Maryland, My Maryland

Ranjit Singh at Bearing Arms points out how Maryland is trying to forestall a Supreme Court decision that will likely overturn our draconian assault weapons ban: Dear SCOTUS: Percolation Tests Are For Septic Tanks, Not Second Amendment Infringements

When faced with a problem, politicians have a tendency to not actually find the root cause of that problem and come with effective solutions to solve that problem. Their primary motivation is to appear like they’re solving the problem in order to ensure their chances of reelection. 

When looked at from this lens, “assault weapon” bans, and indeed the majority of gun control laws, make perfect sense. When crooks and crazies do bad things, the easiest and laziest thing that a politician can do is to demonize those who did not commit those evil deeds and don’t have a mean bone in their bodies to ever commit such evil deeds in their lifetimes. But it’s easy for politicians to say, “Look, your serf, if only you gave up your rights can we all be at peace.”

“Assault weapon” bans are a crystallization of this logic. Most readers of this website are well aware, but for the tiny minority who aren’t, an “assault weapon” is nothing more than an arbitrarily created category of arms. They are not functionally different from other arms. Banning them serves two purposes: 1) allow the politician to look good, and 2) set the legal stage, intentionally or not, for the ban of more arms by reclassifying them as “assault weapons.”

 

Second-Amendment organizations have been challenging these bans for a long time. Their lawsuits have been moving at a glacial pace, getting bounced around like a ping-pong ball from court to court. In 2022, the bans got their day in Court, when two bans – Miller v. Bonta (California), and Bianchi v. Frosch (Maryland) – were effectively overturned by the Supreme Court and sent back to lower courts for reconsideration.

But the Supreme Court underestimated the intransigence and dishonesty of the lower courts. After a couple of years worth of judicial games, lower courts have rubber-stamped “assault weapon” bans, and one of those cases – Snope v. Brown (a reincarnated version of Bianchi v. Frosch), is knocking on the Supreme Court’s door again.

 

Maryland, of course, wants the Supreme Court to not hear this case. One of their pretexts is “percolation”:

Whether assault weapons are covered by the text of the Second Amendment following Bruen, and whether a ban on such weapons is supported by this Nation’s historical tradition, are questions that have only begun to percolate in the courts of appeals. Jurisdictions in at least eight circuits have some form of ban on the possession of assault weapons. Yet to date, only two courts of appeals—the Fourth Circuit and the Seventh Circuit—have considered Bruen’s application to assault weapons bans. And the Seventh Circuit has done so only in reviewing decisions whether to grant preliminary injunctive relief. There is no reason why this Court should stray from its usual practice of allowing questions to percolate in multiple courts of appeals, with arguments tested and refined in cases litigated through final judgment on the merits, before granting certiorari.

 

Snope is a case of “been there, done that” in the Fourth Circuit. It’s already made one trip from the District Court to the Supreme Court and back. On its second, current iteration, It involved a disgusting game played by a dissenting anti-Second Amendment judge in the District Court, who withheld her dissent for a year just to deny justice by delaying it.

Allowing the broad question of the constitutionality of assault weapons bans (and all of the issues that question might encompass) to percolate in this manner will ensure that, if the Court does consider the question, it does so with the benefit of arguments that have been well-developed and repeatedly tested through the adversarial process. 

Maryland wants to draw out the case as long as possible, not to allow lower courts to weigh in, but to allow the older conservative justices to age out. They’re trying to draw the Court into a game of actuarial chicken.

Snope’s lawyers have a fantastic reply to Maryland’s dilatory games that dismantles the “percolation” argument:

REASONS FOR GRANTING THE PETITION

Thirty years ago, this Court described the semiautomatic AR-15 rifle as a “civilian,” “commonplace,” “generally available,” and “traditionally … lawful” firearm. Staples v. United States, 511 U.S. 600, 603, 611–12 (1994). Sixteen years ago, this Court confirmed that the Second Amendment protects the right of individual citizens to possess firearms that are in common use for lawful purposes. District of Columbia v. Heller, 554 U.S. 570, 624–25 (2008). In the intervening sixteen years, semiautomatic rifles have continued to be “commonly available,” Garland v. Cargill, 602 U.S. 406, 429–30 (2024) (Sotomayor, J., dissenting), and the AR-15 today is “one of the most popular firearms in the United States,” Definition of “Frame or Receiver” & Identification of Firearms, 87 F.R. 24562-01, 24,652 (2022). This therefore should be an easy case—the Second Amendment protects common firearms, semiautomatic rifles like the AR-15 are among the most common firearms in the Nation, therefore bans on semiautomatic rifles like the AR-15 violate the Second Amendment. Yet, incredibly, in the sixteen years since Heller every single court of appeals to consider the question has concluded that such bans are constitutional, employing a variety of tests that are uniform only in their failure to adhere to the principles established by this Court. Maryland asks this Court to deny certiorari to allow even more time for percolation, but enough is enough. The lower courts have proven themselves incapable of following Heller’s clear guidance, and this Court should intervene without delay.

The patience of the Second Amendment community is wearing thin, and this reply captures it very well. We have been given the runaround for too long. Justice has been denied through delay. Judicial processes have been manipulated to serve only one end: the affirmation of unconstitutional infringements.