A decade ago, Maryland lawmakers imposed a new burden on residents hoping to exercise their Second Amendment right to keep and bear a handgun by creating a “Handgun Qualification License.” Before any would-be gun owner can take possession of a pistol, they must first jump through several state-mandated hoops, from submitting fingerprints as part of a background check investigation to taking a four-hour-long “firearms safety training course” that includes the firing of at least one live round of ammunition. After waiting 30 days or more for approval, the would-be gun owner then has to go through another background check and an arbitrary seven-day waiting period before they can take possession of their pistol, though they must run another bureaucratic gauntlet before they’re actually allowed to carry the sidearm in self-defense.
On Monday a three-judge panel of the Fourth Circuit Court of Appeals concluded what Second Amendment activists have been arguing for years; the Handgun Qualification License is an unconstitutional barrier to exercising a fundamental right. In a 2-1 decision, the majority declared that the “plaintiffs challenge must succeed”; reversing a district court opinion and delivering an important victory to the Firearms Policy Coalition, Maryland Shall Issue, the Independence Institute, Atlantic Guns, and several individual residents who’d sued over the permit requirement.
The challenged law 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. Under the Supreme Court’s new burden-shifting test for these claims, Maryland’s law thus fails, and we must enjoin its enforcement. So we reverse the district court’s contrary decision.
Applying the Supreme Court’s “history, text, and tradition” test to the Maryland statute, the Fourth Circuit panel determined that there are no historical analogues to the modern-day gun control law. Importantly, the panel ruled that while the HQL doesn’t directly deal with either keeping or bearing arms, but rather their acquisition, the gun control law still directly implicates and imposes on the Second Amendment rights of residents.
The answer is not complicated. 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—at least, for those who do not comply with its terms.
That brings us to the next wrinkle: The challenged law does not permanently prohibit Plaintiffs from acquiring or carrying handguns. Instead, it imposes certain requirements that they must meet before they can obtain a handgun. And those requirements rely on “objective” criteria, which Plaintiffs admit that they can satisfy. Once they do so, the law commands that the state “shall issue” them handgun-qualification licenses.
But 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 the panel reasoned, there’s nothing in the language of the text of the Second Amendment or the Bruen decision that suggests the amendment protects “only against laws that permanently deprive people of the ability to keep and bear arms.” A right delayed is a right denied, and the “temporary deprivation that Plaintiffs allege is a facially plausible Second Amendment violation.”
Once the court concluded that the HQL does implicate Second Amendment rights, it then turned to the history and tradition of the right to keep and bear arms and concluded that the two examples the state had offered aren’t close enough to serve as historical analogues. The first argument deployed by the state was that the HQL was similar to federal laws prohibiting specific categories of people (felons, those adjudicated as mentally defective, and drug users among them) from owning a firearm based on the supposed dangerousness of everyone within those categories. Maryland also tried to argue that the law is justified by a historical tradition of laws requiring training for members of the militia. In both cases the Fourth Circuit panel concluded those examples are too much of a stretch to serve as appropriate analogues.
The modern federal laws that Maryland has cited, and the historical laws allegedly supporting a tradition of prohibiting dangerous people from owning firearms, all acted through one mechanism: punishing certain classes of supposedly “dangerous” people if they don’t give up their arms or prove they are not dangerous. But that is a different mechanism than making every person seek the government’s permission before they can even acquire arms. Preemptively disarming every person until they can each prove that they are not dangerous burdens a far broader swath of people.
… militia-training laws are not a valid historical analogue justifying Maryland’s law. Militia-training laws imposed no burden on the right to keep and bear arms. They did not condition possessing and carrying arms on attending militia training. Nor did they limit in any way an individual’s ability to acquire a firearm. These laws placed service burdens on being in the militia, not on being a gun owner. And, because they imposed a different burden, the militia-training laws are not “relevantly similar” to Maryland’s law.
Without any appropriate analogue to back it up, the Fourth Circuit panel determined that the state’s Handgun Qualification License has to go.
In Maryland, if you are a law-abiding person who wants a handgun, you must wait up to thirty days for the state to give you its blessing. Until then, there is nothing you can do; the issue is out of your control. Maryland has not shown that this regime is consistent with our Nation’s historical tradition of firearm regulation. There might well be a tradition of prohibiting dangerous people from owning firearms. But, under the Second Amendment, mechanism matters. And Maryland has not pointed to any historical laws that operated by preemptively depriving all citizens of firearms to keep them out of dangerous hands. Plaintiffs’ challenge thus must succeed, and the district court’s contrary decision must be reversed.
I can’t imagine that Attorney General Anthony Brown and Gov. Wes Moore are going to simply accept the panel’s conclusion, but they now have a choice to make: ask the Fourth Circuit to re-hear the case en banc, or appeal directly to the Supreme Court. With Democrats (and activist judges) around the country trying to play “keep away from SCOTUS” when it comes to Second Amendment cases, I suspect that the AG will go for an en banc review, but we’ll likely know one way or the other in the next week or so.
This was a great decision by the Fourth Circuit, and I hope that it’s a sign of more positive outcomes in the appellate court. It’s been nearly a year since oral arguments were heard in a challenge to Maryland’s “assault weapons” ban, and we’re still waiting on a decision from a Fourth Circuit panel in Bianchi v. Brown. I figured that would be the next Second Amendment-related opinion released by the court since the challenge to the HQL wasn’t heard until March of this year, but we’ll have to wait a little longer to learn if that particular panel is willing to accurately and honestly use the Bruen test to determine the constitutionality of a ban on commonly owned firearms used for a variety of lawful purposes.