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Fourth Circuit takes a look back at history in hearing over Maryland handgun law

The three-judge panel grilled attorneys for the challengers and the state on the historic traditions of gun ownership.

RICHMOND, Va. (CN) — A Fourth Circuit panel on Friday heard arguments over the constitutionality of Maryland's handgun licensing law that gun rights advocates say puts up unfair hurdles to obtaining a firearm.

A federal judge in Baltimore initially determined that the plaintiffs lacked standing, before the Richmond, Virginia-based appeals court remanded the case in 2020 and allowed them to continue pressing their Second Amendment claim. The district court then granted the state's motion for summary judgment a year later and upheld the handgun qualification license requirement, prompting another appeal to the Fourth Circuit.

The so-called HQL requirement comes from Maryland's Firearm Safety Act of 2013. The Maryland General Assembly passed the law following the Sandy Hook Elementary School shooting in Newtown, Connecticut, where 20 first-graders and six adults were murdered by a 20-year-old gunman who killed the victims with an AR-15-type Bushmaster rifle. 

The rule requires handgun permit applicants to pass a background check and take a firearm safety training course, according to the state's brief to the Fourth Circuit, and sellers are also barred from selling handguns unless the customer presents a valid HQL.

The training course must include at least four hours of instruction by a qualified instructor, and the applicant must fire at least one live round to demonstrate the safe operation and handling of a firearm. After completing the course, applicants have to wait upwards of 30 days for the Maryland State Police to conduct a background check and approve or deny the HQL application.

The government waives the course for anyone who already lawfully owns a handgun or has completed certain other training courses. The HQL is valid for 10 years, and violating the license requirement is a misdemeanor punishable by up to five years in jail and a $10,000 fine.

Over 192,000 Marylanders obtained an HQL from when the law went into effect in October 2013 through the end of 2020. The state claims the requirement has had numerous public safety benefits.

"Empirical studies of the effects of laws that require individuals to obtain a license to purchase a firearm and pass a background check based on fingerprints show that these laws are associated with a reduction in the flow of guns to criminals," according to the state's brief.

The state denies that the requirement violates law-abiding citizens' Second Amendment rights, arguing it instead bars criminals, the mentally ill and others perceived to be dangerous from receiving handguns.

The plaintiffs challenging the law include a gun rights organization, a gun shop and two individuals. Maryland Shall Issue describes itself as an all-volunteer, nonpartisan organization with over 1,900 members "dedicated to preserving and advancing gun owners' rights in Maryland." Atlantic Guns is a local gun shop in Rockville, Maryland, that claims to have the region's largest selection of new and used firearms. The individual plaintiffs are two women who claim they cannot complete the required training due to having to take time off work and a physical disability that bars them from being able to sit in a chair for the half-day class. 

"The HQL requirement burdens conduct indisputably protected by the Second Amendment by prohibiting law-abiding, responsible Maryland citizens without an HQL from exercising their right to acquire a handgun for self-defense in their homes," the plaintiffs' brief states. "It is a novel restriction without support in our nation's historical tradition of firearm regulation."

According to the challengers, applicants must overcome more than just the HQL requirement to obtain a handgun in Maryland. They also must complete the state's requirements that were in place before 2013, including having to wait for an additional seven days and watching a one-hour instructional video. 

Attorney Marc Nardone of Bradley Arant Boult Cummings, representing the challengers, told the Fourth Circuit on Friday morning that this case has nothing to do with the constitutionality of background checks.

"What this case is about is whether or not the government may require law-abiding, responsible citizens to obtain permission from the government to be able to undergo a background check that permits them to acquire a handgun," Nardone told the three-judge panel. 

Nardone said one barrier Marylanders face to obtaining an HQL requirement is finding a site that not only conducts the required training but also has the resources to allow trainees to discharge a firearm. Fees for training, fingerprinting and other necessary steps in the process are set by private companies providing the services rather than by statute. 

Senior U.S. Circuit Judge Barbara Milano Keenan, a Barack Obama appointee, asked Nardone to clarify if the extended period required for the background check and the expensive fees were what he was arguing was unconstitutional. Instead, Nardone relied on historical tradition to argue the law's unconstitutionality. 

"If the challenged law is a novel attempt at addressing an old problem, it is unconstitutional," Nardone said. "There is no question that had the government wished in 1791 to enact legislation that would require citizens to obtain permission before undergoing a background check – then they could have." 

U.S. Circuit Judge Steven Agee, a George W. Bush appointee, asked the state's attorney for his response to the notion that the Firearm Safety Act goes against historical tradition.  

"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 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." 

The judges did not indicate when they would issue an opinion.

Nardone did not respond to a request for comment after the hearing, while Dietrich said he had no comment.

Categories:Appeals, Civil Rights, Government, Law, Regional

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