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Editorial Advisory Board: ‘Security theater’ and the handgun permit review panel

Gov. Larry Hogan, just before the Memorial Day holiday, vetoed a 2019 bill abolishing the Maryland Handgun Permit Review Board. The board, comprised of civilians, was established in 1990 to review decisions of the Maryland State Police (MSP) relating to the issuance of permits to allow Maryland citizens to carry a concealed handgun for self-defense. The legislature, pushed by citizens’ action groups, was unhappy with the number of times the review board overturned yes-or-no decisions of the MSP and with the kind of restrictions that would be imposed if the permit were issued.

The legislature’s bill replaced the civilian review with an appeal to an administrative judge.

Neither the board nor an administrative law judge can change Maryland law, which requires an application to establish a good and substantial reason against apprehended danger before a permit is issued. Of course, in 45 other states an applicant not otherwise prohibited from possessing a gun will get a permit to carry without the need to show apprehended danger.

A Maryland administrative law judge generally should not substitute his or her discretion for an agency’s factual decision, as long as the agency applied the correct law. In other words, if the agency being reviewed did not misinterpret the governing statute, the agency’s decision will stand, assuming there is substantial evidence in the record to support the decision and the decision is not based upon an error of law. In addition, more deference will be given to an agency’s fact-findings than to an agency’s legal conclusions.

The Handgun Permit Review Board has applied its discretion when reviewing facts to determine whether the MSP ruled correctly on the law. Advocates of the bill make a lot of hay over keeping this decision solely in the hands of the MSP, but why would a responsible review board disagree often with the MSP, unless it had good reason to do so?

We also observe that we can find no cases in which a concealed handgun permit holder committed an illegal act of violence with his or her pistol. That is due to a combination of proper vetting of applicants by the MSP, the applicants’ level of responsibility and the quality of the board’s reviews since 1990.

The review board, in business again until the next session, when an override of the veto is expected, is required to follow Maryland law in determining that a citizen has a good and substantial reason to wear and carry, but the board gives a citizen who believes he or she possesses a valid reason under state law to carry a gun a second bite of the apple if MSP declines to issue a permit or restricts it. However, an administrative court reviewing MSP decisions is likely to affirm.

Announcing his veto, the governor said that this was a grab of authority by the legislature. But more important, it’s just security theater. While the legislature can state its safety policy behind this bill, elimination of the board does nothing to keep us safe from those who carry guns illegally and want to harm us.

Editorial Advisory Board member Vanessa Vescio did not take part in this editorial.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Martha Ertman (on sabbatical)

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka King

Stephen Meehan

William Michaels

Angela W. Russell

Debra G. Schubert

Mark Stichel

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.