Last week the International Law Enforcement Educators & Trainers Association filed an amicus brief in a U.S. Supreme Court case challenging Maryland's ban on many common semiautomatic rifles. The case is Bianchi v. Brown, and it has an unusual procedural posture; it is a petition for certiorari before judgement. Yet the case is one on which the U.S. Supreme Court has already ruled.
This post will first summarize the amicus brief, and then provide the procedural background, which is detailed in the Bianchi plaintiffs' cert. petition.
The facts about the banned rifles
As detailed in the amicus brief, the semiautomatic rifles banned by the Maryland General Assembly fire only one shot each time the trigger is pressed. This is the same rate of fire as the most common semiautomatic handguns, such as those made by Glock, Smith & Wesson, or Ruger.
The claim by gun prohibition advocates that such guns fire 300 to 500 times per minute has no basis in fact, and is contrary to common sense. It would take a superhuman trigger finger pull a trigger at the rate of 5 to 8 times per second, let alone do so for a full minute.
Nor are the banned rifles, including those based on the AR-15 platform, more powerful than nonbanned rifles. To the contrary, their standard ammunition is .223 inch or 5.56mm bullets that are small compared to most other rifle ammunition. Accordingly, their kinetic energy is lower.
Because the banned rifles are more powerful than handguns, but less powerful than most other rifles, the relatively low wounding power of this ammunition has been confirmed by decades of study by the US Army's Ballistic Research Laboratory.
Moreover, as documented in police training manuals, the banned rifles are the safest for defensive use within buildings, because their ammunition is especially unlikely to penetrate a wall.
The deadliest firearms in mass shootings are handguns. Researchers led by Dr. Babak Sarani, founder and chief of the Center for Trauma and Critical Care at George Washington University Hospital, examined the relationship between the type of firearm used, wounding characteristics, and probability of death in mass shootings. Babak Sarani, et al., Wounding Patterns Based on Firearm Type in Civilian Public Mass Shootings in the United States, 228 J. Amer. College Surgeons 228 (Mar. 2019). They studied firearm types and autopsy reports for 232 victims from 23 mass shootings, including high-casualty shootings with "assault weapons" at Orlando and Las Vegas.
Surprisingly, the researchers found that mass shootings with handguns are more lethal than those with rifles because handguns result in more wounds per victim and more injuries to vital organs. Id. at 228-29, 232-33. "All of us were shocked," Dr. Sarani said. "We came to the table with our bias that an assault weapon would be worse." Carolyn Crist, Handguns More Lethal Than Rifles in Mass Shootings, Reuters (Dec. 31, 2018).
Law enforcement perspectives
Because the banned rifles are relatively low-powered, their recoil is lower, and hence they are more accurate. Additionally, the rifles are replete with features (outlawed by Maryland) that enhance accuracy.
For example, a telescoping stock can adjust for a precise fit to the user's size. The customizable forward grip provides stability. Surrounding the barrel are rails (sometimes called the handguard or forend) that make it easy to add optics, such as scopes, red dots, and/or flashlights – all for greater accuracy.
So it is no wonder that these semiautomatic rifles are very commonly chosen by law enforcement officers to carry in their patrol cars. Law enforcement officers choose their patrol rifles for only one purpose: lawful defense of self and others. It is preposterous for a legislature to claim (falsely) that these rifles are "weapons of war," are useless for self-defense, and are made only for mass killing. This is a libel against law-abiding law enforcement officers.
Prudently, American citizens have always looked to law enforcement for guidance in choosing defensive firearms, because law enforcement firearms are selected with care. Officers choose their duty arms for one purpose: lawful defense of self and others.
The most important reason why citizens often do and should copy law enforcement officers' firearms selections is to ensure that citizens will have reliable firearms for defense. Officers' arms are well-suited for defense against violent criminals; and they are appropriate for use in civil society.
Law enforcement officers are not soldiers wielding weapons of war, and their interactions with citizens are not governed by rules of engagement for the battlefield. The challenged statute implicitly denigrates peace officers by treating them like an occupying army. Such negative attitudes make the public less willing to cooperate with law enforcement and damage community relations.
Procedural background
In 2013, the Maryland General Assembly enacted a sweeping ban on many semiautomatic rifles, particularly targeting those that are most useful for lawful defense of self and others. The ban was promptly challenged in Kolbe v. Hogan, a case which went through the complete discovery process.
At the time, the Fourth Circuit Court of Appeals, like most but not all other Circuits, evaluated Second Amendment cases under a "Two-Part Test," which was similar to the three tiers of scrutiny that had been used for free speech and equal protection cases. The district court applied a weak form of intermediate scrutiny and upheld the ban. Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014). Then, a three-judge panel of the Fourth Circuit held that—because the statute banned many common arms—strict scrutiny was the proper standard. Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016)
Before the remanded case could be decided the the District Court, the Fourth Circuit took the case en banc, and the majority ruled hat the banned arms are not even covered by the Second Amendment. By the en banc majority's theory, lightly premised on a tendentious reading of the Supreme Court's District of Columbia v. Heller, arms that are mainly suitable for military use are not part of the Second Amendment. Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017).
The majority rationale was out of touch with current facts, since no military in the world uses semiautomatic-only rifles. The U.S. military and others choose service rifles that are capable of automatic fire. More fundamentally, the Kolbe majority rationale would deny Second Amendment protection to the very arms with which Americans won their War of Independence—namely the personally-owned muskets and rifles that American Patriots brought to service, because those were the arms that the States and the colonies had specified by statute were the best arms for the militia.
When plaintiffs petitioned for certiorari, Randy Barnett, Ilya Shapiro, Joseph Greenlee, and I wrote an amicus brief on behalf of the National Sheriffs' Association and other organizations. Certiorari was denied in 2017. At the time, the Supreme Court was refusing to take almost any case involving the Second Amendment. (The only notable exception was Caetono v. Massachusetts, a 2016 challenge to the now-defunct Massachusetts ban on electric stun guns.)
A new case, challenging only the gun ban (and not other 2013 items, such as a magazine ban) was filed in 2020. The District Court quickly dismissed the case based on Kolbe, and a Fourth Circuit panel tersely affirmed. Plaintiffs petitioned for certiorari.
A few days after the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, the Court granted, vacated, and remanded three cases for reconsideration in light of Bruen. One of them was the Maryland firearms ban case, now known as Bianchi v. Frosh. 142 S. Ct. 2898, 2899 (Mem.) (2022). (The other two cases were magazine bans from the Third and Ninth Circuits.)
The June 2022 remand led to oral argument before a three-judge Fourth Circuit panel in December 2022. The panel took over a year to write an opinion. Then, while the draft opinion was presumably being circulated among the Circuit's other judges, the Fourth Circuit sua sponte took the case away from the panel, and in January 2024 took the case en banc. The iron rule of Fourth Circuit jurisprudence has always been that no decision in support of a Second Amendment plaintiff can survive the process of appellate review. See Kopel, Data Indicate Second Amendment Underenforcement, 68 Duke Law Journal Online 79 (2018) (also noting same problem in Second and Ninth Circuits).
The Bianchi plaintiffs, represented by David Thompson of the D.C. constitutional litigation boutique Cooper & Kirk, petitioned for certiorari before judgement. They argued that the Fourth Circuit's dilatory procedures are an obvious attempt to evade Supreme Court precedent, which clearly dictates a ruling against the Maryland ban.
Perhaps as result of the cert. petition, the Fourth Circuit has scheduled a prompt en banc oral argument, on March 20.
Shortly after the Bianchi petition for certiorari before final judgement was filed, similar petitions were filed for several cases involving an especially draconian gun ban enacted in Illinois in 2023. The results in the district courts on preliminary injunction motions had been mixed, and the Seventh Circuit considered them all together. In Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023), a three-judge panel led by Judge Easterbrook relied on Kolbe, and held that the banning of a vast number of common firearms had nothing to do with the Second Amendment. In his view, the Second Amendment does not apply to arms "reserved to the military."
Judge Easterbrook's opinion would have been doctrinally solid if he had been interpreting the Mexican Constitution's right to arms, which states:
Article 10. The inhabitants of the United Mexican States have a right to arms in their homes, for security and legitimate defense, with the exception of arms prohibited by federal law and those reserved for the exclusive use of the Army, Navy, Air Force, and National Guard. Federal law will determine the cases, conditions, requirements, and places in which the carrying of arms will be authorized to the inhabitants.
See Kopel, Mexico's Gun Control Laws: A Model for the United States? 18 Texas Review of Law & Politics 27 (2013). But even if the U.S. constitutional right to arms had copied Mexico's, Judge Easterbrook still would have been wrong on the facts, because the arms banned in Illinois are not used by the U.S. military. And despite what Judge Easterbrook claimed, the banned firearms do not function like machine guns.
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