Md. gun law won’t pass constitutional muster

Interpretations of U.S. Constitution by various courts, including the U.S. Supreme Court, are not always received with joy. We should all agree, however, that once interpreted by the highest court, the rights guaranteed by the Constitution should not be violated by government, even when the government thinks doing so is in our best interests.

Gun rights are one of those activities, and the Maryland Gun Safety Act of 2023, signed by the governor recently, is one of those state laws that surely infringe on the constitutional rights of law-abiding citizens, as the Second Amendment was interpreted by the Supreme Court in June 2022.  That the GSA 2023 infringes rights is more than conjecture; federal courts in New York and New Jersey have held components included in Maryland laws to be unconstitutional.

The GSA 2023 was a reaction to the Supreme Court’s 2023 Bruen decision that held the right of a law-abiding citizen to carry a firearm for self-defense is a core constitutional right. In Bruen, the court rejected the constitutional scrutiny balancing test where the government’s interest, in say, safety, is balanced against the individual’s constitutional right in favor of a new test.

The burden is the government’s, the court held, to establish that any firearm restriction that burdens the core constitutional right of self-defense is within the nation’s historical tradition of firearm regulation existing near to the time of the adoption of the Bill of Rights.

If the government can’t convincingly point to relevant laws existing around 1791, or analogous, that restricts rights in the same way as the modern law, the new law is unconstitutional. Outliers don’t count.

In New York and New Jersey, legislation attempting to nullify aspects of Bruen have been enjoined by federal trial courts as unconstitutional violations of the Second Amendment. Viewed through Bruen’s requirements, these decisions appear correct.

Suit to enjoin provisions of the GSA 2023 similar to New York’s and New Jersey’s law has been filed in Maryland. Most of the GSA 2023’s restrictions should be held violations of Second Amendment rights. For example, a prohibition on carrying a firearm in a state forest or state park will fail.

In the New Jersey case, the state was unable to point to the existence of any such restrictions from the 18^th century, being the relevant period for examination, and where it produced prohibitions from the mid- to late-19^th century, those laws were held to be outliers, not representative of the entire nation.

New Jersey law, like the GSA 2023, contains a default law making it a crime to carry a concealed gun on private property open to the public, such as a store, even with a state-issued concealed carry permit, without the express consent of the owner.

Because the Maryland law implicates the plain text of the Second Amendment, the “Constitution presumptively protects that conduct.” And the Supreme Court has clearly held that the right to carry for self-defense extends beyond the home — “where confrontation can surely take place.”

Thus, the New Jersey court held the right to carry for self-defense in public “naturally encompasses entering into the property of another, provided such property is held open to the public and such entry is otherwise legal.”

That court disagreed with the state that the challengers cannot carry a weapon on private property, absent the landowner affirmatively modifying, by notice, the terms of an implied invitation to enter the property. “[T]he right to armed self-defense [follows] the individual everywhere he or she lawfully goes.” There was no found no founding-era law analogous to this new law presented by the New Jersey attorney general, and this part of the law was held  unconstitutional.

Some are repulsed by guns; the thought of people being permitted to carrying concealed guns is worse. But here’s the thing. Like or dislike the constitutional interpretations of the Supreme Court, they need to be the final word on constitutional meaning. For a body of lawmakers to attempt workarounds to interpretation of the Second Amendment because they feel they know better, or that the public demands they do so, is to ignore the rule of law.

Guns are a hot topic today, and way too many innocent people are being injured by guns; no doubt these laws are intended to keep us safe, but at what cost? It is wrong to disregard the Constitution because we disagree with the Supreme Court’s interpretation of its guarantees. When we do, we trip on that slippery slope, and we must ask what constitutional guarantee is next on the hit list?

James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches gun control and the Second Amendment at University of Baltimore Law School.