Monday, October 24, 2022

Maryland Licensing Case Taking Supreme Court Bruen Decision into Consideration





Maryland Shall Issue, Inc., a Second Amendment protection activist organization based in Maryland, has submitted a brief for the Fourth Circuit Court of Appeals, so the Court can take notice of the landmark Second Amendment case of New York State Rifle and Pistol Association v. Bruen.

The Plaintiffs or Appellants are Maryland Shall Issue. The defendants are the State of Maryland. 

Maryland is one of the six states which do not have a protection in the State constitution similar to the Second Amendment. 

Here is a timeline of important events in the timeline of the case :

The complaint was filed on September 30, 2016.

An order by the district court granting defendants' (the State) motions for dismissal in part of and denying them in part, was issued on September 6, 2017.

An order granting defendants motion for summary judgement against Maryland Shall Issue was issued on March 3rd, 2019.

The case was appealed to the 4th Circuit on April 25, 2019.

Judgement was rendered in part, the case was remanded to District Court on August 3rd, 2020

The District court issued an opinion dismissing suit on August 23, 2021.

The case was appealed again to the 4th Circuit on September 16, 2021.

A notice considering Bruen was filed with the Court by Maryland Shall Issue on June 23, 2022.

A Brief by the appellees (the State) was filed on October 17, 2022.

A response by the appellants (Maryland Shall Issue) is due on November 16, 2022.

The crux of the case is whether the Maryland Handgun Qualification License, (HQL) based on the statute enacted in 2013, violates the rights protected by the Second Amendment of the United States Constitution. From Maryland Shall Issue, Original complaint filed in 2016:

The HQL requirement violates the Second Amendment because: a) by the very nature of a right versus a privilege, a constitutional right may not be denied until a license to exercise that right is issued; b) the HQL process, both on the face of the statute and as applied, is unconstitutionally burdensome; c) the HQL process, both on the face of the statute and as applied, was designed to ration and deny constitutional rights

The long list of court decision and appeals came about because Maryland and the Fourth Circuit were using the discredited two part system of analysis of Second Amendment cases developed in Circuits hostile to the protection of Second Amendment rights. The Supreme Court, in the Bruen decision struck down that system and instructed the lower courts to use a relatively simple system based on the text of the Second Amendment, and what regulation of the right to keep and bear arms was historically and culturally accepted at the time of the ratification of the Second Amendment in 1791 or to a lesser extent, the ratification of the Fourteenth Amendment in 1868. 

In the Heller decision, the Court rejected any interest-balancing approach to interpreting the Second Amendment. The interest-balancing took place when the Bill of Rights was ratified.  

In the Bruen decision the rejection of interest-balancing, also known as a means-ends test, is reinforced. From Bruen, p. 2:

(1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.

The Bruen decision was legally inserted into this long running Maryland case with the letter to the court submitted on June 23, 2022.  The State seems intent on pursuing a means-end or interest-balancing test. From the State's breif submitted on October 17, 2022: 

Plaintiffs challenge specific aspects of Maryland’s handgun-qualification-license law, which requires handgun-permit applicants to pass a background check and take a firearm-safety-training course, there bye insuring that those who acquire handguns are “law-abiding, responsible citizens.” See District of Columbia v. Heller, 554 U.S. 570, 626-27, 635(2008)(“Heller I”). The district court correctly found that Maryland’s law furthers that permissible goal through objective, clearly defined criteria and minimal administrative requirements that do not prevent ordinary law-abiding, responsible citizens from obtaining handgun licenses.(J.A.1843-45, 1869.) Accordingly, the district court should be affirmed.


To this correspondent, it appears the attorneys for the State of Maryland are asking the appeals court to ignore the clear words of Bruen. Interest-balancing  tests are not allowed to determine whether the right to keep and bear arms is protected by the Second Amendment.  Using a First Amendment analogy, they are a prior restraint on the exercise of a right. The arguments in the above paragraph are interest balancing.

If the rights protected by the Second Amendment come down to: You have the right to keep and bear arms, unless the state decides it has an interest in preventing you from exercising those rights, the Second Amendment is an effective dead letter. Which is exactly what those promoting unlimited state power, and a disarmed population, desire.


©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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