In a decision written by an Obama-appointed judge, the U.S. Court of Appeals for the Fourth Circuit overturned a three-judge panel that had previously properly applied Bruen to Maryland's system that bars citizens from purchasing firearms until they can prove they are law-abiding and competent to handle them. The panel found no historical references or parallels for such violations.
On appeal to the en banc, this posed a problem for the anti-gun control, anti-Second Amendment majority: How could they get around Brune's requirement that the government show historical evidence of similar restrictions to defend a Second Amendment violation?
No problem, just use footnote 9 from Bruen.
Below is the footnote the majority used to cleverly sidestep the main holding in Bruen .
“Mandatory issue” systems (Maryland calls itself a “mandatory issue” state), which often require applicants to undergo background checks and pass a firearm safety course, appear to be designed only to ensure that those who possess firearms within their jurisdiction are in fact “responsible law-abiding citizens.”
This eliminated the need for courts to consider historical evidence of serious violations in Maryland. Under the state's firearms safety law, applicants seeking permission to purchase a firearm must:
You pass two background checks, take and pass a firearm safety training course, and pay a fee to get state permission to exercise your rights.
The training course would include “at least four hours of instruction” from a qualified instructor (who must themselves be licensed by the state) and require the applicant to “fire at least one live round” to demonstrate the “safe operation and handling of a firearm.”
The state then has up to 30 days to decide whether to grant the applicant a permit to purchase a firearm.
Violating this law carries a maximum penalty of five years in prison and a $10,000 fine.
The majority did not file a complaint.
With the application of Bruen now unnecessary, the full court summarily dismissed other claims brought by plaintiffs Maryland Shall Issue Co., Atlantic Guns Co., and two aggrieved citizens. The plaintiffs argued that they had been “temporarily deprived” of their Second Amendment right to purchase firearms, consistent with the guarantee of the right to “keep” and “bear” arms.
He wrote to the court:
Plaintiffs allege that delays arising from compliance with the HQL (Handgun Qualification Permit) Act constituted “violations,” which we deny: “Throughout the first quarter of 2018, no completed HQL applications were pending processing for more than 15 days.”
Regarding Plaintiffs' argument that two separate background checks were required, the Court responded that one background check is required for “each individual” seeking a permit, and another for “each firearm” sought to be purchased. Thus, the Court wrote, “We reject Plaintiffs' argument that the HQL Act's background checks are wholly redundant and so unreasonable as to 'violate' their Second Amendment rights…”
Dissenting opinion against the court's decision
Justice Julius Richardson, a President Trump appointee, wrote an eloquent dissent that is worth quoting at length for the court majority.
Maryland law prohibits obtaining a handgun without a “Handgun Qualification Permit.”
To obtain a license, applicants must submit fingerprints for a background check and take a four-hour “firearms safety training course,” all at the applicant's own expense.
If the applicant meets these requirements, completes the application, and pays the required $50 fee, the State Police Commissioner shall “issue” the license within 30 days.
Hampered by these requirements, plaintiffs challenged the system, arguing that it violated their Second Amendment rights.
Maryland ultimately defended its law before a Supreme Court panel, but rather than presenting the historical basis for its restrictions, Maryland based its arguments on footnotes in Supreme Court decisions.
The Commission was undeterred by this attempt to circumvent the control principle and found that Maryland's law violated the Second Amendment.
Now, our en banc court has handed Maryland's defense a victory.
But in doing so, the majority expanded the reach of Supreme Court precedent and established exceptions from Supreme Court doctrine.
And while the decision is defended by relying on a contrived interpretation of the plain text of the Second Amendment, the majority supports nothing but negative inferences.
I cannot agree with this apparent evasion of governing principles….
Because Maryland's law regulates protected conduct based on the language of the amendment and Maryland has not identified the historical basis of its law, I hold that the state has violated the Second Amendment.
Therefore, I respectfully disagree.
The vast majority of fake “workarounds”
Richardson details the spurious “workaround” the majority used to avoid the pain of requiring Bruen to provide historical parallels for such violations.
The majority interprets footnote 9 to establish the presumptive constitutionality of all mandatory license systems, including Maryland’s.
However, read in context, the role of footnote 9 was much more modest. Footnote 9 merely clarified that just because a license-to-issue system is unconstitutional does not necessarily mean that a license-to-issue system is unconstitutional.
He has taken the Supreme Court's cue to warn against such deliberate manipulation to obtain desired results.
The Supreme Court has explicitly warned against “reading footnotes into establishing general rules about certain types of cases” (United States ex rel. Schutte v. SuperValu Inc.).
Without such caution, there is a danger of “cherry-picking irrelevant comments, stretching them out of context, and justifying results that are inconsistent with the Court's reasoning and decisions” (Brown v. Davenport).
Richardson concludes his dissent:
Maryland's law operates very differently, as it does not identify dangerous people and subject them to restrictions or sanctions.
Rather, Maryland law prohibits anyone from acquiring a handgun until it can be proven that the gun is not dangerous. (Emphasis in original.)
Maryland’s law utilizes a meaningfully different mechanism by preemptively stripping firearms from all citizens to prevent them from falling into dangerous hands, thereby going far beyond traditional dangerousness regulations.
The majority ignores Bloon
Richardson is clearly in the minority on the Fourth Circuit Court of Appeals.
It is unfortunate that our Supreme Court has chosen to avoid applying the framework set out in Bruen v. Wisdom Square. Hopefully, in future cases, we will reverse course and evaluate gun laws in light of our history and traditions.
Therefore, I respectfully disagree.
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