Maryland Supreme Court takes up case of non-violent felon's gun prohibition

Don Petersen

Maryland’s top court will hear the case of a man who says his conviction for failure to pay child support shouldn’t bar him from exercising his right to keep and bear arms; arguing that the complete and total ban on felons possessing firearms and ammunition isn’t supported by the text, history, and tradition of the Second Amendment throughout U.S. history.

Robert Fooks’ argument was rejected by a state court of appeals, which ruled that the Second Amendment only applies to “law-abiding citizens,” and that any crime punishable by multiple years in prison is serious enough that anyone convicted can’t reasonably be presumed to be abiding by the law.

But the state Supreme Court at least appears interested in hearing what Fooks’ attorneys have to say given SCOTUS’s mandate in NYSRPA v. Bruen that any modern gun control laws must have an historic analogue found at the time the Second and Fourteenth Amendments were ratified (in 1791 and 1868, respectively). Fooks’ counsel maintains that the current prohibited persons statutes are a modern invention at odds with the Constitution and the Second Amendment’s traditional interpretations.

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.”

So why did the state Supreme Court agree to hear this case? After all, if they simply rejected Fooks’ appeal then his lifetime prohibition on gun ownership would still remain in place. Are there some justices on the court who are willing to consider the arguments of his public defenders, or is this simply the court taking the case in order to issue a binding statewide precedent that will foreclose similar arguments in the future?

My guess is that it’s the latter, as much as I’d love to see a serious inquiry into the historical basis for barring non-violent felons from owning or possessing firearms; particularly given Supreme Court Justice Amy Coney Barrett’s position that the “dangeousness” of the offense is perhaps more important than whether or not it was a felony. I hope I’m wrong and the state Supreme Court does take a real look at the arguments raised by Fooks and his counsel. After all, since the state of Maryland automatically restores the voting rights of the vast majority of convicted felons, shouldn’t there be a clear pathway for non-violent felons to restore their right to keep and bear arms in self-defense?