(1500 words)
Out in California, Virgina Duncan has been fighting the state and the Ninth Circuit court since 2019. Her case made it all the way to the Supreme Court, where it was Granted Certiorari, the decision of the Ninth Circuit was Vacated, and the case was Remanded (GVR).

The Ninth Circuit court then kicked the case back to the district level for more “fact finding”. The California statute was found unconstitutional, again at the district level. It was appealed to the Ninth Circuit court, where games were played.

A year and a half after Bruen Virginia is still being screwed by the state.

At the same time as the Supreme Court GVR’d Duncan v. Bonta, they also GVR’d Bianchi v. Frosh. Yes, the same day, at about the same time.

The Fourth Circuit Court took a different approach. They acted rapidly, and a three judge merits panel heard the case in December of the same year. This is amazingly fast for the appellate courts.

Then they sat on the case. For over a year, they sat there, doing nothing.

Finally, in January, we heard that the Fourth was going to hear the case en banc. Normally, the three judge merits panel would have issued their opinion.

The only plausible explanation is that a majority of the en banc court was not pleased with the outcome that the panel was prepared to reach.
Dominic Bianchi v. Anthony g. Brown, Oops. Novel citation pattern. at 3–4 (U.S.)

The plaintiffs (good guys) have taken a highly unusual step. They have moved for a writ of certiorari from the Supreme Court before the appellate court issues their opinion.

Here are some highlights from the motion for writ of certiorari.

Despite the patent unconstitutionality of semiautomatic rifle bans under Heller, the federal courts of appeals strained to uphold those bans in the wake of that decision. Some did so by applying the intermediate scrutiny framework that this Court repudiated in Bruen. See Heller II, 670 F.3d 1244; N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015); Worman v. Healey, 922 F.3d 26 (1st Cir. 2019). Others seized upon language from Heller about weapons “most useful in military service,” see Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), or devised a bespoke three-part test, each component of which clashed with Heller, see Friedman v. City of Highland Park, Ill., 784 F.3d 406 (7th Cir. 2015), to justify bans of these extraordinarily popular civilian arms. These attempts to evade the clear import of Heller led two Justices of this Court to call for summary reversal of a decision upholding a semiautomatic rifle ban. See Friedman v. City of Highland Park, Ill., 136 S. Ct. 447, 449–50 (2015) (Thomas, J., dissenting).
id. at 1–2

Damn good summary of the way the inferior courts treated The People after Heller. We didn’t need McDonald. The only reason that we have McDonald is that the Seventh Circuit court decided to play games.

And yet today, a year-and-a-half after Bruen, history is repeating itself as the federal courts of appeals are failing to heed the clear teaching of this Court’s precedents. The Seventh Circuit somehow concluded that its decision in Friedman is “basically compatible with Bruen” and embraced the Fourth Circuit’s pre-Bruen “most useful in military service” test to refuse to enjoin Illinois bans on modern semiautomatic rifles and other arms. Bevis v. City of Naperville, Ill., 85 F.4th 1175, 1189, 1193 (7th Cir. 2023). An en banc panel of the Ninth Circuit reached out to stay an injunction against a California law restricting the capacity of ammunition magazines, see Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023), and a panel of that court is holding a case challenging California’s ban on modern semiautomatic rifles and other firearms pending the outcome of Duncan, see Order, Miller v. Bonta, No. 23-2979 (9th Cir. Jan. 26, 2024), ECF No. 61.1. If history is any guide, the en banc court is unlikely to rule in favor of the Second Amendment. See Duncan v. Bonta, 19 F.4th 1087, 1160 (9th Cir. 2021) (VanDyke, J., dissenting).

The actions of the Fourth Circuit below in this case are the most brazen yet. The Fourth Circuit initially affirmed the dismissal of Petitioners’ claims by applying that court’s precedent in Kolbe. Petitioners sought review in this Court, and this Court granted review, vacated the decision below, and remanded for further consideration in light of Bruen. Bianchi v. Frosh, 142 S. Ct. 2898, 2899 (Mem.) (2022). Consistent with the remand order, a panel of the Fourth Circuit heard argument in December 2022. In January 2024, however, the court issued not an opinion but rather an order granting rehearing en banc despite no party requesting the court to do so. See Order, Bianchi v. Brown, No. 21-1255 (4th Cir. Jan. 12, 2024), ECF No. 76. The only plausible explanation is that a majority of the en banc court was not pleased with the outcome that the panel was prepared to reach. Cf. Wise v. Circosta, 978 F.3d 93, 117–118 (4th Cir. 2020) (Niemeyer, J., dissenting). And given the court’s grant of en banc rehearing in another case in which the panel ruled in favor of the Second Amendment, see Md. Shall Issue, Inc. v. Moore, No. 21-2017(L), 2024 WL 124290 (4th Cir. 2024), it appears that the en banc court was seeking to avoid a similar opinion even seeing the light of day.
id. at 2–4

Look! The appellate courts are playing games. It is time for this to stop!

Nearly sixteen years after Heller, the time is ripe for this Court to establish what should have been clear the day that decision was released: bans on firearms commonly possessed by law-abiding citizens are simply “off the table.” 554 U.S. at 636. The application of that principle to this case is plain. Modern semiautomatic rifles such as the AR-15 “traditionally have been widely accepted as lawful possessions,” Staples v. United States, 511 U.S. 600, 614 (1994), and today are owned in the tens of millions by law-abiding Americans for self-defense and other lawful purposes. Such arms simply cannot be banned.
id. at 4

What are the chances this will be granted cert? I wish I knew. Mark Smith says it is around 11%,(IIRC). It depends on how infuriated the Court is over the things that are playing out.

Many on the side of the Second Amendment, and our Constitution, have pushed the methodology used by the Supreme Court in deciding the meaning of the protections given by the Constitution.

It doesn’t matter if we are speaking of the First, the Second, The Fourth, or any other protected right. You look first at the plain text. If the conduct is within the scope of the plain text, then the conduct is presumptively constitutional. It is the state’s burden to provide a history and tradition of analogous regulation to support their modern regulations.

Like most things having to do with our rights, there are many questions that have already been answered. The Supreme Court has stated already addressed the question and provided the answer.

These are shortcuts. The inferior courts do not get to address the question again, they need only apply the provided answer.

“But what if the Supreme Court got it wrong?”

It happens. When it happens, a case has to make its way back to the Supreme Court, and they must then agree to hear the case.

“Are the states doing this now?”

No, they are not. There has been no change significant changes in society since the Bruen decision. There is no magic change in the meaning of the words.

In Dobbs, there was a new question. It allowed the Court to address a previous error.

In 1919, Justice Holmes said, The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.Schenck V. United States, 249 U.S. 47, 52 (1919). He spent the rest of his judicial career trying to erase that mistake.

The Supreme Court makes errors, and they then need to correct those errors.

At issue today is that there wasn’t an error. The “aloha spirit” doesn’t overrule the state or federal constitution. Magazines are within the scope of the plain text of the constitution. There was no set of sensitive places restrictions in the founding era that made it practically impossible to carry.

There has been nothing brought forth that remotely suggests that the Supreme Court got it wrong.

Bianchi v. Brown is a big ask of the Supreme Court. It is not a request for them to rule, again, on this case, it is an ask for the Supreme Court to clarify, in no uncertain words, to the inferior courts, “Stop fucking it up. You know how to do it right. Do it right.”


Schenck V. United States, 249 U.S. 47 (1919)
Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Dominic Bianchi v. Anthony g. Brown, Oops. Novel citation pattern. (U.S.)
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By awa

2 thoughts on “Bianchi v. Brown”
  1. The plaintiffs (good guys) have taken a highly unusual step. They have moved for a writ of certiorari from the Supreme Court before the appellate court issues their opinion.
    Not really that unusual. They’re merely mirroring what the Fourth Circuit did, pulling it to a higher court before the lower court’s opinion was published. (The only difference is that the 3-judge panel has heard arguments, but the en banc court hasn’t … yet.)
    Not that SCOTUS will weigh in on this question, but I wonder: What procedural rule in the Fourth Circuit allows that? Or are they breaking their own rules to hear it en banc before the panel decision is released?
    And (something SCOTUS could address), could needlessly dragging out the case — all the while dramatically increasing the costs of litigation for the plaintiffs — be seen or portrayed as malicious? (It seems to me like they’re just trying to delay until the plaintiffs can’t afford to continue. “The process is the punishment,” and “A right delayed is a right denied,” and all.)
    How many times are the plaintiffs going to have to argue it in court before getting a decision? More importantly, how many times are they going to have to argue it in court before getting a correct decision — one which comports with Bruen and Heller?

    1. A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U. S. C. § 2101(e).
      — Rule 11, SCOTUS

      Between 1988 and 2022 there were 17 grants of Cert before judgment (rule 11). That is the unusual part.
      The Fourth Circuit’s taking of the case en banc has only happened a few times. If my research is correct, once before.
      So lots of “unusual” here.

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