Gun Laws to Face Fourth Circuit in Trio of Post-Bruen Tests

A trio of Second Amendment cases this week will offer a look at how federal appellate judges are navigating gun regulations in the wake of the US Supreme Court’s 2022 Bruen decision, giving courts new guidance in gun-rights cases.

All of the US Court of Appeals for the Fourth Circuit judges will hear challenges on Wednesday to Maryland’s ban on semiautomatic weapons, as well as a federal bar on guns without serial numbers. On Thursday, the full court will hear a challenge to Maryland’s handgun license requirements.

The flurry of en banc arguments — where all 14 active judges will listen to arguments and have a chance to question litigants — shows an effort to find some clarity during a time of uncertainty for gun laws by hearing cases with potentially common questions under Bruen, court watchers say.

“It’s still early days after Bruen,” said Andrew Willinger, executive director of the Duke Center for Firearms Law. “We’re still in that period where these appellate decisions are going to go a long way toward shaping the post-Bruen landscape. The way the Fourth Circuit decides these cases could be quite influential.”

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down a New York law limiting who could carry a handgun in public and laid out a new test for determining whether a gun regulation is constitutional. Courts should look to the nation’s history of firearms regulation in determining whether a state has run afoul of the Second Amendment, Justice Clarence Thomas wrote for the court’s majority.

Hanging over these cases is a pending US Supreme Court decision in a challenge to a federal gun ban for people who are subject to domestic violence restraining orders. That opinion could further clarify the Bruen historical framework.

Different Cases, Common Questions

In Bianchi v. Brown, those wishing to buy a gun banned by Maryland will seek to persuade the Fourth Circuit that Bruen requires overruling the Fourth Circuit’s prior decisions upholding Maryland’s Firearm Safety Act of 2013.

In 2017 and 2021, the Fourth Circuit upheld as constitutional the state ban on semi-automatic weapons, including the AR-15. In 2022, however, the US Supreme Court vacated the most recent ruling, remanding it back to the Fourth Circuit “for further consideration in light of” Bruen.

Attorneys for the state will likely argue these aren’t the types of weapons protected by the Second Amendment and, if they are, there are parallels between Maryland’s regulations and historical weapons restrictions.

For their part, the plaintiffs will argue that, given Bruen, semi-automatic weapons are protected by the Second Amendment because there aren’t historically analogous restrictions that would justify a modern ban. “The only justification for banning types of arms is that they are ‘dangerous and unusual,’ meaning they are not ‘in common use’ today for self-defense,” they argued in a brief to the court ahead of the Wednesday oral argument. “The rifles banned by Maryland are among the most popular firearms in the country.”

In the second case on Wednesday, US v. Price, the Fourth Circuit will consider a West Virginia district court decision striking down a federal law that prohibits someone from possessing a gun with a removed serial number that traveled across state lines. The decision finding that law unconstitutional stems from a criminal case charging Randy Price with the offense.

“The district court correctly concluded that there were no distinctly similar historical traditions of firearm regulation that would rebut Bruen’s presumption of unconstitutionality,” public defenders for Price argued in their brief last week ahead of arguments.

On Thursday, in Maryland Shall Issue, Inc. v. Jones, attorneys for Maryland will try to undo a November 2023 three-judge panel decision finding the state’s requirements for handgun licenses unconstitutional. There, the question will likely turn on whether the Maryland procedures for a license constitute an infringement of the Second Amendment.

The state, in its brief, distinguished its license requirements from those at issue in Bruen, saying New York’s requirements gave the state more decision-making power, whereas Maryland’s scheme “shall” give the license to any applicant who fulfills its requirements—which include a training video and background check.

“Although the Court invalidated New York’s subjective requirement that an applicant convince a government official of the applicant’s atypical need to carry for self-defense, the Court did not invalidate licensing schemes generally,” state attorneys wrote.

Politically Mixed Court

The Richmond, VA,-based Fourth Circuit hears appeals from Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Decades ago, it was seen as conservative-leaning, but that reputation has changed. The court now has eight active judges appointed by Democratic presidents and six appointed by Republican presidents. The US Senate is expected to vote Tuesday on a Biden nominee, Nicole Berner, to complete the court’s 15-person total.

Rakesh Kilaru, a partner at Wilkinson Stekloff and former clerk to Fourth Circuit Judge J. Harvie Wikinson III, said it’s a “collegial” court that “tries to reach consensus on challenging issues.”

“I don’t think these will necessarily be opinions that split based on presidential appointment,” he said, adding the judges’ legal philosophies in the Fourth Circuit have historically extended beyond party lines.

The generally “respectful” environment notwithstanding, he predicted intense questioning: “I wouldn’t be surprised in a case like this if it was a hot bench.”

The cases are Bianchi v. Brown, 4th Cir. en banc, 21-01255, argument 3/20/24,Maryland Shall Issue, Inc. v. Jones, 4th Cir. en banc, 21-02017, argument 3/21/24, US v. Price, 4th Cir. en banc, 22-04609, argument 3/20/24.