INTRODUCTION

In Heller and McDonald the Supreme Court decided that the Second Amendment articulated a constitutional right to own and use a gun in one's home for self defense and "other lawful purposes." They inferred that the right to keep and bear arms extends beyond the home, but they did not define how they will apply individual rights theory when they evaluate the constitutionality of laws that regulate firearms in public. It seems that the Supreme Court was vague for at least two practical reasons. First, they left plenty of room after Heller for state legislatures to experiment when reviewing and changing state and local gun laws. Second, they have waited for the lower courts to articulate legal arguments supporting various interpretations of post-Heller individual rights theory and Second Amendment doctrine.

New readers of Firearms Law and Policy may prefer to start with our primer diaries on the Second Amendment and Concealed Carry Law. This diary is an announcement that Woollard v. Gallagher is a case to watch. Future diaries will use this case as a starting point 1) to delve into Maryland firearms law, 2) to study legal theories surrounding "good cause" laws that regulate handguns in public, 3) to study development of Second Amendment doctrine, specifically when to apply strict scrutiny, intermediate scrutiny, or rational basis review.



Maryland is considered a May Issue state with respect to concealed weapons permits. That means the Maryland Legislature passed a law directing the State Police to use discretion when deciding whether to issue a permit to carry a concealed weapon in public.

[p 8] Handgun permits are issued by the Secretary of the Maryland State Police or the Secretary's designee. See Md.Code Ann., Pub. Safety § 5-301(d)-(e). The Secretary must issue a permit upon making enumerated findings, including that the applicant is an adult without a disqualifying criminal record, alcohol or drug addiction, or propensity for violence. Id. § 5-306(a)(1)-(5)(i). Pursuant to the good-and-substantial-reason requirement, permit eligibility also necessitates the Secretary's finding, following an investigation, that the applicant has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger. [See p 7 for exceptions to MD's permit requirement.]

[pp 9-10] The Handgun Permit Unit has identified "four primary categories" under which an applicant may demonstrate "good and substantial reason" to obtain a handgun permit: (1) for business activities, either at the business owner’s request or on behalf of an employee; (2) for regulated professions (security guard, private detective, armored car driver, and special police officer); (3) for "assumed risk" professions (e.g., judge, police officer, public defender, prosecutor, or correctional officer); and (4) for personal protection. J.A. 57-58.1 Regarding the first three of those categories, "the ‘good and substantial reason’ is usually apparent from the business activity or profession itself." Id. at 58. As for the fourth category — personal protection — the Permit Unit considers whether the applicant needs a handgun permit as a safeguard against "apprehended danger." Id. at 59-60. The Handgun Permit Unit is guided by precedent of the Court of Special Appeals of Maryland, recognizing that "‘whether there is "apprehended danger" to the applicant’" is

an objective inquiry, and that apprehended danger cannot be established by, inter alia, a "‘vague threat’" or a general fear of "liv[ing] in a dangerous society." Scherr v. Handgun Permit Review Bd., 880 A.2d 1137, 1148 (Md. Ct. Spec. App. 2005) (quoting Snowden v. Handgun Permit Review Bd., 413 A.2d 295, 298 (Md. Ct. Spec. App. 1980)). That same precedent, as the Permit Unit interprets it, "caution[s] the Unit against relying exclusively on apprehended threats." J.A. 60 (explaining that "failure to meet [the apprehended threat] criterion is not dispositive"). So, the Permit Unit examines such factors as (1) the "nearness" or likelihood of a threat or presumed threat; (2) whether the threat can be verified; (3) whether the threat is particular to the applicant, as opposed to the average citizen; (4) if the threat can be presumed to exist, what is the basis for the presumption; and (5) the length of time since the initial threat occurred. Id. The Permit Unit treats those factors as nonexhaustive, however, and "takes the applicant’s entire situation into account when considering whether a ‘good and substantial reason’ exists." Id. 1Citations herein to "J.A...." refer to the contents of the Joint Appendix

filed by the parties in this appeal.



A TWO STEP INQUIRY FOR EVALUATING CONSTITUTIONALITY2

My current understanding of the 2-prong approach is:

Question No. 1. Does the firearms activity of this case fall within the scope of the

Second Amendment?

If no to No. 1, then stop.

If yes to No. 1, then No. 2.

Question No. 2. Is the protected firearms activity unconstitutionally burdened by

the permitting scheme?



Like several of our sister circuits, we have found that "a two-part approach to Second Amendment claims seems appropriate under Heller." See United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)); see also Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800â-01 (10th Cir. 2010). Pursuant to our two-part Chester inquiry, [t]he first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.



THE OPINION Woollard v. Gallagher [4th U.S. Circuit Court of Appeals]

In answer to both questions above, the District Court in Maryland said "Hell yes!" and the 4th Circuit Ct. of Appeals said, "Wooooah! Not so fast!"



The district court permanently enjoined enforcement of § 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having "good and substantial reason" to do so. Necessary to the entry of the court's injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland's good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D. Md. 2012). Because we disagree with the court's conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment.[my bold]

If SCOTUS accepts this case it [Since SCOTUS has denied cert Maryland's "good cause" law] will [not] become the next landmark case for post-Heller gun law. It will be 2-3 weeks before SCOTUS indicates whether they will accept or deny [The Supreme Court announced on Monday October 15th that the] Woollard v. Gallagher petition [is denied]. (h/t Mote Dai) This diary presents an introduction to the case, to Maryland's concealed carry permit law, and to the important legal terms "intermediate scrutiny" and "strict scrutiny." Future diaries will go into each topic in more detail.



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Additional Background Reading

Distributed for Conference at the Supreme Court of the United States The process is quite simple. Each week of the year, the clerk's office distributes petitions, due for distribution to the justices chambers, for a conference, which is generally held, if the Court is in session, 2½ weeks later. Each chamber receives a copy of each petition.... Prior to the conference, the Chief Justice circulates a "discuss list" containing any petitions he deems worthy of further discussion. Each justice can add to the list any petition he or she deems worthy. Very few, if any, petitions on the discuss list are granted. The remaining petitions, as I have stated, are automatically denied. ...Continue reading Distributed for Conference

DEFINTIONS INTERMEDIATE SCRUTINY (from Legal Information Institute)

Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases. STRICT SCRUTINY (from Legal Information Institute) Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is "strict in name, but fatal in practice." For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty. Compare to intermediate scrutiny and rational basis.

Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law please send us a Kosmail. To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join. We have adopted Wee Mama's and akadjian's guidance on communicating. But most important, be kind, for everyone you meet is fighting a hard battle.



I grew up with guns but only started paying attention to gun law much later in life. It will be obvious to many that I am not a lawyer. This diary is a layman's attempt to present a layman's understanding of gun law. Constructive feedback on the content and structure of the diary is welcome. Corrections to any errors will be posted as marked edits or updates. The Firearms Law and Policy Group is not taking an editorial position on whether SCOTUS was correct when the majority interpreted the 2A in terms ofPersonally, I think there is plenty of legal scholarship and common law logic in the decision. Members of FLAP hold a range of opinions about the decision and membership in FLAP does not imply agreement with LilithGardener or with individual rights theory.