Hello again everyone. Welcome to watching Gun Law tv. I'm Washington Gun Law President William Kirk. Thanks for joining us. Coming to you from once again here at Security Gun Club, which is of course Washington's premier indoor shooting facility. We are still transitioning to a new studio. I promise it's coming. Listen, huge news, huge news, big news, bad news, not totally unexpected news. We have a ruling out of the fourth circuit in the matter of Bianchi v. Brown, formerly known as Bianchi v Frosh, which is a challenge to Marilyn's assault weapon ban case. Now, if you've been geeking out on this channel and a few others, you knew what we were getting into when we were getting into the fourth circuit and when the OMB Banc panel just swooped in to take it out. But there's a lot of stuff to dissect from here. It's about 160 something pages with all the dissenting opinions. I've had a chance to get through some of it. I'm going to get you educated today so you can understand just how disingenuous this court really was. So today, let's spend a few minutes, let's break it all down and let's talk about huge news. The fourth Circuit upholds Maryland's assault weapon ban.
Okay, America, the case we're talking about just came out yesterday is Bianchi v Brown. It is a ruling out of the full OMB Bon panel of the Fourth Circuit as to the constitutionality of Marilyn's assault weapon ban. Now, as you may recall, this case was GVR in June of 2022. It was called Bianchi Vro at the time, right after the brewing opinion. So to give you an idea of how these courts can just sit on these issues forever, more than two years after it got GVR, we are now finally at a point where we have a final resolution in the fourth circuit. The court has ruled with respectful consideration and benefit of Bruin. We now uphold the judgment below. 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.
Oh, don't worry, they're just getting warmed up. There's more. Moreover, the Maryland law fits comfortably within our nation's tradition of firearms regulations. 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. For these reasons, we declined to wield the constitution to declare that military style armaments, which have become primary instruments of mass killings and terrorist attacks in the United States are beyond the reach of our nation's democratic process. In doing so, we offer no view on how a state should regulate firearms, but what they do offer is a roadmap for any state Supreme Court who wants to uphold one of these unconstitutional bans, and that's what we're going to be outlining today. Okay, so where the court is going is, is that these firearms are not protected by the Second Amendment.
I've always thought, and many of you probably always thought, and you probably have read it, and it's like, well, heller's a pretty straightforward, easy to understand case. It is for all of us, but for the fourth Circuit and the ninth Circuit and other judges in this country, it is apparently a very confusing piece of judicial opinion. The court here has ruled indeed the court found it would be startling to read the Second Amendment such that the National Firearms Act restriction on machine guns might be unconstitutional. Thus, the court acknowledged that it was not in serious dispute that weapons that are most useful in military service M 16 rifles and the like may be banned. That is literally them trying to make a mountain out of a molehill from Heller. They actually believe that Heller stands for it, but there's more. The court recognized an additional limitation on the types of arms that the Second Amendment protects.
It interpreted the holdings of a previous Second Amendment decision, Miller, to stand for the proposition that the Second Amendment does not protect those weapons, not typically possessed by law abiding citizens for lawful purposes such as short barrel shotguns. In other words, dangerous and unusual weapons that are not in common use can be prohibited. And you sit there and you go, well, wait a second. How could you possibly draw that conclusion? Now they go through pages and pages where they dissect and cherry pick language out of Heller and out of Rahimi and out of McDonald and after Miller and all of these other cases. But they ultimately come to this conclusion. With this background in mind, we proceed to our analysis of the assault weapon regulations at issue. We hold that the covered firearms are not within the scope of the constitutional right to keep and bear arms for self-defense, and thus Maryland's regulation of them can peaceably coexist with the Second Amendment.
That's right. The fourth circuit has redefined the right to keep and bear arms. It is now in the fourth circuit, the right to keep and bear arms for self-defense. Then the court goes on to state, moreover, even if the text of the Second Amendment were read to encompass the covered firearms, the statutory provisions at issue would nonetheless be constitutional. Our nation has a strong tradition of regulating excessively dangerous weapons once it becomes clear that they're exacting an inordinate toll on public safety and societal wellbeing. And of course, the only historical analog that they could draw to for that, well, that would be the National Firearms Act of 1934 or roughly almost a hundred years post any date that any court has ever accepted for historical analogs. Now, I want you to think about this for a second, America, because the Fourth Circuit believes that the most commonly used sporting rifle in America is not protected by the Second Amendment, and you sit there and go, how well the court even points out pursuant to Bruin.
We begin by asking whether the plaintiff of the Second Amendment guarantees the individual right to possess the assault weapons covered by the Maryland statute. At first blush, it may appear that these assault weapons fit comfortably within the term arms as used in the Second Amendment. Yes, it does fit quite comfortably because that is how plain English works. But you see then the court goes through this kind of cherry picking of First Amendment case law, okay? And yes, there is a lot of limitations that had been allowed in the First Amendment. Also, the First Amendment doesn't use the term shall not be infringed. I'm just as a side note there, but fighting words, defamation, there's all sorts of restrictions and time, place and manner as to when you can exercise your right to speak freely. Somehow or another, the court then extrapolates that that must be the same for the Second Amendment, even though it does say shall not be infringed and comes to this conclusion.
The upshot is that the text of the Second Amendment, like the text of other constitutional provisions, must be interpreted against its historical and legal backdrop. Now, let me give you an idea of why I can clearly state the Fourth Circuit is completely intellectually dishonest Here. They have previously upheld Maryland's assault weapon ban case under the case called Colby. Now here's the thing. They were operating pre Bruin when they did this. So they found that even though the second amendment did protect these types of firearms, when you basically started doing the balancing test, the societal need was outweighed by the infringement to the individual, right? The old balancing test. And therefore they upheld a Maryland's assault weapon ban based on that balancing test. Now that they're not able to resort to a balancing test, what do they do? They change their findings altogether on the first component and say, you know what?
Now on second thought, the Second Amendment doesn't even cover this type of firearm. It is true that Kolbe was decided before Bruin, but contrary to appellant's claims, Bruin did not abrogate Kolbe's entire holding while the court in Bruin held that the means and balancing we conducted in our secondary alternative analysis was one step too many. It did not disturb our principal holding that the covered assault weapons were outside the ambit of the individual right to keep and bear arms. Now, here's the dangerous part of where this analysis is going is because the court has rewritten the meaning of the second amendment. It's the right to keep and bear arms for self-defense. And then what they focus on is everything's got to be based on justifying it through the limited means of what is necessary in the court's opinion for self-defense. And you can understand what a horrifically dangerous balancing test this would actually give the court.
You would have some courts that would be like, yeah, you know what? Everything's fine for self-defense. And then you would have other courts that would say a single shot derringer is all that one actually needs. The court here has ruled the preexisting, 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 they may protect themselves when government cannot. And lately that's about every single time limitations on this right to self-defense have been recognized in common law since before our nation's founding. Then the court goes through all of the limitations that we talk about all the time here in self-defense laws. It has to be necessary. It has to be reasonable, it has to be proportional. The force that you're threatened with has to be imminent, all sorts of limitations that are placed on it.
And because we can place limitations on the right to self-defense and the Second Amendment is exclusively about the right to self-defense, it means we get to put all sorts of limitations on the Second Amendment itself. That is the actual reasoning of this Ennc panel. And again, somehow or another, extrapolating from the Heller opinion, the court bastardizes the common use test in the following way, but other weapons variously referred to as dangerous or unusual or dangerous and unusual could be banned without infringing upon the right to bear arms. Such excessively dangerous arms were not reasonably related or proportional to the end of self-defense, but were rather better suited for offensive criminal or military purposes and were thus understood to fall outside the reach of the right. That's right. That's what an OMB Bon panel of the Fourth Circuit has ruled. Now, you want to see how dangerous this balancing test can be where the court will then just decide, well, I don't know if that's really needed for self-defense and therefore government has the right to ban it.
It's this statement right here from the Fourth Circuit. What brings all the weapons beyond the scope of the Second Amendment together and what separates them from the handguns is their ability to inflict damage on a scale or any manner disproportionate to the end of personal protection. As such, they are weapons most suitable for criminal or military use. And if you don't believe that, the court wants to inject a new balancing test. That is what do we believe is most appropriate for self-defense? Check this out. The Second amendment with its central component of individual self-defense is not concerned with ensuring citizens have access to military grade or gangster style weapons. In short, then, while the Second Amendment jealously safeguards the right to possess weapons that are most appropriate and typically used for self-defense, it emphatically does not stretch to encompass excessively dangerous weapons ill suited and disproportionate to such a purpose.
And then of course, the court cherry picks like the 50 BMG and goes through several pages like why would anyone ever need a 50 BMG leading Al? Of course, then to pose this as their conclusion, in short, appellants have failed to show that each firearm regulated by the Maryland statute is within the ambit of the Second Amendment, and so the broad relief their facial challenge seeks is not ours to grant. Okay? That is a ton of bad news. Now, while the ruling itself, the holding itself was not unexpected, the horrific language that the court has used, the almost thumbing of the nose at the Second Amendment, the judicial rewrite of the Second Amendment would certainly make this a very interesting case for the United States Supreme Court. And since the full OMB Banc panel has now ruled on this case, this case has now been brought to fruition, which means warm up the petition for Cirri right now because this case now moves into poll position as to the first case that is ripe to be taken by the United States Supreme Court.
And let us not forget that the United States Supreme Court has not filled all of its docket for next year. That my friends is the good news because this case, Bianchi v Brown now becomes the prime candidate to be the assault weapon ban to make it to the United States Supreme Court. Okay? The case once again is Bianchi v Brown. You knew that already. We're going to go ahead and link up the ruling down below so that you can geek out and puke on it for yourself. Maybe you got questions about this or anything else related to what's left of our Second Amendment rights, apparently in the fourth Circuit, it's not a whole lot. If you have any questions, you should know how to get ahold of Washington gun law by now. But if you don't, that information is down there in the description box. Maybe you got an idea for a video we should be doing here. If you do, go ahead and click on that link right there. Maybe you just want to be part of our newsletter subscription. If you do, the ability to subscribe is down there in the description box. And then finally, and most importantly, let's everyone remember that part of being the lawful and responsible gun owner, like we talk about all the time here, is to know what the law is in every situation, how it applies to you in any instance that you may find yourself. Until next time, thanks for watching and stay safe.
YouTube Video Link: https://www.youtube.com/watch?v=CNmoFZY3iC0
Credit: William Kirk, Esq. Washinton Gun Law