A legal gun owner from Washington, D.C. who was arrested for carrying a firearm in the D.C. suburbs of Maryland has one more shot at reversing his conviction, and it's going to take the U.S. Supreme Court to do it.
On Tuesday, the Maryland Supreme Court denied Darius Duvall's cert petition, allowing his conviction to stand and keeping the state's draconian restrictions on non-resident carrying in place.
Duvall was a passenger in a car that was pulled over by police in Prince George's County, Maryland back in 2021. Duvall had a handgun on his person, and was arrested for carrying a pistol without a Maryland license. Duvall contended that under the Second Amendment, Maryland had a duty to recognize his concealed carry permit issued by Washington, D.C. and argued that his arrest was a violation of the freedom to travel covered by the Commerce Clause, because "essentially traveling through Maryland... he loses a right that he has simply because he came through Maryland."
The trial judge disagreed, and when Duvall appealed his conviction he shifted his argument a bit, contending that the law in question was unconstitutional as applied to him because he was a law-abiding person who wasn't among those historically excluded from exercising Second Amendment rights, and because forcing an interstate traveler to obtain an additional Maryland permit imposed an undue burden on his right to carry.
The appellate court basically concluded that wasn't the argument he presented to the trial judge, and Maryland Rule 8-131(a) ordinarily limits appellate review to issues that were actually “raised in or decided by the trial court.”
Duvall made extensive use of the history of the "traveler's exception" in his appellate brief, but the appeals court said his counsel at trial had made only a single reference to the constitutional freedom to travel. His appellate opening brief didn't mention the Commerce Clause at all, and his argument about a historical traveler's exception wasn't really developed until his reply brief. The court said he supplied no authority supporting that passing argument and therefore declined to consider it.
On appeal to the Supreme Court, a coalition of Second Amendment groups comprised of Second Amendment Foundation, Maryland Shall Issue, National Rifle Association, California Rifle & Pistol Association, Minnesota Gun Owners Caucus, Second Amendment Law Center, Citizens Committee for the Right to Keep and Bear Arms, and the Cato Institute filed an amicus brief that also discussed the traveler's exception at length, but apparently the state's high court adopted the appellate court's viewpoint that Duvall raised this history too late for consideration.
If Duvall's appeal really was denied on technical grounds, it's all the more frustrating given that history is clearly on his side. From the amicus brief:
Before 1900, carrying a firearm openly generally did not require a permit or any other permission from the government. Concealed carry, on the other hand, was often restricted or banned entirely. Courts generally approved of this arrangement. But there was one notable exception. Travelers from other states were usually allowed to carry their firearms concealed. The historical tradition of these “traveler’s exception” laws is not some outlier, but overwhelming to the point that it justifies this Court summarily reversing the decision below. It is especially relevant here, given the Petitioner was arrested while traveling in a vehicle.
The amicus brief points to more than 80 laws on the books going back to the late 1600s that provided exceptions to local gun laws for those who were traveling through those areas. Maryland, though, has no exceptions for visitors, even if they lawfully possess firearms in their home state. As the amici noted, there was no way for Duvall to legally bear arms in Maryland "unless he made redundant and costly efforts to pay more licensing fees, take more training courses, and sit for more police interviews to get a permit" issued by the Maryland state police.
That doesn't sound like a "first class" right to me, and I hope that Duvall will take his chances with appealing his case to SCOTUS. Honestly, though, I don't know how likely is to prevail. The Court already turned away a similar challenge in Gardner v. Maryland last year, and at the moment no justice has expressed an interest in Johnson v. Jacobson, which is a challenge to Minnesota's restrictions on non-resident carry.
The fact that a non-resident can apply for a carry permit in Maryland (or Minnesota) isn't enough to satisfy the Second Amendment, in my opinion. In order for a gun owner to legally carry in all 50 states they're going to have to fork out thousands of dollars in application fees, undergo multiple (and largely redundant) training courses, and even make in-person visits to some states to sit for interviews with licensing authorities. And because the vast majority of states don't offer lifetime permits, that gun owner will need to repeat this same onerous process every few years.
There are a number of Second Amendment issues the Supreme Court really needs to address, but after bans on commonly owned semi-automatic firearms none may be as important as the ability to lawfully carry across state lines. If Duvall appeals his case to SCOTUS the justices will have another opportunity to do so, but they don't even need to wait that long. Johnson v. Jacobson was one of more than 900 cases scheduled for review during the Court's "long conference" held on Monday, and that lawsuit (which challenges Minnesota's non-resident permitting scheme) would be a perfectly acceptable vehicle for the justices to conclude that requiring a non-resident to get a license in every state where they want to carry is an imposition and infringement on the right to bear arms.
