RICHMOND, Va. (CN) — Maryland argued Thursday that its law requiring an extensive licensing process before purchasing a handgun is constitutional in front of an en banc Fourth Circuit audience.
A gun-rights members organization, a gun store and two individuals all claimed in a federal lawsuit that the provision of Maryland's Firearm Safety Act of 2013 — requiring a handgun qualification license, or HQL — created an unfair hurdle.
Like most challenges to gun control legislation, the case centers around the Supreme Court's landmark 2022 ruling in New York State Rifle and Pistol Association v. Bruen. The high court found New York's law requiring citizens to demonstrate a particular need for self-defense before obtaining a public carry license unconstitutional.
On Thursday, lawyers for Maryland pointed to a footnote in Justice Clarence Thomas' opinion which they say means the Fourth Circuit need not hold the state's handgun law up to Bruen's scrutiny level.
"Although the court invalidated New York's subjective requirement that an applicant convince a government official of the applicant's atypical need to carry for self-defense," attorneys representing the state wrote in their brief, "the court did not invalidate licensing schemes generally."
Footnote 9 of the Bruen opinion reads: "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 gun rights organization that brought the case disagrees about the importance of the text. They claim the footnote aimed to protect the state's right to regulate open carrying, not citizens' ability to obtain firearms.
"The state seeks to evade Bruen's governing standard by asking this court to take stray comments in Bruen's dicta," attorneys representing the gun rights organization wrote in their brief. "It does not expressly, analogically or as a matter of history, justify the HQL requirement's more burdensome and unrelated restrictions on acquisition and possession."
The Supreme Court opinion set forth a new analysis for courts to consider gun control legislation. The Bruen test centered on the Second Amendment's text and history, finding that if the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.
At that point, the challenged regulation is unconstitutional unless the government can show that the regulation is consistent with the nation's historical tradition of firearm regulation.
After a three-judge panel heard arguments on the Maryland case in March 2023, the Fourth Circuit issued a split decision in November. The judges found the handgun qualification law requiring potential gun buyers to present a license before purchase violated the U.S. Constitution.
Maryland's rule requires handgun permit applicants to pass a background check and take a firearm safety training course. Vendors are also barred from selling handguns to customers if they do not present a valid license.
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 safe operation and handling of a firearm. After completing the course, applicants must wait upwards of 30 days for the Maryland State Police to conduct a background check and approve or deny the license application.
"You're going through this bureaucratic mess to own a handgun," U.S. Circuit Judge Paul Niemeyer, a Ronald Reagan appointee, said.
U.S. Circuit Judge Pamela Harris pressed attorney John Sweeney of Bradley Arant Boult Cummings, representing the gun rights organization, on the time constitutionally allowed for background checks.
Sweeney replied that Maryland already does instantaneous background checks for those seeking to purchase long guns, firearms fired from the shoulder.
"A delay of weeks is unconstitutionally burdensome," Sweeney told the Barack Obama appointee. "In today's world of databases, there is no reason a background check cannot happen at once."
U.S. Circuit Judge Toby Heytens, a President Joe Biden appointee, asked whether Sweeney thought it was unconstitutional that gun shops close, therefore making it impossible for someone to buy a gun during the middle of the night.
Sweeney reminded Heytens that the case before the panel is about waiting weeks, not hours or even days.
U.S. Circuit Judge Harvie Wilkinson, another Reagan appointee, told Sweeney: "You're getting very close to saying that any delay resulting from a need to conduct a background check or the need to have some minimal training is just presumptively unconstitutional."
Sweeney said the difference between six days and six weeks is constitutionally meaningful.
U.S. Circuit Judge Julius Richardson, who wrote the court's November majority opinion, focused on the law's lack of a historical analog.
"There's no doubt on the back end that you can be prosecuted for not being a law-abiding citizen and unlawfully buying a gun," the Donald Trump appointee said. "What there's no tradition of is ex-ante, precluding people, placing the burden on the people to establish their preexisting right to own firearms."
The Maryland General Assembly passed the law following the Sandy Hook Elementary School shooting in Newtown, Connecticut, where 20 1st graders and six adults were murdered by a 20-year-old gunman who used an AR-15-type Bushmaster rifle. Violating the HQL requirement is a misdemeanor punishable by up to five years in jail and a $10,000 fine.
Attorneys representing the state and the challengers did not respond to requests for comment.
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