Ruling striking down Maryland handgun law on hold while governor appeals
Maryland can continue to require residents to get a permit before acquiring a handgun while the state appeals a court ruling declaring the process unconstitutional.
The Tuesday delay came after the administration of Gov. Wes Moore (D) asked the full U.S. Court of Appeals for the 4th Circuit to decide on whether Maryland’s requirement of a background check and safety course violate the Second Amendment.
“The majority’s decision has eliminated an important — and demonstrably effective — tool for reducing firearm violence,” Assistant Attorney General Ryan R. Dietrich wrote in the filing. “Its practical effect is to render presumptively unconstitutional any law, whether it be an objective shall-issue licensing regime, waiting period, or other regulatory measure, whose incidental effect is to delay the exercise of Second Amendment rights.”
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Research done by Johns Hopkins University indicates that permitting requirements reduce gun homicides and suicides.
A panel of three judges on the 4th Circuit ruled Nov. 21 that Maryland’s permitting process, which can take up to 30 days, was a restriction on the right to bear arms incomparable to any policy from the era of the Founding Fathers.
The 30-day wait “could well be the critical time in which the applicant expects to face danger,” wrote Judge Jay Richardson, a Trump appointee, and “Maryland has not pointed to any historical laws that operated by preemptively depriving all citizens of firearms to keep them out of dangerous hands.”
The decision was joined by Judge G. Steven Agee, a George W. Bush appointee. Judge Barbara Milano Keenan, an Obama appointee, dissented, calling the ruling a “hyperaggressive view of the Second Amendment” that would render most states’ permitting laws unconstitutional.
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The full 4th Circuit has a majority of Democratic appointees that may well interpret the law more in line with Keenan’s view.
The day after the pause, a different panel of the 4th Circuit considered whether the federal crime of possessing a firearm with an obliterated serial number is unconstitutional.
Assistant U.S. Attorney William Glaser acknowledged that while the government thinks the Maryland decision was “wrong,” the 4th Circuit’s latest ruling on the matter means that any delay or hurdle to getting a gun infringes on Second Amendment rights. But, he said, the law can still stand because “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens.” Having a serial number actually makes a gun more useful for lawful purposes, Glaser argued, because it makes it easier to sell guns and easier to find them after thefts. And it doesn’t impact unwitting recipients of guns, because conviction under the statute requires knowledge that the serial number was removed.
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“A firearm with a serial number … is just as effective for purposes of self-defense as one with a removed or altered serial number,” he said. “It’s just not the kind of thing a person does unless they want to avoid tracing of that firearm, either because it’s a stolen firearm or it’s been used in a crime.”
The three judges on that panel, all Democratic nominees, seemed inclined to agree.
“For what lawful purpose would a person want a gun with an obliterated number on it?” asked Judge James A. Wynn.
West Virginia public defender Lex Coleman said there could be “aesthetic” reasons for removing a serial number, and in some scenarios it might be necessary to get rust off a firearm. He also suggested people might want to hold on to guns they inherited with the number already scratched off.
But he said the reasons did not matter, because under the Maryland decision, “the citizen can do what they want — that’s inherent in self-defense.”
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A district court judge in West Virginia had sided with the public defender, saying he could find no comparable law from the Founding era.
“It seems to me that the only types of analogous regulations would be those that required firearm owners to keep an identifiable mark on their firearm and never change or remove that mark,” the judge wrote. “The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.”
Before last year, federal courts balanced the imposition of gun control laws against the policy justification behind them. In New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court said that any attempt to regulate gun use and ownership, regardless of its rationale, must be “consistent with this Nation’s historical tradition of firearm regulation,” which they defined as in keeping with laws from either the late 1700s, when the U.S. Constitution was ratified, or the mid-1800s, when the 14th Amendment expanded its reach.
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In that ruling, which struck down a New York law requiring a special reason for carrying a handgun, Justice Clarence Thomas wrote in a footnote that the court was not suggesting permitting requirements that any law-abiding citizen could meet were also unconstitutional. Moore in his filing called that “clear guidance from the Supreme Court” ignored by the majority of the Fourth Circuit. Richardson wrote that the footnote merely left the question of whether less-onerous permitting regimes were constitutional for another day.
During oral argument last month over a ruling that struck down a law designed to keep guns away from domestic abusers, Justice Elena Kagan said “there seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires.”
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