Supreme Court remits MD assault weapons ban back to lower courts in light of Bruen vs. NY ruling

[paperwork351]

Would "assault pistols" be included with the smack down?

paperwork351

 

[esqappellate]

Okay, to clarify (from the linked article):



Did the Supreme Court formally GVR our Assault Weapon Ban? The entirety of FSA2013, including 10 round mags? Does that mean it is currently vacated?

Why not GVR our Good and Substantial?

Cuz that case was not before the Ct on a petition for cert.

 

[Allen65]

The same result on remand is actually reached fairly often after a gvr. And sometimes the Ct grants cert a second time

In this case, though the standard of scrutiny has changed drastically. If nothing else, wouldn't the courts reasoning behind the decision need to change?

 

[moto.x]

I am no expert on that, but based on what I've seen in the past, the chance of getting a final ruling before this Labor Day is slim. The chance of getting it before Labor Day 2023 is >50%.

Can you explain why? are the courts only going to be able to look at this issue once a year?

 

[smokey]

Any chance of ghost gun bans going down?

Under bruen's guidance for a constitutionality test, absolutely. There's no historic analogy to a ghost gun ban, since private citizens were freely able to make their own guns at the time of both the 2a and 14th creation. It'll just take a lawsuit and some time.

 

[Allen65]

Can you explain why? are the courts only going to be able to look at this issue once a year?

I'm being sarcastic. In my very limited experience dealing with courts related to civil stuff, everything moved on months-long timeframes. And when external inputs to the process were needed, it got stretched out even more.

 

[lazarus]

I am no expert on that, but based on what I've seen in the past, the chance of getting a final ruling before this Labor Day is slim. The chance of getting it before Labor Day 2023 is >50%.

Yeah. I suspect this will be a 6-12 month process to get the appeals court to rule again. At that point it might get kicked en banc or back to SCOTUS.

I could be extremely wrong, but if the courts follow the new one step test, it’s going to a serious stretch for them to sustain these laws. They might still. But I suspect if they do, SCOTUS will hear one or more of them again. Just a question if that all works out this term, or if we would need to wait till the following term.

Another way of saying we may not know for 2 (or even 3) years what is going to happen with AWBs and mag capacity restrictions. It’s possible new confiscatory bans on either might earn an injunction at this point. If lower courts won’t, it’ll be interesting if the shadow docket slaps and injunction. If SCOTUS did hand down an injunction that would be a very good sign they are going to rule favorably on 2A rights.

 

[esqappellate]

In this case, though the standard of scrutiny has changed drastically. If nothing else, wouldn't the courts reasoning behind the decision need to change?

Yes, it would change, as the lower court would have to do that. But they can still reach the same result (Plaintiff wins or Plaintiff loses). It can be rather amazing how stubborn some courts can be (especially the 9th). For example, the AWB case (Bianchi) was denied by the 4th Circuit on the basis of Kolbe (MSI was a party in Kolbe). It ruled that the AWB of Maryland was constitutional on two alternative grounds. 1. It wasn't covered by the 2A at all because ARs are similar to MGs. and 2. that even assuming that the 2A applied, the ban was ok on intermediate scrutiny. Bruen ruled out intermediate scrutiny pretty clearly, but the court could still rule that rationale 1 still was the law of the circuit and sustain the the ban. '

 

[Threeband]

Cuz that case was not before the Ct on a petition for cert.

But is FSA 2013 GVRd? Is it now vacated?

 

[esqappellate]

Would "assault pistols" be included with the smack down?

paperwork351

Not technically, as the suit only went after the AWB in the FSA of 2013 and assault pistols were previously banned.

 

[Allen65]

Yes, it would change, as the lower court would have to do that. But they can still reach the same result (Plaintiff wins or Plaintiff loses). It can be rather amazing how stubborn some courts can be (especially the 9th). For example, the AWB case (Bianchi) was denied by the 4th Circuit on the basis of Kolbe (MSI was a party in Kolbe). It ruled that the AWB of Maryland was constitutional on two alternative grounds. 1. It wasn't covered by the 2A at all because ARs are similar to MGs. and 2. that even assuming that the 2A applied, the ban was ok on intermediate scrutiny. Bruen ruled out intermediate scrutiny pretty clearly, but the court could still rule that rationale 1 still was the law of the circuit and sustain the the ban. '

Wasn't Thomas pretty clear in Bruen reiterating Heller's "Common Use" standard over and over, though? And the direction to use THT rules out any form of interest balancing for the core right of possession of firearms in common use. The court would have to find that ARs aren't in common use to even start talking about MG comparisons. Or it could wash-rinse-repeat and just sit and wait for the rude smackdown it'll inevitably receive from SCOTUS later.

 

[esqappellate]

On remand, the 4th Circuit can do different things. It can do what the 9th Circuit just did in Rupp and McDoughel, vacate the lower court decision and send the case back down to district court for consideration of Bruen in the first instance. Or, it can ask for more briefing and decide the case itself.

 

[esqappellate]

Wasn't Thomas pretty clear in Bruen reiterating Heller's "Common Use" standard over and over, though? And the direction to use THT rules out any form of interest balancing for the core right of possession of firearms in common use. The court would have to find that ARs aren't in common use to even start talking about MG comparisons. Or it could wash-rine-repeat and just sit and wait for the rude smackdown it'll inevitably receive from SCOTUS later.

He was, and that would be the argument. But remember Bruen did not involve a firearms ban so the issue was not clearly presented. Arguably the majority's discussion of common use is dicta. Now, in a good court, SCT dicta is followed, but not in a court determined to reach the same result. Good lawyering is now at a premium. Fortunately, the lawyers in Bianchi are outstanding.

 

[jcutonilli]

They did not outright throw out the lower court ruling, they only sent it back for "reconsideration". What does this mean in realistic terms? Are they simply giving the lower courts a path to retract their ruling without forcing a ruling on them?

Additionally as I've read some posts here, these courts would not just willingly reverse these earlier decisions. It requires someone to challenge the ruling in court to get this AWB ban reversed, is that correct?

REALLY hoping to get myself an ar180 one of these days...

Grant, vacate, remand - Wikipedia

en.wikipedia.org

They do outright throw out the lower court ruling. That is the vacate part of the ruling. They leave the determination of the impact up to the lower court for "reconsideration". The lower court could find that there is no impact and simply rewrite their opinion to include why. They can also change their opinion to address the issue raised. SCOTUS can review this new opinion to determine if they want to grant cert.

The MD AWB ban is being litigated. The first brief is due towards the beginning of August with the state's response a month later. We will be able to see how each side sees the impact of the Bruen decision once they submit their brief.

 

[Threeband]

Does our case challenge the entirety of FSA2013, or just the AW ban?

I think I know the answer, but would like to see it clarified.

 

[esqappellate]

Grant, vacate, remand - Wikipedia

en.wikipedia.org

They do outright throw out the lower court ruling. That is the vacate part of the ruling. They leave the determination of the impact up to the lower court for "reconsideration". The lower court could find that there is no impact and simply rewrite their opinion to include why. They can also change their opinion to address the issue raised. SCOTUS can review this new opinion to determine if they want to grant cert.

The MD AWB ban is being litigated. The first brief is due towards the beginning of August with the state's response a month later. We will be able to see how each side sees the impact of the Bruen decision once they submit their brief.

This ^^

 

[esqappellate]

Does our case challenge the entirety of FSA2013, or just the AW ban?

Just the AWB. And I just checked the complaint. The complaint also challenges the ban on assault pistols and copycat guns, which are all classified as Assault Weapons. So, everything that is classified as an AW is challenged

 

[esqappellate]

The suit only went after the AWB in the FSA of 2013 and that includes assault pistols, which are included in the definition of AWs. The suit did not challenge the ban on so called LCMags. Mags are at issue in the NJ case (Bruck) and in Duncan and both of these cases were GVRed as well. It is going to be interesting

 

[chilipeppermaniac]

I'd love to be able to get an FN-FAL!

I remember when a friend who is now no longer with us, had essentially unlimited access to Fn Fals, even had a FN FAL group I met a number of the member/owners. Great bunch of fellas, plus my friend could even fab up parts for the Fn FALS. Of course, he was a PA resident.

 

[Threeband]

Thanks.

Any sense of the time frame for striking down mag limits and the HQL? Any hope to end registration of handguns by new residents, the roster, or the seven day wait?