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Notes -
Bianchi v. Frosh's en banc opinion has dropped.
It's a bit of a doorstopper, coming in at 183 pages, but it's probably not worth a read: the decision itself is about what someone like The_Nybbler or Justice Thomas would expect, and to the extent you couldn't predict the result from a wikipedia page, you'd have gotten within two votes.
As tl;dr: Bianchi was a challenge to Maryland's Assault Weapons Ban, a 2013 law prohibiting the ownership of a wide variety of rifles and handguns based on a mix of names and features, along with 'copycats' of those names, as well as a broader set of firearms, with an exception for those guns registered before the law went into effect. A wide majority of the Fourth Circuit's court of appeals (10-5) held that it, and almost any specific firearm or feature ban, would be lawful under Bruen and Heller. There's some complexity splintering the majority about the precise logic, but just into a majority that says Bruen means nothing, a concurrence (six names!) is little more than a call to overturn Bruen's test explicitly and the Second Amendment implicitly overlapping fully with the majority opinion, and the best you can get is the one judge who concurred-in-judgement only under the recognition that the other opinions were openly defying Bruen but would still allow any ban under Bruen. Some morbid comedy -- the most common firearm in America, more common in ownership than a Ford F-150, is "dangerous and unusual" -- but it's a tired old joke at this point. MorosKostas has a highlights reel for the masochistic.
The dissent tries to recognize some form of Second Amendment right, but even with cutouts and allowances that nearly swallow the rule, it only got a tiny minority, with five names out of a total of fifteen.
The decision does, however, answer one fascinating question about the process. During one of the (denied) requests for cert at SCOTUS, petitioners raised an interesting question:
The plaintiff raised theories about how sua sponte en banc request might have been drawn to block a 2nd-Amendment-recognizing opinion, but did not publicly speculate about how that delay might have happened, or why. This case has been in process since 2020, twice made it to a court of appeals, and never received a true opinion on merits. We now have an answer:
Price had its appeal oral arguments in December 6th, 2023, with the first scheduling of those dates starting in mid-September 2023. Only a month and six days passed between its oral arguments and both Price and Bianchi being sua sponted _en banc_ed. Meaning that Price had a unanimous opinion with less than a twelfth of the time that it took the dissent for Bianchi, despite much of that coinciding with the holiday season.
The specific judge who dissented from the never-published Bianchi appeal opinion, though not explicitly named in the dissent, is almost certainly Judge Thacker, an Obama appointee who sat on both appeal panels. The other two judges on the appeals panel, Richardson and Niemeyer, at in the dissent here, and back in the long-ago of December 2022 were expected to rule against the law.
I've written before about covert gamesmanship of internal rules for the judiciary. This is another brick in that wall: it is not sufficient to bring a good argument, with a good case, and a good plaintiff, jump through a thousand hoops on standing and specificity and caselaw, and get lucky enough on the draw to get an district-court and appeals-court panel willing to given the slightest honest engagement with the question. A single judge out of a panel can prevent it from ever releasing, and will, and has.
It's worth spelling out that, in both cases, how little this mattered on the instant question at hand: neither the Ninth Circuit nor Fourth Circuit were ever going to have the slightest chance of allowing a pro-gun decision from an appeals court to survive or go un-en banc'd, nor would they hesitate to grant an emergency stay. This about not about defanging the plaintiffs of these particular cases.
This means that there is one fewer case anyone -- whether future plaintiffs, cert requests, or SCOTUS opinion -- can reference. It's easy to demonstrate the unworkability of a standard, when no one need bother allow the honest implementation of it to survive, especially in the hostile circuits that are likely to see any law to appeal to SCOTUS. And there's an even !!funner!! question of what else along these lines happen, without anyone getting to hear about it.
I imagine there's a pretty high chance SCOTUS takes this next term?
If they do, this could be the perfect case to show off the next switch in time that saves nine. Thomas and Alito may suddenly find themselves without friends on the court.
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