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A Republican-majority federal appeals court panel struck down a Maryland gun law, citing the Supreme Court’s Bruen opinion, a decision last year that further expanded Second Amendment rights.
The dissenting panel judge, however, pointed out that neither Bruen nor any Supreme Court precedent requires the federal appellate court to overturn the Maryland law.
To understand why, note the difference between “shall issue” and “may issue” regimes. As the names imply, "shall issue" means people can get firearms if they meet certain requirements, but "may issue" schemes give the authorities discretion. Most states are shall-issue jurisdictions, which the Supreme Court emphasized in Bruen — a case involving New York’s may-issue scheme — writing: “To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.”
Nonetheless, the 4th U.S. Circuit Court of Appeals panel faulted Maryland’s shall-issue setup that required, among other things, up to a 30-day waiting period for handguns. The panel majority cited the 6-3 GOP majority ruling in Bruen, which requires historical analogues justifying modern-day gun restrictions. “Under the Supreme Court’s new burden-shifting test for these claims, Maryland’s law thus fails, and we must enjoin its enforcement,” Donald Trump-appointed Judge Julius Richardson wrote in Tuesday’s ruling. Richardson was joined by George W. Bush-appointed Judge Steven Agee.
Which side of the 4th Circuit panel would the Supreme Court agree with?
In dissent, Barack Obama-appointed Judge Barbara Milano Keenan countered that the panel majority “fundamentally misapplies Bruen,” issuing a sweeping ruling that “flies directly in the face of Bruen’s discussion of non-discretionary ‘shall-issue’ laws and is not supported by any Supreme Court precedent.” She wrote that 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).”
So, which side of the 4th Circuit panel would the Supreme Court agree with? The justices are currently deciding another post-Bruen challenge in United States v. Rahimi, stemming from a 5th U.S. Circuit Court of Appeals ruling that struck down a law barring gun possession for people subject to domestic violence orders.
Notably, the justices aren’t necessarily expected to approve the 5th Circuit’s ruling in Rahimi, but in that case, just as in this one from Maryland, the result will either be a function of the Supreme Court unleashing an absurd new gun test, Republican lower-court judges taking that test too far, or both.
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