The 4th US Circuit Court of Appeals has ruled that Maryland’s Handgun Qualification License is unconstitutional. The Court cited the Supreme Court’s Heller and Bruen Decisions and their methodology. The decision is a major blow to state permitting schemes requiring law-abiding citizens to prove they are not dangerous before being allowed to own a handgun or other firearm.
Maryland’s Handgun Qualification License
The case, Maryland Shall Issue v. Moore, challenges Maryland’s elaborate permitting process, which delays the public’s ability to obtain a handgun for lawful use. We’ve often heard that “a right delayed is a right denied,” and the 4th Circuit panel took that stance here.
US Circuit Judge Julius Richardson, writing for the majority, lays out Maryland’s requirements, which include registering all firearms, as well as a separate permit to carry. But the state also requires special permission, via the Handgun Qualification License, before a citizen can “purchase, rent, or receive a handgun.” That’s right, you can’t even rent a handgun at a range, unless it’s part of the required course to get the necessary license.
The licensing process requires fingerprinting, a state police-performed background “investigation,” and a four-hour firearms safety training course, during which the applicant must safely fire at least one round. And since the applicant cannot own or possess a handgun without the license, the gun for that course must be rented from the instructor and stay under the instructor’s supervision. Instructor fees vary, but the applicant pays for everything, including the $50 license fee. The fingerprint fee is another $50. So, just getting the license could easily cost a couple hundred bucks. The license is issued within 30 days of completing the requirements.
Heller and Bruen Strike Again
Judge Richardson’s majority opinion immediately invokes Bruen, stating that “Under the Supreme Court’s new burden-shifting test (Bruen)…Maryland’s law thus fails, and we must enjoin its enforcement.” The Bruen Test (carried forward from Heller) requires the government to prove that any restrictive gun law adheres to the nation’s text, history, and traditions of gun laws at the time the Second Amendment was ratified. “The challenged law,” writes Richardson, “restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn’t find one.”
Maryland presented two historical laws to support its case. The first dealt with prohibiting firearms to “dangerous persons.” Such laws did indeed exist, but Richardson shoots it down by demonstrating that Maryland’s current law does not target only dangerous persons, but all persons. Where the government historically proved that certain people were “dangerous” in denying them firearms access, Maryland has reversed the order in requiring citizens to prove they are not dangerous. Such a process infringes on those citizens’ Second Amendment rights.
Maryland’s second stab at historical precedent claimed that laws requiring militia training were equivalent to their current training requirement. Richardson once again dismantles that argument, showing that the militia laws required men of a certain age to train with the militia and provide their own arms and equipment. Firearm ownership was not contingent on the training. In fact, those men who failed to acquire a firearm for training were subject to monetary fines. Richardson also notes that citizens not required to serve could, in fact, own firearms, nonetheless. These would have included women and men who did not fall within the militia’s age parameters. Since the Maryland law makes ownership, and even mere possession, contingent upon the training, and state approval, the laws are not analogous.
A Nuanced Discussion
Judge Richardson also shrewdly addresses Maryland’s Constitutional arguments, within Bruen and Heller’s context. “The first question Bruen asks,” he writes, “is whether Plaintiffs’ proposed course of conduct is protected by the Second Amendment’s plain text. The text’s ‘operative clause,’ (as identified by Heller) provides that ‘the right of the people to keep and bear Arms, shall not be infringed.’ To meet their burden at this stage, Plaintiffs must prove two things: (1) that ‘they are among “the people” entitled to the right,’ and (2) that their proposed ‘course of conduct’ is covered by the Second Amendment’s plain text, namely ‘keeping and bearing arms.’”
Richardson states that the answer seems obvious since the Plaintiffs are adults who are legally able to own firearms. Maryland does not contest that fact. The judge also notes that Heller affirms that handguns are indeed protected arms under the Second Amendment. I would add that they are also “in common use,” as laid out in Heller and Bruen.
But the judge identifies a few “wrinkles” that he says must be “ironed out.” He notes that the Second Amendment protects the right to “keep and bear” arms. Maryland’s law violates this premise by restricting the ability to “purchase, rent, or receive” handguns, which are “arms.” Richardson writes that “If you do not already own a handgun, then the only way to ‘keep’ or ‘bear’ one is to get one, either through sale, rental, or gift. And the challenged law cuts off all three avenues.” BOOM.
Second, Maryland argued that the law does not permanently prohibit law-abiding citizens from acquiring handguns, which is true. Maryland is now a “shall issue” state thanks to Bruen. In case you didn’t know, “shall issue” means the state must issue a firearms license, usually in the context of concealed carry, if the applicant meets the basic requirements for that license. The state cannot use subjective criteria such as “special need” or “good moral character” to deny otherwise qualified applicants, even though some states still try. Maryland was one of the gun control states who chose not to fight that particular battle after Bruen forbade “may issue” regimes.
“But” writes Richardson, “even though Maryland’s law does not prohibit Plaintiffs from owning handguns at some time in the future, it still prohibits them from owning handguns now. In order to get a handgun, Plaintiffs still have to follow all of the law’s steps. And, although they will be able to complete each one, it is impossible to do so right away. Plaintiffs can’t receive a license to legally acquire a handgun until the state reviews their applications, which can take up to thirty days. So, no matter what Plaintiffs do, there will be a period of up to thirty days where their ability to get a handgun is completely out of their control. In other words, though it does not permanently bar Plaintiffs from owning handguns, the challenged law deprives them of that ability until their application is approved, no matter what they do.” As we noted earlier, “a right delayed is a right denied.”
The Bottom Line
This is a solid decision and a good win. For now. This case was heard before a three-judge panel, one of whom dissented, saying the majority misapplied Bruen. But that judge has a history of favoring gun control, so it was predictable. Maryland will certainly appeal to the en banc 4th Circuit. That court has a spotty record on gun control, so there’s no guarantee it will uphold this decision. I honestly expect the en banc panel to stay this injunction until the case is fully adjudicated.
This case bears watching. It could go to the Supreme Court, no matter who prevails. Judge Richardson skillfully invoked Heller and Bruen, giving the decision weight. This could very well be the first domino in overturning onerous permitting schemes nationwide. States like New York, Illinois, and New Jersey will no doubt watch this one closely. We’ll keep you updated on its progress.
