Lawyers say gun ruling likely to withstand appeal

Federal judge struck down Maryland carry-permit law

March 06, 2012|By Tricia Bishop, The Baltimore Sun

Constitutional lawyers said Tuesday that a recent federal court decision overturning a portion of Maryland's gun-control law will likely be upheld on appeal and called the ruling groundbreaking given the liberalism of the state from which it came.

The decision, made public Monday, relaxed state requirements for carrying a gun and broadly interpreted the Second Amendment's "right to bear arms" as extending beyond the home. The analysis surprised some, who were used to seeing states like Maryland, which has a restrictive approach to gun rights, limit firearm use and possession.

"The cases that have dealt with this question in the recent years have almost all come out of the high-regulation states," said Eugene Volokh, a professor at the University of California Los Angeles School of Law. Those states "also tend to have high-control judges ... [who] have said it doesn't extend outside the home."

The Maryland attorney general's office has said it will appeal the decision, but a spokesman declined to outline the potential grounds or provide a timeline for next steps. Some attorneys who study constitutional law said any challenge to the ruling would face an uphill battle.

"The idea here is that if this is a constitutional right, like all the other constitutional rights, then you shouldn't need the government's permission to exercise it," said Randy E. Barrett, a professor at Georgetown University Law Center in Washington. "I think that the basic theory ... is an extremely powerful one, that would give it a good shot at any court of appeals."

Before the ruling, Maryland was among a handful of states that follow a "may issue" policy for gun-carry permits, leaving the distribution of such licenses up to the discretion of local authorities after basic criteria are met. In addition to proving that they weren't dangerous felons or addicts, Maryland applicants were required to show that they had a "good and substantial reason" for carrying a gun, and it was up to the superintendent of Maryland's state police to determine if an applicant's rationale passed muster.

Last year, the state police received 5,216 applications for carry permits, and denied about 5 percent of them, most — 179 out of 251 — because officials rejected the "good and substantial" reasoning, according to a spokesman.

The federal decision, signed Friday by U.S. District Judge Benson E. Legg, struck down that requirement and effectively shifted Maryland to a "shall issue" policy, like a majority of states, which automatically issue gun-carry permits once basic safety conditions are met.

"The reason there are very few rulings like this is because there are very few states like Maryland ... that would ever impose a rule like" the "good and substantial reason," said Michael I. Krauss, a professor at the George Mason University School of Law in Arlington, Va.

Maryland wasn't so alone a couple of decades ago. But over the past 10 to 15 years, states have moved to the "shall issue" system, leaving fewer than a dozen states with discretionary restrictions. Other "may issue" states include Alabama, which still approves most applications; California; Connecticut; Delaware; and New York, according to gun rights groups.

The recent federal ruling grew from a Baltimore County man's lawsuit, claiming the state inappropriately denied a renewal to his carry permit. Raymond Woollard's son-in-law broke into his home one Christmas Eve and terrorized the family, according to court records, leading Woollard to apply for a gun-carry permit in 2003 and to renew the license in 2006. But a 2009 renewal was denied, because Woollard couldn't show a continuing threat.

Woollard filed a lawsuit in federal court, and won when Legg, who was nominated to his position by Republican President George H.W. Bush, found in his favor.

"I don't think it's going to go down as either the greatest bit of judicial wisdom or the worst," said Mark Graber, a professor at the University of Maryland Francis King Carey School of Law in Baltimore.

Graber found at least one flaw in the ruling that could provide grounds for appeal, but he doesn't expect the decision to be overturned. The 4th Circuit Court of Appeals said in a 2010 ruling that the Second Amendment likely extends outside the home, he said, and the U.S. Supreme Court may not be ready to take on the issue.

"The [high] court doesn't usually take the first case that comes along," Graber said. "The court likes to see a number of these cases bubble up ... to get a sense of the full range."

Still, Graber expects the state's attorney general's office to claim Legg erred in his opinion by asserting that the "good and substantial" requirement was no more restrictive than randomly excluding some applicants, and therefore didn't help the state achieve a goal of reducing illegal gun use.

"That's not quite right," said Graber, who admits he's anti-gun. "What the law tries to do is create the best ratio possible between legitimate use of guns and illegitimate use."

Others suggested that appeal grounds may include arguments that the right to bear arms in fact is limited to the home by definition and that the government's interest in preventing gun violence outweighs the entitlement.

"The appeal is obviously that the judge got the laws wrong," George Mason's Krauss said. "But I believe he got it right."

Baltimore Sun reporter Annie Linskey contributed to this article.

tricia.bishop@baltsun.com

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