Fourth Circuit amicus brief on Maryland handgun licensing law

Right this moment Joseph Greenlee and I filed an amicus transient within the Fourth Circuit case Maryland Shall Problem v. Hogan. Our transient is on behalf of the Firearms Coverage Coalition Motion Basis (the place he works) and Independence Institute (the Denver suppose tank the place I work).

The case had beforehand appeared within the Fourth Circuit in 2020, when a panel dominated {that a} licensed firearms seller had standing to problem Maryland’s 2013 handgun licensing regulation, and that the seller additionally had third get together standing on behalf of shoppers. 971 F.3d 199 (4th Cir. 2020). Now, the case has returned on the deserves. The Maryland Legal professional Common denied consent for submitting of the amicus transient, so we are going to wait to see whether or not the Fourth Circuit accepts it.

Underneath a 2013 Maryland statute, a state-issued Handgun Qualification License (HQL), which requires vary coaching, is important to buy, lease, or obtain a handgun. That is on prime of the pre-existing system requiring a “Maryland State Police Utility and Affidavit to Buy a Regulated Firearm” (MSP 77R). And naturally on prime of the background test required by federal regulation for all firearms purchases in gun shops. In line with the grievance, making use of for a HQL takes a month, and necessitates “tons of of {dollars} in charges, prices and journey, not counting time without work of labor.”

The amicus transient straightforwardly applies the Supreme Courtroom’s take a look at for Second Modification circumstances, as lately said in New York State Rifle & Pistol Affiliation v. Bruen

When the Second Modification’s plain textual content covers a person’s conduct, the Structure presumptively protects that conduct. The federal government should then justify its regulation by demonstrating that it’s in line with the Nation’s historic custom of firearm regulation. Solely then could a court docket conclude that the person’s conduct falls exterior the Second Modification’s unqualified command.

Right here, the case entails retaining a handgun within the residence, which is actually protected by the Second Modification. The federal government bears the burden of proving that the HQL “is in line with the Nation’s historic custom of firearm regulation.”

In Bruen, the Courtroom said that historical past from the unique durations (1791 for the Second Modification, 1868 for the Fourteenth, which made the Second Modification enforceable in opposition to the states) are most vital. Colonial historical past is related, as is English historical past to the extent that it mirrored an unbroken custom that was adopted by the colonists and in power in the course of the Founding Period. The nineteenth century can be related, with the primary a part of the century being most vital, and the latter a part of significantly much less (however not zero) significance. Something after 1900 is much too late to determine a convention opposite to the constitutional textual content.

Within the Maryland Shall Problem amicus transient, we describe in chronological order all pre-1900 licensing legal guidelines for gun possession. Such legal guidelines did exist, however just for individuals who had been thought-about to not have civil rights: slaves (who had been both blacks or Indians) or free folks of shade (once more, blacks or Indians). Antebellum courts that upheld these legal guidelines expressly said that they might be unconstitutional if utilized to the white inhabitants. Aldridge v. Commonwealth, 4 Va. 447, 449 (1824); State v. Newsom, 27 N.C. 250, 252 (1844).

The Fourteenth Modification and the Civil Rights Act removed all of the gun possession licensing legal guidelines. No such regulation was enacted thereafter in america within the nineteenth century, aside from an 1893 Florida statute. That statute made it illegal to “personal a Winchester or different repeating rifle” with out a license from the County Commissioners; the license required an exorbitant bond.

As Florida Supreme Courtroom Justice Rivers H. Buford later defined, the licensing regulation “was handed . . . for the aim of disarming the negro laborers” within the state and “was by no means meant to be utilized to the white inhabitants.” Watson v. Stone, 148 Fla. 516, 524 (1941) (Buford, J., concurring). Justice Buford famous that “there had by no means been any effort to implement the provisions of this statute as to white folks, as a result of it has been usually conceded to be in contravention of the Structure and non-enforceable if contested.” Id.

So the variety of legitimate pre-1900 precedents for licensing residence possession of a firearm is zero. Whereas Bruen permits analogical reasoning (fairly than merely copying legitimate gun management legal guidelines from pre-1900), right here there may be nothing on which to base an analogy.

The precedent for a coaching requirement for residence possession can be non-existent. There isn’t any query {that a} state authorities can practice the militia. U.S. Structure, Artwork. I, sect. 8, cl. 16 (“reserving to the States respectively, the Appointment of the Officers, and the Authority of coaching the Militia in keeping with the self-discipline prescribed by Congress”); Md. Const. artwork. IX, § 1 (“The Common Meeting shall make, every now and then, such provisions for organizing, equipping and disciplining the Militia, because the exigency could require, and go such Legal guidelines to advertise Volunteer Militia organizations as could afford them effectual encouragement.”).

The HQL, nonetheless, applies to everybody in Maryland, not solely militia members. And the coaching necessities don’t contain militia expertise, equivalent to perimeter protection by a bunch. Traditionally, coaching was not a precondition to possession of an arm for militia responsibility. Slightly, the statutes required militiamen to own sure arms (usually, an extended gun and an edged weapon), and to convey these arms to coaching at any time when the federal government scheduled militia coaching.

Notably, in lots of colonies and states, the federal government additionally required possession of the identical arms by individuals who had been not within the militia. These included males with occupational exemptions (e.g., physicians), males who had been too previous for the militia, and females who had been heads of households.

Moreover, many statutes required arms carrying by everybody participating in sure actions, equivalent to touring, going to public conferences, going to church, going to court docket, or working within the fields. These necessities utilized no matter intercourse or family standing.

Notably, there have been no coaching necessities in any respect for non-militia who had been legally required to own the identical arms because the militia. No state or colony earlier than 1900 imposed any rule making coaching a prerequisite to retaining a firearm at residence.

Subsequently, the amicus transient means that the coaching requirement of Maryland’s Handgun Qualification License is unconstitutional.