Changed (Judicial) Circumstances

  • Date:
  • June 6th, 2019

By: Jacob Charles

In a sign that litigants are hoping the changed composition of the Supreme Court—Justice Kavanaugh’s replacement of Justice Kennedy—will lead to reconsideration of some lower court Second Amendment precedents, plaintiffs recently brought a lawsuit challenging Maryland’s requirement that an applicant for a concealed carry permit show a “good and substantial reason” in order to obtain one. The Fourth Circuit upheld the regime six years ago in Woollard v. Gallagher. In the most recent case, Malpasso v. Pallozzi, the challengers conceded in the district court and 4th Circuit that Woollard was binding and could not be overruled except by the en banc court or by the Supreme Court.

In late April, the panel (Floyd, Quattlebaum, Traxler) accordingly affirmed the district court’s dismissal of the complaint. Because the challengers brought the case knowing they could not possibly win in the district court or at the panel level, there’s every reason to believe they will seek Supreme Court review. (According to my calculations, the time has run for the challengers to seek en banc review.) The Malpasso challengers have retained the same counsel that filed the still-pending cert petitions in Grewal and Gould challenging similar licensing frameworks in New Jersey and Massachusetts.

The hope that a different Supreme Court will change the existing legal landscape for Second Amendment cases is of a piece with challenges designed to do that more broadly, as the recent spate of laws seeking to challenge Roe v. Wade illustrate.