By Dave Workman
Editor-in-Chief
In the aftermath of Wednesday’s oral arguments regarding Maryland’s ban on so-called “assault weapons,” news reports suggest some of the judges on the 4th U.S. Circuit Court of Appeals’ en banc panel revealed a bias against modern semiautomatic rifles at the center of this case.
Referring to one exchange between Judge J. Harvie Wilkinson III and plaintiffs’ attorney Peter A. Patterson, the judge asked, “Have you ever fired an M16? I have,” according to the Washington Post.
The M16 is a military rifle, capable of selective, full-auto and semi-auto fire, and not the rifle at issue. The AR-15 and its clones are specifically semiautomatic firearms designed for the civilian commercial market.
However, a report in Reuters suggested Circuit Judge Robert King, a Bill Clinton appointee, also does not understand the difference. He is quoted stating, “We’re talking about M-16s and the like…And the AR-15 is the M-16.”
Judge Wilkinson, described as a “1960s Army veteran” and a Ronald Reagan appointee, mentioned firing the M16 at human silhouette targets and “splinter(ing) them into all sorts of different pieces.” He said there was “very little left.”
Other judges on the panel seem wary of the notion that firearms “in common use” should be protected by the Second Amendment.
Chief Judge Albert Diaz, a Barack Obama appointee, reportedly remarked, “Under your theory, if Congress had never gotten around to banning fully automatic rifles and machine guns and they had become popular in common use … a state could not ban” them. Judge Diaz then wondered, “What about a bazooka used for recreational purposes? A tactical nuclear weapon? So there’s no limit. Essentially, once the cat is out of the bag, the Second Amendment trumps all?”
On the other hand, District Judge Paul Niemeyer, a George H.W. Bush appointee, suggested sending the case—Bianchi v. Frosh, filed by the Second Amendment Foundation (SAF), Citizens Committee for the Right to Keep and Bear Arms, and others—back to the District Court for further examination. According to the Courthouse News, Judge Niemeyer told his colleagues, “We ought to follow Bruen whether we like it or not. There is a lot of political pressure on a third-branch court, and as a consequence, we sit here and debate all kinds of arms as if we’re some kind of subcommittee.”
The Washington Post quoted Niemeyer observing, “If we don’t like Bruen, we shouldn’t be on the court. We don’t have to like what the Supreme Court does, but we have to follow it.”
The full en banc hearing was described as “unusual” by the Daily Record: “The judges’ decision to rehear the case en banc was unusual because the three-judge panel that originally heard arguments had not issued a ruling yet. The panel appeared poised to strike down the ban under the Bruen framework.”
If that is correct, it appears the 4th Circuit’s liberal majority may have different motives than to just speed this case along, probably back to the Supreme Court, which granted certiorari in June 2022, vacating the 4th District’s earlier ruling upholding the ban, and remanding the case back to the district court for further action based on the new guidelines set down in the Bruen ruling. Under Bruen, there may be no “means end scrutiny” of laws under Second Amendment challenge, only whether the law is analogous to historical precedent at the time of the founding.
SAF founder and Executive Vice President Alan Gottlieb told TGM, “Several judges on the Fourth Circuit Court of Appeals indicated that they may want to send the case back down to the district court rather than issuing a ruling themselves on the constitutionality of the ban. That would be an extraordinary step for the appeals court to take, but it wouldn’t be the first time that the judges have played games with the litigation. This is not a friendly circuit for Second Amendment rights based on their past rulings. When you get a judge declaring that an AR-15 is the same as a M-16 full auto machine gun you know that this panel is biased and uneducated about firearms. Our goal is to get this case before the Supreme Court where we will get our victory.”
The Courthouse News noted that attorney Patterson, with Cooper & Kirk in Washington, DC, told the court that banning guns because they might have military applications is a contradiction.
“The Second Amendment, as Heller said, was put into the Constitution to preserve the militia, which was valued for things like putting down insurrections and repelling invasions,” Patterson reportedly observed. “The notion that a firearm cannot be protected because of its military utility would make no sense.”
It does offer some insight as to why gun prohibitionists have called the AR15 and similar rifles “weapons of war” that have “no place in society.” Millions of law-abiding, peaceable citizens who own such firearms disagree.
It is not clear when the 4th Circuit will hand down a ruling or, if Gottlieb is correct, send the case back down for even more lower court action, which by now translates to a stalling tactic. Liberal judges simply do not want to hand down a ruling favorable to the Second Amendment community.
