Bianchi v. Brown (formerly Bianchi v. Frosh)

B

Brownstone322

New member
The Fourth Circuit Court of Appeals has again upheld Maryland's ban on "assault weapons" and "high capacity" magazines, and I think this is actually good news.

The Fourth Circuit has stonewalled on this case for as long as it could (after the Supreme Court had vacated their previous ruling and remanded the case back to the circuit), and now it'll be appealed back to the high court, which is likely to grant cert. Then the high court will settle the issues of "assault weapons" and magazine capacity once and for all.

A Little History

Maryland passed a ban on "assault weapons" in 2013. The Fourth Circuit upheld the law in 2017 in Kolbe v. Hogan, then the Supreme Court declined to hear the subsequent appeal.

I immediately interpreted this as a strategic move among the high court's supporters of gun rights, as they probably didn't believe they'd have a majority on the issue, even post-Heller. The last thing they wanted was for the ban to be upheld, so they declined to hear the case at all. It's called playing the long game.

Then, in late-2020, a new plaintiff filed a new challenge to Maryland's ban (Bianchi v. Frosh), and I immediately recognized this as a do-over of Kolbe that was designed to reach the high court and its new makeup. The circuit court summarily dismissed Bianchi out of hand, simply referring back to Kolbe without further comment. The plaintiffs, of course, appealed.

A sea change occurred in 2022 when the Supreme Court vacated the circuit court's ruling and directed it to reassess the case in light of Bruen. Since then, the Fourth Circuit has stalled for more than two years — until now.

What's Next

The plaintiffs will appeal to the Supreme Court again, and I suspect that the high court, having seen no genuine reappraisal by the Fourth Circuit, will agree to hear the case. This will be the first time the high court will actually hear a case regarding "assault weapons" and "high capacity" magazines, which has been the plaintiffs' objective all along.

If my reading is correct, their strategy is working. Game on.
 
Last edited:
While i am thankful it will probably end up in front of the SCOTUS, i hate that we have to play games like this with ENUMERATED RIGHTS. The plain text of the 2nd is pretty clear… RKBA… shall not be infringed…come on.

I dont agree with people burning the US flag, but they have the RIGHT to protest and have free speech. I swore an oath to support and defend the Constitution and that means ALL of it. Not just the parts i agree with personally.
 
… shall not be infringed…
Click to expand...

There are people who honestly believe that as long as we can have one gun, a gun they approve of, then our right to arms is not being violated, or infringed.

I happen to disagree, the problem is that they get the same vote as rational people do.
 
44 AMP said:
There are people who honestly believe that as long as we can have one gun, a gun they approve of, then our right to arms is not being violated, or infringed.
Click to expand...

But describing as minor, the burden on responsible, law-abiding citizens who may not possess a 15-round magazine for self-defense because there are other arms permitted with 10 or fewer rounds, is like saying that when government closes a Mormon church it is a minor burden because next door there is a Baptist church or a Hindu temple. Duncan v Becerra, Judge Roger Benitez

“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” ...."The District contends that since it only bans one type of firearm, ‘residents still have access to hundreds more,’ and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted.”) Heller, 554 U.S. at 570.
 
Yes, we have rulings from various courts, including the Supreme court that banning a certain arm (Or magazine size) DOES infringe on our rights, but various states KEEP DOING IT, and the courts in some of those states SUPPORT THAT.

I don't think that's right.

Do you??
 
Of course it's not right. I also don't think it is right we have a president defying the SCOTUS ruling he can not forgive student loans. Too many in charge only respect rulings that agree with them and ignore rulings that do not. I know that borders on a political statement, but it is hard to leave politics out when it comes to gun laws. I have yet to see any gun law reduce violence, and that includes the next one that is passed.
 
Fourth Circuit Court Bianchi v Brown lies and distortions, Part 1:

Here's what SCOTUS said:

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. DC v Heller

Note that arms in common use for lawful puposes are protected. That's ALL lawful purposes, including self defense.

Here's how it was distorted:

Heller established that “the central component” of the individual right codified by the Second Amendment was “self-defense.”...The common-law right to self-defense, in turn, was understood by the founding generation to mean the right of “a citizen to ‘repel force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury.’” ...The pre-existing right codified by the Second Amendment is thus about amplifying the power of individual citizens to project force greater than they can muster with their own bodies so that they may protect themselves when government cannot. Limitations on this right to self-defense have been recognized in common law since before our nation’s founding.

These limitations inform the historical backdrop of the right ultimately enshrined in our Constitution: to keep and bear arms for the purpose of self-defense. Just as the right to self-defense had limitations at the time of the founding, so too did the right to keep and bear arms that enabled it.

The Fourth Circuit has redefined the scope of the Second Amendment from "in common use for lawful purposes, such as self-defense" where self-defense is an example of a lawful purpose, to self-defense being the only purpose. They then go on to say that since self-defense has limitations, so do the arms that may be used for self-defense, and that since [in their estimation] "assault weapons" are not suitable for self-defense, they may be banned.
 
Last edited:
This is the "playbook"...

You make a false statement. You treat it as if it were fact. You craft logical sounding arguments (portions of which might even be true) supporting the false statement, and then you draw a conclusion based on the assumption the false statement is true, supported by flawed arguments, and treat the conclusion as if it were also true, and obvious, then make law (or attempt to do so) to enforce the original false premise.

(also, whenever possible you do not include any opinions or facts you do not approve of, or disagree with to be used.)

This is precisely the pattern Hitler used in his book Mein Kampf.

It worked then.....:rolleyes:
 
Fourth Circuit Court Bianchi v Brown lies and distortions, Part 2:

Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. DC v Heller

The Supreme Judicial Court’s holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Caetano v Mass. [emphasis in the original]

Arms that may be banned are those that are “dangerous and unusual”. Note the conjunction AND. In order to be banned a weapon must be BOTH dangerous AND unusual. Not “dangerous OR unusual” or “unusually dangerous” or “excessively dangerous”.

The Fourth Circuit's distorted version:

Many of the firearms regulated by the Maryland statute are “dangerous and unusual weapons” that are not “in common use today for self-defense.” ... Rather, they are weapons “most useful in military service” with firepower far exceeding the needs of the typical self-defense situation. These weapons therefore do not fit within the Second Amendment’s ambit and thus “may be banned.”

"The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense."

Despite the crystal clear definition of "dangerous and unusual" in Caetano, Maryland has changed the standard to "excessively dangerous". Miller ruled against short barreled shotguns because they were not suitable for militia use; now Maryland wants to regulate against AR15s because they ARE suitable for militia use.
 
Last edited:
Fourth Circuit Court Bianchi v Brown lies and distortions, Part 3:

What SCOTUS said:
“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” ...."The District contends that since it only bans one type of firearm, ‘residents still have access to hundreds more,’ and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted.”) Heller, 554 U.S. at 570.

The availability of other types of arms does not justify banning arms that are commonly used for legal purposes. Yet the Fourth Circuit uses it anyway, along with a hearty dose of interest balancing, inventing precedent out of thin air and citing recent historical analogues well past the date where they would reflect attitudes in the 1790s.

...the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.
 
natman said:
The Fourth Circuit's distorted version:

Many of the firearms regulated by the Maryland statute are “dangerous and unusual weapons” that are not “in common use today for self-defense.” ... Rather, they are weapons “most useful in military service” with firepower far exceeding the needs of the typical self-defense situation. These weapons therefore do not fit within the Second Amendment’s ambit and thus “may be banned.”

"The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense."

Despite the crystal clear definition of "dangerous and unusual" in Caetano, Maryland has changed the standard to "excessively dangerous". Miller ruled against short barreled shotguns because they were not suitable for militia use; now Maryland wants to regulate against AR15s because they ARE suitable for militia use.
Click to expand...
They have also changed "in common use" to "in common use for self defense."
 
Seems like they want it both ways, claiming its ok to ban some weapons as "excessive" to the need for self defense, because the 2nd Amendment "doesn't protect them", yet at the same time, those weapons are the very ones the 2nd Amendment is supposed to be protecting from govt infringement, due to their suitability for militia use.

Seems to be a flaw in the reasoning, to me.

Of course, as long as you can own some kind of gun, they don't think they're infringing on our rights.

They're wrong, about that, but don't or won't recognize or admit it.
 
Aguila Blanca said:
They have also changed "in common use" to "in common use for self defense."
Click to expand...

Yup. It's quite clear that "for lawful purposes" is a plural that includes ALL lawful purposes, but that didn't stop them. For more detail, see post #8.
 
Last edited:
44 AMP said:
Seems like they want it both ways, claiming its ok to ban some weapons as "excessive" to the need for self defense, because the 2nd Amendment "doesn't protect them", yet at the same time, those weapons are the very ones the 2nd Amendment is supposed to be protecting from govt infringement, due to their suitability for militia use.

Seems to be a flaw in the reasoning, to me.
Click to expand...
One of many flawed reasonings in this ruling. "Assault weapons" are exactly the kind of arms the Second was intended to protect. For more detail see post #10.

44 AMP said:
Of course, as long as you can own some kind of gun, they don't think they're infringing on our rights.

They're wrong, about that, but don't or won't recognize or admit it.
Click to expand...
Also true. When SCOTUS dismisses an argument and describes it as frivolous, that should be a hint. See post #11 for the exact quote.
 
Last edited:
Quality discussion, guys. Thanks for the replies.

As we now know, Bianchi v. Frosh is now Bianchi v. Brown, as Maryland's attorney general has changed.

Hey mods! For clarity, can we change the subject line from "Bianchi v. Frosh" to "Bianchi v. Brown (formerly Bianchi v. Frosh)"? Then it'd be clear for the long haul, because we haven't seen the last of this case.


Thanks again.
 
When SCOTUS dismisses an argument and describes it as frivolous, that should be a hint.
Click to expand...

IT certainly is a "hint", problem is some people at local, state, and even Federal level not only don't get the hint, they don't have a clue and wouldn't have a clue even if you hit them with a clue bat, covered in clue-sticky...

Some people are so wrapped up in their agenda that hints don't matter, the only thing that matters is what is specifically written and called out in SCOTUS rulings, and even then. it doesn't matter to them, they go ahead, twist the SCOTUS language into something acceptable to them, and then write and pass laws using that twisted interpretation as their justification.

AND, they get away with it, UNTIL the case comes before a court that strikes down their law, and then they appeal until it finally gets back to SCOTUS, who then strikes down their law, which only stops THAT ONE LAW, as they simply repeat the process of intentionally misinterpreting what the court says, and using slightly different language, and do it all over again.

They do this time after time, after time, and the only thing that seems to stop it is replacing those individuals with people who don't have the same anti-firearm ownership bias and agenda.
 
Just a quick note on frivolous arguments. For lawyers, this is more than just a "hint." It's a warning. Federal Rule of Civil Procedure 11 subjects lawyers to sanctions for making frivolous arguments.
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee....
Click to expand...
Fed. R. Civ. P. 11
 
^^^^

I saw this in action. More than a decade ago, when working in and for a small town, I was sued in federal court (along with my boss, his boss, and several other Town employees) for violating a clown's civil right to due process. The plaintiff had undertaken a complete alteration/renovation and change of use in a building he owned without bothering to take out a building permit or have any inspections. He applied for a building permit after the fact, only because his new business was a bar and the state wouldn't issue a liquor license without a valid certificate of occupancy.

Nothing about the plan or the work met code, so we denied the permit. THEN he hired an architect, who drew it up and submitted plans, which we rejected. Multiple times, after minor revisions each time. Finally, the State got involved, issued a number of waivers and modifications, and allowed the Building Department to issue a certificate of occupancy.

Once the clown had his C of O, he sued everyone even remotely involved in "holding up" his permit for violation of civil rights. The case was dismissed as soon as it got to trial. We (the Town as an entity, and all the Town employees) were defended by an attorney provided by the Town's insurance company. The attorney called us after the plaintiff appealed the dismissal of his case. Apparently in federal court (or at least in our district) there is a pre-hearing conference before appeals are scheduled. As our attorney related it, the referee at the pre-hearing conference told the clown's attorney, "I can't tell you not to pursue this appeal, because that is your right. I should, however, remind you that there are significant penalties for filing frivolous appeals."

That was the end of the case.
 
You guys might not believe this, but the cert petition to the Supreme Court now calls this case Snope v. Brown. [Facepalm]

New plaintiff, apparently. How does that work?
 
You must log in or register to reply here.
Back
Top