after the Bruen decision, a federal judge in the United States District Court for the Southern District of West Virginia found 18 U.S.C. § 922(k), which prohibits possession of a firearm with an altered, obliterated, or removed serial number, to be unconstitutional under the Second Amendment.  The case is USA v Randy Price.  The ban on possession is recent law. From a previous AmmoLand article:

There is no historical precedent for a ban on firearms that have had the serial number removed. It is recent law enacted in 1990. It has almost no effect on crime.

The secondary argument in the amicus brief is the claim that tracing guns is an effective crime fighting tool. It is not and never has been.  Showing numbers of people who have been prosecuted for possessing a firearm with the serial number removed does not show any ability to stop a crime; it only shows prosecutions of victimless crimes.

The case was appealed to the Fourth Circuit on October 24, 2022Oral arguments were heard by a Fourth Circuit three judge panel on  December 6, 2023.  On January 12, 2024, the Fourth Circuit took the case from the three judge panel, before a decision was made, ordering a rehearing by the Fourth Circuit en banc.  This may be the new normal at the Fourth Circuit court of appeals. SCOTUS vacated the Fourth Circuit's finding in Bianchi v Brown, and ordered them to rehear the decision under the terms of the Heller decision as clarified by the Bruen decision. In both the Bianchi and Price cases, three judge panels on the Fourth Circuit heard oral arguments. Before either three judge panel published decisions (but after oral arguments), the Fourth Circuit took the case from the three judge panel for an en banc panel rehearing of the case.

It is unknown if SCOTUS will grant the  FPC request for a writ of certiorari (a request to hear the case) in Bianchi v Brown. If SCOTUS takes the case, it will be a further rebuke to the Fourth Circuit, and to other circuits which appear to be deliberately delaying Second Amendment cases. The Bruen decision clarified how such cases should be considered, removing the power of the courts to consider the policy effects of Second Amendment cases. When considering fundamental Constitutional rights, the policy choices were made when the Bill of Rights was ratified, according to Bruen.


En banc hearings by Circuit Courts are supposed to be rare. The strategy of some circuits are very close to openly defying the Supreme Court. The strategy is one of delay, delay, delay. If the circuits can delay long enough, an orginalist Supreme Court Justice may die or retire; the radical Democrats may find a way to pack the court; President Biden may appoint justices who will reverse SCOTUS decisions in Heller, McDonald, Caetano, and Bruen, thus rendering the Second Amendment moot.  If Hillary Clinton had become president in 2016, the court would already have done this.

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

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