The Supreme Court’s 2022 Bruen decision held, with crystal clarity, the Second Amendment is an individual right, which extends to keeping and bearing arms not only in one’s home or on one’s property, but in public, with some limited exceptions. Not only did Bruen reaffirm the Second Amendment as a fundamental unalienable right--no second-class right—it established strict scrutiny, the highest level of judicial analysis, for Second Amendment cases. Equally important was this holding:

When the  Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the  Second Amendment’s “unqualified command.”

In other words, anti-liberty/gun schemes are only constitutional if there was a clear historical analogue at the time of the founding.  As one might suspect, some states—Like Maryland—are determined to ignore the Second Amendment and Bruen.

Under current Maryland law,  no one may own, rent, or even touch a firearm without a 16-hour class which includes live fire. There is an 8-hour class required for each permit renewal. Only upon passing the 16-hour course, can one apply for a permit, and the State Police have 30 days to approve or deny applications. So while Maryland is, at least ostensibly, a “shall-issue” state the state puts as many barriers as possible in the path of gun owners, including a seven day waiting period for purchase, and gun registration.

Graphic: US Court of Appeals for the Fourth Circuit. en.wikipedia.org. CC by-SA 4.0.

In 2023 a three-judge panel of the Fourth Circuit Court of Appeals took up a challenge to the licensing law and struck it down in consonance with Bruen:

“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.” 

On would reasonably think that would have been the end of it. No historical analogue, presumptively unconstitutional. Then the entire Court got into the act (decision available here):

We conclude that the Supreme Court in Bruen foreclosed the plaintiffs’ “temporary deprivation” argument by stating that, despite some delay occasioned by “shall-issue” permit processes, this type of licensing law is presumptively constitutional because it operates merely to ensure that individuals seeking to exercise their Second Amendment rights are “law-abiding” persons. We hold that the plaintiffs have failed to rebut this presumption of constitutionality afforded to “shall-issue” licensing laws like the handgun qualification statute. So the plaintiffs’ challenge to the HQL statute fails, and we affirm the district court’s award of summary judgment to the state of Maryland.

The Court’s convoluted logic goes like this: 

In Bruen the Supreme Court ruled “shall-issue” carry licenses are legal. Maryland only grudgingly changed from “may-issue,” which means few, if any will get permits, to “”shall-issue” after Bruen. Since shall-issue carry licensing is legal, shall issue laws regulating the simple possession of handguns must also be legal. The Fourth Circuit also upheld Maryland’s law on the premise that it merely ensures prospective handgun owners are “law-abiding.” The decision ignores Bruen’s historical analogue requirement.

In sum, background checks under the 77R process and the HQL statute differ because only the HQL statute involves the submission of fingerprints, and the background checks for each process may occur at different points in time. In light of these distinctions, and because the HQL statute effectively strengthens the 77R process, we reject the plaintiffs’ argument that the HQL statute’s background check is wholly redundant and so abusive as to “infringe” the Second Amendment right under step one of the Bruen framework.

What Maryland is trying to do, with the help of the Fourth Circuit, is to make gun ownership so burdensome as to discourage it, and self-defense, entirely. In that pursuit, the Fourth Circuit continues to accept patently absurd arguments from the State, and to produce absurd arguments of their own.

As I recently noted in Maryland, AR-15s and the Fourth Circuit the Court recently upheld a ban on AR-15s, more or less because they’re like military, fully automatic M4s, which of course, they aren’t. As I noted in that article, the Fourth Circuit has established a clear split among the appeals courts on multiple issues of substantial Second Amendment questions. Should the Supreme Court decide to grant cert in its upcoming session, it could choose to substantially clarify many of the issues relating to the Second Amendment it has thus far chosen to avoid.

That kind of clarity, when the November elections present a choice between traditional American liberty and socialist/communist totalitarianism, is overdue.

Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. He is a published author and blogger. His home blog is Stately McDaniel Manor.