In dueling court papers, a gun rights group and Maryland’s attorney general differ on the consequences a coming U.S. Supreme Court decision on the constitutionality of limits on carrying handguns outside one’s home will have on the state’s controversial licensing requirement for would-be handgun purchasers.
Maryland Shall Issue has urged a federal appeals court to withhold its consideration of the group’s Second Amendment challenge to Maryland’s licensing requirement until the justices have ruled. In papers filed with the 4th U.S. Circuit Court of Appeals this month, MSI said the Supreme Court’s decision on carrying handguns will apply broadly to the constitutionality of Maryland’s required license for owning one in the first place.
“The question in the present (4th Circuit) appeal is whether Maryland’s Handgun Qualification License requirement violates the Second Amendment,” MSI’s counsel stated in their request that the 4th Circuit hold the appeal in abeyance. “Guidance from the Supreme Court as to the scope of the Second Amendment’s protections and the test used to determine the constitutionality of laws burdening activity protected by the Second Amendment – both of which are contested issues in the present appeal – may affect the outcome of the present appeal.”
But Attorney General Brian E. Frosh countered that the issues of licensing handgun possession and of carrying the weapon in public are sufficiently distinct – and will likely be treated as such by the Supreme Court – that the 4th Circuit should hear MSI’s challenge without waiting for the justices’ decision in the case from New York, which is expected by June.
“Although the constitutionality of both New York’s concealed-carry permit law and Maryland’s HQL law involves application and interpretation of the Second Amendment, they involve distinct substantive areas of that ever-widening jurisprudence,” Frosh wrote in the papers he submitted with his assistants, Robert A. Scott and Ryan R. Dietrich.
“For example, unlike the issues of public carry, which affects what one may do with a handgun once they have lawfully obtained it, Maryland’s HQL requirement relates to the extent to which a state may lawfully vet those who wish to purchase or acquire a handgun,” Frosh added. “The laws have different aims and effects, different historical antecedents, and overall implicate different policy and safety rationales.”
In the 4th Circuit case, MSI is appealing a U.S. district court ruling that the licensing requirement passes constitutional muster because it is reasonably related to the state’s important interest in protecting public safety.
MSI has contended on appeal that the imposition of a licensing requirement on gun ownership is constitutional only if passes the more demanding test of being narrowly tailored to achieve a compelling state interest and that the state has not met this high standard.
The 4th Circuit has not stated when it will rule on MSI’s motion to hold the appeal pending the Supreme Court’s decision. The case is docketed at the 4th Circuit as Maryland Shall Issue Inc. et al v. Lawrence Hogan et al., No. 21-2017.
MSI and its co-plaintiffs are represented by Cary J. Hansel III, of Hansel Law PC in Baltimore, and John Parker Sweeney, of Bradley Arant Boult Cummings LLP in Washington.
The Maryland Firearm Safety Act’s licensing requirement mandates that an applicant be at least 21 years old, a Maryland resident, complete four hours of firearms safety training and not be prohibited by federal or state law from buying or possessing a handgun. Licensed gun dealers, as well as current and retired law-enforcement and military officers, are exempt from the handgun licensing requirement.
A violation of the law is a misdemeanor punishable by up to five years in prison and a $10,000 fine.
The state police regulations require applicants to submit a complete set of fingerprints from an approved vendor at their expense and to safely fire at least one round of live ammunition during the safety training course.
The issue before the Supreme Court in New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, is whether the state’s denial of concealed-carry licenses for self-defense violated the Second Amendment.
Maryland Shall Issue and Frosh have not always disagreed.
Last summer, they both urged the 4th Circuit to hold in abeyance pending the Supreme Court’s decision MSI’s Second Amendment challenge to Maryland’s requirement that handgun permit applicants provide the state with a “good and substantial reason” to carry the weapon outside the home. The permit requirement, like the New York law at issue before the justices, addresses the constitutionality of a limit on carrying a handgun, both MSI and Frosh stated in their successful request for a 4th Circuit stay in Eric Call et al. v. Woodrow W. “Jerry” Jones III, Maryland secretary of state police, No. 21-1334.
But a licensing requirement is distinct from a carry permit, Frosh stated in his more recent filing.
In response, MSI said the distinction carries no constitutional difference.
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