The fight in Novotny v. Moore has moved to the next stage. Now the Supreme Court must decide whether Maryland’s sprawling “sensitive places” scheme deserves review, or whether the Fourth Circuit should be ordered to take another look after Wolford v. Lopez.
Attorneys for Maryland carry-permit holders and the Second Amendment Foundation, Firearms Policy Coalition, Maryland Shall Issue, and Maryland State Rifle & Pistol Association filed their reply brief on September 2. The Supreme Court simultaneously distributed the petition for its September 28 conference, completing the scheduled briefing in Supreme Court No. 25-1324.
That September gathering is commonly called the “long conference” because it is the justices’ first conference after the summer recess. The Court will work through a substantial backlog of petitions accumulated over the summer, with Novotny now among them.
The Court could grant review, deny the petition, relist it for another conference, or grant, vacate and remand the Fourth Circuit’s decision for reconsideration under Wolford. No outcome is guaranteed, but the challengers have given the justices a direct question: Did Wolford protect the right to carry during an ordinary day, or may Maryland still criminalize carry across entire categories of ordinary public life?
Wolford Changed the Fight
When AmmoLand covered the original Novotny petition in May, the Supreme Court had not yet decided Wolford. That changed on June 25.
In Wolford v. Lopez, the Supreme Court struck down Hawaii’s default prohibition on licensed carry inside private businesses open to the public. The Court held that Hawaii had “hobbled” the right to carry arms for self-defense while Americans go about their daily lives.
Maryland insists Wolford does not threaten its remaining location bans. According to the state, its restrictions take a “targeted approach” and would not interfere with the hypothetical “ordinary day” the Supreme Court examined in Wolford. The reply brief tears into that claim.
Maryland prohibits carry on mass transit, in many healthcare facilities, throughout enormous state parks and forests, at amusement venues, and anywhere licensed to sell alcohol for on-site consumption—including restaurants. Those are not obscure locations encountered only on unusual occasions. They are places Marylanders routinely visit.
The challengers call the result a “death-by-a-thousand-cuts approach” to the right to bear arms.
That is the new issue now confronting the Supreme Court. Hawaii tried to wipe out lawful carry across private businesses with one sweeping default rule. Maryland divided its restrictions into separate statutory categories. The drafting method differs, but the constitutional injury remains: peaceable citizens are stripped of the means of self-defense as they move through everyday life.
Maryland Defends an Arbitrary Mess
Maryland argues that Supreme Court review would be premature because lower courts supposedly agree on the principles governing sensitive places. It wants the justices to permit more “percolation” among the circuit courts.
The reply brief points out the obvious problem: More time will not repair a test that is producing incoherent and openly arbitrary results.
The Fourth Circuit upheld Maryland’s restrictions using an assortment of theories. It relied on government ownership to support the transit ban, private railroad rules from the 19th century as additional transit analogues, later urban-park regulations to uphold bans in wilderness areas, and broad concepts involving crowds, social gatherings, education, science and vulnerable populations.
Those categories can be manipulated to cover nearly anywhere.
A restaurant becomes sensitive because it serves alcohol. A museum becomes sensitive because it is educational. A hospital becomes sensitive because vulnerable people are present. A stadium becomes sensitive because it draws a crowd. A state forest becomes sensitive because someone might use it for recreation.
That is not a principled boundary. It is a list of excuses for extinguishing the right to bear arms wherever anti-gun judges consider firearms “ill-advised.”
The Ninth Circuit acknowledged the same problem in its earlier Wolford decision when it admitted that its list of approved and rejected sensitive places could “appear arbitrary.” Maryland now tries to pass that incoherence off as fidelity to the Supreme Court’s historical test.
The petitioners respond that constitutional analysis should be disciplined, reasoned and understandable. A court should not reach results it cannot explain in ordinary terms and then blame Bruen for the confusion.
Maryland’s Historical Case Falls Apart
The reply also dismantles the historical restrictions Maryland uses to defend its bans. Maryland begins with the medieval Statute of Northampton, but Bruen already explained that the statute targeted carrying arms in a manner that terrorized the public. It did not impose a blanket prohibition on peaceable carry for self-defense.
From there, Maryland jumps to an 1817 New Orleans ballroom ordinance and a small collection of later state, territorial and municipal restrictions. Several were adopted after the Civil War. Others came from territories with tiny populations or individual municipalities. Four of the state restrictions cited by Maryland were enacted by former slave states during or immediately after Reconstruction.
That scattered record does not establish a widespread American tradition dating to the adoption of the Second Amendment.
Maryland also cites post-Civil War court decisions that do not carry the weight the state assigns them. One relied on a cramped militia-only understanding of protected arms that Bruen later identified as an outlier. Another preserved a law by construing it as a restriction on concealed carry rather than a complete carry ban. A third involved carrying a firearm into a courthouse, not a ban throughout unsecured public locations.
Maryland is trying to turn historical fragments into a government power the Founding generation never recognized.
Disarmament Without Protection
The petitioners argue that Founding-era restrictions at courthouses, legislative assemblies and polling places shared an important characteristic: The government secured those locations.
Maryland disputes that historical principle and complains that a security-based standard would be difficult to administer. But Maryland offers no better limiting principle. Its approach allows the government to disarm citizens without screening entrants, securing the premises or assuming responsibility for anyone’s safety.
Maryland gets the prohibition. The permit holder gets the risk.
The reply makes clear that the Supreme Court does not have to adopt government-provided security as the exclusive test to rule for the challengers. Under Bruen, Maryland bears the burden of establishing a valid historical tradition supporting its laws. Attacking the challengers’ proposed principle does not relieve the state of that burden.
If Maryland cannot produce representative historical analogues, its bans must fall.
What Happens Next?
The Supreme Court docket lists Novotny for the September 28 conference. The first public indication of the Court’s action will likely come through a subsequent orders list, although the petition could be relisted without explanation.
Most of the challenged Maryland restrictions remain enforceable. However, the Fourth Circuit stayed its mandate while the Supreme Court petition is pending. Because the district court had permanently enjoined the prohibitions at public demonstrations and locations serving alcohol, those two restrictions appear to remain blocked during the stay.
The Fourth Circuit’s injunction against Maryland’s private-property default rule also remains in place. That issue was effectively resolved by Wolford and is not the dispute the petitioners are now asking the Supreme Court to hear.
The remaining question is larger: Can Maryland accomplish through a stack of location bans what Hawaii could not accomplish with a single private-property rule?
Wolford established that the Second Amendment protects more than possession of a carry permit. It protects carrying a firearm for self-defense while going about ordinary life. The Supreme Court should take Novotny and finish enforcing that command.
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
from https://ift.tt/GVWLixJ
via IFTTT
No comments:
Post a Comment