Fourth Circuit En Banc Report Part I: “Arms” and Burden-Shifting

In late March, I attended three en banc oral arguments in Second Amendment cases before the United States Court of Appeals for the Fourth Circuit, sitting in Richmond, Virginia.  The court itself leans left, especially after three Biden appointments—including Judge Nicole Berner, who was confirmed by the Senate and assumed office on March 19, then immediately drove to Richmond and participated in the arguments.  But the cases provide an interesting window into an appellate court grappling with how to reconcile the Supreme Court’s past Second Amendment pronouncements and its recent turn to history in Bruen.  This is the first post in a series of three summarizing the en banc arguments (you can read the other two posts here and here). 

Bianchi v. Brown is a Second Amendment challenge to Maryland’s assault weapons ban, enacted in 2013.  The case has a somewhat unusual procedural history.  In September 2021, a Fourth Circuit panel summarily affirmed a district judge’s ruling upholding the Maryland law under the en banc court’s 2017 decision in Kolbe v. Hagan.  The en banc majority in Kolbe was “convinced that the banned assault weapons . . . are among those arms that are ‘like’ ‘M-16 rifles’— ‘weapons that are most useful in military service’—which the Heller Court singled out as being beyond the Second Amendment’s reach.”  The plaintiffs sought Supreme Court review and the Court sent the case back down following Bruen.  While other similar cases were remanded to the district court level, the Fourth Circuit scheduled and held oral argument before a three-judge panel in December 2022 (notably, while the circuit itself leans to the left, that panel included two Republican-appointed judges and would likely have voted 2-1 to strike down the law[1]).  After the panel oral argument, nothing substantive happened for over a full year until the circuit set the case for en banc argument in January 2024.  That delay led the plaintiffs to seek Supreme Court review in February on a petition for certiorari before judgment, arguing that the delay was “the direct result of the en banc court desiring to take the case from a panel with which it disagreed.”[2]

Neither the procedural history of the case nor the pending Supreme Court petition came up at oral argument, and the court seemed generally inclined to uphold the Maryland law by re-affirming part of its earlier Kolbe analysis under Bruen step one.  Such an outcome would be roughly in line with the Seventh Circuit’s November decision in Bevis, a case where the challengers are currently seeking Supreme Court review.  Judge J. Harvie Wilkinson, who joined the majority in Kolbe, brought up the Bevis decision multiple times at oral argument and seemed to generally agree with its analysis.  A minority of judges on the court, including Judge Paul Niemeyer, seemed inclined to instead remand Bianchi to the district court level for a determination of whether the banned semiautomatic firearms are in “common use.”  Judge Wilkinson, however, voiced serious concerns about that approach and suggested it would lead to further delay and an additional appeal requiring the court to confront the same substantive issues.  And Wilkinson was clear that—in his view—states are not defenseless to address the dangers posed by leaps in firearm lethality.  Harping on themes present in much of his jurisprudence and scholarship, Wilkinson emphasized respect for state legislative judgments and a desire to avoid promulgating gun policy from the bench.

In addition to sparring over the continued viability of Kolbe—which various judges suggested was either still binding at step one, highly persuasive authority, or largely irrelevant after Bruen—the en banc circuit wrestled with how broad Bruen’s prima facie definition of “arms” is.  Judge Niemeyer quoted language from Heller, reproduced in Bruen, that the Second Amendment extends to “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”  In his view, that settled the issue and the court could only remand for a determination of common use and application of the historical test (if the banned weapons are indeed in common use for lawful purposes).  That’s the same general approach a Ninth Circuit panel used in an August decision in Teter v. Lopez (Jake Charles covered that decision, which has now been vacated pending re-hearing en banc, here).  In Teter, the panel held that the threshold definitional inquiry is settled by the fact that the weapon at issue is “bearable” and that the dangerous and unusual/common use inquiry “is a contention as to which [the state] bears the burden of proof in the second prong of the Bruen analysis.” 

Chief Judge Albert Diaz posed a pointed question about whether this broad interpretation would also cover machine guns, bazookas, and portable tactical nuclear devices.  The answer from the plaintiffs seemed to be “yes,” and that the legality of bans on such weapons derives from the fact that Americans simply have not yet (and presumably never will, so long as bans remain in place) choose to obtain and use such weapons for self-defense or other lawful purposes.  However, this says nothing about the popular adoption of a new type of weapon before such a weapon can be addressed through legislation.  And machine guns present an especially difficult case here given the hundreds of thousands of grandfathered machine guns in civilian possession.  The plaintiffs tried to distinguish machine guns by suggesting that “common use” requires that approximately 1 million of a certain weapon be owned by civilians for lawful purposes.  But attempts to numerically define “common use” are all over the map.  Even Judge Niemeyer observed that he was unsure whether 24.6 million AR-style semiautomatic rifles in civilian hands was enough to show common use, noting that a district judge in California recently found this number insufficient.  That decision noted that about 2.5% of adult Americans own semiautomatic rifles for self-defense and found that percentage insufficient, compared to about 20% of adult Americans who own a handgun for self-defense.  (Judge Niemeyer suggested that outcome might be “wonky,” but that he believed common use was a legitimate open question in the case).

Ultimately, I think, the problem with adopting such a broad view of the first step of the Bruen test is that it inevitably warps the remainder of the legal analysis.  As Judge Diaz’s questions suggest, courts are simply not going to permit challenges to bans on machine guns, bazookas, grenade launchers, and so on to succeed.  Rather, if they do adopt a broad view that these weapons are protected “arms,” the result will be an amorphous exclusion for weapons that fire “indiscriminately,” a somewhat random numerical threshold for common use, or a much more forgiving application of the analogical comparison to historical laws.  It’s not immediately clear to me why any of those approaches is preferable, as a practical matter, to approaching “common use” within the step one inquiry where the plaintiff bears the burden.  As some of the questioning in Bianchi demonstrated, asking judges to determine within the second step whether the state has shown that a weapon can fire indiscriminately or has uniquely dangerous features will open to the door to the types of balancing arguments Bruen appears to foreclose.  Rather, considering “common use” within step one seems both more workable and justified, if the core of the Second Amendment right is in fact personal self-defense.

A recording of the oral argument in Bianchi is available here

[1] The panel consisted of Judges Paul Niemeyer, Stephanie Thacker, and Julius Richardson.  Judge Niemeyer, a George H.W. Bush appointee, dissented from the circuit’s 2017 en banc ruling in Kolbe—joining an opinion that would have applied strict scrutiny to the Maryland law and heavily implied the law was unconstitutional.  Judge Richardson, a Donald Trump appointee, has endorsed an expansive view of the Second Amendment in a number of cases since taking the bench in 2018: in addition to authoring the panel majority opinion in Maryland Shall Issue striking down the state’s purchase permitting law for handguns, Judge Richardson invalidated federal handgun purchase restrictions for 18-to-20-year-olds in a since-vacated 2021 decision and argued in dissent in another case that those convicted of domestic violence misdemeanors should have the ability to bring as-applied challenges to the federal possession ban in 18 U.S.C. § 922(g)(9).

[2] It’s important to note here that the Fourth Circuit engaged the same procedural maneuver but with a left-leaning panel in Price, a case involving a Second Amendment challenge to the federal ban on possessing guns with removed or obliterated serial numbers where the court also heard en banc argument in late March.  The court took Price en banc from a majority-Democratic panel that would almost certainly have upheld the law at issue there, and similarly after that panel had heard oral argument.