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.

Yes, that type of judge.

The Dissent

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?

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:

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.

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?

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”.

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.

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:

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 qualifications—id. 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:

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