MDGA 2021 - MSI Testimony in Support of SB27 and HB845 - Public Safety - Permit to Carry, Wear, or Transport a Handgun - Qualifications
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 a pending 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. Moreover, as John Hopkins University’s most recent study (attached) documents, illegal carry by otherwise law-abiding citizens for self-defense is very common in Baltimore. These individuals should be accorded an opportunity to carry legally, so as to obtain the training and legal instruction presently mandated by Maryland law. The amendments to Maryland’s law in this bill would make that possible. As explained below, the status quo in Baltimore is utterly untenable.
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 NYSRPA v. Corlett, No. 20-843, docketed Dec. 23, 2020) (U.S.)., a case involving a challenge to New York’s “good cause” requirement. The issue is also currently pending before the Maryland federal district court on a complaint seeking abrogation of Woollard. Call v. Jones, No. 20-3304 (D.Md). MSI is a party to that litigation.
We believe that it is highly likely that the Supreme Court will, in an appropriate case, make clear that the “text, history and tradition” test is controlling in determining the constitutionality of gun control legislation – not tiers of scrutiny. Four members of the Supreme Court recently employed this text, history and tradition approach in NY State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S.Ct. 1525 (2020), where a majority of the Court held that the case was mooted by the repeal of the offending City of New York ordinance. See id. at 1526 (Kavanaugh, J.) (concurring in judgment of mootness, but agreeing with Justice Alito’s discussion of Heller and McDonald on the merits); Id. at 1540-41 (Alito, J., dissenting from the judgment of mootness but noting further on the merits that the City’s ordinance violated the Second Amendment under Heller and McDonald). Justice Thomas made the same point very recently in another case. Rogers, et al. v. Grewal, 140 S.Ct.1865, 1868 (2020) (Thomas, J., dissenting from denial of certiorari). See also Heller v. District of Columbia (i.e. “Heller II”), 670 F.3d 1244, 1269 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”).
With Justice Barrett now joining the Court, we believe that a solid majority of the Court will adhere to these principles when the issue is presented in an appropriate case. See Kanter v. Barr, 919 F.3d 437, 452-53 (7th Cir. 2019) (Barrett, J., dissenting). Indeed, in Wrenn, the D.C. Circuit applied this text, history and tradition test in striking down the carry statute enacted by the District of Columbia. The DC statute that was invalidated was modeled after the Maryland statute and was thus substantively identical to the Maryland statute. The conflict between Maryland’s law and Wrenn is direct and unavoidable and thus will have to be resolved by the Supreme Court. The Second Amendment cannot mean one thing in D.C. and 42 states, and something else in Maryland. 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 Call, it should enact this bill into law.
“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. For example, Pennsylvania is a “shall issue” state, with over 1,000,000 carry permits issued. Yet, according to the latest FBI statistics, Pennsylvania’s violent crime rate is 306.4 per 100,000 inhabitants while Maryland’s violent crime rate is 454.1 per 100,000 inhabitants. See https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-5. Pennsylvania is thus well below the violent crime rate of the United States (383.4 / 100,000) while Maryland is far above it. https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-4. The violent crime rate of the Baltimore-Columbia-Towson MSA is even worse at 698.7 per 100,000, one of the very worst among MSAs in the United States. See https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-6.
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.
In June of 2020, Johns Hopkins University released its study of violent crime in Baltimore. See Webster, et al, REDUCING VIOLENCE AND BUILDING TRUST Data to Guide Enforcement of Gun Laws in Baltimore. (Copy attached). This Study should be required reading for every Member of the General Assembly and it is attached hereto in its entirety for that reason. The Study found:
In Baltimore neighborhoods most impacted by gun violence, residents lack faith in BPD’s ability to bring individuals who commit violence to justice. Perceived risk of being shot and perceptions that illegal gun carrying is likely to go unpunished lead some residents to view gun carrying as a necessary means for self-defense.” (Id. at 5) (emphasis added).
Certainly, there is ample reason to fear violence in Baltimore. As the Johns Hopkins study further states: “The surge in gun violence in Baltimore starting in April 2015 resulted in a more-than-twofold increase in the number of annual Baltimore homicide cases that have failed to result in the arrest of a suspect based on data reported by BPD and compiled by The Washington Post.” (Id. at 28). Thus, the “[p]erceived risk of being shot and perceptions that illegal gun carrying is likely to go unpunished lead some residents to view gun carrying as a necessary means for self-defense.” Indeed, the police and State’s Attorney record for successfully prosecuting illegal possession of firearms can only be fairly described as astonishing:
Publicly available data indicate that from May 1, 2015, through May 31, 2019, there were 10,600 cases in which individuals were charged with illegal firearm possession. Note that there can be multiple individuals within a given case. These gun charges primarily fall into one of four crime categories (as defined by the SAO): felon in possession; prohibited person (not a felon) in possession; drug trafficking while in possession of a firearm; or illegal wear, carry, or transport. Among all 10,600 cases, 4,387 (41.4%) resulted in a guilty or probation before judgment disposition as a result of a defendant’s initial illegal firearm possession charge (2,182 or 20.6%) or different illegal firearm possession charge (2,205 or 20.8%) received thereafter. Nine percent (960) resulted in a guilty disposition as a result of a charge within a different category than the four primary crime types examined. In 1,109 cases in which an individual was charged with illegal firearm possession while trafficking drugs, only 108 (9.7%) had a guilty or probation before judgment disposition as a result of that charge and 528 (47.6%) pled guilty on another charge. Just under half (44.9%) of the cases in which someone was initially charged with illegal possession of a firearm did not yield a guilty disposition for any charge in state courts. The most common disposition for illegal gun possession charges is Nolle Prosequi (charge dismissed by the prosecutor) or Stet (charge deactivated), accounting for 33.7% of dispositions across the four categories of gun charges (Table 1). (Id.at 20) (emphasis added).
These numbers are highly instructive. The extremely large number of cases (10,600 cases in a 4-year period) makes clear that illegal gun possession is rampant in Baltimore, notwithstanding Maryland’s draconian gun control laws. Equally noteworthy is that nearly half of the cases involving an illegal gun possession charge do not yield a guilty disposition on any charge, not even on the illegal possession charge. Even when the charges stick, the Hopkins Study finds that “[f]or illegal wear, carry, or transport of a firearm charges, 30% had no time suspended but 40% had 91–100% suspended and an additional 18% had 81–90% of their sentence suspended. For illegal possession by a prohibited person with no prior felony convictions, 35% had no incarceration time suspended while 36% had 91– 100% of their sentence suspended.” (Id. at 22). The high percentage (44.9%) of cases that that result in no guilty disposition suggests either that arrests were illegal or that the State’s Attorney’s Office simply isn’t prosecuting these crimes with any degree of vigor. See Study at 21.
As Johns Hopkins finds, people are finding it necessary to arm themselves for self- protection in Baltimore. The State should issue permits for self-defense so as to allow law-abiding persons to protect themselves without becoming criminals. As the Study states: “[G]un carrying is often a defensive behavior, particularly where violent crime is common. Incarceration for unlicensed gun carrying in this context can be both unjust and counter to public safety due to the criminogenic effects of being incarcerated.” (Study at 24). It is irrational to expect an otherwise law-abiding person to forego armed self-defense where the perceived need for self-defense is very high and the community trust in the police is very low. It is equally senseless and counterproductive to saddle such people with criminal records. It makes far more sense to encourage these individuals to get the intensive firearms training already required by Maryland’s permit law and allow them to obtain carry permits so that they may carry legally. After all, self-defense is, as Heller and McDonald hold, a fundamental right.
Gun Control and Racism:
Finally, it is indisputable that Maryland’s restrictive carry laws are legacy of slavery. It was not until 1809 that Maryland prohibited any carry of weapons, but that legislation criminalized only the carrying of a weapon “with the intent feloniously to assault any person.” Archives of Maryland 570:94. Any carry, concealed or open, with no permit required, was still legal as long as it was without felonious intent. In 1831, in reaction to the Nat Turner Rebellion in Virginia, Maryland enacted a statewide law that requires free blacks (only) to obtain a license from a local court for possession or carry (open or concealed) of firearms. Archives of Maryland, 213:448. Maryland did not ban any type of carry for other citizens until 1866, when it banned concealed carry, but still allowed open carry. Archives of Maryland 389:468-9. This law was likely passed as a result of the assassination of President Lincoln in 1865, and the abolition of slavery at the 1864 Maryland Constitutional Convention. Since blacks could no longer be directly legislated against, the 1831 law was dropped and the concealed carry prohibition was made general – but could be selectively enforced.
In 1884, Maryland changed its law to once again permit concealed carry, providing that concealed carry was illegal only when arrested and charged with another crime. Archives of Maryland, 390:522-3. That approach likewise allowed discriminatory enforcement. The most likely reason for this enactment was that it was thought that 1866 total ban was unconstitutional. In 1904, after more than 300 years of legal concealed carry for non-black Maryland citizens, with no permit required, concealed carry is again made illegal in Maryland, but this time with the exception for “carrying such weapon as a reasonable precaution against apprehended danger.” Archives of Maryland 209:4025-6. The exception again allowed selective enforcement, while keeping it from being a total ban. It was not until 1972 that open or concealed carry of handguns was banned without a permit from the State Police. Archives of Maryland, 708:48-51. This law was likely a reaction to the Baltimore Race Riots of 1968, and is strikingly similar in its licensing requirements to the 1831 legislation that licensed carry by freed blacks. The common thread that runs throughout this history is racist fears. This history matters legally because, as discussed above, the appropriate test under the Second Amendment is one of text, history and tradition.
Maryland’s history is typical of gun control nationwide. 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). 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. Law-abiding persons of all races should be allowed to protect themselves legally. For all these reasons, we urge a favorable report.