Litigation Highlight: En Banc Fourth Circuit Issues Decisions on Assault Weapons and Serial-Number Restrictions

Back in March, I attended three separate oral arguments in Second Amendment cases held before the Fourth Circuit Court of Appeals sitting en banc in Richmond, Virginia (I wrote a series of blog posts about the arguments here, here, and here).  On August 6, the court issued decisions in two of those cases.[1]  In Bianchi v. Brown, the court upheld Maryland’s assault-weapons ban by a 10-5 margin in an opinion by Judge J. Harvie Wilkinson.  And in United States v. Price, 13 judges voted to reverse the sole post-Bruen district court decision striking down the federal ban on possessing guns with removed or obliterated serial numbers (we covered the earlier district court decision in Price here).  The decisions provide insight into how federal appellate judges are interpreting Rahimi, and Bianchi might be fast-tracked to the Supreme Court’s docket in the coming months.

Bianchi and Maryland’s Assault Weapons Ban

In Bianchi, nine judges joined the majority opinion by Judge Wilkinson (Judge Gregory wrote a separate opinion concurring in the judgment).  The majority opinion emphasizes federalism considerations, which have often been central in Judge Wilkinson’s approach to the Second Amendment.  For example, he noted that Maryland had acted pursuant to its own police powers and that “[s]tates may take a variety of approaches to address the nation’s mass shooting crisis beyond the regulation of firearms.” 

The majority found that part of the en banc court’s 2017 holding in Kolbe v. Hogan (which upheld the same Maryland law)—namely, Kolbe’s step-one conclusion “that the covered weapons ‘are not constitutionally protected arms’—remains good law even after Bruen.[2]  Here, the majority specifically identified “excessively dangerous arms [] not reasonably related or proportional to the end of self-defense . . . [but] better suited for offensive criminal or military purposes” as falling outside the textual scope of the amendment.  And, while noting that the Supreme Court has not yet specifically addressed the “arms” question, Judge Wilkinson emphasized Heller’s statement that “M-16s and the like” are not protected and concluded that “some bearable arms deliver force so excessive for self-defense that no reasonable person could posit that the Constitution guarantees civilian access to them.” 

The majority took particular note of the fact that the plaintiffs challenged Maryland’s ban on its face.  Therefore, the court said, it was sufficient that many of the guns banned by Maryland’s law are dangerous and unusual (such as sniper rifles and street sweeper shotguns)—and the court implied that the challenge should fail on that basis alone.  However, the majority did go on to address the application of the ban to AR-style rifles specifically.

After tracing the history of the AR-15 and the weapon’s use in mass shootings, Judge Wilkinson concluded that the AR-15 lacks “utility for self-defense.”  He also criticized the plaintiffs’ interpretation of the common use standard as an “ill-conceived popularity test”—noting that, in his view, the Supreme Court held that weapons not in common use are outside the scope of the Second Amendment but not that all weapons in common use are within its protection.  The contrary view, Judge Wilkinson said, would “[un]reasonably expect our representatives to be fortune tellers, anticipating the score of dangers posed by advances in weapons technology.” 

Finally, the majority found that Maryland’s ban on the sale, purchase, or possession of certain semiautomatic weapons was consistent with “a storied tradition of legislatures perceiving threats posed by excessively dangerous weapons and regulating commensurately.”  Judge Wilkinson found that the case called for a nuanced approach because mass shootings were “unheard of and likely unimaginable at the Founding.”  He invoked historical regulation of concealable weapons including Bowie knives and pistols in the 1800s, as well as regulatory efforts in the early 1900s to address the threat posed by dynamite and machines guns.  He ultimately found that “[t]he Maryland statute at issue is yet another chapter in this chronicle.”

In a concurring opinion, Chief Judge Diaz had harsh words for narrow applications of the Bruen test:

Why even have a ballot box when our laws are fossilized in a history book? That’s no way to foster a democracy, but it’s an effective way to paralyze one.

Judge Richardson filed a dissent, joined by Judges Niemeyer, Agee, Quattlebaum, and Rushing.  He started by observing that “[t]he Second Amendment is not a second-class right subject to the whimsical discretion of federal judges.”  Judge Richardson summarized the Court’s Second Amendment precedents and found that no aspect of Kolbe—including its textual analysis, which he described as “demonstrably inconsistent with Heller”—remains good law.  Applying Bruen anew, the dissent would have found that the weapons banned by Maryland’s law are “weapons of offence” within the original public meaning of “arms” and thus protected, and that any inquiry into “common use” falls within the second, analogy-based step of Bruen (at which the government bears the burden).

At this step, Judge Richardson traced the historical principle “that the Second Amendment permits the government to ban dangerous and unusual weapons but that it does not permit the government to ban weapons commonly used for lawful purposes.”  Relying on ownership and sales data, the dissent would have held that AR-style rifles are widely owned for lawful purposes and thus cannot be banned consistent with the Second Amendment.  Judge Richardson criticized the majority for focusing only on self-defense to the exclusion of other lawful purposes, disregarding Heller’s instructions, unnecessarily confusing the “common use” inquiry, and wrongly finding that AR-15s are not useful for self-defense and are highly similar to military weapons.  In conclusion, the dissent argued that “the majority is engaging today in precisely the kind of interest balancing that Heller, McDonald, and Bruen rejected.”

Price and Federal Serial Number Restrictions

Price, which involves a criminal defendant’s Second Amendment challenge to the federal ban on possessing guns with removed or obliterated serial numbers, has received much less attention than Bianchi.  The fact that the district court in Price was the only court nationwide to invalidate the law made reversal seem like a foregone conclusion.  Indeed, by a 13-2 vote, the en banc court reversed and found the law facially constitutional.  Judge Wynn’s majority opinion focused on the step-one question of whether guns with removed or damaged serial numbers are in common use for lawful purposes.  Relying on earlier judicial decisions, criminal tracing data showing the rarity of obliterated-serial-number guns, and the common-sense proposition that removing or damaging the serial number “bears no relationship to the lawful use of the weapon,” Judge Wynn found that “firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the Second Amendment’s protection.”  He had no occasion to conduct a step-two historical inquiry, given this no-coverage finding.

There were a number of concurring opinions and two dissents.  Judge Niemeyer took issue with “the majority’s shift of the historical tradition to step one”—rather, he would have reached the same result but without considering any historical evidence.  Judge Agee would have relied on the fact that Price is also a convicted felon, and thus barred from possessing any firearm, to conclude that the serial-number ban is constitutional as applied to him.  Judge Quattlebaum and Judge Rushing would have placed the “common use” inquiry at step two and found that the government met its burden of showing a lack of common use.  Judge Gregory dissented, arguing that the federal law covers at least some firearms in common use and that “[t]he unintended consequences of our Court’s decision in this case add weight to the albatross of mass incarceration that burdens our nation.”  And Judge Richardson would have applied a broad definition of “arms,” to include guns with obliterated serial numbers, and then found that the government had failed to supply a sufficient historical analogue (the government relied on “an assortment of inspection and marking statutes and commercial regulations stretching from the colonial to Antebellum periods”).  Judge Richardson argued specifically that the “dangerous and unusual” carveout—which he would place at step two—relates only to functional, and not superficial, characteristics of an “arm.”

Analysis

The en banc court waited to issue decisions in these two cases to allow the judges time to review Rahimi.  But the fractured opinions indicate that Rahimi did not provide much guidance.  For example, Judge Wilkinson’s majority opinion in Bianchi emphasized Rahimi’s principles language and the Supreme Court’s focus on the difficulty of a facial challenge; on the other hand, in dissent, Judge Richardson cited separate opinions in Rahimi to emphasize the broad scope of the term “arms” and used Rahimi’s reference to “principles” to underscore his view that parsing justifications for historical laws is especially important.  So too in Price, where the majority and dissent disagreed over the fundamental question of whether Rahimi should be read to place a “common use” inquiry at step one or step two.  As Judge Diaz observed in Bianchi, however, Rahimi “offered little instruction or clarity about how to answer these persistent (and often, dispositive) questions.”

The Fourth Circuit’s decision likely places Bianchi on the fast-track to Supreme Court consideration.  While the Court recently denied certiorari in a case challenging Illinois’ assault weapons and large-capacity magazine ban, which the Seventh Circuit upheld last November, the justices appeared to do so primarily because of the procedural posture (that case has not progressed past the preliminary injunction stage).  Justice Thomas, who almost certainly believes that assault weapon bans are unconstitutional, voted to deny certiorari and wrote in a separate statement that the “Court is rightly wary of taking cases in an interlocutory posture” but that he hopes the justices will “consider the important issues presented by these petitions after the cases reach final judgment.”  The Third Circuit recently took a similar approach in a Second Amendment challenge to Delaware’s assault weapons and large-capacity magazine ban—affirming a district court’s denial of a preliminary injunction while heavily emphasizing procedural considerations over the likelihood of success on the merits (we covered that opinion here).

The Illinois and Delaware laws were enacted quite recently, in 2023 and 2022 respectively.  And it will likely be at least another year or two before the suits challenging those laws reach the summary judgment and trial stage.  By contrast, Maryland’s law was enacted in 2013, briefed at the summary judgment stage in Kolbe in 2014, and has now been passed upon by three[3] Fourth Circuit panels at various stages and by the full en banc circuit court twice.  The dispute thus seems primed for review, and it is hard to imagine that any further fact-finding would be required or that further proceedings before the Fourth Circuit would be productive.  Moreover, the en banc majority specifically seems to have covered all bases (including engaging in the historical-analogy inquiry despite finding no coverage) to suggest to the Supreme Court that the case is ready.  It remains uncertain, however, whether five justices on the current Court consider the issue cert-worthy.