No.

_________

In the
Supreme Court of the United States
__________________________________________

DOMINIC BIANCHI, an individual and resident of

Baltimore County, et al.,
Petitioners,
v.
ANTHONY G. BROWN, in his official capacity as
Attorney General of Maryland, et al.,
Respondents.
__________________________________________

On Petition for Writ of Certiorari

Before Judgment to the
United States Court of Appeals
for the Fourth Circuit
__________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________

RAYMOND M. DIGUISEPPE DAVID H. THOMPSON

THE DIGUISEPPE LAW Counsel of Record
FIRM, P.C. PETER A. PATTERSON
4320 Southport-Supply WILLIAM V. BERGSTROM
Road, Suite 300 COOPER & KIRK, PLLC
Southport, NC 28461 1523 New Hampshire
(910) 713-8804 Avenue, N.W.
law.rmd@gmail.com Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com

Counsel for Petitioners

February 8, 2024
 i

QUESTION PRESENTED
Whether the Constitution allows the
government to prohibit law-abiding, responsible
citizens from protecting themselves, their families,
and their homes with semiautomatic rifles that are in
common use for lawful purposes.
 ii

PARTIES TO THE PROCEEDING

Petitioners Dominic Bianchi; David Snope; Micah
Schaefer; Field Traders, LLC; Firearms Policy
Coalition, Inc.; Second Amendment Foundation, Inc.;
and the Citizens Committee for the Right to Keep and
Bear Arms were the plaintiffs before the District
Court and the plaintiffs-appellants in the Court of
Appeals.
Respondents Anthony G. Brown, in his official
capacity as Attorney General of Maryland, and
Colonel Woodrow W. Jones III, in his official capacity
as Secretary of State Police of Maryland, Roland L.
Butler, Jr., in his official capacity as Sheriff of
Baltimore County were the defendants before the
District Court and the defendants-appellees in the
Court of Appeals. 1

1 The Court of Appeals substituted Brown as a defendant to

this proceeding after his election as Attorney General of
Maryland. See Bianchi v. Brown, No. 21-1255, Doc. 74 (Aug. 8,
2023). The originally named defendant sued in his official
capacity as Attorney General of Maryland was Brian E. Frosh.
The Court of Appeals has not replaced R. Jay Fisher, the former
head of the Maryland State Police, as a defendant in this action,
but pursuant to Fed. R. App. P. 43, his successor in office, Butler,
is automatically substituted for him.
 iii

CORPORATE DISCLOSURE STATEMENT

Field Traders, LLC, has no parent corporation,
and there is no publicly held corporation that owns
10% or more of its stock.
Firearms Policy Coalition, Inc., has no parent
corporation, and there is no publicly held corporation
that owns 10% or more of its stock.
Second Amendment Foundation, Inc., has no
parent corporation, and there is no publicly held
corporation that owns 10% or more of its stock.
Citizens Committee for the Right to Keep and
Bear Arms has no parent corporation, and there is no
publicly held corporation that owns 10% or more of its
stock.
 iv

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:
• Bianchi v. Frosh, No. 21-902
(U.S. Aug. 1, 2022)
• Bianchi v. Brown, No. 21-1255
(4th Cir. Sept. 17, 2021)
• Bianchi v. Frosh, No. 20-cv-3495
(D. Md. Mar. 4, 2021)
There are no other proceedings in state or federal
court, or in this Court, directly related to this case
under Supreme Court Rule 14.1(b)(iii).
 v

TABLE OF CONTENTS
Page

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii
CORPORATE DISCLOSURE STATEMENT ........... iii
STATEMENT OF RELATED PROCEEDINGS ....... iv
TABLE OF AUTHORITIES ..................................... viii
OPINIONS BELOW ..................................................... 5
JURISDICTION............................................................ 5
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED .............. 5
STATEMENT ................................................................ 6
I. Maryland’s ban on common firearms ......... 6
II. The ban’s effect on Petitioners .................. 10
III. Procedural history ...................................... 10
REASONS FOR GRANTING THE PETITION ....... 12
I. This case requires only the straightforward
application of Heller and Bruen. ....................... 12
A. Heller speaks directly to the issue
presented and requires judgment in
Petitioners’ favor. .................................... 12
B. Bruen merely underscores that Heller’s
analysis is dispositive here. .................... 20
II. This Court’s intervention is required to correct
the continued refusal of lower courts to
recognize that the Second Amendment protects
semiautomatic rifles. .......................................... 21
 vi

III. This case warrants certiorari before

judgment. ............................................................ 24
CONCLUSION............................................................ 27
APPENDIX
Order of the United States Court of Appeals for the
Fourth Circuit, Bianchi v. Frosh, No. 21-1255
(Jan. 12, 2024).................................................. 1a
Order of the United States Court of Appeals for the
Fourth Circuit, Bianchi v. Frosh, No. 21-1255
(Aug. 1, 2022) ................................................... 3a
Order of the United States Supreme Court, Bianchi
v. Frosh, No. 21-902 (June 30, 2022) ............. 5a
Order of the United States Court of Appeals for the
Fourth Circuit, Bianchi v. Frosh, No. 21-1255
(Sept. 17, 2021) ................................................ 6a
Order of the United States District Court for the
District of Maryland, Bianchi v. Frosh, No. 20-
cv-3495 (Mar. 4, 2021) ..................................... 9a
Constitutional Provisions and Statutes Involved
U.S. CONST. amend. II ........................................ 11a
U.S. CONST. amend. XIV, § 1 .............................. 11a
MD. CODE ANN., PUB. SAFETY
§ 5-101............................................................. 11a
MD. CODE ANN., CRIM. LAW
§ 4-301............................................................. 14a
§ 4-302............................................................ 16a
§ 4-303............................................................. 18a
§ 4-304............................................................. 20a
§ 4-306............................................................. 20a
 vii

Complaint for Declaratory and Injunctive Relief,

Bianchi v. Frosh, No. 20-cv-3495
(Dec. 1, 2020) .................................................. 22a
 viii

TABLE OF AUTHORITIES

CASES Page
Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y
Gen. of N.J.,
910 F.3d 106 (3rd Cir. 2018) ..................... 13, 18
Barnett v. Raoul,
--- F. Supp. 3d ----, 2023 WL 3160285
(S.D. Ill. April 28, 2023) .................................. 21
Bevis v. City of Naperville,
657 F. Supp. 3d 1052 (N.D. Ill. 2023) ............ 21
Bevis v. City of Naperville,
85 F.4th 1175 (7th Cir. 2023) ............... 3, 22, 23
Bianchi v. Frosh,
142 S. Ct. 2898 (2022) ....................................... 3
District of Columbia v. Heller,
554 U.S. 570 (2008) ...............1, 4, 14, 15, 16, 19
Duncan v. Bonta,
19 F.4th 1087 (9th Cir. 2021) ......... 3, 13, 23, 24
Duncan v. Bonta,
83 F.4th 803 (9th Cir. 2023) ............................. 3
Friedman v. City of Highland Park, Ill.,
136 S. Ct. 447 (2015) ....................... 2, 17, 18, 26
Friedman v. City of Highland Park, Ill.,
784 F.3d 406 (7th Cir. 2015) ....................... 2, 13
Heller v. District of Columbia,
670 F.3d 1244
(D.C. Cir. 2011) ......................1, 2, 10, 13, 17, 18
 ix

Herrera v. Raoul,
--- F. Supp. 3d ----, 2023 WL 3074799
(N.D. Ill. Apr. 25, 2023) ............................. 21, 22
Kolbe v. Hogan,
813 F.3d 160 (4th Cir. 2016) ........................... 11
Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) ........... 2, 11, 13, 15
Kolbe v. O’Malley,
42 F. Supp. 3d 768 (D. Md. 2014) ................... 11
Lawrence v. Chater,
516 U.S. 163 (1996) ................................... 25, 26
Md. Shall Issue, Inc. v. Moore,
No. 21-2017(L), 2024 WL 124290
(4th Cir. 2024) .................................................... 4
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022)...................................... 2, 5, 20
N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo,
804 F.3d 242 (2d Cir. 2015) .................. 2, 13, 18
Staples v. United States,
511 U.S. 600 (1994) ........................... 4, 7, 17, 23
Teter v. Lopez,
76 F.4th 938 (9th Cir. 2023) ........................... 23
Wilson v. Cook County,
937 F.3d 1028 (7th Cir. 2019) ......................... 13
Wise v. Circosta,
978 F.3d 93 (4th Cir. 2020) ..................... 3, 4, 25
Worman v. Healey,
922 F.3d 26 (1st Cir. 2019) ......................... 2, 13
 x

CONSTITUTIONAL PROVISIONS, STATUTES, AND LAWS

MD. CODE ANN., CRIM. LAW
§ 4-301(b) ............................................................ 6
§ 4-301(d) ............................................................ 6
§ 4-301(h)(1) ....................................................... 6
§ 4-302................................................................. 6
§ 4-303................................................................. 7
§ 4-303(a) ............................................................ 6
§ 4-303(b) ............................................................ 6
§ 4-304............................................................. 6, 7
§ 4-306(a) ............................................................ 7
MD. CODE ANN., PUB. SAFETY § 5-101(r)(2) ................. 6
H.B. 5471, 102nd Gen. Assemb., Reg. Sess.
(Ill. 2023) .......................................................... 21
OTHER AUTHORITIES
2021 Firearms Retailer Survey Report, NAT’L
SHOOTING SPORTS FOUND., INC. (2021),
https://bit.ly/3gWhI8E ........................... 8, 18, 19
Brief of the Petitioners, District of Columbia v.
Heller, No. 07-290, 2008 WL 102223
(U.S. Jan. 4, 2008) ........................................... 19
Commonly Owned: NSSF Announces Over 24 Million
MSRS in Circulation, NAT’L SHOOTING SPORTS
FOUND., INC. (July 20, 2022),
https://bit.ly/3QBXiyv ...................................... 18
David B. Kopel, Rational Basis Analysis of “Assault
Weapon” Prohibition, 20 J. Contemp. L. 381
(1994) ................................................................ 17
Expanded Homicide Data Table 8: Murder Victims
by Weapon, 2015-2019, Crime in the United
 xi

States, FBI, U.S. DEP’T OF JUST. (2019),

https://bit.ly/31WmQ1V .............................. 9, 10
Firearm Production in the United States With
Firearm Import and Export Data, NAT’L
SHOOTING SPORTS FOUND., INC. (2023),
https://bit.ly/42qYo7k f ...................................... 8
Firearm Production in the United States With
Firearm Import and Export Data, NAT’L
SHOOTING SPORTS FOUND., INC. (2020),
https://bit.ly/3v5XFvz ...................................... 17
FRANK MINITER, THE FUTURE OF THE GUN
(2014) .................................................................. 9
JOSH SUGARMANN, ASSAULT WEAPONS AND
ACCESSORIES IN AMERICA (1988),
https://bit.ly/3m5OW5V .................................... 7
Mark W. Smith, What Part of “In Common Use”
Don’t You Understand?: How Courts Have
Defied Heller in Arms-Ban-Cases—Again, Per
Curiam, Harv. J.L. & Pub. Pol’y
(Sept. 27, 2023), https://bit.ly/3PWhqwH ...... 21
Modern Sporting Rifle: Comprehensive Consumer
Report, NAT’L SHOOTING SPORTS FOUND., INC.
(July 14, 2022), https://bit.ly/3GLmErS .......... 9
Nicholas J. Johnson, Supply Restrictions at the
Margins of Heller and the Abortion Analogue:
Stenberg Principles, Assault Weapons, and the
Attitudinalist Critique, 60 HASTINGS L.J. 1285
(2009) .............................................................. 7, 8
Poll of current gun owners, WASH. POST-IPSOS
(Mar. 27, 2023), https://bit.ly/46CqzRa........ 8, 9
 xii

Shawna Chen, 10 states with laws restricting assault

weapons, AXIOS, https://bit.ly/3v2N0So
(last updated Apr. 28, 2023) ........................... 17
Sport Shooting Participation in the U.S. in 2020, NAT’L
SHOOTING SPORTS FOUND., INC. (2021),
https://bit.ly/3sPuEQl ........................................ 9
William English, 2021 National Firearms Survey:
Updated Analysis Including Types of Firearms
Owned (May 13, 2022),
https://bit.ly/3yPfoHw........................................ 8
 1

PETITION FOR WRIT OF CERTIORARI

BEFORE JUDGMENT
From the founding of this Nation, the rifle has
been a paradigmatic American arm, facilitating the
struggle for independence from the British and serv-
ing as “the companion” and “tutelary protector” of the
westward pioneers. District of Columbia v. Heller, 554
U.S. 570, 609 (2008) (quotation marks omitted). The
modern iteration of this paradigmatic arm is epito-
mized by the AR-15-style rifle, a semiautomatic fire-
arm that is popular for self-defense, hunting, and
range training due to its accuracy, ease of use, and er-
gonomic design. Indeed, AR-15s and similar semiau-
tomatic rifles are the best-selling rifles in the history
of the Nation. They are owned by millions of Ameri-
cans and have accounted for approximately 20% of all
firearm sales in the country for over a decade.
Despite the utility and popularity of semiauto-
matic rifles, a small minority of states such as Mary-
land have sought to ban them. But under Heller, these
bans are blatantly unconstitutional. After all, Heller
established that law-abiding Americans have an abso-
lute right to possess and use firearms that are in com-
mon use for lawful purposes, and semiautomatic rifles
plainly fit the bill. In short, “semi-automatic rifles
have not traditionally been banned and are in com-
mon use today, and are thus protected under Heller.”
Heller v. District of Columbia, 670 F.3d 1244, 1287
(D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“Heller
II”).
Despite the patent unconstitutionality of semiau-
tomatic rifle bans under Heller, the federal courts of
appeals strained to uphold those bans in the wake of
 2

that decision. Some did so by applying the intermedi-

ate scrutiny framework that this Court repudiated in
Bruen. See Heller II, 670 F.3d 1244; N.Y. State Rifle &
Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir.
2015); Worman v. Healey, 922 F.3d 26 (1st Cir. 2019).
Others seized upon language from Heller about weap-
ons “most useful in military service,” see Kolbe v. Ho-
gan, 849 F.3d 114 (4th Cir. 2017) (en banc), or devised
a bespoke three-part test, each component of which
clashed with Heller, see Friedman v. City of Highland
Park, Ill., 784 F.3d 406 (7th Cir. 2015), to justify bans
of these extraordinarily popular civilian arms. These
attempts to evade the clear import of Heller led two
Justices of this Court to call for summary reversal of
a decision upholding a semiautomatic rifle ban. See
Friedman v. City of Highland Park, Ill., 136 S. Ct. 447,
449–50 (2015) (Thomas, J., dissenting).
Following Bruen, the unconstitutionality of semi-
automatic rifle bans is clearer than ever. For in Bruen,
the conceded fact that handguns are “in common use
today” for lawful purposes was sufficient to establish
constitutional protection of the type of arm at issue in
that case. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1, 32 (2022). And Bruen further explained
that colonial bans on dangerous and unusual weapons
could not justify laws restricting the use “of weapons
that are unquestionably in common use today.” Id. at
47. To the extent any doubt about the constitutional-
ity of bans on common arms was left by Heller, Bruen
eliminated it.
And yet today, a year-and-a-half after Bruen, his-
tory is repeating itself as the federal courts of appeals
are failing to heed the clear teaching of this Court’s
 3

precedents. The Seventh Circuit somehow concluded

that its decision in Friedman is “basically compatible
with Bruen” and embraced the Fourth Circuit’s pre-
Bruen “most useful in military service” test to refuse
to enjoin Illinois bans on modern semiautomatic rifles
and other arms. Bevis v. City of Naperville, Ill., 85
F.4th 1175, 1189, 1193 (7th Cir. 2023). An en banc
panel of the Ninth Circuit reached out to stay an in-
junction against a California law restricting the ca-
pacity of ammunition magazines, see Duncan v.
Bonta, 83 F.4th 803 (9th Cir. 2023), and a panel of
that court is holding a case challenging California’s
ban on modern semiautomatic rifles and other fire-
arms pending the outcome of Duncan, see Order, Mil-
ler v. Bonta, No. 23-2979 (9th Cir. Jan. 26, 2024), ECF
No. 61.1. If history is any guide, the en banc court is
unlikely to rule in favor of the Second Amendment.
See Duncan v. Bonta, 19 F.4th 1087, 1160 (9th Cir.
2021) (VanDyke, J., dissenting).
The actions of the Fourth Circuit below in this
case are the most brazen yet. The Fourth Circuit ini-
tially affirmed the dismissal of Petitioners’ claims by
applying that court’s precedent in Kolbe. Petitioners
sought review in this Court, and this Court granted
review, vacated the decision below, and remanded for
further consideration in light of Bruen. Bianchi v.
Frosh, 142 S. Ct. 2898, 2899 (Mem.) (2022). Consistent
with the remand order, a panel of the Fourth Circuit
heard argument in December 2022. In January 2024,
however, the court issued not an opinion but rather an
order granting rehearing en banc despite no party re-
questing the court to do so. See Order, Bianchi v.
Brown, No. 21-1255 (4th Cir. Jan. 12, 2024), ECF No.
76. The only plausible explanation is that a majority
 4

of the en banc court was not pleased with the outcome

that the panel was prepared to reach. Cf. Wise v. Cir-
costa, 978 F.3d 93, 117–118 (4th Cir. 2020) (Niemeyer,
J., dissenting). And given the court’s grant of en banc
rehearing in another case in which the panel ruled in
favor of the Second Amendment, see Md. Shall Issue,
Inc. v. Moore, No. 21-2017(L), 2024 WL 124290 (4th
Cir. 2024), it appears that the en banc court was seek-
ing to avoid a similar opinion even seeing the light of
day.
Nearly sixteen years after Heller, the time is ripe
for this Court to establish what should have been clear
the day that decision was released: bans on firearms
commonly possessed by law-abiding citizens are
simply “off the table.” 554 U.S. at 636. The application
of that principle to this case is plain. Modern semiau-
tomatic rifles such as the AR-15 “traditionally have
been widely accepted as lawful possessions,” Staples
v. United States, 511 U.S. 600, 614 (1994), and today
are owned in the tens of millions by law-abiding Amer-
icans for self-defense and other lawful purposes. Such
arms simply cannot be banned.
While granting certiorari before judgment is not
standard operating procedure, the situation facing the
Court is atypical. A fundamental right is at stake, the
proper outcome is clear, and the behavior of the lower
courts indicates that this Court’s intervention likely is
necessary for that fundamental right to be vindicated.
This Court should grant review and hold that Mary-
land’s semiautomatic rifle ban is unconstitutional.
 5

OPINIONS BELOW
The order of the Court of Appeals granting rehear-
ing en banc is reproduced at Pet.App.1a–2a. The order
of this Court granting certiorari, vacating the judg-
ment of the Court of Appeals, and remanding for fur-
ther consideration in light of New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), is re-
ported at 142 S. Ct. 2898 and reproduced at
Pet.App.5a. The order of the Court of Appeals affirm-
ing the district court’s dismissal of the case is reported
at 858 F. App’x 645 and reproduced at Pet.App.6a–8a.
The order of the District Court dismissing Petitioners’
complaint is not reported in the Federal Supplement,
but it is reproduced at Pet.App.9a–10a.
JURISDICTION
This petition is filed under Supreme Court Rule
11, and the Court’s jurisdiction is invoked under 28
U.S.C. §§ 1254(1) and 2101(e).
CONSTITUTIONAL, STATUTORY, AND REGU-
LATORY PROVISIONS INVOLVED
The relevant portions of Amendments II and XIV
to the United States Constitution and the Maryland
Code are reproduced in the Appendix beginning at
Pet.App.11a.
 6

STATEMENT
I. Maryland’s ban on common fire-
arms

The State of Maryland tendentiously deems

scores of common semiautomatic rifle models “assault
weapons” and bans them outright. Subject to certain
minor exceptions, MD. CODE ANN., CRIM. LAW §§ 4-
302, 4-303(b), Maryland’s ban criminalizes the sale,
transfer, or possession of any of the following:
(i) a semiautomatic centerfire rifle
that can accept a detachable maga-
zine and has any two of the follow-
ing:
1. a folding stock;
2. a grenade launcher or flare
launcher; or
3. a flash suppressor;
(ii) a semiautomatic centerfire rifle
that has a fixed magazine with the
capacity to accept more than 10
rounds;
(iii) a semiautomatic centerfire rifle
that has an overall length of less
than 29 inches.
Id. § 4-301(h)(1); see also id. §§ 4-301(d); 4-303(a). The
ban also specifically applies to a list of 45 enumerated
rifle types, including AR-15s. Id. § 4-301(b); MD. CODE
ANN., PUB. SAFETY § 5-101(r)(2).
If an ordinary, law-abiding citizen keeps or bears
a rifle banned by Maryland, Respondents may seize
 7

and dispose of that arm. MD. CODE ANN., CRIM. LAW

§ 4-304. Moreover, any ordinary, law-abiding citizen
who possesses such a rifle commits a criminal offense
and is subject to severe sanctions, including imprison-
ment for up to three years for the first offense. Id. §§
4-303, 4-306(a).
Maryland dubs a semiautomatic firearm that pos-
sesses the prohibited features an “assault weapon,”
but that is nothing more than argument advanced by
a political slogan in the guise of a definition. As even
anti-gun partisans have admitted, “assault weapon” is
a political term designed to exploit “the public’s confu-
sion over fully automatic machine guns versus semi-
automatic” firearms. JOSH SUGARMANN, ASSAULT
WEAPONS AND ACCESSORIES IN AMERICA (1988),
https://bit.ly/3m5OW5V. In truth, the firearms Mary-
land calls “assault weapons” are mechanically identi-
cal to any other semiautomatic firearm—arms that no
one disputes are exceedingly common and fully pro-
tected by the Second Amendment. Unlike a fully au-
tomatic “machine gun,” which continues to fire until
its magazine is empty so long as its trigger is de-
pressed, every semiautomatic firearm, including the
ones banned by Maryland, fires only a single shot for
each pull of the trigger. See Staples, 511 U.S. at 602
n.1.
These firearms are in common use. They “tradi-
tionally have been widely accepted as lawful posses-
sions.” Id. at 612. Indeed, Maryland bans firearms
that are among the most popular in America—includ-
ing the AR-15, “the best-selling rifle type in the
United States.” Nicholas J. Johnson, Supply Re-
strictions at the Margins of Heller and the Abortion
 8

Analogue: Stenberg Principles, Assault Weapons, and

the Attitudinalist Critique, 60 HASTINGS L.J. 1285,
1296 (2009). According to a comprehensive 2021 sur-
vey, approximately 24.6 million Americans have
owned an AR-type or similar rifle. William English,
2021 National Firearms Survey: Updated Analysis In-
cluding Types of Firearms Owned at 17 (May 13,
2022), https://bit.ly/3yPfoHw. A recent survey con-
ducted by the Washington Post came to a similar con-
clusion. Poll of current gun owners at 1, WASH. POST-
IPSOS (Mar. 27, 2023), https://bit.ly/46CqzRa (20% of
current gun owners own an AR-15 or similar style ri-
fle). Industry data shows that from 1990 to 2021 over
28 million such rifles were produced for sale in the
United States. Firearm Production in the United
States With Firearm Import and Export Data at 7,
NAT’L SHOOTING SPORTS FOUND., INC. (2023),
https://bit.ly/42qYo7k. And in recent years they have
been the second-most common type of firearm sold, at
approximately 20% of all firearm sales, behind only
semiautomatic handguns. See 2021 Firearms Retailer
Survey Report at 9, NAT’L SHOOTING SPORTS FOUND.,
INC. (2021), https://bit.ly/3gWhI8E; see also Exhibit 5
at 119, Miller v. Becerra, No. 3:19-cv-01537 (S.D. Cal.
Dec. 6, 2019), ECF No. 22-13.
The rifles banned by Maryland are commonly and
overwhelmingly possessed by law-abiding citizens for
lawful purposes. The 2021 National Firearms Survey
found that the most common reason for owning AR-15
or similar style rifles were target shooting (66% of
owners), home defense (61.9% of owners) and hunting
(50.5% of owners), English, 2021 National Firearms
Survey at 33–34, and the Washington Post’s data
again confirms this finding. In that poll, 60% of
 9

respondents cited target shooting as a “major reason”

for owning their AR-15 style rifle, and an additional
30% cited that as “minor reason.” WASH. POST-IPSOS,
Poll at 1. Protection of self, family, and property rated
as even more important (65% listed it as a major rea-
son and 26% as a minor reason). Id. Another recent
industry survey of over 2,000 owners of such firearms
reached similar results, showing again that home-de-
fense and recreational target shooting are the two
most important reasons for owning these firearms.
See Modern Sporting Rifle: Comprehensive Consumer
Report at 5, NAT’L SHOOTING SPORTS FOUND., INC.
(July 14, 2022), https://bit.ly/3GLmErS; see also Sport
Shooting Participation in the U.S. in 2020 at iii, NAT’L
SHOOTING SPORTS FOUND., INC. (2021),
https://bit.ly/3sPuEQl (noting that in 2020, 20 million
American participated in sport or target shooting with
firearms like those banned by Maryland). “AR-style ri-
fles are popular with civilians . . . around the world
because they’re accurate, light, portable, and modu-
lar. . . . [The AR-style rifle is] also easy to shoot and
has little recoil, making it popular with women. The
AR-15 is so user-friendly that a group called ‘Disabled
Americans for Firearms Rights’ . . . says the AR-15
makes it possible for people who can’t handle a bolt-
action or other rifle type to shoot and protect them-
selves.” FRANK MINITER, THE FUTURE OF THE GUN 46–
47 (2014).
Use of these firearms for unlawful purposes, by
contrast, is exceedingly rare. Indeed, handguns are
used in homicide in this country approximately twenty
times more frequently than rifles. Expanded Homi-
cide Data Table 8: Murder Victims by Weapon, 2015-
2019, Crime in the United States, FBI, U.S. DEP’T OF
 10

JUST. (2019), https://bit.ly/31WmQ1V. “[I]f we are con-

strained to use [Maryland’s] rhetoric, we would have
to say that handguns are the quintessential ‘assault
weapons’ in today’s society.” Heller II, 670 F.3d at
1290 (Kavanaugh, J., dissenting).
II. The ban’s effect on Petitioners
Petitioners Bianchi, Snope, and Schaefer are ordi-
nary, law-abiding, adult citizens of the United States
and residents of Maryland. Pet.App.26a–27a. Each is
legally qualified to purchase and possess firearms,
and each wants to acquire a banned firearm for self-
defense and other lawful purposes but has been
barred from doing so by Maryland’s Ban.
Pet.App.26a–27a. Similarly, Firearms Policy Coali-
tion, Inc., Second Amendment Foundation, and the
Citizens Committee for the Right to Keep and Bear
Arms each have numerous members in Maryland, in-
cluding Bianchi, Snope, and Schaefer, who are other-
wise eligible to acquire banned firearms and would do
so but for the ban. Pet.App.27a–29a. Finally, Field
Traders LLC is a licensed firearm dealer in Maryland
that has been forced to deny numerous sales of these
firearms because of the ban. Pet.App.27a, 41a.
III. Procedural history
A. On December 1, 2020, Petitioners filed this suit
in the District of Maryland, alleging that Maryland’s
categorical ban on the possession of common semiau-
tomatic firearms is facially unconstitutional under the
Second Amendment, which is applicable to Maryland
under the Fourteenth Amendment. The district court
had jurisdiction under 28 U.S.C. Sections 1331 and
1343. Petitioners’ complaint conceded that their Sec-
ond Amendment claim was foreclosed at the district-
 11

court level by the Fourth Circuit’s decision in Kolbe,

849 F.3d at 114; Pet.App.25a–26a.
B. Kolbe was an earlier challenge to Maryland’s
semiautomatic rifle ban. The ban was upheld by the
district court, Kolbe v. O’Malley, 42 F. Supp. 3d 768,
791–97 (D. Md. 2014), a decision that was vacated by
a panel of the Fourth Circuit, Kolbe v. Hogan, 813 F.3d
160, 178, 179–82 (4th Cir. 2016), which decision was
itself reversed by the en banc Fourth Circuit, holding
that Heller had included a “dispositive” exception
from the Second Amendment’s scope for any firearm
deemed sufficiently “like M-16 rifles, i.e., weapons
that are most useful in military service,” Kolbe, 849
F.3d at 136 (quotation marks omitted). If a firearm
meets this “useful in military service” test, the court
concluded, it falls “outside the ambit of the Second
Amendment[.]” Id. Judge Traxler—who had authored
the original panel opinion—dissented from the en
banc decision upholding the ban, concluding that the
majority’s “heretofore unknown ‘test’ . . . is clearly at
odds with the Supreme Court’s approach in Heller.”
Id. at 155 (Traxler, J., dissenting).
In light of Kolbe, the district court ordered Peti-
tioners to show cause why their case should not be dis-
missed sua sponte for failure to state a claim.
Pet.App.9a–10a. As they had in their complaint, Peti-
tioners conceded that Kolbe was controlling at the dis-
trict-court stage, and on March 3, 2021, the court dis-
missed Petitioners’ complaint. 849 F.3d at 155.
C. Petitioners appealed to the Fourth Circuit. Pe-
titioners again conceded that the en banc decision in
Kolbe was controlling at the panel level, but “they . . .
continue[d] to pursue this litigation to vindicate their
 12

Second Amendment rights and seek to have Kolbe

overruled by a court competent to do so.” Brief of
Plaintiffs-Appellants at 2, Bianchi v. Frosh, No. 21-
1255 (4th Cir. Apr. 19, 2021), ECF No. 18. On Septem-
ber 17, 2021, the Fourth Circuit affirmed the district
court’s order dismissing the case. Pet.App.6a–8a. Pe-
titioners timely sought certiorari from this Court. See
Pet. for Writ of Certiorari, Bianchi v. Frosh, No. 21-
902 (U.S. Dec. 16, 2021). This Court granted the peti-
tion, vacated the Fourth Circuit’s judgment, and re-
manded for further consideration in light of the Su-
preme Court’s decision in Bruen. See Pet.App.5a.
D. On remand, the Fourth Circuit directed the
parties to submit supplemental briefs regarding the
application of Bruen to this case and set the case for
argument before a panel of the Fourth Circuit in De-
cember 2022. See Pet.App.3a–4a. The parties com-
pleted briefing and argument, but following argument
there was silence for over a year until the Fourth Cir-
cuit issued an order sua sponte granting rehearing en
banc and setting en banc oral argument for March
2024. See Pet.App.1a–2a. No panel opinion ever is-
sued following this Court’s remand.
REASONS FOR GRANTING THE PETITION
I. This case requires only the straight-
forward application of Heller and
Bruen.
A. Heller speaks directly to the issue
presented and requires judgment in
Petitioners’ favor.
Before this Court decided Bruen, the circuit courts
were divided over how to assess bans on certain types
 13

of bearable arms, though they broadly agreed that

such bans should be permitted one way or another.
The D.C., First, Second, Third, and Ninth Circuits had
all, prior to Bruen, upheld bans on so-called “assault
weapons” or “large capacity magazines”—despite ac-
knowledging, in several cases, that the banned items
were “in common use for lawful purposes—by apply-
ing “intermediate” scrutiny which was, in application,
a little more than a rubber stamp on the judgment of
state legislatures. See Heller II, 670 F.3d at 1261–62;
Worman, 922 F.3d at 38; Cuomo, 804 F.3d at 255, 260;
Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y General
of N.J., 910 F.3d 106, 119 (3d Cir. 2018); Duncan, 19
F.4th at 1104.
The Seventh Circuit employed a divergent ap-
proach to reach the same result. Rather than resort-
ing to scrutiny analysis, the court thought “it better to
ask whether a regulation bans weapons that were
common at the time of ratification or those that have
some reasonable relationship to the preservation or
efficiency of a well-regulated militia, and whether
law-abiding citizens retain adequate means of self-de-
fense.” Friedman, 784 F.3d at 410 (cleaned up); see
also Wilson v. Cook County, 937 F.3d 1028, 1033–36
(7th Cir. 2019). And as explained above, the Fourth
Circuit took the novel approach of asking whether the
banned firearms “are ‘like’ M16 rifles” in that they
“are clearly most useful in military service,” and, if
they were judged to be like an M16, then they could
be banned. Kolbe, 849 F.3d at 136–37.
These approaches were clearly wrong before
Bruen. The majority approach was specifically repudi-
ated in Bruen. As this Court has now made clear,
 14

Heller directed courts to resolve Second Amendment

claims by analyzing the text of the Amendment and
our country’s history and tradition of firearms regula-
tion. It did not support the use of means-ends scrutiny
to counterbalance the right to keep and bear arms.
The Seventh Circuit’s old test was even less rooted
in this Court’s precedent than interest balancing. In-
deed, every element of the Seventh Circuit’s three-part
test directly conflicts with Heller. See 554 U.S. at 582
(rejecting “the argument, bordering on the frivolous,
that only those arms in existence in the 18th century
are protected by the Second Amendment.”); id. at 581
(concluding that “arms” includes “weapons that were
not specifically designed for military use and were not
employed in a military capacity.”); id. at 629 (explain-
ing that “it is no answer to say . . . that it is permissi-
ble to ban the possession of handguns so long as the
possession of other firearms . . . is allowed”).
The Fourth Circuit’s test wrenched language
from Heller out of its context to reach a rule that iron-
ically would sever entirely the protection afforded by
the Second Amendment’s operative clause from the
purpose announced by its prefatory clause. After in-
terpreting the text, Heller consulted history to, among
other things, determine the limits on this textually
grounded right. At the conclusion of this analysis, the
Court explained that that there was one “important
limitation on the right to keep and carry arms” that
would permit the government to ban a firearm even
though it fell within the plain text meaning of “arms.”
Id. at 627. Specifically, Heller explained that the “his-
torical tradition of prohibiting the carrying of ‘danger-
ous and unusual weapons,’ ” permitted certain arms
 15

to be banned. Id. (citing 4 BLACKSTONE’S COMMEN-

TARIES 148–49) (1769)) But, the Court made clear,
arms “in common use” are “protected” and therefore
cannot be banned. Id at 627 (internal quotation marks
omitted). This was a rule developed from “the histori-
cal understanding of the scope of the right,” id. at 625
(emphases added), and it was consistent with another
historical tradition: as the prefatory clause of the Sec-
ond Amendment notes, the explicit purpose for which
the right to keep and bear arms was included in the
Constitution was to ensure the preservation of the mi-
litia, and “[t]he traditional militia was formed from a
pool of men bringing arms ‘in common use at the time’
for lawful purposes like self-defense.” Id. at 624.
This interpretation did have one difficulty, which
this Court confronted directly. “It may be objected,”
Heller noted, that if some of the “weapons that are
most useful in military service—M-16 rifles and the
like” are “highly unusual in society at large” and
therefore “may be banned, then the Second Amend-
ment right is completely detached from the prefatory
clause.” Id. at 627. This was the passage that the
Fourth Circuit, in Kolbe, misinterpreted to create its
rule that firearms that are “like M-16 rifles” in that
they “are most useful in military service” fall outside
the protection of the Second Amendment. Kolbe, 849
F.3d at 135 (cleaned up). But that position is almost
precisely the opposite of what Heller said. Rather, Hel-
ler was, in this passage, addressing the tension be-
tween the stated purpose of the Amendment to protect
the militia and the fact that its protections would not
extend to all military firearms. The reason for that
tension, the Court explained, was that “the conception
of the militia at the time of the Second Amendment’s
 16

ratification was the body of all citizens capable of mil-

itary service, who would bring the sorts of lawful
weapons that they possessed at home to militia duty”;
in other words, they would be armed with those weap-
ons that were “in common use” as opposed to those
“that are highly unusual in society at large.” Heller,
554 U.S. at 627. Today, of course, some arms that are
used by the military are not in common use, thus in-
troducing a degree of disconnect between the Second
Amendment’s stated purpose and the scope of its pro-
tection. But Heller did not, of course, hold that merely
because a firearm is used by the military (or like a
firearm used by the military), it could not also be in
common use for lawful purposes by civilians. In other
words, Heller was explaining that certain arms could
be banned despite their utility in military service, not
because of it.
Indeed, the reasons why the Founders valued the
militia make nonsensical any argument that an
amendment meant to preserve that institution would
fail to protect arms because they could be useful for
military purposes. As Heller explains, the militia was
“useful in repelling invasions and suppressing insur-
rections,” “render[ed] large standing armies unneces-
sary,” and enabled the people to be “better able to re-
sist tyranny.” Id. at 597–98. It would be counterintui-
tive, to say the least, for an amendment designed to
preserve the militia to categorically exclude the types
of arms most suited to the militia’s purposes.
Under Heller then, all firearms are arms, and
arms that constitutionally may be banned are only
those that are dangerous and unusual. Arms in com-
mon use for lawful purposes are, by definition,
 17

neither. That makes this case a very straightforward

one. There can be absolutely no debate that the semi-
automatic rifles banned by Maryland are “in common
use” today by law-abiding citizens. Semiautomatic
firearms “traditionally have been widely accepted as
lawful possessions.” Staples, 511 U.S. at 612. Such
firearms have been commercially available for over a
century. See Heller II, 670 F.3d at 1287 (Kavanaugh,
J., dissenting); David B. Kopel, Rational Basis Analy-
sis of “Assault Weapon” Prohibition, 20 J. Contemp. L.
381, 413 (1994). According to industry estimates,
there were over 43 million semiautomatic rifles sold
in the United States between 1990 and 2018. See Fire-
arm Production in the United States With Firearm Im-
port and Export Data at 17, NAT’L SHOOTING SPORTS
FOUND., INC. (2020), https://bit.ly/3v5XFvz. Apart
from the now-expired ten-year federal assault weap-
ons ban, the federal government has not banned them
and, currently, the vast majority of states do not ban
semiautomatic “assault weapons” either. See Shawna
Chen, 10 states with laws restricting assault weapons,
AXIOS, https://bit.ly/3v2N0So (last updated Apr. 28,
2023). Because the State’s ban makes it illegal to pos-
sess certain semiautomatic rifles and semiautomatic
rifles are indisputably in common use, it follows that
the ban is invalid under the Second Amendment.
Even if the Court accepts the artificial “assault
weapon” framing created by Maryland’s law, then the
banned firearms still easily satisfy the common use
test. The dispositive point under Heller and Bruen is
that millions of law-abiding citizens choose to possess
firearms in this category. See Friedman, 136 S. Ct. at
449 (Thomas, J., dissenting from denial of certiorari)
(reasoning that “citizens . . . have a right under the
 18

Second Amendment to keep” “AR-style semiautomatic

rifles” because “[r]oughly five million Americans own”
them and “[t]he overwhelming majority . . . do so for
lawful purposes[.]”); Att’y Gen. of N.J., 910 F.3d at 116
(finding an “arm” is commonly owned because “[t]he
record shows that millions . . . are owned”); Cuomo,
804 F.3d at 255 (“Even accepting the most conserva-
tive estimates cited by the parties and by amici, the
assault weapons . . . at issue are ‘in common use’ as
that term was used in Heller.”); Heller II, 670 F.3d at
1261 (“We think it clear enough in the record that
semi-automatic rifles . . . are indeed in ‘common
use.’ ”).
The popularity of these firearms can be demon-
strated by looking at the AR-15-style rifle and similar
modern semiautomatic rifles that epitomize the fire-
arms Maryland lumps together in this category. The
AR-15 is America’s “most popular semi-automatic ri-
fle,” id. at 1287 (Kavanaugh, J., dissenting), and in re-
cent years it has been “the best-selling rifle type in the
United States,” Johnson, supra, at 1296. Today, the
number of AR-rifles and other modern rifles in circu-
lation in the United States exceeds twenty-four mil-
lion. Commonly Owned: NSSF Announces Over 24
Million MSRS in Circulation, NAT’L SHOOTING SPORTS
FOUND., INC. (July 20, 2022), https://bit.ly/3QBXiyv;
see also WASH. POST-IPSOS, Poll at 1; English, 2021
National Firearms Survey at 1–2 (finding that an es-
timated 24.6 million American gun owners have
owned AR-15s or similar rifles). In recent years they
have been the second-most common type of firearm
sold, at approximately 20% of all firearm sales, behind
only semiautomatic handguns. See 2021 Firearms Re-
tailer Survey Report, supra, at 9.
 19

It is noteworthy that many of the same arguments

that were made against the District of Columbia’s
handgun ban in Heller have been repurposed now to
combat these so-called “assault weapons.” If those ar-
guments could not justify the District of Columbia’s
ban, they likewise cannot save Maryland’s. It is edify-
ing to compare them. Take, for example, the District
of Columbia’s assertion in Heller that “some gun
rights’ proponents contend” that “shotguns and rifles
. . . are actually the weapons of choice for home de-
fense,” Brief of the Petitioners, District of Columbia v.
Heller, No. 07-290, 2008 WL 102223, at *54 (U.S. Jan.
4, 2008), citing an article “preferring rifles.” Id. The
very same claim is now being made in reverse in cases
just like this one across the country, where states are
extolling the virtues of handguns and the dangers of
rifles in the hope that, at least the latter can be
banned even if Heller forecloses the former. See, e.g.,
Appellant’s Br. at 24, Miller v. Bonta, No. 23-2979 (9th
Cir. Dec. 2, 2023), ECF No. 25.1 (arguing that, unlike
handguns “objective characteristics of the assault
weapon categories at issue here show why the defined
weapons are ill-suited to ‘ordinary self-defense’ ”
(quoting Bruen, 597 U.S. at 70)). But again, Heller has
settled this issue, since the only “objective character-
istic” that matters under Heller is whether a particu-
lar type of firearm is commonly possessed for lawful
purposes. Heller held that handguns were protected
because Americans used them for the lawful purpose
of self-defense, “[w]hatever the reason” was for them
making that choice. Heller, 554 U.S. at 629. The same
is indisputably true here, and so Heller requires judg-
ment in Petitioners’ favor.
 20

B. Bruen merely underscores that Hel-

ler’s analysis is dispositive here.
Bruen removed any uncertainty that remained af-
ter Heller as to whether firearms in common use are
protected by the Second Amendment. Bruen made
Heller’s text-and-history standard explicit, explaining
that it was applying the same “test that we set forth
in Heller,” and reaffirmed that Heller announced the
rule of decision that governs arms ban cases. 597 U.S.
at 26. In directing lower courts how to analyze the Sec-
ond Amendment, Bruen noted that in some cases they
will need to account for “technological changes,” and
explained that Heller demonstrated “at least one way
in which the Second Amendment’s historically fixed
meaning applies to new circumstances: Its reference
to ‘arms’ does not apply ‘only [to] those arms in exist-
ence in the 18th century.’ ” Id. at 28 (quoting Heller,
554 U.S. at 582). Instead, the Second Amendment’s
“general definition” of “arms” “covers modern instru-
ments that facilitate armed self-defense.” Bruen, 597
U.S. at 28.
And in characterizing the historical analysis,
Bruen once again pointed to Heller, noting that Heller
used the “historical understanding of the Amendment
to demark the limits on the exercise of [the] right,”
and it was on this basis that it had found that “the
Second Amendment protects the possession and use of
weapons that are ‘in common use at the time.’ ” Id. at
21 (quoting Heller, 554 U.S. at 627). Indeed, because
it was conceded that handguns are in common use for
lawful purposes, no further analysis was required to
determine that the type of arm at issue in the case was
protected. 597 U.S. at 32. In short, Bruen both
 21

elaborated upon Heller’s text-and-history approach

and reaffirmed that law-abiding citizens have an ab-
solute right to possess firearms that are in common
use. See Mark W. Smith, What Part of “In Common
Use” Don’t You Understand?: How Courts Have Defied
Heller in Arms-Ban-Cases—Again, PER CURIAM,
HARV. J.L. & PUB. POL’Y (Sept. 27, 2023),
https://bit.ly/3PWhqwH.
II. This Court’s intervention is required
to correct the continued refusal of
lower courts to recognize that the Sec-
ond Amendment protects semiauto-
matic rifles.
Although this case should be straightforward un-
der Heller, and although Bruen eradicated the errone-
ous interest-balancing analysis most courts of appeals
had previously used to uphold bans like Maryland’s,
the circuit courts already have begun to search for a
new way around this Court’s decisions. In that vein,
Illinois—like several other states—passed new legis-
lation in the wake of this Court’s decision in Bruen.
See H.B. 5471, 102nd Gen. Assemb., Reg. Sess. (Ill.
2023). The new Illinois law contained an “assault
weapons” ban similar to the Maryland law at issue
here. Several lawsuits were immediately filed, seek-
ing to enjoin the restrictions. The district courts in Il-
linois divided on whether a preliminary injunction
should issue. See Barnett v. Raoul, --- F. Supp. 3d ----,
2023 WL 3160285 (S.D. Ill. April 28, 2023) (granting
preliminary injunction); Bevis v. City of Naperville,
657 F. Supp. 3d 1052 (N.D. Ill. 2023) (denying prelim-
inary injunction); Herrera v. Raoul, --- F. Supp. 3d ----
, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023) (denying
 22

preliminary injunction). The Seventh Circuit, decid-

ing all of the cases together, held that the law was
likely constitutional and in doing so it revived por-
tions of both Friedman and Kolbe as a way around this
Court’s decisions in Bruen and Heller. Bevis, 85 F.4th
at 1175.
After a long preamble in which it argued that its
precedent in “Friedman [is] basically compatible with
Bruen,” id. at 1189, the Seventh Circuit proceeded to
badly misapply Bruen and Heller. Its analysis began
(and, for practical purposes, ended) with the text. The
court recounted that in Heller this Court had con-
cluded that the Second Amendment’s text extends to
“all instruments that constitute bearable arms,” id. at
1193 (quoting Heller, 554 U.S. at 582), but it pur-
ported to find this language impossibly opaque, ask-
ing what “bearable” could mean and concluding it
must not mean merely those that are “capable of being
held” because Heller excluded “ ‘weapons that are
most useful in military service—M16 rifles and the
like,’ which ‘may be banned,’ ” id. (quoting Heller, 554
U.S. at 627). This reading repeats the errors of the
past. As already discussed, as a matter of plain text,
the Second Amendment’s protection extends to all
firearms; permissible restrictions on those firearms
must come from history. And, as explained above, it is
getting things precisely backwards to conclude that
Heller held that weapons could be banned because of
their utility in military service. This was, neverthe-
less, the critical point for the Seventh Circuit, as it an-
nounced a new rule that “the Arms protected by the
Second Amendment do not include weapons that may
be reserved for military use.” Id. at 1194 (emphasis
added). The court held that it believed the banned
 23

semiautomatic firearms were likely to be the type that

could be so “reserved” because they are “much more
like machineguns and military-grade weaponry than
they are like the many different types of firearms that
are used for individual self-defense (or so the legisla-
ture was entitled to conclude).” Id. at 1195. As the dis-
sent pointed out, however, “[n]o army in the world
uses a service rifle that is only semiautomatic,” id. at
1222 (Brennan, J., dissenting), and AR-15s and simi-
lar semiautomatics indisputably are “civilian” fire-
arms, Staples, 511 U.S. at 603, not military ones.
The Seventh Circuit’s approach conflicts with the
Ninth Circuit’s approach in Teter v. Lopez, 76 F.4th
938 (9th Cir. 2023), which addressed Hawaii’s ban on
butterfly knives. The Ninth Circuit held that “it is ir-
relevant whether the particular type of firearm at is-
sue has military value,” because the only thing that
matters, under the Second Amendment’s plain text, is
whether it “fit[s] the general definition of ‘arms.’ ” Id.
at 949. Teter furthermore held, consistent with Heller,
that since there is no tradition of “categorically
ban[ning] the possession of” arms in common use, no
historical analogues could justify a ban on butterfly
knives, which are commonly owned today. Id. at 951.
Unfortunately, there is reason to doubt that Teter will
remain good law. The Ninth Circuit is still considering
a petition to rehear Teter en banc and, regardless of
whether that request is ultimately granted, an en
banc panel of that court will decide a case involving
California’s limit on magazine capacity. The same en
banc panel, writing before Bruen, endorsed a strik-
ingly similar view to the one that the Seventh Circuit
has put forward after Bruen, suggesting that maga-
zines holding more than ten rounds may not be
 24

protected precisely because they are useful in military

service. Duncan, 19 F.4th at 1102. If that view carries
the day again, then the correct side of this emerging
division among the circuits will be pruned and the cir-
cuits will again—just as they were before Bruen—be
united in their refusal to recognize the validity of
these challenges.
III. This case warrants certiorari before
judgment.
This case raises an issue of imperative im-
portance. It involves the exercise of a fundamental
right that currently is being denied by several states
in the same way, and the lower courts repeatedly have
refused to heed this Court’s clear guidance and have
denied protection of that fundamental right. There is
no need for these issues to develop further; this Court
should grant certiorari and decide this case now.
Petitioners recognize that this case comes to the
Court in an unusual posture. Two terms ago, this
Court granted, vacated, and remanded this case, and
now Petitioners find themselves in the unfortunate
position of still not having been able to secure a judg-
ment from the Fourth Circuit and asking this Court,
yet again, to take this case and resolve it. Although
this case was briefed and argued shortly after it was
remanded to the Fourth Circuit, the court of appeals
did not act on the case for over a year after argument
was held until, suddenly in January of this year, it sua
sponte issued an order directing that the case would
be reheard en banc, with arguments scheduled for
March 20, 2024. Pet.App.1a–2a. No reason was given
for the delay, nor was there an explanation for why
the decision to take the case up for consideration en
 25

banc was not made in the preceding year and a half

when the case was pending before the court.
That is not to say it is at all unclear what is hap-
pening here. The Fourth Circuit executed a similar
maneuver in Wise v. Circosta, 978 F.3d 93 (4th Cir.
2020) (en banc), a case which dealt with a challenge to
North Carolina extending the timeframe in which it
could receive and count mail-in ballots in an immi-
nently approaching election. In that case, “the work of
the panel [originally assigned to hear the case] was
hastily preempted by an en banc vote requested by the
panel’s dissenter after the panel majority had shared
its views but before those views could be published.”
Id. at 117 (Niemeyer, J., dissenting). This was a “de-
parture from [the court’s] traditional process,” id. at
118 (Niemeyer, J., dissenting), and the direct result of
the en banc court desiring to take the case from a
panel with which it disagreed.
This case appears to have fallen prey to the same
tactic with one significant difference. Whereas the
Fourth Circuit in Wise acted expeditiously to issue an
en banc decision “two weeks before election day,” id.
(Niemeyer, J., dissenting), and so its actions might be
excused, or at least explained away on that ground,
here the en banc court has delayed for over a year the
consideration of this important issue. After all, as long
as Bruen and Heller have not been appropriately ap-
plied here, Petitioners continue to be denied the exer-
cise of a fundamental right.
While this Court has explained that, “in an appro-
priate case, a GVR order conserves the scarce re-
sources of this Court that might otherwise be ex-
pended on plenary consideration, assists the court
 26

below by flagging a particular issue that it does not

appear to have fully considered, assists this Court by
procuring the benefit of the lower court’s insight be-
fore we rule on the merits, and alleviates the ‘poten-
tial for unequal treatment that is inherent in our abil-
ity to grant plenary review of all pending cases raising
similar issues,” Lawrence v. Chater, 516 U.S. 163, 167
(1996), subsequent events following the GVR in this
case show that the ordinary benefits will not obtain
here. The Court has cautioned that whether a GVR is
appropriate “depends further on the equities of the
case” and where there is evidence of “an unfair or ma-
nipulative litigation strategy, or if the delay and fur-
ther cost entailed in remand are not justified by the
potential benefits of further consideration by the
lower court, a GVR order is inappropriate.” Id. at 168.
Here, the Fourth Circuit’s actions since remand
demonstrate an attempt to slow walk Petitioners’
claims, even though, as discussed above, the unconsti-
tutionality of the law in question has been clear since
Heller was decided over 15 years ago. Discussing the
similar ban in Friedman, Justice Thomas lamented
that the lower courts were “flouting” this Court’s Sec-
ond Amendment precedents and argued that such
treatment called for summary reversal, not delay or
further percolation. Friedman, 136 S. Ct. at 449–50
(Thomas, J., dissenting). The correctness of that view
only becomes more apparent with time. The Court
should step in now to make clear once and for all that
the most popular rifles in the history of the nation are
protected by the Second Amendment.
 27

CONCLUSION
The Court should grant the petition for certiorari
before judgment.

February 8, 2024 Respectfully submitted,

RAYMOND M. DIGUISEPPE DAVID H. THOMPSON

THE DIGUISEPPE LAW Counsel of Record
FIRM, P.C. PETER A. PATTERSON
4320 Southport-Supply WILLIAM V. BERGSTROM
Road, Suite 300 COOPER & KIRK, PLLC
Southport, NC 28461 1523 New Hampshire
(910) 713-8804 Avenue, N.W.
law.rmd@gmail.com Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com

Counsel for Petitioners