U.S.A. –-(AmmoLand.com)-— In March of this year, a three-judge panel of the United States Court of Appeals for the Fourth Circuit heard oral arguments in the appeal of Maryland Shall Issue v Hogan.
The case of Maryland Shall Issue v Hogan (Governor of Maryland), has been in the courts since 2013, when the case was filed in the United States District Court for the District of Maryland. In 2013, Maryland passed the Firearm Safety Act of 2013, which contained a Handgun Qualification License (HQL) provision which forbids the sale, transfer, rental, purchase, or receipt of a handgun by any person who does not have a valid HQL license. Shall Issue Maryland and several other plaintiffs challenged the law on Second Amendment, Fourteenth Amendment, and other grounds.
The District court held the plaintiffs lacked standing. Shall Issue Maryland appealed the case to the Fourth Circuit. A three-judge panel on the Fourth Circuit reversed the District ruling and remanded the case back to the District Court.
The District Court, on remand, decided the case under intermediate scrutiny and granted the State of Maryland summary judgment. Shall Issue Maryland appealed the case to the Fourth Circuit for the second time.
On June 22, 2022, the Supreme Court of the United States published the opinion in the case known as Bruen, giving clarification of the Heller decision and clear instructions for lower courts to use in determining if statutes violated rights protected by the Second Amendment. Bruen ruled means-ends tests were inappropriate, and there should not be different levels of scrutiny in Second Amendment cases.
Every court which has examined the Maryland Shall Issue v Hogan case has found the HQL provisions burden conduct protected by the Second Amendment. The District Court found it did; the first three judge panel did, and the District Court on remand did so. In Bruen, the Supreme Court of the United States found if the statute burdened conduct protected by the Second Amendment, it is the burden of the State to show such burdens were common and accepted at the time the Second Amendment was ratified. To a lesser extent, what happened at the time of the ratification of the Fourteenth Amendment is applicable. Anything after 1900 is clearly too late to be considered a historical context.
Maryland had no burdens on handgun purchase or ownership until 1941. In 1996, Maryland passed the “Gun Violence Act of 1996”, which required all handgun transfers to be registered with the state, private or commercial. Additional requirements were passed in 2013. The HQL requirements passed in 2013 include fees, training, and background checks before a person is allowed to purchase a handgun.
The oral arguments in the appeal of Maryland Shall Issue v Hogan were heard on March 10, 2023.
According to Jurist.org, two of the three judges appeared to agree there was no historical tradition of requiring fees, training, or background checks before someone is allowed to purchase a handgun. During questioning by the judges, Maryland Assistant Attorney General Ryan Dietrich had to admit there was no historical precedent for a requirement for pre-clearance to purchase a firearm.
Dietrich eventually conceded, “We were unable to find any that required advance permission,” to the republican-majority three judge panel.
At courthousenews.com, it was reported one of the two judges, Circuit Judge Julius N. Richardson, took issue with Maryland’s use of statistics. Maryland contends gun-related murders decreased after the law went into effect. Richardson asked why did they exclude data from Baltimore City/County, which has most of the murders in the state? Assistant AG Dietrich replied it was because of the increase in murders in Baltimore City/County.
Dietrich said the reason for leaving Baltimore out of the statistic was the uptick in crime associated with the 2015 police killing of Freddie Gray.
“It seems odd to say it is associated with a decrease in these three counties, but 70% of murders happen in Baltimore City-County,” Richardson said. “The murder rate is higher in 2020 than it was in 2015.”
The increase or decrease in murders is not germane to the case under the standards set forth in Bruen. Bruen ruled out mean-ends testing for the Second Amendment, as for other rights protected in the Bill of Rights.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.