Md. handgun licensing lacks historical roots, gun group tells 4th Circuit

Maryland’s licensing requirement for would-be handgun buyers infringes upon the constitutional right of people to keep arms for personal protection in their home and has no historical roots from either 18th- or 19th-century America, gun rights advocates told a federal appeals court Wednesday.

Maryland Shall Issue made its argument as the 4th Circuit considers whether the state’s handgun qualification license, or HQL, comports with the Second Amendment and its most recent interpretation by the U.S. Supreme Court.

In June, the high court ruled 6-3 that gun restrictions are valid only if in keeping with the constitutional text, history and tradition of state firearm regulations when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.

Maryland Attorney General Brian E. Frosh told the 4th Circuit last month that the history and tradition of ensuring gun owners are trained in firearm use dates to 1792 – the year after the Second Amendment’s ratification — when Congress enacted the Uniform Militia Act. Several states passed similar statutes shortly after, Frosh stated in papers filed with the appellate court.

In its response, MSI distinguished the militia laws from Maryland’s HQL.

“Whereas the HQL requirement requires nearly everyone to complete the firearm safety course before acquiring a handgun, militia laws required militia training only after the militia men had acquired a handgun or other firearm,” MSI wrote in its 4th Circuit filing. “No state required militia training before firearm acquisition or tied this training to firearm acquisition.”

In addition, the militia laws and Maryland’s licensing mandate were passed for wholly different reasons, stated MSI, which was joined in the HQL challenge by gun seller Atlantic Guns Inc. and two Marylanders.

“Maryland enacted the HQL requirement to encourage safer gun storage practices in the home and reduce handgun violence in urban areas,” MSI stated.

“Militia laws, by contrast, were enacted to train young men for military service so they would be prepared for armed defense against foreign or domestic threats,” MSI added. “Militia laws did not condition the exercise of anyone’s right to acquire a firearm on compliance with the militia requirements.”

Those challenging the licensing requirement are represented by MSI President Mark W. Pennak; Cary J. Hansel III, of Hansel Law PC in Baltimore; and John Parker Sweeney, of Bradley Arant Boult Cummings LLP in Washington.

Frosh, in his October filing, stated the militia laws “did not just reflect common sense and a practical commitment to state security; they were contemplated by the Second Amendment’s text,” which refers to a “well-regulated militia.”

The militia laws “would have also had the complementary effect of ensuring that the men of the community, starting in their youth, would be provided with the training necessary to handle and use firearms safely in any context,” Frosh added.

Frosh’s filing was cosigned by Assistant Attorneys General Robert A. Scott and Ryan R. Dietrich.

The 4th Circuit has not stated when it will rule on MSI’s challenge. The case is docketed at the appellate court as Maryland Shall Issue Inc. et al v. Lawrence Hogan et al., No. 21-2017.

The 2013 Maryland Firearm Safety Act’s licensing requirement mandates that an applicant be at least 21 years old, be a Maryland resident, complete four hours of firearms safety training, and not be prohibited by federal or state law from buying or possessing a handgun. Licensed gun dealers, as well as current and retired law-enforcement and military officers, are exempt from the handgun licensing requirement.

A violation of the law is a misdemeanor punishable by up to five years in prison and a $10,000 fine.

U.S. District Judge Ellen L. Hollander upheld the license requirement’s constitutionality in August 2021, saying it was reasonably related to the state’s important interest in protecting public safety. MSI and its co-plaintiffs then sought review by the 4th Circuit.

Gun rights advocates also have a pending 4th Circuit challenge to Maryland’s ban on semiautomatic assault-style weapons based on the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen.

In Bruen, the justices struck down a state regulation that required gun owners to show a good and substantial reason for carrying their weapon outside. The high court said New York could not show a history or tradition of requiring gun permits.

Frosh, who at the time was chair of the Senate Judicial Proceedings Committee, was chief sponsor of the Firearm Safety Act, which also contains the assault-style weapons ban.