Maryland Shall Issue
Self Defense Is A Civil Right

Maryland Shall Issue® is an all volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners' rights in Maryland.

 

MSI Challenges "Good and Substantial Reason" in New Lawsuit

Whalen v Handgun Permit Review Board 

In the continued fight to promote and defend the right of armed defense that belongs to every responsible, law-abiding Marylander, Maryland Shall Issue is representing MSI member, Holmes Whalen, in an appellate brief filed on July 22, 2019, with the Maryland Court of Special Appeals (Maryland's intermediate level appellate court). Mr. Whalen was arbitrarily denied a permit by the State Police and that denial was sustained by the Handgun Permit Review Board and by the Baltimore City Circuit Court.

The appeal challenges the constitutionality of the "good and substantial reason" standard the state uses to deny Maryland citizens the ability to protect themselves in public. The appeal also asks the Court of Special Appeals to overrule its outdated precedent (Snowden and Scherr) on which the State Police and the Handgun Permit Review Board erroneously continue to rely. This case may establish important new precedent in Maryland by making clear the right of self-defense applies to all "the people" protected by the Second Amendment, not merely the tiny select few favored by the State Police. The State has 30 days to file a brief after which we have 20 days to file a Reply. The case is tentatively set for oral argument before the Court of Special Appeals in Annapolis in November.

Read the Brief HERE

Your generous support of MSI is what makes all this possible. Consider joining, renewing, or donating to MSI so that we can continue to support self defense and 2nd Amendment rights in Maryland.

With the recent changes in Maryland law concerning medical marijuana, see MD Code, Health - General, § 13-3304 et seq., and the push to legalize the use of marijuana in Maryland, a recurring issue is how such marijuana use would affect your Second Amendment rights.  The short answer is that it may well act to abrogate those rights by (1) barring a FFL from selling a firearm to such a user and (2), by making such a user a prohibited person under federal law.

1.  As to FFLs, the pertinent statutory provision under federal law is 18 U.S.C. 922(d)(3), which provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--

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(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

The ATF has issued a bulletin to all Federal Firearms Licensees that advises FFLs that "if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have 'reasonable cause to believe' that the person is an unlawful user of a controlled substance."   See Open Letter to All Federal Firearms Licensees, Sept. 21, 2011, available at www.atf.gov/file/60211/download.  That means that the FFL (or any other person with such knowledge) is prohibited from selling a firearm to such a person with a medical marijuana card.  Indeed, both federal form 4473 and state form 77R specifically state that medical marijuana users may not purchase firearms.  

2.  As to becoming a disqualified person, a user of marijuana may well be a disqualified person under 18 U.S.C. 922(g)(3) which states:

(g) It shall be unlawful for any person--

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(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

A violation of these provisions is a felony.  See 18 U.S.C. 924. Both of these provisions define the term "unlawful user" by reference to the Controlled Substances Act, a federal law. A "controlled substance" under federal law specifically includes marijuana as marijuana is specifically classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812(c).  See also ATF regulations 27 C.F.R. § 478.11. A user of marijuana is an unlawful user under that federal law. Period.  Indeed, while the medical marijuana law of Maryland permits the use of marijuana under the tightly controlled circumstances specified in that law, the mere possession of marijuana in Maryland remains otherwise illegal in any other circumstance. See Robinson v. State, 451 Md. 94 (2017). That is so even though possession of small amounts of marijuana has also been decriminalized in Maryland. See Robinson, 451 Md. at 98 ("Simply put, decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful.").

3.  While the government does not have free rein in what it can illegalize under the Second Amendment (see, e.g., United States v. Chovan, 735 F.3d, 1127 (9th Cir. 2013) (Bea, J. concurring), these provisions have withstood attack in the courts. For example, the Ninth Circuit (a very liberal circuit) has sustained this federal disqualification in the context of medical marijuana users on grounds that "empirical data and legislative determinations support a strong link between drug use and violence. As to the first, studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence. See United States v. Carter, 750 F.3d 462, 466–69 (4th Cir. 2014) (citing and discussing four studies and two government surveys); United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010) (per curiam) (citing all but one of the studies and surveys in Carter, plus one additional study). "  Wilson v. Lynch, 835 F.3d 1083, 1093 (9th Cir. 2016). The court concluded that Congress reached a "reasonable conclusion that the use of such drugs [including marijuana] raises the risk of irrational or unpredictable behavior with which gun use should not be associated."  Id at 1094. It is certainly within the power of Congress to change federal law, but until it does, marijuana users remain "unlawful users" of a controlled substance under federal law, regardless of whether such use is permitted by state law.  Of course, the states would have to change their laws as well, as the classification of "unlawful user" includes both federal and state laws.

 

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Self Defense Is A Civil Right

Maryland Shall Issue® is an all volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners' rights in Maryland. It seeks to educate the community about the right of self-protection, the safe handling of firearms, and the responsibility that goes with carrying a firearm in public.

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Latest News

Whalen v Handgun Permit Review Board Argued Before the Maryland Court of Special Appeals

In this case, the appellant, Holmes Whalen, was denied a carry permit by the Maryland State Police and that denial was sustained by the Handgun Permit Review Board.  Mr. Whalen challenged that denial in circuit court, contending Maryland's "good and substantial reason" requirement for a carry permit was unconstitutional and that prior Maryland precedent have been superseded by subsequent Supreme Court holdings. 

Read more ...

Once Anti-Gun, Now an Advocate for Gun Ownership and Self Defense

 

Darlyn used to completely reject the idea of owning guns. She shares her story of coming to terms with the realities of relying solely on painfully slow government services for her safety and ultimately how she learned to protect herself. Along the way, she provides insight on how to approach those who think like she used to.

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Maryland Shall Issue®, Inc.
9613 Harford Rd
Ste C #1015
Baltimore, MD 21234-2150

Phone:  410-849-9197
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Web:   www.marylandshallissue.org