MGA2019: Testimony in Support of HB342, HB541, and SB115 - Public Safety - Permit to Carry, Wear, or Transport a Handgun - Qualifications

PDF Available Here

Both of these bills would amend MD Code, Public Safety, § 5-306(b)(6)(ii) to specify that “self-protection,” or “self-defense” is a basis for finding a “good and substantial” reason for the issuance of a Maryland Wear and Carry Permit.

The bills leave unaltered the rest of Section 5-306, including leaving unchanged the rigorous training requirements of 16 hours of instruction that includes a live fire component that “demonstrates the applicant’s proficiency and use of the firearm.” Also unchanged is the requirement that the State Police conduct a background investigation using the applicant’s fingerprints, and the requirement that the State Police find that the applicant “has not exhibited a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger to the person or to another,” found at § 5-306(b)(6)(ii).

Stated briefly, there are powerful reasons to enact this bill into law. Section 5-306, as administered by the State Police, is unconstitutional without these amendments. Without these amendments, the Maryland requirement of a “good and substantial reason” is on borrowed time in the courts, including in a case challenging Maryland’s law. Should Maryland lose in such litigation, the attorneys’ fees award against Maryland under 42 U.S.C. §1988, will prove quite expensive.

The Constitutional Issue:

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that citizens have the right to possess operative handguns for self-defense. The rights guaranteed by the Second Amendment are fundamental and are, therefore, applicable to the States by incorporation under the Due Process Clause of the 14th Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 768 (2010) (“[c]itizens must be permitted to use handguns for the core lawful purpose of self-defense.”). In striking down a law burdening that core right, the Supreme Court recognized “the handgun to be the quintessential self-defense weapon.” Heller, 554 U.S. at 629. The Seventh Circuit has thus held that the Second Amendment applies with full force outside the home. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2013). As Judge Posner explained, “the Supreme Court has decided that the amendment confers a right to bear arms for self-defense, inside.” Id. at 942. Accordingly, “[t]o confine the right to be armed to the home is to divorce the Second Amendment from the right of self- defense described in Heller and McDonald.” Id. at 937. As a result of the decision in Moore, Illinois enacted “shall issue” legislation, thus converting that State into a “shall issue” jurisdiction.

Most recently, the United States Court of Appeals for the District of Columbia Circuit applied these principles to strike down the “good reason” requirement for a carry permit imposed by D.C. law. Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017). In so holding, the court stressed that the “core” of the Second Amendment protected “the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs.” (Id. at 661). That meant, the court explained, that “the Second Amendment must enable armed self-defense by commonly situated citizens: those who possess common levels of need and pose only common levels of risk.” (864 F.3d at 664). Under this test, the Court reasoned that the District’s [good reason] regulation completely prohibits most residents from exercising the constitutional right to bear arms as viewed in the light cast by history and Heller I” (at 665) and that “the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.” (Id.). The court thus concluded that the “good reason” requirement was categorically invalid without undertaking any level of scrutiny because “no tiers-of-scrutiny analysis could deliver the good-reason law a clean bill of constitutional health.” (Id. at 666). The District of Columbia sought rehearing en banc from the full D.C. Circuit, but that petition was denied without a dissent on September 28, 2017. Fearing a loss at the Supreme Court, the D.C. Government decided not to file a petition for a writ of certiorari.

Under Wrenn, D.C. is now a “shall issue” jurisdiction, just like 42 states in the United States. That decision in Wrenn creates a direct conflict with the Fourth Circuit’s decision that sustained Maryland “good and substantial reason” requirement. Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.), cert. denied, 134 S.Ct. 422 (2013), as well as direct conflicts with prior court decisions sustaining the “good cause” laws in the few states that still impose this requirement. These circuit conflicts are presently before the Supreme Court on a petition for certiorari filed in Rogers v. Grewal, No. 18-824 (filed Dec. 20, 2018), a case involving a challenge to New Jersey’s “good cause” requirement. The Maryland law is being challenged in Malpasso v. Pallozzi, No. 18-2377 (4th Cir.), which is presently pending in the Fourth Circuit. Also pending are suits against the “good cause” laws of New York, Massachusetts and California. All these cases will soon make their way to the Supreme Court. The conflict between these laws and the D.C. Circuit’s decision in Wrenn is direct and unavoidable and thus will have to be resolved soon by the Supreme Court. The Second Amendment cannot mean one thing in D.C. and 42 states, and something else in Maryland. In short, Maryland is the outlier.

Moreover, the scope of the Second Amendment outside the home may also be addressed in NYSRPA v. NYC, No. 18-280, cert. granted, 2019 WL 271961 (S.Ct. Jan 22, 2019), a New York City case involving transport outside the home. The Supreme Court has already agreed to hear that case. A decision in that case will likely address the appropriate “standard of review” to be utilized in assessing the constitutionality of state control laws. It is widely understood that the Supreme Court took the case in order to reverse the Second Circuit’s decision sustaining NYC’s law. A decision will likely be in late 2019 or 2020, during the Court’s next Term. In short, the legal framework for state gun control states laws is under heavy legal attack. “Good cause” laws will not long survive. If Maryland wishes to limit its liability for fees and costs in Malpasso, it should act now.

“Shall Issue” Is Not A Public Safety Concern:

 

Forty-two states and the District of Columbia are “shall issue” jurisdictions. Indeed, currently fourteen other states have Constitutional Carry -- Alaska, Arizona, Arkansas, Idaho, Kansas, Maine, Mississippi, Missouri, New Hampshire, North Dakota, South Dakota, Vermont, West Virginia, and Wyoming -- do not require permits at all. None of these laws have resulted in an increase of violent crime in these states. Indeed, even gun control advocates admit that permit holders are the most law-abiding persons in America, with crime rates a fraction of those of commissioned police officers. See here. The most recent study (January 2019) published by the American College of Surgeons (hardly a gun group) found that there was “no statistically significant association between the liberalization of state level firearm carry legislation over the last 30 years and the rates of homicides or other violent crime.” Citation here. A copy of that study is attached. We urge the Committee to read it. Moreover, the FBI has found that permit holders have stopped violent crime repeatedly. Indeed, in eight cases, private citizens were able to stop a mass shooting. Specifically, the FBI found that out of the 50 incidents studied, “[a]rmed and unarmed citizens engaged the shooter in 10 incidents. They safely and successfully ended the shootings in eight of those incidents. Their selfless actions likely saved many lives.” FBI, Active Shooter Incidents in the United States in 2016 and 2017 at 8. Available at this link. The facts matter. The State should become “shall issue.”

Finally, it is indisputable that Maryland’s restrictive carry laws are legacy of racism and slavery. See Henry Heymering, Maryland weapon carry laws, A brief chronology (attached). Indeed, much of the history of gun control is explained by overt racism. See Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (1995) (“The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms or bowie knives .... These restrictive gun laws played a part in provoking Republican efforts to get the Fourteenth Amendment passed.”), quoted in Young v. Hawaii, 896 F.3d 1044, 1059 (9th Cir. 2018). That reality was also noted in Heller, 554 U.S. at 614– 16, and by Justice Thomas in concurring in McDonald, 561 U.S. at 844-847. That is a legacy of shame. For all these reasons, we urge a favorable report.

 

 

Latest News

Court Uphold's MD's Taking of Rapid Fire Trigger Activators

 

In a sharply split, 2-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit has held that Maryland may ban the possession of "Rapid Fire Trigger Activators" by existing owners without paying just compensation under Fifth Amendment or the Maryland Constitution.  The majority ruled that no just compensation was owed to existing, lawful owners because the ban “does not require owners of rapid fire trigger activators to turn them over to the Government or to a third party.”  In short, as far as this majority is concerned, the State is free to ban the possession of any personal property without paying just compensation unless the State puts the property into its own pocket or the pocket of a third party.  If that is the law, then no personal property, of any kind, is safe from the grasping clutches of the General Assembly.  For example, the State could ban possession of your existing car and not pay a dime.  The dissenting opinion ably demolishes the majority's reasoning.  Needless to say, we will be seeking further review.

You can read the ruling HERE.  Stay tuned.

Maryland Shall Issue will continue to fight for the interests and rights of its members and the public, but to do so requires resources and your help. Consider joining or donating to MSI.

Background Checks for Firearms Purchases and Licenses Interrupted

Due to a systems failure on the morning of June 21st within the Maryland Department of Public Safety and Corrections Services (DPSCS), the Maryland State Police (MSP) was no longer able to complete background checks for Handgun Qualification Licenses (HQL), regulated firearms transfers (77R transfers), and Wear and Carry Permit background investigations. DPSCS have since restored their systems and the MSP have been processing background checks as fast as they can. We appreciate the efforts of the State Police to remedy the backlog as quickly as possible, though the bureaucratic processes created by the General Assembly compounds these issues for Marylanders who are merely trying to protect themselves.

From the MSP:

Background Checks Underway After Data System Restored

(PIKESVILLE, MD) — Maryland State Police Licensing Division employees worked throughout the night and will continue to work around-the-clock to address pending regulated firearm purchase applications after a state data system was restored late yesterday.

At about 8:30 p.m. yesterday, the State Police Licensing Division was notified by officials at the Maryland Department of Public Safety and Correctional Services that the data system had been restored and access to background check information was available.  Employees at the Licensing Division immediately began completing background check investigations on the regulated firearm purchase applications that had been pending since a system failure occurred on June 21st.

Licensing Division employees worked throughout the night and will continue to work around-the-clock until all pending and incoming regulated firearm purchase applications have been reviewed and are being completed within Maryland’s required seven day waiting period.  Even with employees working 24-hours-a-day to address this, the process is anticipated to take several days to complete.  The Licensing Division continues to work with Maryland’s licensed firearms dealers to track any regulated firearm released after the waiting period, but before full completion of the background check process.

As of 4:00 p.m. yesterday, information from Maryland firearms dealers indicated that of the 893 firearm purchase applications eligible for release, 54 regulated firearms had been released to customers after the seven day waiting period had passed.  The individuals receiving those firearms were the first ones background checks were conducted on during the night.  There were no prohibiting factors found for any of those applicants.


As far as we know, there's no evidence or information to suggest that anyone's personal information was comprimised while the systems were down and none of the applicants whose dealer released firearms to them failed or would have failed background checks.

While the MSP have asked the Dealers to hold off on releasing any regulated firearms (handguns) until the checks completed, dealers may release regulated firearms on the 8th day after a transaction at their discretion. From the MSP's latest advisory on 6/25:

Should the RFD elect to exercise their statutory option to release a regulated firearm on the eighth day, we ask that the procedure listed below be followed:

1. The RFD will access their Licensing Portal;
2. locate the application to be released within the “SUBMITTED APPLICATIONS” section;
3. print a copy of the application;
4. verify that all information in “Section 4” is accurate;
5. both the RFD and the applicant will sign and complete “Section 6;”
6. scan and send the completed copy of the 77R to .

Additional Coverage:
Maryland Handgun Background Check System Crashes, Leaving Gun Buyers in Limbo - Washington Free Beacon
Citing a ‘catastrophic hardware failure,' Maryland State Police report delays in gun background checks and licenses - Baltimore Sun
Guns sold without completed background checks in Maryland - WUSA9
After ‘Catastrophic Hardware Failure,’ Dozens Of Guns Were Released Without Completed Background Checks In Maryland - WAMU

Contact Info

Headquarters:

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

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