Future of Maryland Handgun Licensing Law Uncertain After Fourth Circuit Agrees to Review Decision Declaring It Unconstitutional

May, 2024  | By Richard J. Medoff

Richard Medoff wearing a dark suit and red tie.In November 2023, a split three-judge panel of the United States Court of Appeals for the Fourth Circuit struck down provisions from Maryland’s Firearm Safety Act of 2013 requiring a handgun qualification license as a condition for obtaining a handgun, with the 2-1 majority finding that it was unconstitutional under the Supreme Court’s new test for Second Amendment challenges espoused in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022). See 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 fate of the statute is now up in the air again; however, after a majority of the judges on the Fourth Circuit – which decides appeals from the federal district courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia – recently voted to grant en banc review of the panel’s decision and rehear the case.

By way of factual background, the challenged non-discretionary handgun-licensure law, part of legislation passed following the mass shooting at Sandy Hook Elementary School in Connecticut, is currently found in § 5-117.1 of the Maryland Public Safety Code. The statute 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)-(c). To obtain the license, the statute requires that an applicant must be a Maryland resident who is at least 21 years old, must complete a “firearms safety training course” that includes safely firing at least one live round of ammunition, and must undergo a 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 the 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 thirty (30) days. See id. at § 5-117.1(d), (g), (h). The firearm safety course requirement is waived for a person who, among other exemptions, already lawfully owns a handgun or has completed certain other training courses. See id. at § 5-117.1(e).

In the earlier panel’s decision in Moore, the majority opinion, written by Judge Richardson and joined by Judge Agee, 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 30 days.” See Moore, supra, at *4-6. Thus, the panel majority wrote that Maryland was required to “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, the majority concluded that the historical examples cited by Maryland were not “relevantly similar” to the Maryland statute, including the historical traditions of prohibiting “dangerous” people from owning firearms and requiring militia training with firearms, with the majority opinion focusing on the mechanism of enforcement and emphasizing the apparent lack of “Founding-era laws that ‘required advance permission’ before a citizen could purchase a firearm.” See id. at *8–9.

Following the panel’s 2-1 decision, in which Judge Keenan dissented, the Office of Maryland’s Attorney General, Anthony Brown, which represented the State of Maryland in the lawsuit, filed a Petition for Rehearing En Banc, asking for the case to be reheard by the full Fourth Circuit bench. En banc is a French term meaning “on the bench” and refers to a situation where all the judges or justices serving on an appellate court participate in the appeal. The Fourth Circuit currently has fifteen (15) active circuit judges, after the United States Senate voted, 50-47, on March 19, 2024, to approve the nomination of Nicole G. Berner, a former Maryland labor lawyer.

In federal practice, en banc hearings are addressed in the Federal Rules of Appellate Procedure as well as the Fourth Circuit’s Local Rules. See Fed. R. App. P. 35 and 4th Cir. Loc. R. 35. Under Federal Rule of Appellate Procedure 35, parties are permitted to petition for en banc review, and “a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” See Fed. R. App. P. 35(a)-(b). The Federal Rules, however, provide that en banc review is “not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” See Fed. R. App. P. 35(a)(1)-(2).

In petitioning for en banc review, Attorney General Brown argued that the panel’s majority opinion was inconsistent with the U.S. Supreme Court’s pronouncement in Bruen that, as a general matter, “shall-issue” licensing regimes do not offend Second Amendment principles, and that Bruen expressly approved of licensing schemes like Maryland’s that require applicants to undergo a background check or pass a firearms safety course, and thus are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” See Bruen, 142 S. Ct. at 2138 n.9. Footnote 9 of the Bruen opinion states: “Nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes because the shall-issue regime’s objective criteria do ‘not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” The panel’s majority opinion, Brown argued, improperly brushed aside this unequivocal language and had “far-ranging implications for other firearms restrictions” not at issue in the case, as “any licensing scheme that causes any delay in an individual’s exercise of Second Amendment rights (which is practically all licensing schemes, including the ones expressly approved in Bruen) would be constitutionally suspect” under the majority’s reasoning. And the petition posited that the majority’s reasoning frustrated Maryland’s ability to ensure that those bearing arms in the jurisdiction are, in fact, only “law-abiding, responsible citizens” and would have “significant public safety consequences” as a result.

The petition for en banc review further echoed arguments in Judge Keenan’s dissenting opinion, contending that Judge Keenan properly rejected the notion that the Maryland statute was unconstitutional because its objective requirements prevented an individual from acquiring a handgun immediately, noting that the requirements expressly approved in Bruen – background checks and firearm safety courses – would similarly result in at least some delay. Judge Keenan instead focused on the Bruen Court’s “contrasting example” of what might make a shall-issue regime unconstitutional: “lengthy wait times . . . or exorbitant fees [that] deny ordinary citizens their right to public carry” (Bruen, 142 S. Ct. at 2138 n.9), which the petition argued were not present with the Maryland law. Citing statistics in support of that position, the petition explained that since Maryland’s handgun license law went into effect in October 2013, all properly completed applications had been processed within the mandated 30-day timeframe and that, from October 2013 through the end of 2020, a total of 192,506 Marylanders obtained a handgun qualification license, during which time the total number of handgun transfers per year in the state continued to exceed every year prior to 2013 when the law was enacted.

The full Fourth Circuit granted Maryland’s Petition for Rehearing En Banc in January 2024 after a majority of the judges voted in favor of rehearing the case. Maryland Governor Wes Moore released a statement following the Fourth Circuit’s decision to re-hear argument in the case, praising the decision while emphasizing that more needs to be done “while our communities continue to be terrorized” by gun violence, and pledging to continue to work on legislation to make Maryland’s communities safer. The full Fourth Circuit held oral argument in the case on March 21, 2024, at the Fourth Circuit Court of Appeals Lewis F. Powell Jr. Courthouse in Richmond, Virginia. A decision is expected to be issued sometime in the coming months, which could have wide-ranging implications in Maryland and beyond, including in the other states in the Fourth Circuit.

According to data from the Gun Violence Archive, a non-profit that tracks gun violence occurrences, in 2023, there were 655 mass shootings in the United States where four (4) or more people were shot, with 22 of the mass shootings reported to have occurred in Maryland. And the Fourth Circuit’s Moore decision will be coming 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 Mitchell, the Appellate Court of Maryland stated 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. The Fourth Circuit’s en banc decision in Moore may further 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.

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