Maryland is one of 14 states that require background checks for all firearm purchases, whether or not the seller is a federally licensed dealer. Since 2013, Maryland has imposed an additional requirement on handgun buyers: They must first obtain a “handgun qualification license,” which entails completing at least four hours of firearm training and undergoing a seemingly redundant “investigation” aimed at screening out people who are legally disqualified from owning guns. According to the U.S. Court of Appeals for the 4th Circuit, that process, which can take up to 30 days, violates the Second Amendment.
In a decision published on Tuesday, a divided 4th Circuit panel concluded that Maryland’s handgun ownership licensing system is not “consistent with this Nation’s historical tradition of firearm regulation”the constitutional test that the U.S. Supreme Court established last year in New York State Rifle & Pistol Association v.Bruen. Writing for the majority in Maryland Shall Issue v. Moore, 4th Circuit Judge Julius Richardson notes that Bruen “effected a sea change in Second Amendment law,” making a variety of gun control laws newly vulnerable to constitutional challenges. Maryland’s handgun licensing law is the latest example.
The state argued that the law fits a tradition of disarming “dangerous” individuals, such as people with felony records, illegal drug users, and people convicted of domestic violence misdemeanors. “Maryland simply assumes that those federal prohibitions are justified by a historical ‘dangerousness’ exception,” Richardson writes. And because “the challenged law is ostensibly designed to prevent those same groups of people from acquiring handguns,” the state argued, “it also falls within the same ‘dangerousness’ exception.”
But even if the goal is the same, Richardson says, the “mechanism” embodied in the licensing law is “entirely different.” Maryland did not merely prohibit people from owning guns based on criteria that supposedly indicate they pose a threat to public safety. “Instead,” Richardson writes, “it prohibits all people from acquiring handguns until they can prove that they are not dangerous. So Maryland’s law burdens all peopleeven if only temporarilyrather than just a class of people whom the state has already deemed presumptively dangerous.”
Even assuming that punishing “prohibited persons” for possessing firearms is consistent with the Second Amendment, Richardson says, that policy is not “relevantly similar” to “making every person seek the government’s permission before they can even acquire arms.” The latter policy “preemptively disarm[s] every person until they can each prove that they are not dangerous,” which “burdens a far broader swath of people.”
The state also cited early laws that required periodic training of militia members. But as Richardson notes, “these Founding-era laws placed no restrictions on acquiring or owning firearms.” Since they “did not burden a Second Amendment right at all,” he says, “they cannot be ‘relevantly similar’ to Maryland’s law.”
Writing in dissent, Judge Barbara Milano Keenan faults the majority for overlooking the significance ofBruen’s distinction between “shall issue” carry permit laws, which allow people to publicly possess guns for self-defense if they meet “objective criteria,” and “may issue” laws, which require demonstration of a “special need” and therefore give licensing officials broad discretion to reject applications. The New York law that the Supreme Court rejected in Bruen fell into the latter category, requiring applicants to show “proper cause” for exercising the right to bear arms. Writing for the majority, Justice Clarence Thomas suggested that “shall issue” laws, which 43 states had enacted, could pass constitutional muster:
Nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion”features that typify proper-cause standards like New York’s.
Thomas did allow for the possibility that “shall issue” laws, depending on their details and practical impact, could be inconsistent with the Second Amendment. “Because any permitting scheme can be put toward abusive ends,” he said, “we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
Still, Keenan says, the Supreme Court expressed general approval of nondiscretionary carry permit laws, which she thinks is relevant in this case because Maryland’s law likewise allows anyone who meets “objective criteria” to acquire a handgun. “Although such laws may impose conditions that result in some delay in acquiring or bearing a firearm,” she writes, “they do not require a discretionary governmental determination regarding firearm possession or carry, and they generally do not prevent law-abiding, responsible individuals from exercising their Second Amendment rights.”
Would the Supreme Court consider Maryland’s “wait time” of up to 30 days so “lengthy” that it violates the Second Amendment? Keenan suggests not, noting that “many of the shall-issue public carry laws cited by the Supreme Court in Bruen set forth permissible processing periods either comparable to or longer than” Maryland’s “30-day processing period” for a handgun qualification license.
Does it matter that Maryland’s law applies to the mere acquisition of a handgun, as opposed to carrying it in public? Again, Keenan thinks not. “This distinction turns on a false premise, namely, that there is a difference between the Second Amendment right to keep arms and the Second Amendment right to bear arms,” she writes. “Neither the text of the Second Amendment nor the Supreme Court’s precedent supports such a reading. Thus, the majority cannot discard the language in the Court’s shall-issue discussion on the basis that the Court was addressing only shall-issue public carry laws.”
I’m not so sure about that. Publicly carrying guns raises additional safety concerns that legislators historically have tried to address with regulations that applied in public but not in private. These include laws that favored open over concealed carrying and laws that prohibited people from publicly carrying or discharging guns while intoxicated. Under Bruen’s historical test, such precedents suggest there is a constitutionally relevant difference between regulating guns in public places and regulating the acquisition of guns, even when they will be kept in homes or businesses.
Maryland evidently sees such a distinction, since it requires an additional license to carry guns in public. The requirements for a “handgun wear and carry permit” go beyond the requirements for a handgun qualification license. They include eight hours of training and an investigation aimed at verifying that the applicant “has not exhibited a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger to the person or others.”