Supreme Court Must Slap Down Fourth Circuit’s Lawless Actions ~ VIDEO

Opinion

Second Amendment Plaintiffs have been forced to take drastic measures following a series of highly questionable actions by the United States Court of Appeals for the Fourth Circuit located in Richmond, Virginia. In Bianchi v. Brown, Plaintiffs (who include the Firearms Policy Coalition and the Second Amendment Foundation) are seeking a writ of certiorari before judgment from the United States Supreme Court.

The case involves a ban on popular semi-automatic rifles (that a handful of states erroneously call “assault weapons”). While it is unusual for parties to seek certiorari before judgment—essentially asking the Supreme Court to intervene before the Court of Appeals decides—it is justified in this circumstance because of the Fourth Circuit’s dubious procedural machinations, discussed below.

This aggressive move is good for the Second Amendment community, and it also offers the Supreme Court an opportunity to rebuke the lower “inferior” courts who are ignoring not just the text and history of the Second Amendment, but clear Supreme Court precedent.

A bit of background is in order. Recall that after NYSRPA v. Bruen was decided in June 2022, cert had also been granted in Bianchi. The Supreme Court then vacated and remanded the Fourth Circuit’s previous ruling in light of Bruen. Next, a three-judge panel of the Fourth Circuit heard oral argument on Bianchi in December 2022. The Fourth Circuit then proceeded to sit on the case for over a year. Indeed, it has been 14 months since oral argument, and the case is still unresolved.

Instead, it appears that the entire Fourth Circuit has decided to prevent the original three judge panel from issuing a decision. This is likely because the panel (based on oral argument) appeared ready to strike down Maryland’s semi-automatic rifles ban.

Then, without any explanation, and without any request or input by the parties, the Fourth Circuit abruptly granted en banc review in Bianchi.

I predicted this exact maneuver by a historically anti-Second Amendment court months before the court announced its obvious delay tactic.  Given that Plaintiffs have waited over a year for a resolution of their claims, they have now asked the Supreme Court to intervene.

The petition for certiorari before judgment is well-timed. The federal appellate courts are behaving in an unlawful and increasingly ridiculous manner when it comes to semiautomatic firearm and magazine ban laws. The Seventh Circuit’s ruling in Bevis v. City of Naperville refused to apply Heller’s “in common use” test, and also made arbitrary and irrelevant classifications of “civilian” and “military” arms. Additionally, the Ninth Circuit’s decision to immediately take the Duncan v. Bonta magazine case en banc is demonstrative of the fact that that court will take all necessary measures to save California’s gun control laws. And, based on oral argument, we can also expect a poor decision from the Ninth Circuit in the Miller v. Bonta semiautomatic firearm ban case in due course.

So, between a combination of feet-dragging, en banc hearings, and egregious misreadings of Heller and Bruen, the circuit courts are doing everything in their power to preserve semiautomatic rifle bans and similar laws. The Bianchi petition for cert is an important opportunity for rebuking those lower courts. I could not have put the following passage from the petition better myself:

“This case raises an issue of imperative importance. It involves the exercise of a fundamental right that currently is being denied by several states in the same way, and the lower courts repeatedly have refused to heed this Court’s clear guidance and have denied protection of that fundamental right.”

These games have been played long enough. It’s time for the Supreme Court to defend its integrity and to remind these inferior courts that its decisions are the supreme law of the land, and the lower courts cannot ignore them.

Overall, the Bianchi cert petition is an incredibly powerful brief. I’m also happy to report that it incorporates arguments from and relies in part upon my recent scholarly piece in the Harvard Journal of Law and Public Policy Per Curium: What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban-Cases—Again. There, I note that when it comes to semiautomatic rifle bans, such as in Bianchi, the relevant precedent to examine is Heller. While Bruen reaffirms and repeatedly praises Heller, it was Heller that defined the dispositive test for arms ban cases: that is, whether or not the arm is “dangerous and unusual” (the corollary to this being the in common use test). And, as you might expect, semiautomatic rifles (particularly the AR-15) are in common use: as a variety of sources have documented, whether it’s Georgetown Professor William English’s National Firearms Survey or even the Washington Post, millions of Americans own AR-15s, far surpassing whatever plausible lower-bound may exist for common use. In his Caetano concurrence, for example,,,

…Justice Samuel Alito said 200,000 stun guns sufficed for an arm to be in “common use.”

The Bianchi brief also notes that the modern iteration of this arm is epitomized by the AR-15 style, which is useful for self-defense, hunting, and range training due to its accuracy, ease of use, and design. It also notes that AR-15s and similar rifles are the most popular rifles in the history of the United States and account for a lion’s share of rifles sold in the last decade.

As a result, these rifles should obviously be protected under the Heller standard, but it remains to be seen whether the Supreme Court will grant cert in this important case.

Moreover, another recent development has increased the chances that the Supreme Court will grant cert in Bianchi. Specifically, several petitions for certiorari have been filed in similar “assault weapon” and magazine ban cases arising from Illinois’s recent gun bans. One of those petitions has been filed by the former Solicitor General of the United States, Paul Clement, who is the attorney who argued the Heller, Bruen and McDonald cases before the Supreme Court. Although I don’t think the Supreme Court will grant cert in those Illinois cases given that the cases are still in preliminary stages and no final judgment has been entered yet, that those petitions have been filed should bolster the chances of the Bianchi petition being granted.

The Bianchi petition makes a powerful case that immediate intervention is warranted, especially given the Fourth Circuit’s procedural shenanigans below. While the odds may be against petitioners given the procedural posture of the case, the Supreme Court did recently grant cert before judgment in a case from the Ninth Circuit concerning abortion and emergency medical procedures. If cert is granted in Bianchi, all factors point to a ruling in favor of the Second Amendment plaintiffs.

Read Related: Strange Events at Fourth Circuit on Second Amendment

Petition For Writ Of Certiorari Bianchi v. Brown

About Mark W Smith

Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.

His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.