2020 MDGA - Testimony in Support of SB198
This bill 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. The Maryland requirement of a “good and substantial reason” is on borrowed time in the courts, including in pending cases 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. Heller also made clear that the right belongs to every “law-abiding, responsible citizen”). Heller 554 U.S. at 635. 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 also creates a direct conflict with the Fourth Circuit’s decision that sustained Maryland’s “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 posing 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. Similarly, the constitutionality of Maryland’s highly restrictive carry law is currently before the Maryland Court of Special Appeals in Whalen v. Handgun Permit Review Board, No. CSA-REG-2431-2018, argued by the undersigned counsel on November 4, 2019, and currently awaiting decision. The issue is also before the Supreme Court on a petition for certiorari filed in Malpasso v. Pallozzi, No. 19-425, petition filed Sept. 26 2019 (U.S.). https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-423.html. The conflict between Maryland’s law and 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.
We also expect the Supreme Court to shed light on this issue should it reach the merits in NYSRPA v. NYC, 883 F.3d 45 (2d Cir. 2018), cert. granted, 139 S.Ct. 939 (Jan. 22, 2019), argued December 2, 2019. A decision on the merits in that case will likely address the appropriate “standard of review” to be utilized in assessing the constitutionality of state gun 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 be in 2020, at the end of the Court’s current 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. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3233904. 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.” https://www.sciencedirect.com/science/article/pii/S107275151832074X. The FBI has found that permit holders have stopped violent crime repeatedly. Specifically, the FBI found that out of the 50 mass shooting 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 https://www.fbi.gov/file-repository/active-shooter-incidents-us-2016-2017.pdf/view. 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), rehearing granted en banc 915 F.3d 2019) en banc consideration stayed pending a decision in NYSRPA, Order of Feb. 14, 2019. 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.
Mark W. Pennak
President, Maryland Shall Issue, Inc.