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Federal judges overturn Maryland handgun licensing law

Maryland Gov. Wes Moore (D) during the signing of Maryland Senate Bill 858, also known as Jaelynn's Law, in the Governor's Reception Room of the Maryland State House in Annapolis on May 16. The bill is named for Jaelynn Willey, who was fatally shot by her ex-boyfriend in 2018. MUST CREDIT: Michael Robinson Chávez/The Washington Post  (Michael Robinson Chávez/The Washington Post)
By Erin Cox and Salvador Rizzo Washington Post

A federal appeals court overturned one of Maryland’s toughest gun-control laws Tuesday, saying the decade-old handgun licensing statute that required fingerprinting, firearms training and a waiting period of up to a month violated the Second Amendment.

The ruling from the U.S. Court of Appeals for the 4th Circuit is among the first to strike down handgun permit requirements under a legal test established by the Supreme Court in 2022 that requires judges to consider whether modern-day regulations mirror what was in place around the time of the country’s founding.

The panel voted 2-1 to block Maryland’s enforcement of a key part of a 2013 law that was passed by Democratic legislators after the 2012 shooting at Sandy Hook Elementary School in Connecticut. It required that handgun buyers, who already faced background checks and waiting periods for purchases, obtain an additional “handgun qualification license” from Maryland officials and wait up to 30 days to have it approved.

When the law was passed, advocates heralded the extra steps as a way to deal with “straw purchasers” who bought guns on behalf of people who couldn’t pass a background check. The 4th Circuit judges said in their opinion Tuesday that the prospect of waiting 30 days for a permit abridged gun buyers’ right to keep and bear arms. More than 315,700 permits have been issued by the Maryland State Police since the law took effect, the agency said Tuesday.

“The law’s waiting period could well be the critical time in which the applicant expects to face danger,” the appeals court stated.

Gun rights advocates have argued in courts across the country that dozens of long-standing state and federal gun laws cannot survive the Supreme Court’s new historical test. And judges, at times reluctantly, have agreed in cases affecting age restrictions for handgun purchases, the kinds of “sensitive places” where guns can be legally banned, and the kinds of convictions for which states can ban people from possessing guns under New York State Rifle and Pistol Association Inc. v. Bruen, the landmark 2022 ruling that said gun restrictions were unconstitutional unless they were already in place around the time of the Second Amendment’s adoption or were closely analogous to Colonial-era restrictions.

In a follow-up case that experts say tests the reach of the high court’s Bruen decision, the justices are weighing whether domestic violence offenders can be legally disarmed.

Maryland Gov. Wes Moore and Attorney General Anthony G. Brown, both Democrats, each said Tuesday that they are evaluating their appeal options. Maryland gun rights activists and the National Rifle Association celebrated the decision.

“This makes it very clear that the state can’t erect obstacles,” said Mark Pennak, president of Maryland Shall Issue and one of the plaintiffs who first challenged the gun licensing law in 2013. “The right to keep and bear arms necessitates the ability to acquire them. You cannot keep and bear that which you cannot acquire.”

Deep-blue Maryland has some of the toughest gun laws in the country, according to Everytown for Gun Safety, a gun-control advocacy group.

Democratic lawmakers here have been scrambling to fortify the rules as the Bruen precedent eroded their confidence that the laws would be upheld in court. Lawmakers could also attempt to rewrite the gun licensing law to satisfy the judges.

“We’ll have to look at this and subsequent decisions in the months ahead - we’re in uncharted waters,” said state Sen. William C. Smith Jr. (D-Montgomery), chairman of the Judicial Proceedings Committee, whose panel has jurisdiction over Maryland gun laws.

Separate Maryland laws prohibiting a handgun purchase without a seven-day wait or a background check by the Maryland State Police were not affected by the ruling.

Maryland Democrats were quick to condemn the court’s decision, with Sen. Chris Van Hollen calling it “yet another disastrous consequence of the absurd new Supreme Court standard that today’s gun laws need to match those from centuries ago” and Baltimore Mayor Brandon Scott saying in a statement, “We should be more, not less, careful about who has access to these tools of violence.”

Moore called the decision “disappointing” and promised to fight for the law. “This law is not about stripping away rights from responsible gun owners - it’s about every Marylander having the right to live free from fear,” he said.

Two other Maryland laws face similar legal challenges from the same gun rights activists who took issue with the licensing law. The 4th Circuit is weighing a challenge to Maryland’s 2013 ban on the sale of assault weapons, and a sensitive-places law enacted this year to limit where guns can be carried in public by those with concealed-carry permits. The latter was a direct result of Bruen affecting Maryland’s concealed-carry law.

Maryland’s handgun permitting law, which survived a legal challenge filed in 2016, is the latest gun-control measure to fall in the wake of the Bruen ruling. Since Bruen, lower courts have been weighing challenges to modern gun laws across the country, and conducting the “historical analysis” prescribed in the Bruen opinion, with some judges ruling to strike down various gun-control measures.

The appeals panel said in its 21-page opinion that it was blocking only a portion of Maryland’s 2013 Gun Safety Act that requires prospective handgun owners to obtain a “handgun qualification license.” The process can take up to 30 days and unconstitutionally burdens the right to bear arms under the Second Amendment, two of the three judges on the panel ruled, because it “prohibits all people from acquiring handguns until they can prove that they are not dangerous.”

“In Maryland, if you are a law-abiding person who wants a handgun, you must wait up to thirty days for the state to give you its blessing. Until then, there is nothing you can do; the issue is out of your control,” Judge Julius N. Richardson, who was nominated by President Donald Trump, wrote for the appeals panel. “Maryland has not shown that this regime is consistent with our Nation’s historical tradition of firearm regulation.”

The court noted that it was not ruling on separate Maryland laws requiring permits to carry handguns or a firearms purchasing process that requires people to “fill out an application with certain identifying information and then wait seven days while the state performs a background check.”

Judge G. Steven Agee, who was nominated by President George W. Bush, joined Richardson’s opinion.

In a dissent, Judge Barbara Milano Keenan, a nominee of President Barack Obama, criticized what she called the majority’s “hyperaggressive view of the Second Amendment.”

“The majority bases its holding on the premise that if a law affects a prospective handgun purchaser’s ability to obtain a handgun ‘now,’ the law is presumptively unconstitutional,” she wrote.

A federal district judge in New York last month struck down citywide regulations that restricted handgun licenses to people who showed “good cause” and demonstrated “good moral character” after finding that the regulations were too similar to what the Supreme Court had invalidated the previous year in Bruen. In July, a federal district judge in Oregon upheld a handgun licensing law in that state with similarities to Maryland’s handgun permitting requirements. That ruling is being appealed to the U.S. Court of Appeals for the 9th Circuit.

Maryland officials could pursue a rehearing before the full 4th Circuit, or seek review by the Supreme Court. In a separate case this year, a federal district court suspended sections of a different Maryland gun-control law that restricted the kinds of public places where people could carry firearms.

While Maryland policymakers did not vow to challenge Tuesday’s ruling, an Everytown lawyer suggested that was the clear next step to support gun-control laws.

“Requiring handgun purchasers to pass a background check and undergo gun safety training prior to purchasing a gun is not only common sense, it is entirely consistent with the Second Amendment and the new test established by the Bruen decision,” William Taylor, deputy director of Second Amendment litigation at Everytown Law, said in a statement. “While today’s decision is a setback to public safety, we fully expect that the full Fourth Circuit, or if necessary, the Supreme Court, will reverse this dangerous decision and uphold Maryland’s critical gun safety law.”

In Bruen, the Supreme Court voted 6-3 to strike down a century-old New York state law requiring that any applicant for a handgun carrying permit show evidence of a personal safety risk. Justice Clarence Thomas, writing for the court’s conservative majority, said “important” concerns such as public safety were not enough to justify restrictions on the constitutional right to carry firearms in public. Instead, he wrote, officials must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

Since the Supreme Court decided the Bruen case, gun rights groups, criminal defense attorneys and public defenders have argued in cases across the country that many long-standing state and federal laws can no longer be considered constitutional, arguing that few historical analogues can be applied to modern firearms restrictions. The U.S. Court of Appeals for the 5th Circuit ruled in March that a federal law that made it a crime to possess a firearm while under a domestic violence restraining order was not constitutional because there was no fitting historical source, as required by Bruen.

But during oral arguments this month, justices on both sides of the Supreme Court’s ideological divide seemed to indicate that the Constitution does not prohibit legislatures from passing laws to disarm individuals found to be dangerous.

Maryland has a similar law, pushed by Democratic Rep. Jamie B. Raskin when he was a state senator, that requires gun owners to surrender their firearms if they become subject to a domestic restraining order.

In a statement, the executive director of the NRA’s legal arm called Tuesday’s ruling “significant” and suggested additional legal challenges to Maryland’s gun laws were on the way.

“The Fourth Circuit Court’s decision to overturn Maryland’s restrictive gun license law sends a clear message: law-abiding Marylanders fundamental right to self defense must not be infringed,” Randy Kozuch, executive director of the NRA Institute for Legislative Action, said in a statement.