Legal Case Analysis
B.L.U.F.
Senior Circuit Judge Keene wrote the dissent in this case. She is unhappy with the majority opinion because that opinion would find most, if not all gun-control regulations, unconstitutional.

Because this goes against her agenda, she latches onto footnote 9 of the Bruen opinion to justify why any set of objective hoops placed to hinder a member of The People from keeping and bearing arms is constitutional. It doesn’t matter how long it takes nor how much money it takes, nor what those hoops are. As long as the state must grant permission at the end, that regime is constitutional.

(4200 words)


On November 21, the Fourth Circuit court issued their opinion on Maryland Shall Issue’s challenge to Maryland’s “Handgun Qualification License”.

This is a permit to purchase. Before you can purchase a handgun in Maryland, you must first submit fingerprints, undergo a background investigation, take a four-hour-long firearms safety training course which includes firing at least one round. After that is completed, you can submit your application for your HQL.

The state has 30 days to approve or deny the application, after they receive the application. We know that “the state” has a habit of not “receiving” things they want to receive. If they haven’t “officially” received the application, the clock hasn’t started. In addition, the 30 days is not clearly defined in law. Is that 30 business days or 30 calendar days? And how long do they have to inform the applicant of the determination? Or, as one state is doing, they are granting appointments for fingerprinting 6+ months in advance.

The reality of this egregious infringement is that it is likely three months from the decision to get an HQL before you have one.

The three judge panel reversed the district court’s “contrary decision”.

This means that the case is not going back to the district court. It can only move forward to the Supreme Court. The state has 21 days to appeal, IIRC. Reversing a decision is “You got it wrong, we don’t need you to mess it up again, it is wrong, and we are setting it right.” This is better than vacating and remanding a decision. When a case is vacated and remanded, the case is sent back to the inferior court where they do the case all over again, collecting new arguments and evidence.

So the Fourth Circuit panel did the right thing the right way in a reasonable amount of time.

Of course, there is always the thorn in your side in a case like this. That thorn is Senior Circuit Judge Barbara Milano Keenan. Born in 1950, making her 73 years old. She was nominated by Obama in 2009 and appointed in 2010. She assumed senior status in 2021.

Keenan strongly dissented in part in an August 9, 2021 decision which ruled that a charter school’s policy to force female students to wear dresses or skirts did not violate Title IX, despite allowing the Title IX lawsuit to continue. Keenan explained “No, this is not 1821 or 1921. It’s 2021. Women serve in combat units of our armed forces. Women walk in space and contribute their talents at the International Space Station. Women serve on our country’s Supreme Court, in Congress, and, today, a woman is Vice President of the United States. Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys.”
Wikipedia: Barbara Milano Keenan (Jun. 2023)

Yes, that type of judge.

The Dissent

In this facial constitutional challenge to a non-discretionary handgun permitting law, the majority fundamentally misapplies Bruen. The majority bases its holding on the premise that if a law affects a prospective handgun purchaser’s ability to obtain a handgun “now,” the law is presumptively unconstitutional. This sweeping rule flies directly in the face of Bruen’s discussion of non-discretionary “shall-issue” laws and is not supported by any Supreme Court precedent. Simply stated, the majority’s hyperaggressive view of the Second Amendment would render presumptively unconstitutional most non-discretionary laws in this country requiring a permit to purchase a handgun (permitting laws)
Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017, slip op. at 22 (4th Cir. Nov. 21, 2023)

Emphasis added.

This is not the first time I’ve read an opinion where the judge stated, “If we accepted the challenge, it would mean the end of all/most/many gun-control laws”. It is my opinion that this Judge is agenda-driven. She does not want The People to enjoy our freedoms.

She accuses the majority opinion as making the law presumptively unconstitutional if a person cannot obtain a handgun “now”.

Here is the problem, if the plain text of the Second Amendment is implicated, then the regulation is presumptively unconstitutional. Her wording is an attempt to hide this argument. The majority sees clearly that the plain text is implicated, she doesn’t want the plain text to be implicated, so she obfuscates.

Bruen was a massive slap down of the inferior courts. One of those rogue, inferior, courts was the Fourth Circuit court.

Having just been slapped down, this is what Barbra says, … my colleagues reach the very result the Supreme Court cautioned against in Bruen, namely, casting aside a shall-issue permitting law …id. The Bruen court issued no such “caution”. They stated the obvious, that they were not issuing an opinion regarding “shall-issue” licensing regimes.

But what does she base her claim that the Bruen Court “cautioned” the inferior courts against finding shall-issue licensing presumptively unconstitutional? Why, in footnote 9 of the Bruen opinion.

How do we know this? Because we went and found her “caution” in the Bruen opinion. What is missing from her dissent? Citations. This inferior court judge can’t be bothered to give correct citations. Instead, she cites to the entire case, even when she is pulling from a footnote. This means that anything she quotes from Bruen must be called into question and verified. She could just as easily be quoting the dissent in Bruen as the Court’s Opinion.

When we argue, using definitive works, we don’t depend on footnotes. Footnotes, by definition, are extras, not part of the actual text. I use “asides” in my articles, they would be footnotes in a printed document.

What does footnote 9 actually say?

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. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” —features that typify proper-cause standards like New York’s. That said because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, n. 9 (U.S. 2022) internal citations omitted

Footnote 9 is talking about permits to carry. A permit to carry is different from a permit to purchase. Thus, this reference isn’t even to the same type of licensing regime. Even then, the Bruen Court clearly states that … we do not rule out constitutional challenges to shall-issue regimes …id..

In short, footnote 9 tells the inferior courts to expect constitutional challenges to shall-issue licensing regimes and to faithfully apply the Heller methodology (as explained in Bruen) to those challenges.

One of the must frustrating events after Bruen was watching the circuit courts kick cases all the way back to the district level. They did this to allow the state to have a “do over.”

The first time through, the rogue courts said, “We presume that the regulation in question infringes on the right to keep and bear arms”. This magic phrase means that they skipped the step where the plaintiffs (good guys) needed to prove the plain text of the Second Amendment was implicated, they just assumed the regulation was infringing.

Having assumed that the regulation was infringing, the courts then decided how much rape was being done to you. Having determined that it really wasn’t that much rape and the state had good reason for raping you, that the state could continue to rape you.

Since the state didn’t have to really work at it, they didn’t have legislative history to argue history and tradition. And, under Bruen, they had the burden to prove history and tradition if the modern-day regulation was infringing.

Think about how joyful it would be if we could just say, “Yeah, we assume it is an infringement, state it is now your burden to prove history and tradition.”.

Barbara wants the district court to do it all over again. To add another 2 years to the case. Further, she’s upset because the Fourth Circuit told Maryland to pound sand regarding severability of the law.

She admits that the first time around, the district court did indeed use the two-step shuffle and apply intermediate scrutiny, determining that the infringement was reasonably adapted to a substantial governmental interest.

Then Barbara took her job seriously by fluffing the district court: In a thorough and well-reasoned opinion in August 2021 applying this standard to the parties’ cross-motions for summary judgment, the district court held that the HQL requirement was constitutional.Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017, slip op. at 24

It doesn’t matter how well reasoned or thorough the district court’s opinion was in 2021. They were applying Kolbe which is currently being questioned in Bianchi v. Frosh in the Fourth Circuit. That is the entire point of Bruen. The case law, such as Kolbe is bad. It must be replaced with text, history, and tradition.

Barbara makes this statement, The Supreme Court referred to this New York law, and laws in other states with similar proper-cause standards, as “may-issue” laws.id. at 25. This is an interesting connection, I don’t know how good it actually is, that may-issue laws are all laws that have subjective criteria.

Here is a bit of arrogance in this inferior court judge, Although the Supreme Court acknowledged that Courts of Appeals “had coalesced” around this means-based framework, the Court instead developed a new framework based on its interpretation of Heller.id. She thinks that the inferior courts coalescing on means-end was a correct interpretation of Heller. When the Supreme Court said, “You got it wrong”, it was just “its interpretation”.

Heller said to use text, history, and tradition. The inferior courts used means-end. Bruen told the inferior courts how to interpret Heller. They then applied Heller to the challenged regulation and found that it failed.

In 2008, they told the inferior Article III courts how to handle Second Amendment cases. Explaining every word of the Second Amendment. They explained how it was text, history, and tradition that should be used, in keeping with other civil right challenges. They then used text, history, and tradition to analyze the Heller case, giving a clear example for those inferior courts.

When it became clear that they had not dumbed down their instructions enough for liberal lawyers and judges to understand, they used Bruen to give step-by-step instructions. They then used text, history, and tradition to analyze the case at hand, giving the judges and lawyers of this country another example, in full.

Barbara is so arrogant that she claims that Bruen was a “new framework”. It wasn’t and it isn’t.

Here is how she describes this “new” framework:

… Under this new framework, a law is unconstitutional under the Second Amendment only if: (1) the plaintiff shows that the plain text of the Second Amendment protects an individual’s course of conduct (step one), and (2) the government fails to show that the challenged regulation is “consistent with this Nation’s historical tradition of firearm regulation” (step two).
id.

Senior Circuit Court Judge Keenan profoundly erred in this restatement. The plaintiffs do not have to show their course of conduct is protected under the Second Amendment, only that it is implicated.

There is no excuse for changing the guidelines like this. The state must prove a history and tradition if the plain text is implicated. Here, Barbara is attempting to push more of step-two onto the plaintiffs.

Ok, this next paragraph just boggles me, it is difficult to parse because I believe she is attempting to conflate different parts of Bruen to achieve her agenda.

Although the plaintiffs in the present case broadly had asked the district court to consider the Second Amendment’s “text, history, and tradition,” the plaintiffs did not present to the court the information required under the nuanced framework outlined in Bruen, or the evidence that would have been necessary to apply Bruen to a shall-issue law. Typically, when a district court applies an analytical framework that later has been abrogated by the Supreme Court, our practice is to remand the case for the district court to consider the newly articulated framework in the first instance. See, e.g., Firewalker-Fields v. Lee, 58 F.4th 104, 111, 121–23 (4th Cir. 2023) (remanding Establishment Clause challenge “to allow the district court to grapple with the history-and-tradition test in the first instance” under the Supreme Court’s new framework); see also Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d 258, 264 (4th Cir. 2020) (“As we have said many times before, we are a court of review, not of first view.” (quoting PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2056 (2019))).
id. at 25–26

The “nuanced framework outlined in Bruen required of the plaintiffs is “Does the proposed conduct implicate the plain text of the Second Amendment?”. The plaintiffs wish to purchase a handgun without getting the state’s approval. That implicates the plain text.

To put this in a First Amendment context, would the state requiring me to get a license to publish articles implicate the First amendment?

One of my clients needed a Chinese website. In order for their Chinese customers to access the website, it had to be behind the great firewall of China.

No problem, we got a cloud server located in China. They provided me with a base Linux system. I then proceeded to replace every single piece of software on that system with software that I got from known good sources.

We put up the website. Two weeks later, there was no traffic to the site. We had to request permission for the website to exist and put a license token on every single page of the website.

The Chinese government could revoke that license at will and the firewalls would stop serving that site.

But it is dangerous, not efficient, to establish precedent based on a record lacking the information necessary to answer the many questions that a district court must address under the Supreme Court’s new framework.
id. at 26

What information is lacking? Does the proposed conduct implicate the plain text of the Second Amendment? Yes? Then the state has the burden of proving a history and tradition. The state has failed to do so. The regulation is vacated.

Above, I quoted footnote 9 of Bruen. I consistently refer to it as footnote 9. Barbara quotes it, cites it, then renames it the “shall-issue discussion”. This isn’t even dicta! It is a footnote.

She claims that this footnote indicates that any regime that is “shall-issue” is presumptively constitutional. Omitting the we do not rule out constitutional challenges to shall-issue regimes …Bruen, 142 S.Ct., n. 9

Then she gives the old razzle-dazzle, Like the shall-issue regimes contemplated by the Supreme Court in Bruen, the HQL requirement allows any law-abiding, responsible person …Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017, slip op. at 28. Notice that she has just claimed that a permit to purchase is the same as a permit to carry.

Like any state-owned entity, Barbara claims that the state will not twist or abuse the statutory language. The “objective criteria outlined in the statue” seems clear enough, but it looks to me that the state could easily restrict the approved classes to make it difficult to get the training.

While the statue doesn’t require you pass the course, there is nothing in it that says that mere attendance qualifies. And while the statue says a firearms orientation component that demonstrates the person’s safe operation and handling of a firearm— Maryland Public Safety Code § 5-117.1 (2022), the Fourth Circuit court has already interpreted that as requiring live fire training with “at least one round”.

Naturally, because of the time required to complete this application process, individuals who decide today that they want to purchase their first handgun likely will not be able to leave the store with one in hand. Those applicants must first pay a fee, submit a set of their fingerprints, and complete certain firearm safety training requirements. Md. Code, Pub. Safety, § 5-117.1. But as the shall-issue discussion makes clear, these objective, non-discretionary components of a standard regulatory scheme generally are constitutionally permissible.
id. at 28–29

Yet, according to this old lady, this does not implicate the plain text of the Second Amendment.

Her entire argument, so far, has been that the Bruen court said that shall-issue licensing regimes are presumptively constitutional. Since they are presumptively constitutional, the Maryland HQL is presumptively constitutional as it is issued after objective criteria are met.

She ignores the text of footnote 9 where it tells the inferior courts to expect challenges to shall-issue regimes and that those challenges must be analyzed via the Heller methodology.

We often say, “When seconds count, the police or only minutes (hours) away.” This judge would change our saying to, “When seconds count, your handgun purchase is only months away.”

She does not consider that to be “lengthy”. I guess she’s used to the judicial system where an expedited case only takes 4 months to be heard instead of 14 months.

What does the word “infringed” mean in the context of the Second Amendment? The Supreme Court has not directly answered this question because the Court has never been required to do so. In the Court’s seminal Second Amendment decisions, the Court has considered only laws that banned or effectively banned individuals from possessing or carrying firearms.
id. at 30

Barbara is absolutely correct, the Supreme Court did not copy the definition from Samuel Johnson’s dictionary into Heller<?i> as they did for the other words. Instead, the Heller court told the inferior courts where to look up the definition of 1700s words.

So she’s so smart, so lawyer educated, she doesn’t know the meaning of “infringe”. She just knows that infringe does encompass total bans. Anything less than that is anybody’s guess.

This spiteful Judge then takes exception with the majority:

The majority acknowledges that, under the “operative clause” of the Second Amendment, the right to keep and the right to bear arms “shall not be infringed.” Maj. Op., at 8. But the majority wholly avoids the type of textual analysis previously used by the Supreme Court to determine the meaning of terms and phrases appearing in the Second Amendment. See, e.g., Heller, 554 U.S. at 579, 581, 595, 597.
id. at 31

I think she is saying that the majority didn’t quote the dictionary for her.

Her argument reminds me of Bill’s statement, “It depends on what your definition of “is” is”.

If a conduct is a right and the state is regulating it, then the state is infringing on that right. Any such regulation is an infringement. The state can also infringe on a right without regulating that right.

If the state says that you can keep and bear arms but has a tax on those arms that is egregious, then they are infringing, without directly regulating.

A U.S. Senator said of Amy Coney Barrett, “The dogma is strong in you.”, The agenda is strong in Barbara, Accordingly, the majority has created a constitutional test that would render presumptively unconstitutional most, if not all, shall-issue permitting laws.id. at 32

This is her dissent. That if the majority is right, then most, if not all, firearm permitting laws are unconstitutional. That cannot stand, according to her.

I hope you don’t spit coffee, But like most judges, I am not a historian or a linguist capable of considering the full reach of this Second Amendment term in its historical context. Moreover, the parties have not cited the testimony of any expert who purports to have these qualificationsid. at 35. She’s playing ignorant here. Her job is to consider the full reach of any law in its historical context. Every time she looks up case law, she is doing historical research into her area of expertise.

The courts are expressly forbidden from using experts to bring in legal opinions. Experts are qualified to give evidence regarding facts outside of law. The subject-matter expert regarding the law, in a court, is The Judge. She doesn’t get to abdicate her responsibilities when it is a Second Amendment challenge.

Conclusion

Barbara spills ink on around 15 pages talking about what she calls the “shall-issue discussion” in the Bruen decision. The rest of us refer to that “discussion” as footnote 9.

So much of her argument is based on that single footnote that it begs the question of how long she spent searching for it.

Let’s use the majority’s words to close out this article:

Maryland and the dissent make much of Bruen’s Footnote Nine. But that footnote does not bless Maryland’s law. While the footnote preemptively threw cold water on any “shall issue” regimes “put towards abusive ends” such as those that result in “lengthy wait times” or “exorbitant fees,” it did not say those were the only types of unconstitutional “shall issue” regimes. In other words, the Court suggested that the Second Amendment barred—at a minimum—certain “shall issue” schemes; but it did not say whether that floor was also a ceiling.

Plaintiffs now ask us to answer that open question. In doing so, it would be poor judicial practice to “read a footnote” in a Supreme Court case to “establish the general rule” for that case. United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct. 1391, 1403 n.6 (2023). Bruen was not shy about telling lower courts how to handle Second Amendment challenges: We turn to the Amendment’s “text,” “informed by history,” and by “the historical tradition that delimits the outer bounds of the right.” Bruen, 142 S. Ct. at 2127.

So if we have to choose between the outcome dictated by text, history, and tradition and the outcome hinted at in dicta, it is no contest: Text, history, and tradition wins every time.

And even if we were to piece together a directive, it would have little bearing on the regulation before us. As an initial matter, the dissent mistakenly reads this footnote as pertaining to Bruen’s first, rather than its second, step. See Diss. Op. at 34–38. This is not the case. Footnote Nine is appended to a sentence explaining that there is no historical support for preventing law-abiding citizens from publicly carrying weapons simply because they cannot show a special need—a step two inquiry. Bruen, 142 S. Ct. at 2138. The footnote then explains that shall-issue regimes are different because, unlike may-issue regimes, they do not “necessarily prevent” law-abiding citizens from exercising Second Amendment rights. Id. at 2138 n.9. So the Court here was comparing the burdens may-and shall-issue regimes impose for purposes of identifying historical analogues to justify them, not to explain when the Second Amendment is triggered in the first place. See id. at 2133 (“[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.” (emphasis in original) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010))). In other words, the Court was simply clarifying that the mere fact that may-issue regimes fail the history test does not mean that most shall-issue regimes automatically fail that test too. This is but an invitation for courts to examine these laws against the historical record at step two, which is precisely what we do here.

And even if we stretch the Court’s language to actually bless most shall-issue public carry regimes, this says little about shall-issue regimes that limit handgun possession altogether. A restriction on whether someone can even possess a firearm in or out of the home is more burdensome than one that only limits his right to carry that firearm publicly. See Heller, 554 U.S. at 628 (“the home” is “where the need for defense of self, family, and property is most acute”). Bruen tells us that the relative burden a law imposes is “central” to step two’s analogical reasoning. See 142 S. Ct. at 2133 (quoting McDonald, 561 U.S. at 767). So even if Bruen green-lighted similar but less burdensome restrictions, like some shall-issue carry regimes, we are still obligated to independently compare more burdensome restrictions, like shall-issue possession regimes, against the historical record.
id. n. 9

I wonder if the court has a sense of humor. Their long rebuttal of the dissent’s argument using footnote nine from Bruen is footnote nine of Maryland Shall Issue, Inc. v. Wes Moore

Bibliography

Rules For Appellate Procedure (U.S.)
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)
Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017 (4th Cir. Nov. 21, 2023)
The Constitution of the United States: A Transcription, National Archives, (last visited Jun. 25, 2023)
Wikipedia: Barbara Milano Keenan (Jun. 2023)

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By awa

One thought on “Maryland Shall Issue, Inc v. Wes Moore, 4th Cir.”
  1. Something occurred to me that made me smile a bit:
    .
    When liberal and dissenting judges fail to use citations properly, and cite full opinions instead of statements, they unwittingly do us a favor — they force anyone doing research to read the full opinion to find where they’re quoting from.
    .
    At that point, they can’t hide that their quote was taken out of context, ignored the majority’s justifications, or disregarded SCOTUS’ prior opinions and instructions.
    .
    OTOH, someone not willing to read the actual opinion will take her at her word that, say, Bruen says what she says it does, not what it actually says. But even in that case, the ignorant will self-identify.
    .
    (Just like they do when they say, “SCOTUS says you can’t yell ‘Fire!’ in a crowded theater.” SCOTUS never ruled that; the analogy of yelling “Fire!” came up in the context of discussing another right. It’s dicta. No cases about the legality or Constitutionality of yelling “Fire!” have ever reached SCOTUS. But to the Left, “you can’t yell ‘Fire!’…” is gospel as far as it can be used to limit Constitutional rights.)
    .
    Then there’s this: The majority acknowledges that, under the “operative clause” of the Second Amendment, the right to keep and the right to bear arms “shall not be infringed.” Maj. Op., at 8.
    .
    What’s missing from her quote there? “The People”.
    .
    2A says “… the right of the People to keep and bear Arms, shall not be infringed.” [emphasis mine]
    .
    Leftists have long omitted “of the People” from their 2A quotes, because it undermines the collective “militia-only” view of the right. It’s interesting, and yet not at all surprising, that this judge would continue to make that omission, when simply quoting the 2nd Amendment in full would be easier. (But then she’d have to cite the 2nd Amendment, and people could go read it directly. So there’s that.)
    .
    Good analysis, AWA, and thank you!

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