The U.S. Supreme Court’s decision that law-abiding citizens have a constitutional right to carry handguns outside the home for self-protection has emboldened Maryland gun rights advocates in their pending Second Amendment challenges to the state’s handgun permitting and licensing requirements.
The two Second Amendment challenges have been held in abeyance by the 4th Circuit Court of Appeals as it awaited the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen.
In its 6-3 decision Thursday, the high court extended to outside the home its 2008 decision in District of Columbia v. Heller that law-abiding citizens have a constitutional right to bear handguns inside the home for personal protection.
Maryland Attorney General Brian E. Frosh, who championed the state’s gun control laws as a state senator and has opposed the pending challenges, said in a statement Thursday that his office “will examine today’s ruling to determine its impact in our state, and we will continue to fight to protect the safety of Marylanders.”
Mark W. Pennak, president of the gun rights group Maryland Shall Issue Inc., said Maryland’s requirement that handgun permit applicants provide the state with a “good and substantial reason” to carry the weapon outside the home is now “dead in the water” because of its similarity to the New York requirement the Supreme Court struck down.
In both New York and Maryland, the good and substantial reason for a person carrying a gun was subject to law enforcement’s discretion and generally based on clear evidence of a viable death threat against the individual.
“There is no question” that Maryland’s permitting requirement is unconstitutional under the high court’s decision, Pennak said. “It is really, really clear.”
Pennak added that the state’s handgun licensing requirement is also a “dead letter” based on the Supreme Court’s statement in Bruen that gun regulations are valid only if in keeping with the constitutional text, history and tradition of state regulation of firearms when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.
No such regulations were in effect in those days, Pennak said.
“The burden is on the state to show that text, history and tradition support the licensing requirement,” Pennak said. “Modern day gun regulations, unless they have some counterpart (in those earlier times), are not going to pass.”
Frosh did not immediately respond to telephone and text messages Thursday seeking comment on the pending 4th Circuit cases in light of the Supreme Court’s decision. A spokesperson for Frosh emailed that the attorney general was unavailable for comment.
Maryland’s licensing requirement mandates that an applicant be at least 21 years old, be 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 contained in the 2013 Maryland Firearm Safety Act.
A violation of the law is a misdemeanor punishable by up to five years in prison and a $10,000 fine.
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.
Frosh, who was chief sponsor of the safety act while a state senator, expressed dismay with the Supreme Court’s ruling.
“Today’s decision means more deaths and more pain in a country already awash in gun violence,” Frosh said in a statement.
“If the norm is that people can carry firearms, our neighborhoods, our streets and other public places will become more dangerous,” he added. “The epidemic of gun violence sweeping our nation demonstrates daily the folly of introducing more guns into this boiling cauldron.”
The gun rights advocates’ pending challenge to Maryland’s good and substantial justification for possessing a gun outside the home is their third in the past decade.
The first challenge to Maryland’s ended in 2013 when the Supreme Court let stand without comment the 4th Circuit’s published decision earlier that year in Woollard v. Gallagher that Maryland’s requirement was “reasonably adapted to Maryland’s significant interests in protecting public safety and preventing crime.”
In 2019, gun rights advocates mounted what they acknowledged to be a second Supreme Court challenge to the 4th Circuit’s Woollard decision. But the justices in June 2020 denied their petition for review without comment in the case, Brian Kirk Malpasso et al. v. Woodrow W. “Jerry” Jones III, Maryland secretary of state police.
The advocates mounted their current challenge in federal district court on Nov. 13, 2020, a little more than two weeks after Amy Coney Barrett — widely viewed as receptive to Second Amendment arguments – was sworn in as a Supreme Court justice following the Sept. 18, 2020, death of Ruth Bader Ginsburg, who had endorsed gun control.
Senior U.S. District Judge Deborah K. Chasanow dismissed the challenge in March 2021, citing Woollard. The advocates then sought review by the 4th Circuit, where the challenge now sits in abeyance.
The case is docketed at the 4th Circuit as Eric Call et al. v. Woodrow W. “Jerry” Jones III, Maryland secretary of state police, No. 21-1334.
In the licensing challenge, Maryland Shall Issue 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 it 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 case is docketed at the 4th Circuit as Maryland Shall Issue Inc. et al v. Lawrence Hogan et al., No. 21-2017.