Md. Shall Issue, Inc. v. Moore

86 F.4th 1038

MARYLAND SHALL ISSUE, INC., for itself and its members;

Atlantic Guns, Inc.; Deborah Kay Miller;

Susan Brancato Vizas, Plaintiffs - Appellants,andAna Sliveira; Christine Bunch, Plaintiffs, v. Wes MOORE, in his capacity as Governor of Maryland;

Woodrow W. Jones, III, Colonel, Defendants - Appellees.

Firearms Policy Coalition, Inc.; FPC Action Foundation;

Independence Institute, Amici Supporting Appellant.

Maryland Shall Issue, Inc.; Atlantic Guns, Inc.;

Deborah Kay Miller; Susan Brancato Vizas, Plaintiffs - Appellees,andAna Sliveira; Christine Bunch, Plaintiffs, v. Wes Moore, in his capacity as Governor of Maryland;

Woodrow W. Jones, III, Colonel, Defendants - Appellants.

No. 21-2017

No. 21-2053

United States Court of Appeals, Fourth Circuit

Argued: March 10, 2023

Decided: November 21, 2023

Appeals from the United States District Court for the District of Maryland, at Baltimore. Ellen Lipton Hollander, Senior District Judge. (1:16-cv-03311-ELH)

ARGUED: Marc Alexander Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants/Cross-Appellees. Ryan Robert Dietrich, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees/Cross-Appellants. ON BRIEF: Cary J. Hansel, III, Baltimore, Maryland; Mark W. Pennak, MARYLAND SHALL ISSUE, INC., Baltimore, Maryland, for Appellants/Cross-Appellees. John Parker Sweeney, James W. Porter, III, Connor M. Blair, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellant/Cross-Appellee Atlantic Guns, Inc. Brian E. Frosh, Attorney General, Robert A. Scott, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees/Cross-Appellants. David B. Kopel, INDEPENDENCE INSTITUTE, Denver, Colorado; Joseph G.S. Greenlee, FPC ACTION FOUNDATION, Las Vegas, Nevada, for Amici Curiae.

Before AGEE and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.

Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Agee joined. Senior Judge Keenan wrote a dissenting opinion.

RICHARDSON, Circuit Judge:

If you live in Maryland and you want a handgun, you must follow a long and winding path to get one. Like with any firearms transfer—whether a purchase from a licensed dealer, gun show, or private person, or even a gift from a family member or friend—you must comply with Maryland's 77R registration process, which requires you to fill out an application with certain identifying information and then wait seven days while the state performs a background check. See Md. Code, Pub. Safety §§ 5-117, 118-130. And if you want to carry your handgun, you need to get a separate carry permit too. See §§ 5-301-314.

But—for handguns specifically—before you do any of that, there is an additional, preliminary step: You must also obtain a "handgun qualification license." See § 5-117.1. Getting that license requires, among other things, submitting fingerprints to undergo a background "investigation" and taking a four-hour-long "firearms safety training course" in which you must fire at least one live round. Then, after submitting your application for this extra license, you must wait up to thirty days for approval before you can start the rest of the process.

Plaintiffs seek to enjoin the state from enforcing only this additional, preliminary handgun-licensure requirement. And Plaintiffs' challenge must succeed. The challenged law restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn't find one. Under the Supreme Court's new burden-shifting test for these claims, Maryland's law thus fails, and we must enjoin its enforcement. So we reverse the district court's contrary decision.

I. Background

Plaintiffs first brought their Second Amendment challenge to Maryland's handgun-licensure law in 2016.¹ [J.A. 1.] The district court originally dismissed that challenge for lack of Article III standing, but we reversed and remanded for a decision on the merits. Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199, 210 (4th Cir. 2020). On remand, the district court again rejected Plaintiffs' claims, this time holding that Maryland's handgun-licensure law did not violate the Second Amendment.² So Plaintiffs appealed once more, finally presenting us with the merits of their constitutional claims.

The law at issue—which the parties call the handgun-qualification-license requirement—originated as one component of Maryland's Firearm Safety Act of 2013 and is now found at § 5-117.1 of the Maryland Public Safety Code. Section 117.1(b) says that no one may "sell, rent, or transfer a handgun" unless the recipient "presents . . . a valid handgun qualification license." And § 117.1(c) likewise says that "[a] person may purchase, rent, or receive a handgun only if the person . . . possesses a valid handgun qualification license." So, in simple terms, the challenged law imposes criminal liability on both parties to a handgun transaction (sale, rental, or gift), unless the recipient has the required license. See § 5-117.1(b), (c); see also § 5-144(a)(1) (criminalizing knowing participation in the receipt of a regulated firearm in violation of § 5-117.1).

The law then defines how someone gets such a handgun-qualification license. There are four requirements: The applicant must be "at least 21 years old," he must be "a resident of the State," he must complete a "firearms safety training course,"³ and he must undergo an "investigation"—i.e., a background check—to show that he "is not prohibited by federal or State law from purchasing or possessing a handgun."⁴ § 5-117.1(d). If an applicant meets these four requirements, properly fills out an application, and pays the required $50 fee, then the Secretary of State Police "shall issue" him a handgun-qualification license within thirty days. § 5-117.1(d), (g), (h).

Plaintiffs argue that this scheme violates the Second Amendment. The district court disagreed, holding that it passed intermediate scrutiny. But, after the district court's decision, the Supreme Court decided New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).

Bruen effected a sea change in Second Amendment law. Before Bruen, the Courts of Appeals—including our own—used a two-step interest-balancing framework in analyzing firearm regulations. See Bruen, 142 S. Ct. at 2125-26; United States v. Chester, 628 F.3d 673, 680-83 (4th Cir. 2010). We first asked whether a challenged regulation burdened conduct protected by the Second Amendment. Bruen, 142 S. Ct. at 2126; Chester, 628 F.3d at 680. If it did, then we would assess the regulation's constitutionality using means-end scrutiny. Bruen, 142 S. Ct. at 2126; Chester, 628 F.3d at 680.

Yet the Supreme Court held in Bruen that this approach was "one step too many." 142 S. Ct. at 2127. In its place, the Court supplied an analysis centered on the Second Amendment's text and history. Id. at 2126-30. The Court explained that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Id. at 2126. At that point, the challenged regulation is unconstitutional unless the government can show that "the regulation is consistent with this Nation's historical tradition of firearm regulation." Id. Only then "may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.' " Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)).

Bruen applied this framework to invalidate New York's "may issue" licensing scheme for the concealed carry of handguns. Id. at 2122, 2134-56. It concluded that the proposed conduct at issue there, carrying handguns in public for self-defense, was presumptively protected by the Second Amendment because the petitioners were "law-abiding, adult citizens" and handguns are "weapons 'in common use' today for self-defense." Id. at 2134 (quoting District of Columbia v. Heller, 554 U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). The Court then examined the historical record assembled by the government and concluded that it had not met its burden to establish a historical tradition "of broadly prohibiting the public carry of commonly used firearms for self-defense." Id. at 2138.

Thus, Plaintiffs' suit requires us to answer: Does Maryland's law satisfy Bruen's two-part test?

II. Discussion

Maryland's law fails the new Bruen test. As we will explain, Plaintiffs have shown that Maryland's handgun-licensure law regulates a course of conduct protected by the Second Amendment, and Maryland has not established that the law is consistent with our Nation's historical tradition.

A. Maryland's law restricts Second Amendment conduct

The first question Bruen asks is whether Plaintiffs' proposed course of conduct is protected by the Second Amendment's plain text. See 142 S. Ct. at 2126. The text's "operative clause," see Heller, 554 U.S. at 577-95, 128 S.Ct. 2783, provides that "the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. To meet their burden at this stage, Plaintiffs must prove two things: (1) that "they are among 'the people' entitled to the right," and (2) that their proposed "course of conduct" is covered by the Second Amendment's plain text, namely "keeping and bearing arms." Bruen, 142 S. Ct. at 2134.

At first blush, the answer to this initial question seems obvious. Here, Plaintiffs alleged that they are adult citizens who are legally eligible to own firearms. See J.A. 22-24 (noting that the plaintiffs "could lawfully purchase and own a handgun" absent the challenged law). So they fall within the Amendment's definition of "the people." See Bruen, 142 S. Ct. at 2134 (noting that " 'the people' whom the Second Amendment protects" includes, at a minimum, "ordinary,...