From the Litigation Practice.

Federal Circuit Court Invalidates Maryland Handgun Licensing Law Under New Supreme Court Test, Questions Constitutionality of Other Firearm Restrictions, Raising Potential Concerns for Maryland Businesses as Shooting Incidents Continue to Rise

January, 2024  | By Richard J. Medoff

Richard Medoff wearing a dark suit and red tie.In a recent published opinion in Maryland Shall Issue, Inc., et al. v. Wes Moore, in his capacity as Governor of Maryland, et al., No. 21-2017, 2023 WL 8043827 (4th Cir. Nov. 21, 2023), the United States Court of Appeals for the Fourth Circuit invalidated provisions from Maryland’s Firearm Safety Act of 2013 requiring a handgun qualification license as a condition for obtaining a handgun, finding that it was unconstitutional and unenforceable under the Supreme Court’s new burden-shifting test for Second Amendment challenges espoused in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022). The majority opinion was written by Judge Julius Richardson and joined by Judge G. Steven Agee, with Judge Barbara Milano Keenan writing a dissenting opinion.

The Fourth Circuit’s decision notably comes on the heels of Mitchell v. Rite Aid of Maryland, Inc., 257 Md. App. 273, 290 A.3d 1125 (2023), the first Maryland case to address premises liability claims arising out of a mass shooting, in which the Appellate Court of Maryland stated as a “fact” that the “steady increase” in shootings “has impelled…private organizations to begin considering security measures responsive to that risk” and warned that “the standards of care surrounding a business owner’s duty to protect invitees from gun violence” is “not static and will continue to evolve” in light of “common sense perceptions of the risks created by various conditions and circumstances.” Mitchell, 257 Md. App. at 328–29, citing Axelrod v. Cinemark Holdings, Inc., 65 F. Supp. 3d 1093 (D. Colo. 2014) (a case arising out of the Aurora movie theater shootings in Colorado).

Although it is currently unknown how Maryland may further respond to the Fourth Circuit’s Moore decision, uncertainty around the status and enforceability of previously enacted firearm laws may negatively impact the “perceptions of the risks” of gun violence in the state and add to uncertainty for businesses with operations in Maryland concerned about potential liability or the need to be further prepared. This notably comes at a time when businesses in sectors, including retail, have been looking increasingly closer at local crime and crime rates, and the associated costs, when deciding where to locate and continue their operations.

And any such concerns may continue to grow, for example, as the majority opinion in Moore further questioned if other current “prohibitions that Maryland cites are all constitutional,” after Maryland cited inter alia, “provisions of the modern U.S. Code that prohibit certain categories of people—including felonsand those convicted of a domestic violence misdemeanorfrom owning firearms.” See Moore at *6 (citing 18 U.S.C. § 922(g)(1)-(9)). The Moore decision, and its potential residual impact and interplay with Mitchell, are further discussed below.

Maryland Shall Issue, Inc. v. Moore,
No. 21-2017, 2023 WL 8043827 (4th Cir. Nov. 21, 2023)

In Maryland Shall Issue, Inc. v. Moore, the Fourth Circuit addressed the merits of a facial constitutional challenge to Maryland’s non-discretionary handgun-licensure law brought by a group of plaintiffs that included a nonprofit gun-rights membership organization, individuals that alleged they would like to own a handgun but had been deterred from doing so by Maryland’s law, and a gun store alleging that its customers had been similarly deterred resulting in lost gun sales.

The challenged law originated as one part of Maryland’s Firearm Safety Act and is currently found at § 5-117.1 of the Maryland Public Safety Code. It imposes criminal liability on both parties to a handgun transaction (sale, rental, or gift), unless the recipient has a “handgun qualification license.” See Md. Code, Public Safety § 5-117.1(b) (stating no one may “sell, rent, or transfer a handgun” unless the recipient “presents…a valid handgun qualification license.”); id. at § 5-117.1(c) (stating “[a] person may purchase, rent, or receive a handgun only if the person…possesses a valid handgun qualification license.”).

The statute then defines four general requirements to get a handgun qualification license, requiring that:

  • the applicant must be “at least 21 years old,”
  • must be “a resident of the State,”
  • must complete a “firearms safety training course,” and
  • must undergo an “investigation” (background check) to show that the applicant “is not prohibited by federal or State law from purchasing or possessing a handgun.” See id. at § 5-117.1(d).

If an applicant meets those requirements, completes an application, and pays a required $50 application fee, then the statute provides that the Secretary of State Police “shall issue” them a handgun qualification license within 30 days. See id. at § 5-117.1(d), (g), (h).

In the underlying litigation before the U.S. District Court for the District of Maryland, the plaintiffs argued that Maryland’s statutory scheme violated the Second Amendment, but the district court disagreed, holding that it passed intermediate scrutiny and was constitutional under the then-applicable test. The Fourth Circuit noted on appeal, however, that after the district court’s decision, the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen, emphasizing that “Bruen effected a sea change in Second Amendment law” and supplied “the new Bruen test” that Maryland’s law would need to satisfy. See Moore at *2–3 (citing Bruen, 142 S. Ct. at 2122–38).

In 2022, the Supreme Court in Bruen rejected the then-generally accepted test and articulated a new analytical framework for consideration of Second Amendment challenges, applying the framework to invalidate New York’s century-old “may issue” licensing scheme for the concealed carry of handguns in public. Under New York’s law, any person seeking a license had to prove first that “proper cause exist[ed]” to issue the license, with the term “proper cause” not defined by the statute but left to state officials and interpreted by New York courts as requiring “a special need for self-protection distinguishable from that of the general community.” See, e.g., Bruen, 142 S. Ct. at 2123 (citing In re Klenosky, 75 A.D.2d 793, 793, 428 N.Y.S.2d 256 (N.Y. App. Div. 1980)).

In Moore, Judge Richardson’s majority opinion noted that Bruen had established a two-part test, such that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and 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. at *2–3 (citing Bruen, 142 S. Ct. at 2126–30).

Judge Richardson further noted that, in Bruen, the conduct of carrying handguns in public for self-defense was found 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,” and that Bruen also found New York had not met its burden to establish a historical tradition “of broadly prohibiting the public carry of commonly used firearms for self-defense” based on the historical record assembled by the government. See id. (citing Bruen, 142 S. Ct. at 2122, 2134–56).

The majority opinion went on to hold that Maryland’s law similarly failed the new Bruen test, concluding that the plaintiffs had 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.” See id. at *3.

In reaching its holding, Judge Richardson identified that “[t]he first question Bruen asks is whether Plaintiffs’ proposed course of conduct is protected by the Second Amendment’s plain text”—noting that the amendment’s “operative clause” provides that “the right of the people to keep and bear Arms, shall not be infringed”—and that to meet their burden at this stage, the plaintiffs had to prove: (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.” See id. at *3.

The majority found plaintiffs had met their burden, noting that plaintiffs had alleged “that they are adult citizens who are legally eligible to own firearms” and sought to own firearms for “lawful purposes.” See id. (citing Bruen, 142 S. Ct. at 2134) (noting that “‘the people’ whom the Second Amendment protects” includes, at a minimum, “ordinary, law-abiding, adult citizens”).

The majority opinion found it was immaterial that Maryland’s law did not permanently prohibit the plaintiffs from acquiring or carrying handguns but rather only imposed certain requirements to be met before they could obtain a handgun, even though it was undisputed that plaintiffs could satisfy all the requirements. Rather, Judge Richardson wrote that, “at Bruen’s first step,” plaintiffs only “need to show that the law regulates a course of conduct that falls within the Amendment’s plain text, i.e., their ability ‘to possess and carry weapons in case of confrontation,’” and that, “[n]othing in the Amendment’s text or Bruen says that it protects only against laws that permanently deprive people of the ability to keep and bear arms.” See id. at *5 (emphasis in original) (citing Heller, 554 U.S. at 592, 128 S.Ct. 2783).

Judge Richardson concluded that “the temporary deprivation” that plaintiffs alleged was “a facially plausible Second Amendment violation,” reasoning that Maryland’s law “still prohibits [Plaintiffs] from owning handguns now” (emphasis in original), and noting that “under the challenged scheme, an applicant without a firearm cannot possess or carry one until they are approved—a process that can take thirty days. And the law’s waiting period could well be the critical time in which the applicant expects to face danger.” See id. at *4-6.

Turning to “Bruen’s second step,” Judge Richardson wrote that Maryland was required to provide “historical evidence that justifies its law,” and that “[t]o do this, it may identify a ‘historical analogue’ demonstrating that its law falls within a historically recognized exception to the right to keep and bear arms.” See id. at *6 (citing Bruen, 142 S. Ct. at 2132–33).

However, Judge Richardson concluded that the historical examples cited by Maryland were not “relevantly similar” to the Maryland statute, including the historical tradition of prohibiting “dangerous” people from owning firearms and the historical tradition of requiring militia training with firearms, with the majority opinion emphasizing the apparent lack of “Founding-era laws that ‘required advance permission’ before a citizen could purchase a firearm,” and focusing on the mechanism or method of enforcement, noting that “under the Second Amendment, mechanism matters.” See id. at *8–9. Accordingly, Judge Richardson concluded that the plaintiffs’ challenge must succeed.

In a strongly worded dissenting opinion, Judge Keenan argued that the majority “misapplies Bruen” by basing its holding on the premise that if a law affects a prospective handgun purchaser’s ability to obtain a handgun “now,” the law was presumptively unconstitutional. The dissent argued that the majority opinion was enacting a “sweeping rule” that “flies directly in the face of Bruen’s discussion of non-discretionary ‘shall-issue’ laws and is not supported by any Supreme Court precedent” and further criticized as “dangerous” the majority’s decision “not to allow this process to run its natural course” in which “the majority applies the new Bruen framework in the first instance” on appeal, rather than remanding the case to the district court to consider the newly articulated framework. See id. at *10-19.

Judge Keenan further argued that the majority’s “analytical error” was “compounded by their refusal to remand this case for consideration of the severability of any unconstitutional component in the [handgun qualification license] requirement,” noting that, under Maryland law, “the provisions of all statutes enacted after July 1, 1973, are severable” and “[t]he finding by a court that part of a statute is unconstitutional or void does not affect the validity of the remaining portions of the statute, unless the court finds that the remaining valid provisions alone are incomplete and incapable of being executed in accordance with the legislative intent.” See id. at *17 (quoting Md. Code, General Provisions § 1-210).

Mitchell v. Rite Aid of Maryland, Inc.,  
257 Md. App. 273, 290 A.3d 1125 (2023)

Prior to the Moore decision, in 2023, the Appellate Court of Maryland considered civil claims arising from a shooting at a Rite Aid warehouse facility in Aberdeen, Maryland, writing in the very first sentence of the Mitchell opinion: “It is a somber and sobering fact that the steady increase in the number of mass shootings has impelled both public and private organizations to begin considering security measures responsive to that risk.” See Mitchell, 257 Md. App. at 281.

Notably, the Mitchell plaintiffs’ security expert had opined that, among other requirements, “in his view, the ‘appropriate standard of care’ for a business such as Rite Aid required the implementation of an active shooter policy” and associated “training on how to respond…” See id. at 291. And while Mitchell ultimately held that the plaintiffs had failed to establish liability in that case, the appellate court specifically warned as follows in its conclusion:

We caution that, as grim statistics and the development of the law in our sister states foreshadow, the standards of care surrounding a business owner’s duty to protect invitees from gun violence are not static and will continue to evolve in light of “common sense perceptions of the risks created by various conditions and circumstances.” Axelrod, 65 F. Supp. 3d at 1100.

Id. at 328–29.

As the court warned in Mitchell, the landscape here is quickly changing, and parties are increasingly turning to private organizations and businesses when it comes to gun violence. These warnings ring increasingly loudly as shooting incidents continue rising with tragic frequency and firearm regulations once thought to pass constitutional muster are facing new heightened levels of scrutiny post-Bruen. According to data from the Gun Violence Archive, a non-profit that tracks gun violence occurrences, as of December 8, 2023, there were 632 mass shootings so far in 2023 where four or more people were shot, with 22 of the 632 reported to have occurred in Maryland. At the end of the day, these incidents are becoming more prolific, and businesses that ignore this problem may be risking significant potential liability. Is your business protected?

If you have any questions or would like more information regarding the above, Richard Medoff can be contacted at (443) 573-9402 or