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Md. high court will weigh ban on gun possession by nonviolent convicts

“It is the sentence imposed, not the classification of the common law crime, that determines the seriousness of the offense,” Court of Special Appeals Judge Douglas R.M. Nazarian wrote in the opinion, which is being challenged in the Court of Appeals. (The Daily Record/File Photo)

Maryland’s top court will consider whether the state’s ban on gun possession by someone sentenced to more than two years in prison for a nonviolent common law crime violates the constitutional right to keep and bear arms.

The Court of Appeals on Friday agreed to hear the appeal of a man found possessing a firearm after having been sentenced years earlier to four years in prison for having violated a court order to pay child support.

The intermediate Court of Special Appeals upheld Robert Fooks’ gun-possession conviction, saying the Second Amendment right applies to “law-abiding” citizens seeking to carry a gun for personal protection. A person convicted of a crime “serious” enough to warrant more than two years in prison under Maryland law cannot be deemed law-abiding, the Court of Special Appeals said in its reported 3-0 decision.

In his successful bid for high court review, Robert Fooks cited through counsel the U.S. Supreme Court’s recent ruling in New York State Rifle & Pistol Association Inc. v. Bruen that gun-possession restrictions are constitutional only if they reflect similar limits imposed when the Second Amendment was ratified in 1791 or when the 14th Amendment extended the right to the states in 1868.

No such history exists for banning possession by someone convicted of a nonviolent common law crime in general or for violating court-ordered child support in particular, wrote Assistant Maryland Public Defender Peter F. Rose.

“(T)o withstand a facially constitutional challenge, it is the government’s burden to demonstrate that the restriction is consistent with the nation’s historical tradition of firearm regulation,” Rose wrote.

“The state has failed to show that those who have been convicted of a violation classified as a common law crime and received a term of imprisonment of more than two years – which broadly captures misdemeanors and non-violent offenders/offenses – were historically within reach of such prohibitions, vis-à-vis the Second Amendment right,” Rose added. “The state did not, and could not, fulfill its obligation under Bruen of showing that there is a historical tradition of barring firearms possession by individuals in Mr. Fooks’ position.”

Assistant Maryland Attorney General Andrew J. DiMiceli countered that the Court of Special Appeals correctly held that the Second Amendment right applies only to law-abiding citizens, as interpreted by the Supreme Court in all its cases, including Bruen.

“To be sure, Bruen is a new and groundbreaking decision, and cases are likely to come before this court presenting important and certworthy (review worthy) issues regarding whether various Maryland firearms regulations pass muster under the analytical framework that the Bruen Court adopted,” DiMiceli wrote in the state’s unsuccessful request that the Court of Appeals deny Fooks’ review request.

“But as the Court of Special Appeals correctly recognized, Bruen has little effect on the outcome of this case, which does not present such a novel and difficult issue.”

The Court of Appeals is scheduled to hear arguments in the case in March. The high court is expected to render its decision by Aug. 31 in Robert L. Fooks v. State of Maryland, No. 24, September Term 2022.

Fooks pleaded guilty last year in Wicomico County Circuit Court to two counts of illegal possession of a firearm by a disqualified individual. But he reserved the right to challenge the constitutionality of his disqualification, which was based on the criminal contempt conviction and four-year sentence he received in 2016.

The Court of Special Appeals upheld the conviction in June, just six days after the justices’ ruling in Bruen.

“The legislature didn’t provide that any common law conviction disqualified an individual from possessing firearms,” Judge Douglas R.M. Nazarian wrote. “It enumerated specifically that the individual had to receive a sentence of more than two years to be disqualified. It is the sentence imposed, not the classification of the common law crime, that determines the seriousness of the offense.”

The court rejected arguments that a person who violates a judicial order to pay child support does not present a threat to public safety that would justify the state’s denial of that individual’s right to possess a gun.

“’Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities,’” wrote Nazarian, quoting a Wisconsin Supreme Court decision last year in a similar Second Amendment challenge. “’By all accounts, this is a serious offense.’”

Nazarian added that Fooks’ offense went beyond failure to pay child support to include criminal contempt and a resulting four-year sentence for violating a court order that he make the payments – conduct that “fell outside the scope protected by the Second Amendment.”

Nazarian was joined in the opinion by Judges Dan Friedman and Lynne A. Battaglia, a retired jurist sitting by special assignment.

The Court of Special Appeals rendered its decision in Robert L. Fooks v. State of Maryland, No. 269, September Term 2021.

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