Fourth Circuit Upholds Maryland Restrictive Licensing System for Gun Carrying

The case is Woollard v. Gallagher (4th Cir. Mar. 21, 2013).

UPDATE: The court claims that it’s not deciding whether the Second Amendment right to keep and bear arms in self-defense extends to carrying a gun outside the home. Rather, the court concludes that, even if such a right exists, Maryland’s licensing scheme — which requires a “good and substantial” reason for a license to carry and which doesn’t treat a general desire for self-defense as an adequate reason — passes intermediate scrutiny.

But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.

A constitutional right that can be trumped in some of its applications under intermediate scrutiny (or for that matter strict scrutiny) is a right, albeit a qualified one; consider, for instance, the right to engage in commercial speech, or the right to be free of sex discrimination. But a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.

This also reflects, I think, the fact that intermediate scrutiny (which requires that “the legislature’s policy choice substantially serves a significant governmental interest”), coupled with deference to the legislature’s factual judgments (“[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments”), essentially means per se validation of pretty much all gun controls that will be tested under such scrutiny. The legislature will always be able to assert a significant governmental interest in preventing crime, reducing the use of police resources, and so on, and will nearly always be able to plausibly argue that it has “weigh[ed] conflicting evidence” in concluding that the law “substantially serves” the interest. (Intermediate scrutiny without deference to legislative weighing of evidence might offer more protection, but that’s not the intermediate scrutiny being applied in this case.) Indeed, the same might even apply to strict scrutiny, except that courts might be more reluctant to read strict scrutiny as essentially eviscerating the right than they are as to intermediate scrutiny (and courts might be more inclined not to defer to legislative conclusions about facts under strict scrutiny).

I discuss this issue in more detail in my Implementing the Right to Keep and Bear Arms in Self-Defense article (pp. 1464-70). But the main point is that verbal distinctions such as significant governmental interest (intermediate scrutiny) vs. compelling governmental interest (strict scrutiny) or even substantially serves (intermediate scrutiny) vs. narrowly tailored (strict scrutiny) are unlikely to make much of a difference. What is likely to make a difference is (1) the degree to which courts do or do not defer to legislative evaluation of the facts, and (2) the degree to which courts say that a core aspect of a constitutional right must be protected regardless of legislative or even judicial judgments about the supposed harm that the right causes. (See pp. 1464-64 for more on that.)

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