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Marylander mounts Supreme Court challenge to state’s gun-possession ban

Beretta handguns for sale in 2013 at FreeState Gun Range in Middle River. (The Daily Record/Maximilian Franz - FILE)

Beretta handguns for sale in 2013 at FreeState Gun Range in Middle River. (The Daily Record/Maximilian Franz – FILE)

A Maryland man has mounted a U.S. Supreme Court challenge to the state’s prohibition on convicted felons possessing firearms, saying individuals must be allowed to have a judge decide on a case-by-case basis whether the ban violates that person’s constitutional right to keep and bear arms.

In his bid for Supreme Court review, James Hamilton said lower federal courts were wrong to uphold summarily Maryland’s denial of a gun permit based solely on his felony convictions in Virginia for the non-violent offenses of credit card fraud, theft and forgery. Denials must be based not on a rote application of a felon-dispossession law but on whether the person’s dangerousness outweighs his or her Second Amendment right, states the petition Hamilton’s counsel filed with the Supreme Court.

“Simply put: In this country, non-dangerous, law-abiding and responsible citizens enjoy a fundamental right to keep and bear arms,” attorneys Alan Gura and Cary Hansel wrote. “And by refusing to acknowledge as-applied challenges to dispossession laws … the court below has created a new creature in our constitutional order: the fundamental right whose dimensions are drawn by legislatures.”

The attorneys added that “if courts will now rubber-stamp at Second Amendment step one the disarmament of anyone who has triggered a potential sentencing range, the Second Amendment lacks content.”

Gura, counsel of record in the Supreme Court appeal, is with Gura PLLC in Alexandria, Virginia. Hansel is with Hansel Law PC in Baltimore.

In a responsive filing Wednesday, Maryland Attorney General Brian E. Frosh urged the Supreme Court not to hear Hamilton’s appeal from the 4th U.S. Circuit Court of Appeals, saying federal courts have validly deferred to state-law bans on felons possessing firearms.

“As the district court recognized in this case, theft crimes have been recognized as serious crimes since at least the time of Hammurabi’s Code,” Frosh wrote in the filing co-signed by Assistant Attorneys General Jennifer L. Katz, Mark H. Bowen and Matthew J. Fader, the lawyer of record in the Supreme Court case.

“Like every other federal appellate court to hear a challenge to a felon-dispossession law by an individual who has been convicted of a state-law felony, the 4th Circuit rejected that challenge,” Frosh added. “No compelling reason exists that requires review of the decision of the 4th Circuit in this straightforward case.”

The Supreme Court has not set a date for its vote on whether to hear Hamilton’s appeal. However, the justices indicated interest in the case in July by requesting the state’s response to Hamilton’s petition after Maryland had waived its right to respond.

The case is docketed at the Supreme Court as James Hamilton v. William L. Pallozzi et al., No. 16-1517.

No pardon

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

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. The 4th Circuit upheld Bredar’s dismissal in February, prompting Hamilton to seek review by the Supreme Court.

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