Maryland Rifle Ban in the Supreme Court

Professors' and think tanks' amicus brief urges Court to grant certiorari

Today I filed an amicus brief in support of a cert. petition challenging Maryland's ban on various semiautomatic rifles. The case is Bianchi v. Frosh, and was brought by the Firearms Policy Coalition, the Second Amendment Foundation, and individual plaintiffs. Petitioners are represented by the D.C. powerhouse litigation boutique Cooper & Kirk. (Docket page here, Petition here.)

Maryland Attorney General Frosh initially waived his right to file a response to the petition, but on January 14 the Supreme Court called for a response. The Court granted Frosh (and consequently his amici) an extension of time for the response, which is due March 14.

My brief, co-written with several other lawyers, including University of Wyoming law professor George Mocsary, is on behalf of a dozen professors of Second Amendment law, including the VC's Randy Barnett. It is also on behalf of the Independence Institute (the Denver think tank where I work), the John Locke Foundation (a North Carolina think tank), the Cato Institute, and the Center to Keep and Bear Arms (a project of the Mountain States Legal Foundation).

Led by Arizona and West Virginia, twenty-five state Attorneys General have filed an amicus brief in support of the petition. They argue that cert. should be granted because:

1. Many lower courts have narrowed Heller from below.

2. Failure to grant review would tempt Congress to enact a national ban, over-riding the policy choices of 43 states.

3. The Fourth Circuit's novel rule that governments can ban all firearms that are supposedly "like" military arms is based on an egregious misreading of one phrase from Heller. The Fourth Circuit rule would uphold a ban on many common firearms, such as the ubiquitous Colt 1911 .45 caliber pistol, and every semiautomatic pistol that is essentially similar to the Colt, which is to say all of them.

4. The Maryland ban harms public safety because the rifles that it singles out for prohibition are easier to fire accurately, easier to store safely, and often superior for lawful self-defense. To say that improved firearms can be banned because criminals might take advantage of the improvements would be to say that firearms can never be improved.

Any other amicus briefs in support of the cert. petition will be due on Monday, Feb. 14. There is sometimes a lag between when a brief is filed and when it appears on the Court's docket page.

Here is the Summary of Argument from my brief:

Circuit court decisions upholding rifle bans like those in this case rely on untenable reasoning. The Fourth Circuit's rule, at issue here, would authorize prohibiting the most common arms of the colonial and Founding periods: the all-in-one American long gun that was made for hunting, personal defense, and militia use.

The Seventh Circuit purported to favor arms like those of the Founding Era. Yet the court upheld a ban on self-loading firearms, a type that preceded the Second Amendment by a century-and-a-half.

The Second Circuit employed an especially unfavorable version of intermediate scrutiny that considers only the government's evidence, and that does not consider less restrictive alternatives. The First Circuit second-guessed law-abiding citizens' personal choices of common defensive arms.

All four of this Court's Second Amendment precedents on arms bans—Heller, McDonald, Caetano, and Miller—eschewed means-ends balancing. This Court's approach has always been categorial.

The rifles at issue here are "in common use," as lower courts have acknowledged. "Common use" is not determined by how often a gun is fired in self-defense. "Common use" encompasses all lawful uses, including hunting and self-defense. Arms bans do not become constitutional if they slice protected classes of arms into smaller subclasses. Dick Heller's 9-shot .22 caliber revolver was not particularly common, but handguns are very common.

 

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Good luck!

[Longtobefree]

5. Letting this ban occur will show what a real insurrection looks like?

[Noscitur a sociis]

This ban "occurred" in 2013, and was previously upheld by the en banc Fourth Circuit in 2017. Now, I think that was wrong and I hope the Supreme Court takes this opportunity to correct the error, but anyone looking to start an insurrection over this is seriously late to the party.

[Ed Grinberg]

I'd say -- trying to enforce this ban by confiscating people's guns will (OK, might) show what a real insurrection looks like.

[Noscitur a sociis]

Again, Maryland has been enforcing this ban for eight and a half years.

[BillyG]

The stupidest thing about this ban? MD banned Springfield M1 (and most others), but Fulton M1 (headquartered in Maryland) are fine. How can this pass any scrutiny? Product made by company X is illegal, same product made by company Y is fine.

[con_fuse9]

The banned weapons have been grandfathered in.
The ban on AR15, is only on 5.56mm versions (and I think .223 versions) with non-hbar barrels. Meaning .300BLK. 7.62x39 7.62x51 etc. versions are OK. Also gas piston or recoil operated guns are OK.
M14 are banded, but the Chinese copies are not. Chinese copies use metric threads for some critical part and thus not a true copy. New rifles are not banned (rifles are banned by name) so long as they are not copies. Tavor, Desert Tech etc. are OK (if the barrel is long enough). You cannot buy large magazines in Maryland, but you can buy one in Virginia and drive across the border.

Bottom line, the law has so many holes it is completely in-effective for the purported purpose and should be struct down under strict interpretation.

[Brett Bellmore]

"The Fourth Circuit's novel rule that governments can ban all firearms that are supposedly "like" military arms is based on an egregious misreading of one phrase from Heller."

The amazing thing is, if you look back at US v Miller, the Court's test back then was whether a firearm was suitable for military purposes.

Now flipped on its head: Banned if it looks like what the Court once ruled it had to be, to be protected!

Of course, it was Scalia in the Heller decision who is responsible for taking the Miller holding and inverting it. The lower courts are just following his lead, and extending his mistake.

[Brett Bellmore]

US v Miller:

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

The Court specifically held that it was weapons suitable for military use that were protected for citizen ownership.

[Stephen Lathrop]

Bellmore, that no longer applies. Heller lopped the militia clause off the 2A. Post-Heller there will be more adjustment necessary to get gun norms back into the newly-revised purpose of the amendment—from which military discipline has been excluded.

If you prefer the older version, with the military discipline built in, then sure, you can say it protects arms suitable for military use. You don't get it both ways—at least not within any defensibly legitimate standard of interpretation.

[Brett Bellmore]

You really have not attentively read Miller, have you? "With military discipline built in"? That's not Miller, which was about the rights of any citizen, not just militia members.

As has been previously observed, and was pointed out in the Heller decision, for all its deficiencies, if the Miller decision had been about Miller, they'd never have gotten to the 2nd amendment, because he was a bank robber.

[Stephen Lathrop]

Miller has nothing to do with it.

[Brett Bellmore]

Has everything to do with it, if you're going to misrepresent the Miller case. Which held that citizens had the right to keep and bear arms suitable for militia purposes, not to keep and bear them in the context of militia service.

Not limiting it to the context of military service was key, as the amendment was designed to protect the viability of the militia system against government actions, and simply discontinuing the militia so that you could disarm everybody was a trivially obvious consequence of limiting the right in the way you propose.

[MatthewSlyfield]

If the court that decided US v Miller thought the militia clause meant that the RTKBA clause did not describe an individual right they never would have reached the issue of whether a short barreled shot gun was covered by the 2nd amendment because Miller would not have had standing to challenge his conviction for possessing a short barreled shot gun on the basis of the 2nd amendment.

[Kazinski]

The Miller Court said the purpose of the militia clause was for the purpose of asserting a federal interest in protecting the right to keep and bear arms. Article I gives Congress the responsibility of arming the militia, so it can't be just left up to the states to decide whether guns can or should be banned.

Now obviously Congress had authority under the necessary and proper clause to say what guns should be available to militia members and under what conditions without taking the added step of proposing the 2nd Amendment.

But they did propose and the states did enact it, and congress' purpose of adding the militia clause in no way limits its scope. And its use of the phrase "the right of the people" clearly indicates its scope is not confined to just the enrolled militia.

[Bruce Hayden]

The thing that has to be remembered about the Militia Clause is that the Heller Court affirmed that it was precatory - aspirational. And if one of the purposes of the 2nd Amdt was to make sure that the citizenry could come together as militias (as they had done so successfully just a scant decade or so earlier), then the deprivation of that right would be advanced by denying the citizenry their right to keep and bear weapons most useful to a militia - precisely the arms denied by the state of NJ. To reintegrate, the Militia clause pointed out that one of the reasons that the 2nd Amdt was needed was to arm citizen militias, and the NJ law does just the opposite.

[Michael P]

One wonders exactly what length the Court thought would reasonably relate a shotgun to a well-regulated militia, given that the US Army had used shotguns with 20" barrels in WWI trench warfare. 18" exactly? 19"? Somewhere between? (Modern military shotguns are often found with barrels 18.5" long, although some are made with 10" or 14" length for breaching use. Does Miller support the position that, as military arms become more sophisticated and varied, the Second Amendment protects the new weapons?)

[Brett Bellmore]

Miller supports the position that the Federal government wins all trials in abstentia right after the "Switch in time that saved Nine". And not much more. The Court refused to take judicial notice of facts they were well aware of, because the case was a carefully constructed test case designed to make sure the constitutionality of the NFA would be reviewed with only the government's side being heard.

I personally think we dodge a bullet there, because the defendant was going to lose regardless, and if he'd actually been represented, much worse precedents would have been set.

[Bruce Hayden]

Very much agree. The NFA was enacted primarily to remove machine guns from Prohibition era gangsters. This was a popular cause at the time. Much of the populace was scared of the gangsters and their violence. That is why the entire Miller case was orchestrated to achieve its acceptance, by avoiding the Militia Clause argument. Sawed off shotguns were heavily used in the trench warfare of WW I. But the Thompson submarine gun, so beloved of the gangsters, was also a Weapon of War. It was specifically developed, and adopted by our military, for trench warfare. BARs, so loved by Clyde Barrow, were developed for more open field warfare, and were used by our military up through the Korean War at the platoon level for mobile fire support. They only really became obsolete when our military adopted German WW II infantry doctrine of using machine guns for a fire base, with the rest of a platoon supporting the machine gun. And, for that, the BAR was less effective than our M60 version of the German light machine guns of that war.

How do you show that military weapons, so essential to a militia, can be banned, despite the 2nd Amdt? The answer was to prove that sawed off shotguns were not weapons useful to and used by the military, by preventing the courts from considering that they were, indeed, weapons useful to and used by the military (in at least WW I and Vietnam), through procedural chicanery. Miller was dead, and probably had had ineffective assistance of counsel. So, they had nothing in the record showing that sawed off shotguns were military weapons, when they were, and no way to augment the record later, when it became important.

But if Miller hadn’t died, and had ineffectual counsel, the DOJ probably would have found another vehicle to overcome the 2nd Amdt by the, at the time, very popular, NFA.

[Caphon]

Thank you!!!

[Alpheus W Drinkwater]

Perhaps Maryland should just have this ban enforced solely through private citizen plaintiffs.

[Kazinski]

It illustrates the intellectual bankruptcy of the gun grabbing movement is that their two linchpins in denying a right to keep and bear arms is either that the only right guaranteed is for national guardsmen to be armed with weapons of war, or failing that, they can ban most modern rifles, and high capacity magazines because they are "weapons of war".

As Judge Benitez of the Ninth Circuit pointed out the AR platform is ideal for both civilian use including home protection, but also ideal for use in a militia with highly standardized parts, accessories, and ammunition. Win-win. Of course he got reversed, intermediate scrutiny, wouldn't you know it.

[Bruce Hayden]

The judge may not have pointed it out, but another factor supporting legalization of AR-15s is that the base of any militia are our military veterans. Our military has used M16 rifles and M4 carbines are our primary battle rifle for better than 60 years now. Those are both select fire versions of the AR-15 (and not the other way around). That means that most every Army and Marine veteran (and many Navy, Air Force, and Coast Guard veterans) alive today and able to participate in a militia, essentially used an AR-15 variant while in the service. Army and Marine infantrymen became expert at its use. They could disassemble, assemble, and clean them in their sleep. The civilian AR-15 shares a manual of arms with these military weapons, because it had it first, and they are select fire AR-15 variants. If you can effectively shoot and operate an M16 or M4, you can do the same with an AR-15, the major outward difference being between a two position (civilian) and three position (military) selector switch.

Which is to say that the absolute best weapon for a civilian militia in this country is a semiautomatic AR-15, the civilian parent of our military’s main battle rifles and carbines for sixty years now.