Fourth Circuit Shenanigans Should Be Called Out by SCOTUS

AP Photo/Brittainy Newman

In December of 2022 a three-judge panel on the Fourth Circuit Court of Appeals heard oral arguments in a case called Bianchi v. Brown that challenges Maryland’s ban on so-called assault weapons. The Supreme Court had granted cert to Bianchi in the immediate wake of the Bruen decision, but vacated the Fourth Circuit’s previous decision upholding the ban and remanded the case back to the Fourth Circuit for a re-hearing based on the findings in Bruen. 


Gun owners had been waiting for that panel to release its decision for over a year, but last Friday the Fourth Circuit took the almost unprecedented step of declaring that it was taking the case en banc before the panel issued its decision. I was dealing with some of my wife’s medical issues on Friday and didn’t have the opportunity to weigh in until now, which is probably a good thing given that my immediate response to the news wasn’t exactly family-friendly.

I agree with Mark W. Smith that the move was meant to take a decision declaring Maryland’s ban a violation of the Second Amendment off the table. What other reason is there, honestly? If the panel had concluded that Maryland’s law does violate the rights of residents, the judges on the Fourth Circuit could have agreed to an en banc review after that decision had come down. There was no reason for the court to intervene when it did other than to prevent an opinion that would have been helpful to 2A advocates from ever seeing the light of day. Even Reuters has acknowledged the “unusual” nature of the Fourth Circuit’s premature intervention.


The 4th U.S. Circuit Court of Appeals on Friday took the rare step of voting to allow, opens new tab all 14 of its active judges to hear the challenge to Maryland’s law before a three-judge panel that had heard arguments in the case in December 2022 could rule.

Two of the three judges on that panel were appointed by Republican presidents. The full court by contrast has eight active judges appointed by Democratic presidents and six named by Republican presidents.

Adam Kraut, the executive director of the Second Amendment Foundation, said the gun rights group was “disappointed” the 4th Circuit took the “highly unusual” step of agreeing to hear the case en banc without allowing the panel’s opinion to be released.

The only bit of good news is that this shouldn’t impact the timing of the case going back before the Supreme Court. If the three-judge panel had been allowed to issue its opinion, Bianchi was headed for an en banc review anyway, and the SCOTUS has already agreed to hear the case once the Fourth Circuit issues its final ruling. The Fourth Circuit has tentatively scheduled oral arguments for March, but at this point I wouldn’t put it past the judges to delay oral arguments for as long as they can get away with it.


Given the makeup of the circuit court, the en banc review is almost certain to find some specious argument to uphold Maryland’s ban, but by blocking the release of the panel’s decision it removes the ability of the plaintiffs’ attorneys to cite the panel and any language used to drive a stake through the heart of the state’s prohibition on commonly owned arms. It’s a cheap shot on the part of the Fourth Circuit’s majority, and the clearest display yet of the contempt for the Court and the Bruen decision that we’ve seen from the federal judiciary in the wake of the ruling striking down New York’s “may issue” law and firmly establishing the text, history, and tradition test that’s supposed to be used when considering the constitutionality of gun laws. “Disappointing” is one way to describe the Fourth Circuit’s actions, but “%$*!ing ridiculous” is also an apt summary of the legal shenanigans the appellate court pulled to keep a decision favorable to Second Amendment advocates from ever seeing the light of day. I can only hope that when the justices at the Supreme Court eventually get their hands back on Bianchi, the majority opinion reserves a little bit of space to call out the Fourth Circuit for its appalling approach to the issue and its gamesmanship with a fundamental civil right.




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