Thursday, May 04, 2023

Maryland Shall Issue v Hogan, Appealed to Fourth Circuit

A three judge panel of the United States Court of Appeals for the Fourth Circuit has heard oral arguments in the appeal of Maryland Shall Issue v Hogan.

The case of Maryland Shall Issue v Hogan (Governor of Maryland), has been in the courts since 2013, when the case was filed in the United States District Court for the District of Maryland.  In 2013, Maryland passed the Firearm Safety Act of 2013, which contained a Handgun Qualification License (HQL) provision, which forbids the sale, transfer, rental, purchase, or receipt of a handgun by any person who does not have a valid HQL license. Shall Issue Maryland and several other plaintiffs challenged the law on Second Amendment, Fourteenth Amendment, and other grounds.

The District court held the plaintiffs lacked standing. Shall Issue Maryland appealed the case to the Fourth Circuit. A three judge panel on the Fourth Circuit reversed the District ruling and remanded the case back to the District Court.

The District Court, on remand, decided the case under intermediate scrutiny, and granted the State of Maryland summary judgment. Shall Issue Maryland appealed the case to the Fourth Circuit for the second time.

On June 22, 2022, the Supreme Court of the United States published the opinion in the case known as Bruen, giving clarification of the Heller decision and clear instructions for lower courts to use in determining if statutes violated rights protected by the Second Amendment. Bruen ruled means-ends tests were inappropriate, and there should not be different levels of scrutiny in Second Amendment cases.

Every court which has examined the Maryland Shall Issue v Hogan case has found the HQL provisions burden conduct protected by the Second Amendment.  The District Court found it did; the first three judge panel did, and the District Court on remand did so.  In Bruen, the Supreme Court of the United States found, if the statute burdened conduct protected by the Second Amendment, it is the burden of the State to show such burdens were common and accepted at the time the Second Amendment was ratified. To a lesser extent, what happened at the time of the ratification of the Fourteenth Amendment is applicable. Anything after 1900 is clearly too late to be considered as historical context.

Maryland had no burdens on handgun purchase or ownership until 1941.  In 1996, Maryland passed the "Gun Violence act of 1996", which required all handgun transfers to be registered with the state, private or commercial. Additional requirements were passed in 2013. The HQL requirements passed in 2013 include fees, training, and background checks before a person is allowed to purchase a handgun.

The oral arguments in the appeal of Maryland Shall Issue v Hogan were heard on March 10, 2023.   According to, two of the three judges appeared to agree there was no historical tradition of requiring fees, training, or background checks before someone is allowed to purchase a handgun. During questioning by the judges, Maryland Assistant Attorney General Ryan Dietrich had to admit there was no historical precedent for a requirement for pre-clearance to purchase a firearm.

Dietrich eventually conceded, “We were unable to find any that required advance permission,” to the republican-majority three judge panel.

At, it was reported one of the two judges, Circuit Judge Julius N. Richardson, took issue with Maryland's use of statistics. Maryland contends gun related murders decreased after the law went into effect. Richardson asked, why did they exclude data from Baltimore City/County, which has most of the murders in the state? Assistant AG Dietrich replied it was because of the increase in murders in Baltimore City/County.

Dietrich said the reason for leaving Baltimore out of the statistic was the uptick in crime associated with the 2015 police killing of Freddie Gray. 

"It seems odd to say it is associated with a decrease in these three counties, but 70% of murders happen in Baltimore City-County," Richardson said. "The murder rate is higher in 2020 than it was in 2015."

The increase or decrease in murders is not germane to the case under the standards set forth in Bruen. Bruen ruled out mean-ends testing for the Second Amendment, as for other rights protected in the Bill of Rights.


©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch


Anonymous said...

The argument to the USSC should be where in the U.S. Constitution does it give states the right to Amend the U.S. Constitution. The USSC exists to make sure all states comply with the Federal Constitution there is no individual states right to amend the guaranteed rights of American citizens. Are we ruled by a ratified constitution or liberal opinions? Only the actual words ratified can be considered. There is no right to interpret Interpretation is opinion.

Dean Weingarten said...

The US Constitution does not limit state powers as much as it limits federal power.

The US Supreme Court ruled the Bill of Rights only applies to the federal government in 1833.

The Bill of Rights was then applied to the States with the Fourteenth Amendment in 1868, after the Civil War.

The Supreme Court started enforcing the Fourteenth Amendment in the 1890s, but only selectively.

Anonymous said...

ok so it was the 1868 ruling that all federally guaranteed rights cross all boundaries inside this country. The second amendment is a federally guaranteed right. No state has the authority to amend the second amendment, Therefore there are no valid state gun laws. AND ATF has no authority to write Infringing regulations.. Was the length of a barrel Challenged in 1791???

Anonymous said...

I would like to see a copy of the registration form the ATF used in 1791 Before any gun was required to have a serial number Boil it all down and ATF should not Be any thing but AT. To collect alcohol and tobacco revenue. ATF is an unconstitutional infringement, We did not have ATF in 1791 Those taxes were the responsibility of the treasury department. A business license is required to pay the tax collected that is the limit of government agencies . Most government agencies are out of control writing regulations enforced as laws; Agencies do not make laws congress makes the laws Think about the tax revenue that Obama blocked when he refused to allow 600,000 M-! carbines to be offered for sale in a return from Korea. I personally think the M-! carbine is one of the best weapons ever made. It is small light weight and has a good punch I have taken deer at 500 yards with an M-1 Carbine and M-16 or AR 15 would never come close enough to take a dear at 400 yards. That 500 yard shot was dead center with open sights.

Anonymous said...

Bad last few says for me. I just buried my 13 year old German Shepard that died of old age. The sweetest best personality dog you could ever hope to have I really miss her She was just as sweet as she could be and loved to make new friends. She would wake me up when she was ready for breakfast , Thursday morning she did not wake me up she died at the foot of my bed. She was always on guard for me.