Opinion
A major Second Amendment decision has been handed down in Maryland Shall Issue et al. v. Moore by the U.S. Court of Appeals for the Fourth Circuit. In a victory for the right to bear arms, Maryland’s onerous Handgun Qualification License law was declared unconstitutional in a 2-1 decision, with Judge Julius Richardson (a Trump appointee) writing the court’s opinion.
The process to obtain a firearm in Maryland is “a long and winding” one. The Fourth Court explained that “Like with any firearms transfer—whether a purchase from a licensed dealer, gun show, or private person, or even a gift from a family member or friend—you must comply with Maryland’s … registration process, which requires you to fill out an application with certain identifying information and then wait seven days while the state performs a background check. And if you want to carry your handgun, you need to get a separate carry permit too.”
But that’s not all. There is a further prerequisite that must be satisfied to obtain a handgun. Before an applicant can commence the “normal” licensing process, she must obtain a Handgun Qualification License. To do so, an applicant must:
- Submit fingerprints to undergo a background investigation;
- Take a four-hour long “firearms safety training course”;
- Fire at least one live round; and
- Wait up to thirty days for approval before you can start the rest of the process.
The Fourth Circuit ruled that this preliminary process for obtaining a handgun was unconstitutional. This is a big win for gun rights, considering that the Fourth Circuit is often extremely inimical towards the right to bear arms. Still, the Court’s opinion is well reasoned and provides an excellent precedent for use in future Second Amendment cases.
The Fourth Circuit explains that under Bruen, we begin with the plain text of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” Although the plaintiffs challenging the law fell within the definition of “the People,” the Court flagged a potential “wrinkle.” Specifically, the Second Amendment’s text does not expressly mention purchasing or acquiring arms at a moment’s notice.
The Court correctly recognized that the “plain text” of the Second Amendment necessarily protects rights beyond the rights to have and to carry arms. It explained:
[T]the Amendment’s text protects only the right to “keep and bear” arms. But, on its face, the challenged law says nothing about whether Plaintiffs may “keep” or “bear” handguns. It only restricts Plaintiffs’ ability to “purchase, rent, or receive” them. How, then, does the law regulate the right to keep and bear arms?
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.” (internal cites omitted).
In other words, if a person’s ability to acquire firearms is restricted, then that person’s right to keep and bear arms is infringed.
In keeping with Heller and Bruen, the Fourth Circuit relied upon Founding-era dictionaries to define “infringe.” Founding era lexicographers Samuel Johnson and Noah Webster defined “infringe” to mean “to hinder or destroy.” Thus, if the licensing regime hinders the Second Amendment, it implicates its text because it constitutes as “infringement.”
The dissenting judge argued that the plain text protects only the keeping and bearing of arms. But the Court rejected this assertion explaining that because Maryland’s onerous licensing process hinders the right to acquire firearms (needed to keep and bear them), the law implicates the Second Amendment’s plan text since the law hinders or “infringes,” upon this right.
The Fourth Circuit stated:
So [plaintiffs] just need to show that the law regulates a course of conduct that falls within the Amendment’s plain text, i.e., their ability “to possess and carry weapons in case of confrontation.” Heller, 554 U.S. at 592. Nothing in the Amendment’s text or Bruen says that it protects only against laws that permanently deprive people of the ability to keep and bear arms.
The Court continued:
Yet, under the challenged scheme, an applicant without a firearm cannot possess or carry one until they are approved—a process that can take thirty days. And the law’s waiting period could well be the critical time in which the applicant expects to face danger. So the temporary deprivation that Plaintiffs allege is a facially plausible Second Amendment violation.
Because the Fourth Circuit found that Maryland’s Handgun Qualification Law constituted an “infringement” under the Second Amendment’s text, the burden then shifted to the government to demonstrate that its licensing requirements were in accord with the historical tradition of firearm regulation.
Of course, Maryland was unable to identify a similar Founding-era regulation supporting the burdensome 30-day wait period or the Handgun Qualification License.
The lack of a relevant historical analogue law is excellent news for other jurisdictions—like New York and New Jersey—that have ridiculously long waiting periods to acquire a firearm. This delay is incompatible with the protections afforded by the Second Amendment, and unlike any type of restriction imposed on other constitutional rights. After all, you don’t need to go through a month-long process to prevent an unwarranted search, preach the Gospel, or make a post about politics on social media.
While the government offered up historical analogues, which allegedly barred Americans from possessing firearms if they were found after a hearing with robust due process to be “dangerous.” The Fourth Circuit rejected these analogues explaining that the Maryland law in question is not focused on dangerous people: indeed, it applies to everyone!
The Court wrote:
Bruen is clear that a historical analogue only justifies a modern law if the two are “relevantly similar.” 142 S. Ct. at 2132. The “metrics” that we use to decide whether two laws are “relevantly similar” are (1) “how” and (2) “why the regulations burden a law-abiding citizen’s right.” Id. at 2133. In other words, we ask (1) “whether modern and historical regulations impose a comparable burden on the right,” and (2) “whether that burden is comparably justified.” Id.
Here, Maryland suggests that the justification may well be the same: prevent dangerous people from getting weapons. But the burden is markedly different. The historical “dangerousness” laws targeted people already deemed dangerous by the state and subjected them to penalties if they possessed firearms. See Folajtar, 980 F.3d at 914 (Bibas, J., dissenting). Maryland’s law operates through an entirely different mechanism. It does not merely identify a dangerous group of people and prohibit them from acquiring handguns; other statutes already occupy that field. See, e.g., Md. Code, Pub. Safety § 5-133. Instead, it prohibits all people from acquiring handguns until they can prove that they are not dangerous. So Maryland’s law burdens all people—even if only temporarily—rather than just a class of people whom the state has already deemed presumptively dangerous.
The government then attempted to rely on laws concerning militia service. However, militia laws applied only to those who were in the militia: they did not apply to the ordinary citizen or to all of “the People.” Indeed, the militia laws did not apply to men over a certain age and did not apply to women. The Founding Era Militia service laws matched neither the “how” nor the “why” of Maryland’s licensing regime.
The Fourth Circuit elaborated:
[T]hese militia-training laws imposed no burden on the right of keeping and bearing arms. Instead, the service burden that these laws imposed was divorced from gun ownership. You could not get out of training just by ditching your weapon. (Indeed, that would open you up to even more sanctions.) And just because you owned a weapon did not mean that you had to train. If you were a woman or older man who owned arms, for instance, there was no need to appear on the parade grounds. You only had to train if you were in the militia. In other words: These laws imposed a service obligation on militiamen, not gun owners. That obligation applied regardless of whether you owned a weapon. So none of these militia laws placed any restriction on gun ownership.
The Fourth Circuit’s opinion is also important because it correctly recognizes that the language in Heller and Bruen concerning “long-standing regulations” is dicta. In finding Maryland’s licensing regime unconstitutional, the Fourth Circuit demonstrates that such alleged longstanding regimes are not immune to scrutiny; in other words, they are not presumptively lawful.
Let’s hope the Fourth Circuit’s decision in Maryland Shall Issue et al. v. Moore survives the prospect of an en banc hearing.
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.
His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.
Mark’s recent speech about the Second Amendment to the Federalist Society in Washington, D.C., at its National Lawyers Convention can be seen here.
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