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Gun-carrying Virginia ex-con loses 4th Circuit appeal for Maryland permit

Appellant’s lawyer says he plans to seek full circuit or Supreme Court review

Guns on display at FreeState Gun Range in Middle River. (Maximilian Franz/The Daily Record)

Guns on display at FreeState Gun Range in Middle River. (Maximilian Franz/The Daily Record)

Maryland did not violate the U.S. Constitution by denying a gun permit to a Virginia ex-convict whose gun rights had been restored in that state, a federal appeals court has ruled.

James Hamilton’s felony convictions in Virginia for credit card fraud and forgery count as disqualifying, felonious offenses for a gun permit in Maryland, the 4th U.S. Circuit Court of Appeals held. The felonies-related disqualification can be removed only if the Virginia governor were to pardon Hamilton of those offenses, the unanimous three-judge panel added in its published opinion.

The 4th Circuit rejected Hamilton’s argument that the restoration by a Virginia court of his right to possess a gun provides sufficient evidence that he is now a “law-abiding, responsible citizen” entitled under the Constitution’s Second Amendment to possess a gun for self-protection within his home, as the U.S. Supreme Court held in its 2008 decision District of Columbia v. Heller.

Maryland, however, still regards Hamilton – a state resident currently under contract with the Department of Homeland Security as a security officer – as a convicted felon and thus validly removed him “from the class of ‘law abiding, responsible citizens’ for the purposes of the Second Amendment,” Judge Henry F. Floyd wrote for the 4th Circuit.

“Maryland has determined that unless and until Virginia issues Hamilton a full pardon, he will continue to be deemed a felon in Maryland,” Floyd added. “In our federal system, each state is permitted to create its own laws so long as they do not run afoul of the Constitution, federal laws, and treaties, specifically as relevant here, the Second Amendment. Virginia may have opted to restore Hamilton’s gun ownership rights within its borders, but Maryland need not do so within its borders.”

Hamilton’s attorney Cary J. Hansel said Monday that he will appeal the decision either to the full 4th Circuit or directly to the U.S. Supreme Court.

“This is a gentleman who had some issues involving non-violent credit card offenses,” said Hansel, of Hansel Law P.C. in Baltimore. “He had his civil rights restored by the governor of Virginia and his firearm rights restored by the Virginia courts. Such a minor violation should not defeat a constitutional right for the remainder of someone’s life which is in effect what the 4th Circuit has ruled. This is obviously not the end of our fight and we do intend to appeal on behalf of our client and in furtherance of the Second Amendment rights of Maryland citizens.”

The Maryland attorney general’s office said in a statement that the 4th Circuit “correctly held that individuals convicted of felonies cannot bring as-applied challenges to laws preventing the possession of firearms by those convicted of such crimes.”

Pardon needed

In November 2006, Hamilton pleaded guilty in Virginia to credit-card fraud, theft and forgery, all felonies in the state. Maryland regards credit-card theft as a misdemeanor.

Hamilton was sentenced to four years in prison, all suspended, and four years’ probation. He was also ordered to pay nearly $1,500 in restitution and $1,000 in court costs.

In 2013, then-Virginia Gov. Robert McDonnell restored Hamilton’s rights to vote, hold public office, sit on a jury and serve as a notary. When McDonnell declined to restore his right to possess a gun, Hamilton turned to the Spotsylvania County Circuit Court, which ruled in his favor in April 2014.

Hamilton later registered as an armed security officer with the Virginia Department of Criminal Justice Services with certification in handguns and shotguns.

Hamilton has no record of violent behavior, according to the 4th Circuit’s opinion, which also noted the married father of three children is head coach of a junior league wrestling team.

Despite Hamilton’s recent activities, the Maryland State Police told Hamilton he could not possess a gun in the state without a pardon from the Virginia governor.

In July 2015, Hamilton filed suit in U.S. District Court in Baltimore, seeking a ruling that the state’s restriction is unconstitutional as applied to him. The named defendants were Frosh and MSP Superintendent William L. Pallozzi.

U.S. District Judge James K. Bredar dismissed the complaint, saying Maryland was within its constitutional authority to withhold a gun permit from the convicted felon.

Hamilton then appealed to the 4th Circuit.

Judges Dennis W. Shedd and Allyson K. Duncan joined Floyd’s opinion in James Hamilton v. William L. Pallozzi and Brian E. Frosh, No. 16-1222.

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