Fourth Circuit panel appears skeptical of Maryland’s “handgun qualification license”

Back in 2013, as part of its Firearms Safety Act, the Maryland legislature created a Handgun Qualification License, which does not actually permit you to possess a handgun. Instead, it’s a permission slip to undergo a background check and go through the process of purchasing a firearm at retail. Not only does the law impose an additional and extraneous burden on would-be gun buyers, it adds to the cost of exercising your right to keep and bear arms by mandating a four-hour training class at a live-fire range as well as paying for your fingerprints to be taken and submitted to the state police.

The law is the subject of litigation filed by Maryland Shall Issue, and on Friday majority of a three-judge panel in Richmond seemed skeptical of Maryland’s argument that the law should be upheld despite the fact that the Attorney General’s office could find no analogue to the HQL in the historical record.

“The historical tradition is the substantive limitations that are furthered by the HQL law,” Assistant Attorney General Ryan Dietrich said. “Those are ensuring that dangerous, subversive, non-virtuous folks do not get deadly firearms.”

Dietrich argued that firearm competency is a tradition that was alive and well during the founding era. Dietrich cited a law from that time requiring citizens to pledge their loyalty to the United States or be disarmed as an example of the long tradition of limitations on the Second Amendment.

U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, disagreed with the example, stating that the loyalty test has to do with taking away firearms while the Maryland law relates to preclearance.

Richardson used numerous hypothetical situations to try to get Dietrich to concede that the HQL requirement infringes on Second Amendment rights.

“Is your argument that that time period where he cannot buy a firearm to protect his family and his home is not an infringement?” the judge asked.

Dietrich responded that although the law affects law-abiding citizens’ Second Amendment rights, it does not infringe upon them.

Richardson had fun with Dietrich’s bizarre claims, asking if anyone’s Fourth Amendment rights would be infringed upon if they and every other resident in their city were confined to jail for a month while police determined if any of them were bad actors. As Richardson pointed out, the Fourth Amendment protects against “unreasonable” searches and seizures, but the Second Amendment doesn’t talk about any “reasonable infringements.” Any and all infringements are unconstitutional under the Second Amendment’s language, and that would presumably include needless delays or extraneous licensing procedures.

Dietrich was also dinged by the three-judge panel for trying to play fast and loose with crime statistics in the state.

Richardson also took issue with how the state presented data in its brief. The brief contends that gun-related murders have decreased since the enactment of the HQL requirement, but Baltimore’s data was not included. Dietrich said the reason for leaving Baltimore out of the statistic was the uptick in crime associated with the 2015 police killing of Freddie Gray.

“It seems odd to say it is associated with a decrease in these three counties, but 70% of murders happen in Baltimore City-County,” Richardson said. “The murder rate is higher in 2020 than it was in 2015.”

Eight straight years of 300+ homicides in Baltimore, as a matter of fact, which says a lot about the supposed effectiveness of the HQL in preventing dangerous, subversive, and non-virtuous folks from illegally obtaining and using a firearm in the commission of a violent crime.

Obama appointee Judge Barbara Milano Keenan seemed to be the most receptive to the state’s arguments, and repeatedly tried to get plaintiffs’ attorney Mark Nardone to explain why Footnote 9 of the Supreme Court’s Bruen decision doesn’t give the state a green light to impose these supposedly “shall-issue” standards. In that footnote, the Court explained that:

“these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion” – features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

Maryland contends that Footnote 9 allows for the HQL to remain in effect because it’s part of an effort to ensure that law-abiding, responsible citizens are the only ones bearing arms, regardless of whether or not the state has any evidence in the historical record backing up the licensing process. Nardone, on the other hand, said there are stark differences between the carry permits at the heart of the Bruen case and the Handgun Qualification License in Maryland.

As he pointed out, once you get your carry permit in New York, you can start to carry (at least where the law allows it). Being approved for a Handgun Qualification License does not entitle someone to either keep or bear arms. Instead, it authorizes them to fill out a Form 4473 from a federally licensed firearm retailer, submit to a background check, and once again prove they’re not prohibited from possessing a firearm. The license itself is an exercise in making it more time consuming and expensive to exercise a constitutionally-protected right, argued Nardone, and Dietrich’s response basically boils down to “nuh-uh.”

You can listen to the oral arguments for yourself here, and if you’re a Second Amendment legal nerd like me I think you’ll get a kick out of most of the back-and-forth. After listening to the entirety of the arguments, I’m pretty confident that a majority of the three-judge panel sees the inherent issues with Maryland’s Handgun Qualification License, and I hope that they decide this case themselves rather than kicking it back down to a U.S. District Court for a re-hearing.