Gun laws. Are they constitutional?

In August, the Fourth Circuit decided Bianchi v. Brown, which upheld Maryland’s ban on “assault weapons,” and Maryland Shall Issue, Inc. v. Moore, which upheld Maryland’s handgun licensing scheme. Both decisions are major victories for advocates of tighter gun laws but both decisions are in danger of being reversed by the Supreme Court.

Background

In 2008, the Supreme Court issued its seminal decision in District of Columbia v. Heller. In Heller the Supreme Court held that the Second Amendment protects an individual right to possess a firearm as opposed to a collective right by way of a “well regulated Militia.” The Court also held that this protection extends to all “bearable” arms, even if they didn’t exist at the founding. 

In the same breath, the Heller Court opined that dangerous and unusual weapons that are not in common use like machine guns or sawed-off shotguns could be banned—even though they are obviously bearable arms and even though the text of the Second Amendment makes no such exception. And contrary to what many people think, these kinds of weapons, aka Title II or NFA weapons, are not illegal under federal law. They’re just more difficult to get a hold of. Here’s how: ATF Form 1 and Form 4. 

Next came the Supreme Court’s blockbuster decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen followed by United States v. Rahimi. I’ve previously written about these cases here. Suffice it to say that the general principle that flowed from Bruen and Rahimi is that modern firearms regulations are only constitutional if they are consistent with the text of the Second Amendment and America’s historical regulation of firearms. To put it mildly, the application of this principle has been a mess in lower courts.

Bianchi v. Brown

Maryland’s “assault weapons” ban

When you say the phrase “assault weapon” or “assault rifle,” the gun-rights crowd will just about fall out of their seat laughing at your ineptitude and will claim that there’s either no such thing or that the term refers only to fully automatic guns. So, it was refreshing to see the Fourth Circuit opinions and the Maryland statute use more accurate terminology when talking about these guns. What people should say when they talk about an “assault rifle” like the AR-15, is “semiautomatic centerfire rifle.”

Most people know what semiautomatic means. You pull the trigger, the gun fires one bullet, and a new cartridge is automatically reloaded into the chamber for the next trigger squeeze. What might be less commonly known is what centerfire means. There are two broad categories of gun cartridges—rimfire and centerfire. A cartridge is a complete piece of ammunition which includes a bullet but is not itself a bullet. Rimfires go “pew.” Centerfires go “bang.” Rimfires are used to hunt squirrels. Centerfires are used to hunt deer.

In my opinion, the term centerfire can be used interchangeably with the term high-powered. And while you’ll hear many gun-rights enthusiasts scoff at the idea that the AR-15 is high-powered because it typically comes chambered in .223 or 5.56, both less powerful shot for shot than their trusty 30.06 deer rifle, it’s cold comfort for a person who’s looking down the barrel of one. The reality is the military chose the less powerful cartridge in their rifles because humans are easier to kill than deer. A battle rifle meant to kill humans doesn’t need to be as powerful as a hunting rifle meant for large wild animals. But the battle rifle’s deadliness lies in its ability to fire many successive rounds. Because it’s less powerful, it carries less recoil and is easier to shoot rapidly.

The Maryland statute prohibits “assault weapons.” And while the statute contains a list of specific guns that are outlawed, they could have just stuck with the section that prohibits semiautomatic centerfire rifles (the statute also prohibits some semiautomatic pistols and shotguns). While the Maryland law prohibits many different rifles, pistols, and shotguns, this case was really only about one: America’s darling, the AR-15. So, can this gun be outlawed in America?

Majority

The majority of the Fourth Circuit held that the AR-15 can be banned by a state if it so chooses. In fact, the Court held that “the covered firearms are not within the scope of the constitutional right to keep and bear arms for self-defense,” aka the Second Amendment does not even apply to semiautomatic centerfire rifles. The Court concluded that “[o]ur nation has a strong tradition of regulating excessively dangerous weapons once it becomes clear that they are exacting an inordinate toll on public safety and societal wellbeing.” Bianchi at 13.

The essential reasoning behind the Court’s conclusion was its belief that the Second Amendment is about individual self-defense (this belief is incorrect but more on that later). And because, in their view, the AR-15 is more useful for “offensive criminal or military purposes” as opposed to self-defense inside a person’s home, it is not protected by the Second Amendment. This was quite a bold claim and one that will surely raise the eyebrows of the justices above them.

But, the majority went on to walk through the history of gun regulations in America as is required by Bruen and Rahimi and concluded that “legislatures, since the time of our founding, have responded to the most urgent and visible threats posed by excessively harmful arms with responsive and proportional legislation.” Bianchi at 47. The problem of mass shootings is a modern one. The founders simply did not live in a world where a single shooter could extinguish dozens of lives in a matter of seconds. Modern problems require modern solutions. And the majority, rightly in my view, decided not to hamstring the voters in Maryland from enacting what they believe to be sensible gun control measures to address this modern problem.

By upholding Maryland’s “assault weapons” ban, the majority left this issue in the hands of the voters who are in the best position to determine which guns they want on their streets and which guns they do not. If Maryland wants to ban this gun, it can. If South Carolina wants to keep it, it can. The voters of the respective states can decide by way of their elected officials what they want to do. And reading the majority opinion as it walks through the absolute horrors of some of the mass shootings America has suffered through, it’s really no surprise that many, many voters want these guns banned.

Concurrence

A quick note on Chief Judge Diaz’s concurrence. The Chief points out, as many others have, the mess the Supreme Court created in its Bruen decision. In looking at the text, history, and tradition, the majority and dissent reach the exact opposite conclusion. And that is of course because they interpret our history differently.

While the Chief doesn’t criticize originalism by name, he certainly crystallizes my own thoughts about it as a method of constitutional interpretation: “Why even have a ballot box when our laws are fossilized in a history book? That’s no way to foster a democracy, but it’s an effective way to paralyze one.” Bianchi at 70.

And lest my friends to my right jump to their familiar quip that we live in a republic and not a democracy, I invite them to reread the Federalist Papers and report back on what the founders believed to be the difference between the two. 

Dissent

The dissent, in essence, concludes that because the AR-15 is so popular it cannot be banned. The gun is used by millions of people for lawful purposes like self-defense. The dissent concludes that although the AR-15 is dangerous, it is not unusual. The dissent criticizes the majority for replacing the will of “the people” with its own but turns around and proclaims that the issue of prohibiting the possession of semiautomatic centerfire rifles is not subject to our modern democratic process thus circumventing the will of Maryland’s voters. Bianchi at 158-60. They don’t count as the people?

The dissent points to English laws from as long ago as 1181 and 1285 that required citizens to possess arms like swords and shields. Bianchi at 90. With all due respect to the brilliant judges that signed on to this dissent, excuse me while my eyes roll into the back of my head. If modern legislatures must be bound by laws regulating swords from eight or nine hundred years ago, we do not live in a republic. In fairness, this is a one-hundred-page dissent, and they cite many other more recent laws in support of their position. But the fact that a nine-hundred-year-old law about swords would even grace the pages of a circuit court opinion written in 2024 is indicative of the serious problems that Bruen has created. Every Second Amendment case now reads like an annoying cherry-picked history lesson. As the Chief wrote in his concurrence “the law shouldn’t work like this.” Bianchi at 68.

To make matters worse, the dissent weds itself to gun laws of an ancient bygone era all the while insisting that the usage of firearms be assessed today. So ancient arms laws are expected to be applied to modern firearm trends. And the dissent argues that the usage of the AR-15 by Americans who do not live in Maryland must be considered when deciding whether Maryland’s voters can outlaw the AR-15 in the State of Maryland. Bianchi at 147. Not exactly a state’s rights, federalist position. 

This dissenting opinion is most important though in that it highlights what the actual purpose of the Second Amendment is. It’s not about hunting, and it’s really not about individual self-defense. The Second Amendment is about “the security of a free State.” When America was founded, there was no standing army. The militia—all men—were expected to take up arms in the event the country was invaded. The dissent points out that during the founding era, militias “protected communities from bandits and vigilantes, guarded prisoners, served as patrols, prevented lynchings when unpopular executions were scheduled, had riot duty, helped settle land-related disputes, and helped manage public ceremonies and parades, providing domestic security of the state.” Bianchi at 94. That is not the world we live in today. 

Today we have arguably the strongest standing military in the world. If China or Russia were to land on the beaches of California and begin a ground invasion, our military would be there waiting for them. That’s not to say in such a situation that many Americans wouldn’t gladly go fight. But today we live in a very different world from the colonists who wrote the Constitution. We live in a world unimaginable to them. We face problems today unimaginable to them. 

What the dissent highlights is something that you’ll hear with alarming frequency if you spend any time around libertarian leaning people which is founded on the idea that the “security of a free State” language in the Second Amendment applies to enemies both “foreign and domestic.” A concept that is repeated throughout the dissent. The idea is that an armed citizenry is more difficult to oppress by a tyrannical government. The reason they want access to semiautomatic centerfire rifles is not for hunting and it’s not for self-defense. It’s also not to repel a theoretical invasion from China or Russia. It’s to be prepared for armed conflict against the United States Government. Many Second Amendment absolutists genuinely believe that they will use their guns against their own government in their lifetime to prevent “tyranny.” 

While extraordinarily unlikely, I suppose it’s possible. But for those who take this absolutist view of the Second Amendment, I’d press them to hypothesize a scenario in which civilians literally going to war against the United States Government to repel tyranny would be justified. And how would the dissenters deal with a civilian who murdered political leaders or members of the military in the name of fighting government oppression and tyranny? Sadly, it’s a fantasy of some gun owners. A nightmare for everyone else. 

Maryland Shall Issue, Inc. v. Moore

Maryland’s handgun licensing scheme

The other major Second Amendment case decided by the Fourth Circuit involved Maryland’s requirement that a person obtain a handgun license prior to purchasing a handgun. To get a license, a person must be at least twenty-one, be a Maryland resident, complete a firearms safety training course, and not be barred by another law from possessing a handgun. To get the license you must submit your fingerprints, proof that you’ve done the training, a statement that you’re not prohibited from possessing a handgun, and a $50 application fee. If you complete the requirements, Maryland shall issue you a handgun license. It does not have the discretion to deny you. The people challenging the law argued that the licensing requirement results in a temporary deprivation of their Second Amendment rights because they must wait to buy a gun until their application is approved.

Majority

The majority ultimately concludes that the Supreme Court’s Bruen decision made clear that shall-issue gun licensing laws like Maryland’s are presumptively constitutional because they operate to ensure that only law-abiding people possess firearms. Maryland Shall Issue at 4-5. Because of this presumptive constitutionality, the Court held that a person challenging a shall-issue licensing scheme must rebut this presumption—a requirement that appears to have originated in this very opinion.

Bruen dealt with a “may-issue” gun licensing scheme where New York had the discretion to deny a person a gun permit even if they met the legal requirements. The Bruen Court indicated in a footnote that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” But in that same footnote the Court left open the possibility of challenges to these laws: “[B]ecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” Bruen fn 9.

A brief refresher on Bruen might be necessary here. The test Bruen adopted is this: if (1) a modern gun regulation regulates conduct protected by the Second Amendment, (2) it is only constitutional if it is consistent with America’s historical regulation of firearms. But if a modern gun regulation does not regulate conduct protected by the Second Amendment, then no historical analysis is necessary. The majority in Maryland Shall Issue concluded that the presumptive constitutionality of shall-issue licensing laws is considered at step (1), and if the challengers do not rebut that presumption, there is no need for the court to proceed to the historical analysis at step (2). Maryland Shall Issue at 16-17. This strikes me as an entirely made-up new test, which the dissent eagerly points out.

The Court ultimately holds that the challengers failed to rebut the presumption of constitutionality because most applications are processed in fifteen days or less which isn’t a lengthy enough delay to implicate the Second Amendment. Maryland Shall Issue at 24-26. The majority doesn’t reach the step (2) historical analysis required by Bruen.

However, Judge Rushing writes a concurrence in which she does reach the historical analysis and concludes that shall-issue permitting laws are consistent with America's historical regulation of firearms and therefore constitutional under Bruen and Rahimi. Maryland Shall Issue at 30. 

Dissent

The dissent rightly points out that the majority is incorrect in its view that a shall-issue handgun licensing law does not implicate the Second Amendment. It’s obviously a regulation on bearable arms. So, the dissent considers the historical tradition of firearms regulations and concludes that the Maryland handgun licensing law is inconsistent with this tradition. Maryland Shall Issue at 51.

In my read of the dissent, I believe they would find any law that requires a permit prior to purchasing a gun unconstitutional because requiring a person to obtain a license prior to purchase was not the kind of regulation that existed at the time of the founding. While some people were disarmed after having been found to be dangerous, there was never this sort of pre-clearance requirement for everyone. In other words, it might be okay to disarm dangerous people. But it’s not okay to presume everyone is dangerous and require them to first prove they are not dangerous before they can buy a gun. Maryland Shall Issue at 65-66.

While that reading of the history might make sense, it does seem to directly contradict the Supreme Court’s view. Even though it was relegated to a footnote in Bruen, the Court indicated that nothing in their opinion should cast doubt on shall-issue licensing laws. So presumably they must think at least some of these laws are okay. But the dissent’s complaint about Maryland’s shall-issue law is something that all shall-issue licensing laws have in common. They require the license prior to purchase or carry.

Conclusion

Both of these cases are currently pending before the Supreme Court. While I personally agree with results reached in both, the majority opinions did make some pretty odd claims in their reasoning. Many court watchers believe SCOTUS will take at least one of these cases up—probably the AR-15 case—and reverse the Fourth Circuit. Stay tuned.

adam@ruffinappeals.com

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