Maryland rifle ban in the Supreme Court

Today, I submitted an amicus short in support of the cert. Petition challenging Maryland’s ban of various semiautomatic rifles. The case is Bianchi against FroshThe case was filed by the Firearms Policy Coalition and the Second Amendment Foundation. Petitioners are represented by the D.C. powerhouse litigation boutique Cooper & Kirk. (Docket page, Petition page.)

Initialy, Maryland Attorney General Frosh waived his right not to respond to the petition. However, the Supreme Court demanded a reply on January 14. Frosh and his amici were granted an extension by the Court for their response due March 14.

Co-written together with several lawyers, including University of Wyoming professor George Mocsary. It is in support of a dozen Second Amendment lawyers, which includes Randy Barnett from the VC. The Independence Institute (the Denver-based think tank where my work is), John Locke Foundation (a North Carolina thinktank), Cato Institute and Center to Keep and Bear Arms are also represented by the brief.

Arizona and West Virginia are leading the way. Twenty-five states Attorneys General filed amicus briefs in support of petition. They claim that cert. They argue that cert.

  1. Many lower courts have been narrowed HellerBelow.

  2. Congress could refuse to allow review, and enact a ban national on the matter. This would override 43 state’s policy options.

  3. Fourth Circuit’s new rule that government can ban firearms that look “like” military arms was based on an outrageous misinterpretation of one sentence. Heller. According to Fourth Circuit rules, common firearms are prohibited. This includes the Colt 1911.45-caliber pistol.

  4. Maryland’s ban is harmful to public safety as the guns it targets for prohibition can be fired more accurately and stored safely. They are also easier to use for self-defense. It would be wrong to claim that better firearms are possible to ban because criminals may take advantage of them.

Additional amicus briefs may be filed in support of the certification. The petition is due Monday, February 14. Sometimes there is a delay between the time a brief is filed with the Court and its appearance on the Court’s docket pages.

Below is the summary of argument from my short:

Appeal court rulings upholding rifle bans, such as the one in this case, are based on unfounded reasoning. The Fourth Circuit rule in question here would prohibit the use of most common firearms during colonial or Founding period: the American long gun. It was used for hunting, personal defence, and militia.

Although the Seventh Circuit claimed to support arms of the Founding Era, it did not. The court, however, upheld the ban on self-loading firearms. This type of gun was in use for over a century.

This version of intermediate scrutiny, which only considers the evidence presented by government officials and does not take into account any less restrictive options, was employed by The Second Circuit. The First Circuit believed that law-abiding citizens would make their own choices about common defense arms.

All four of this Court’s Second Amendment precedents on arms bans—Heller, McDonald, CaetanoPlease see the following: Miller—eschewed means-ends balancing. This Court is categorical in its approach.

Lower courts recognized that the guns in dispute are “in common practice.” The frequency with which a firearm is used for self-defense does not determine “common use”. All lawful uses are included in the definition of “common use”, including self-defense and hunting. If arm bans are applied to protected arms classes, they do not automatically become constitution. Dick Heller’s 9-shot,.22 calibre revolver wasn’t very popular. But handguns were quite common.