Federal appellate court upholds Md. handgun permit laws

Concealed-carry laws had been in jeopardy after lower court ruling

(Jed Kirschbaum / )
March 21, 2013|By Justin Fenton, The Baltimore Sun

A federal appeals court has upheld Maryland's handgun permitting law, reversing a lower court decision by concluding that the state can constitutionally require an applicant to show “good and substantial reason” that he or she needs a concealed-carry license.

Fourth Circuit Judge Robert King, writing for the three-judge panel, said the state had shown that the requirement “is reasonably adapted” to its “significant interests in protecting public safety and preventing crime.”

Maryland Attorney General Douglas F. Gansler cheered the ruling Thursday, saying the state is “a safer place today because of its handgun conceal-and-carry permit laws.”

“The idea is to make sure guns are in the hands of responsible people, and not just anybody who wants to tote a gun in public,” Gansler said. “This was one of those cases where a middle ground was found.”

Alan Gura, a lawyer for the Second Amendment Foundation, said he intended to appeal the ruling. Because a three-judge panel heard the case, he can ask the full Fourth Circuit Court to look at the decision, or petition to the U.S. Supreme Court.

“I think that the issue is bound to be taken up by the Supreme Court. This is a great case, and if not this one, it could well be another one,” Gura said. “It’s already been established that we don’t have to prove to the police that we have a good and substantial reason to exercise our fundamental rights. … It makes the right all but meaningless.”

The state legislature is working on a slew of bills that would further restrict guns in Maryland, which already has some of the strictest laws in the country. Gun advocates say as many as 41 states have so-called “shall issue” laws and do not require “good cause.”

Gov. Martin O’Malley said the ruling “ensures that guns remain in the hands of responsible owners.”

The case began with Baltimore County resident Raymond Woollard, who had received a permit in 2003 after a home invasion committed by his son-in-law. He sued the state after he was denied a renewal permit in 2009. The Washington-based Second Amendment Foundation took on the case, arguing that Maryland unnecessarily restricts the right to carry firearms.

A federal district judge agreed last March, striking down the requirement that a permit seeker have a good and substantial reason as unconstitutional.

The Maryland attorney general's office, fearing a spike in gun violence, appealed the decision, and the appeals court allowed the law to stand pending the challenge.

Gura argued before the judges in October that because the Supreme Court has held that bearing arms is a fundamental right, people do not need to give public officials a reason they should be allowed to exercise it.

He asked the court to consider the implications of applying that standard to other rights such as speech.

“There's no way we can apply such a restriction to the right to bear arms,” he said last fall.

But Matthew Fader, the assistant Maryland attorney general who argued for the state, said opponents of the permit process want to open up a general right for anyone to carry a lethal weapon “for no reason at all,” other than their subjective fears.

Maryland does not bar people from carrying guns out for sport, military activities or hunting, Fader said.

King, the appellate judge, wrote in the appellate court decision that the state’s “good and substantial reason” requirement was “inappropriately condemned by the district court for being a ‘rationing system.’” He said that the regulations advance the state’s goal of preventing crime by reducing the number of handguns carried in public.

UCLA law professor Eugene Volokh was skeptical of the appeals court’s claim that it was not weighing in on the question of whether the right to bear arms extended outside of the home.

“If a court lets the government deny the ability to carry guns outside of the home for self-defense for nearly everybody,” Volokh wrote on his blog, “the court is in essence saying there is no such right to carry.”

Gansler said that “the majority of people who apply for a concealed permit do get that permit,” and said a citizen who is not a “prohibited person” — such as a felon — has always been able to get a gun for his or her home.

Of 2,500 new permit applications and 2,980 renewals in 2012, state police denied 128 on the basis that the applicant did not have a substantial reason to wear, carry or transport a gun.

Police received a surge in concealed-carry permit applications after the lower court ruled the good and substantial reason requirement unconstitutional, said Greg Shipley, a state police spokesman.

But with the appeals court imposing a stay on the decision, police informed applicants that the standard was still being applied, and those applications that didn’t state a reason were returned, Shipley said.

Sen. Christopher Shank, a Washington County Republican and leading gun rights advocate, said the “Byzantine application for a concealed-carry permit clearly is not based on any kind of a rational basis," and said he hopes the case will go before the Supreme Court.

But Sen. Jamie Raskin, a Montgomery County Democrat and constitutional law professor, said the Fourth Circuit is a conservative court and its ruling bolsters the prospects of the governor’s gun bill.

Gura argued the cases in which the Supreme Court struck down laws in Illinois and the District of Columbia that effectively outlawed handgun ownership. But the court did not directly address the right to bear arms for self-defense outside the home.

“Fairly soon, the Supreme Court going to have to take a Second Amendment case to provide some guidance,” said Mark Graber, an associate dean at the University of Maryland law school. “It could be this one.”

 jfenton@baltsun.com

Sun reporter Michael Dresser contributed to this article. 

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