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Maryland waives its response to 2nd Amendment appeal

The Maryland Attorney General’s Office will take a wait-and-see approach to a U.S. Supreme Court challenge by gun rights advocates to the Maryland handgun permit law’s requirement that applicants provide the state with a “good and substantial reason” to carry a handgun outside the home.

In papers filed with the justices this week, Assistant Maryland Attorney General Julia Doyle Bernhardt waived the state’s right to file a response to the advocates’ argument that the need to specify a good and substantial reason violates the Constitution’s Second Amendment right to keep and bear arms. Bernhardt stated on the high court’s waiver form that Maryland would provide a response if one was requested by the justices.

A spokeswoman for the Attorney General’s Office declined to comment Thursday on why a response was waived.

Such waiver requests are not uncommon and save counsel the time and expense of filing a response if the high court has no interest in hearing the appeal. In turn, a request from the high court for a response indicates that the justices might have some interest in hearing the case, according to attorneys who practice regularly before the Supreme Court.

The justices have not said when they will vote on the Maryland State Rifle and Pistol Association’s request that they hear the Second Amendment challenge. The case is docketed at the high court as Brian Kirk Malpasso et al. v. William M. Pallozzi, Superintendent, Maryland Department of State Police, No. 19-423.

In its petition for high court review, the association argued that the constitutional right to keep and bear arms is fundamental and that its exercise by law-abiding citizens outside their home cannot be restricted by the state, such as by requiring a would-be gun owner to have a good and substantial reason.

The Supreme Court has ruled that law-abiding citizens have a constitutional right to have handguns in their homes for self-protection without needing to provide the state with a justification. The same standard should apply outside the home, the association’s lead attorney argued in its request that the justices hear its appeal of a 4th U.S. Circuit Court of Appeals ruling for the state last April.

“As this (Supreme) Court held in Heller, the ‘right of the people to keep and bear arms’ enshrines and protects at its core ‘the individual right to possess and carry weapons in case of confrontation,’” wrote Paul D. Clement, who served as U.S. solicitor general under President George W. Bush. “That holding is plainly inconsistent with a law that flatly prohibits typical, law-abiding citizens from carrying a handgun for self-defense outside the home unless they can demonstrate that they have a particularized ‘good and substantial reason’ that distinguishes them from the body of ‘the people’ protected by the Second Amendment.”

Clement is with Kirkland & Ellis LLP in Washington.

The Attorney General’s Office, as indicated in the 4th Circuit’s decision, has defended the good and substantial reason requirement as necessary to protect the public and to prevent crime.

The association is joined in the Supreme Court appeal by Brian Malpasso, whom his lawyers have described as a law-abiding Mechanicsville resident who completed firearms training and criminal background checks but was nevertheless denied a handgun carry permit by the Maryland State Police. MSP said he did not provide a good and substantial reason for carrying a gun in public, such as evidence of any concrete, present fear for his safety, Malpasso’s lawyers stated in earlier court filings.

U.S. District Judge Ellen L. Hollander upheld MSP’s denial of Malpasso’s permit application and the 4th Circuit affirmed, prompting the association’s appeal to the Supreme Court.

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