by William Kirk
Hello again everyone. Welcome watching Gun Law tv. I'm Washington Gun Law President William Kirk. Thanks for joining us. Can you imagine having to get a permission slip before you could exercise the right? It's almost like having to get a hall pass before you go out and exercise your inalienable rights. It may seem very foreign to a lot of you and that's a good thing, but if you live in certain states, yeah, you see there's this thing called a permit to purchase. You actually have to go out and get government's permission before you can go purchase a firearm. Essentially, you need their permission before you exercise a right. Put more simply, you need to go through a background check before you get to go through a background check. Well, we're going to head out to the state of Maryland because that type of legislation was originally thrown out by a three judge panel in the fourth Circuit, but the en banc panel, well, they've seen things a little differently. So today, let's spend a few minutes and let's talk about the Fourth Circuit upholds permission slips before exercising your rights.
Okay, before we get going too far down the road, we're going down, we tell you here at Washington Gun all the time that we're not going to tell you how to think, but we are going to give you all this stuff to think about. Well, does the news treat you that way? And that's why I've been using ground news because in today's world of media bias and censorship, ground news gives you the freedom to learn for yourself, to attach your own weight to the facts and come to your own conclusion. Wow, what a concept, huh? Here's how it works. You take today's news story, for example. You start searching it out, and now one, you can see who the news source is and what is their political leaning. Two, you can actually learn who owns each news source three, you can see the headline manipulation to see how the story is being distorted, and most importantly, you can see the bias distribution of each story, but there's a lot more and it's all cool.
Take for example, the blind Spot. I love this feature. Now it's only fully unlocked if you get a vantage plan, but this allows you to see news stories that are only being covered by one side of the political spectrum. It really helps you understand the other side. Now here's the best news. If you subscribe today at Ground News slash Washington, you're going to receive 40% off the vantage plan. Listen, it's time for you to break free from media manipulation. It's time for you to be able to make up your own mind. It's time for the news to start treating you like an adult. For more information, visit my good friends at Ground News slash Washington. Okay, America, the case we're talking about today is the case of Maryland Shall UV more. Now, this is a case that we have talked about before. This was a challenge to Maryland's permit to purchase license in Maryland.
You had to go through mandatory training and other things to get a permit before you could then go to a gun store to purchase a firearm. Now, the fourth circuit here has shockingly upheld this law. And if you are a fan of the old statement, a right delayed is a right. Denied. Yeah, you might want to turn off this video right now because you are not going to like what you're about to hear. Before we get too deep into the opinion, we are going to have to teach you a new terminology today, and that is the term dicta. What is dicta? Well, dicta technically is defined as dicta is short for the Latin phrase, obiter dictum meaning something said in passing. Dicta in law refers to a comment, suggestion or observation made by a judge in an opinion that is not necessary to resolve the case.
And as such, it is not legally binding on other courts, but may still be cited as persuasive authority in future litigation, also referred to as dictum and judicial dicta. A dissenting opinion is also generally considered abbit or dictum. What it really means is it's all the useless crap that fills pages and pages of an opinion, but I think that there are two very valuable lessons to learn from here. Okay, the first valuable lesson is this, is that whenever a three judge panel rules one way and then the en bon panel immediately swoops in sucks it up like a big Hoover vacuum cleaner. And in this case it was the fourth Circuit. We already saw their ruling in Bianchi v. Brown. We all should have expected what was going to happen here, and that is exactly what's happened because the full banc panel of the Fourth Circuit has upheld this law by a vote of 14 to two.
Now, I was shocked to hear that they need 16 justices in the fourth circuit, but 14 of 'em believe that this law is just fine. The second lesson to learn, and we have talked about this time and time and time again, especially most recently in the Rahini opinion, which is if you give them an inch, they will take a mile and if you include sloppy language into an opinion, they will glom onto it like you cannot believe. They will literally stick to it like a barnacle and they will never let go of it. And that is exactly what's happened here because the fourth Circuit basically took some dicta out of the brewing opinion and said, Hey, this solves the problem right here. We conclude that the Supreme Court in Bruin foreclosed the plaintiff's temporary deprivation argument by stating that despite some delay occasion by shall issue permit processes, this type of licensing law is presumptively constitutional because it operates merely to ensure that individuals seeking to exercise their Second Amendment rights are law abiding persons.
We hold that the plaintiffs have failed to rebut this presumption of constitutionality afforded to shall issue licensing laws like the handgun qualification statute. So the plaintiff's challenge as to the HQL statute fails and we affirm the District Court's award of summary judgment to the state of Maryland. And you sit there and you go, presumptively, constitutional, what exactly are you talking about? Well, I said it's the inclusion of language, sloppy language not necessary to the actual ruling of the case that gets us in this mess every single time. Don't believe me. Well, this is where the fourth circuit hung their hat, but the court did not limit its discussion Bruin to the proper cause requirement challenged by the petitioners or to other may issue licensing regimes. Instead, the court discussed the dicta, the presumptive lawfulness of what the court referred to as shall issue licensing laws and the exact language that the fourth circuit is hanging their hat on from Bruin reads as follows.
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 states shall issue licensing regimes under which a general desire for self-defense is sufficient to obtain a permit. Because these licensing regimes do not require applicants to show an atypical need for armed self-defense. They do not necessarily prevent law abiding responsible citizens from exercising their second amendment right to public carry. Now, one would think that with the litany of case law going all the way back to Miller and looking at Heller and McDonald and even more recently Bruin and Rahimi, that any type of deprivation of a Second Amendment right would probably be right for successful litigation. But you see the fourth circuit, well, they don't even see this as an infringement of a right at all. In fact, in comparison to the other cases they were quoted as saying, so in these cases there was no question that the laws infringed the right to keep a bare arms because the government either by law regulation or means of discretionary governmental determination prevented individuals from exercising these rights.
But in this case, the court finds but Bruin in explicitly distinguishing shall issue licensing laws also introduce the more nuanced consideration of the concept of infringement. The court emphasized that shall issue licensing laws do not necessarily prevent law abiding responsible citizens from exercising their second amendment rights and require a more refined analysis in the shall issue discussion. The court established guideposts that reviewing courts may use to determine whether a shall issue licensing law infringes the right to keep and bear arms. The court explained that shall issue licensing laws which employ narrow objective and definitive standards. Do not give authorities discretion with regard to issuing a license. Ordinarily do not prevent law abiding individuals from exercising their second amendment rights. And listen, if you don't believe me that these courts are just cherry picking dicta and hanging their hat on that. Well, the fourth circuit says the quiet part out loud.
In the years following Heller McDonald, we and our sister circuits have relied on this dictum from Heller in rejecting myriad constitutional challenges to laws prohibiting the possession of firearms by felons. Now, I want you to understand here that the fourth circuit has carved out a whole new test here, okay? A test for what happens if you challenge the constitutionality of shall issue regimes. Now, I know what a lot of you are saying. How is this a shall issue regime where the court basically made this finding that any person who is lawfully entitled to possess a firearm in Maryland and goes through the requirements including the live fire training and all of that, well they will in fact be issued a permit. There is no discretion on behalf of the state of Maryland once a person completes all of those requirements, the argument that a right delayed equals a right denied, yeah, you can tell what the ears on that one did.
So in accord with the Supreme Court shall issue discussion. We hold that non-discretionary shall issue licensing laws are presumptively constitutional and generally do not infringe the second Amendment right to keep and bear arms under step one of the Bruin framework. And this is the most alarming thing here because the fourth Circuit now has decided that they're going to just carve out a new test. And the new test is is that if we're challenging what they deem to be a shall issue regime, it is presumptively constitutional and then the burden then shifts to the plaintiff to prove otherwise if they have it their way. The new test for challenging similar statutes like this would be as follows. If a plaintiff fails to rebut the presumption of constitutionality, the plaintiff's challenge to the shall issue. Licensing law fails at step one with no requirement to conduct a historical analysis under step two.
If however, a plaintiff rebuts this presumption of constitutionality by showing a shall issue, licensing law effectively denies the right to keep and bear arms, the burden shifts to the government to demonstrate that the regulation is consistent with this nation's historical tradition of firearm regulation. If the government satisfies its burden under step two, then even a shall issue licensing law that effectively denies the Second Amendment right can be enforced consistent with the Second Amendment. Now, I think there's language in there, maybe some of it's dicta, but that doesn't seem to stop anybody right now, but California in your massive delays that you're experiencing now with your concealed carry licenses, there is language here that you could cherry pick to mount a much more significant challenge. Now, I know what a lot of you're saying is, wait a second, wait a second. Bruin dealt with licenses to carry and this is actually dealing with just a license to actually be able to purchase or own a firearm.
So it really is kind of apples oranges. You're right, it is. But why would the Ford Circuit let that stop him? Before turning to apply these legal principles to the HQL statute, we address the plaintiff's and the defense's preliminary arguments that the shall issue discussion is inapplicable to the present case or to the step one inquiry. The plaintiff's initially assert that because the shall issue discussion addresses only public carries laws, that discussion is irrelevant to a shall issue. Licensing law regarding the possession of firearms, we reject this contention because the distinction advanced by the plaintiff's rests on a false premise, namely that the Supreme Court has recognized different levels of constitutional protection for the Second Amendment right to keep arms and the second amendment right to bear arms. Okay, so for the time being, Marilyn, your license to purchase your hall pass that you must get before you exercise a constitutional right remains in effect.
There likely will be a petition to the United States Supreme Court, whether or not the United States Supreme Court accepts this, that's going to be anyone's guess. We will clearly have to keep a very, very close eye on it. The case once again is Marilyn Shall issue V more. We're going to link up the court's ruling down below so you can geek out on it for yourself. Maybe you got questions about this or something else related to what's left of our Second Amendment rights. You guys should know how to get ahold of Washington Gun Law by now, but if you don't, that's okay. That information, it's down there in the description box. Maybe you got an idea for a video we should be doing around here. If you do, go ahead and click on that link right there. Some of the best ideas we ever came up with actually weren't our ideas at all. Maybe you just want to be part of our monthly newsletter. If you do, the ability to subscribe to that is all down there in the description box. And then finally, and most importantly, America, let's 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. Stay Safe.
YouTube Video Link: https://www.youtube.com/watch?v=cDMP7L3umzQ
Credit: William Kirk Washington Gun Law