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Litigation Highlight: Fourth Circuit Panel Strikes Down Maryland’s Permit-to-Purchase Law

  • Date:
  • December 22nd, 2023

By: Andrew Willinger

On November 21, a split panel of the Fourth Circuit Court of Appeals issued a decision in Maryland Shall Issue v. Moore enjoining a Maryland law that requires individuals to apply for and receive a state-issued permit prior to obtaining a handgun.  Maryland’s permit-to-purchase law (also known as the Handgun Qualification Law, or HQL) mirrors those in effect in ten other states.  (North Carolina repealed its handgun permit-to-purchase law earlier this year, and we covered some of the arguments surrounding that repeal here.)

The Maryland law provides that a handgun license “shall issue” if an applicant meets the following objective criteria:

(1) is at least 21 years old; (2) is a resident of the State; (3) [subject to certain exceptions,] has demonstrated satisfactory completion, within 3 years prior to the submission of the application, of a firearms safety training course . . .; and (4) based on an investigation, is not prohibited by federal or State law from purchasing or possessing a handgun.

In Maryland Shall Issue, circuit judges Julius Richardson and G. Steven Agee held that this licensing system violates the Second Amendment.  After summarizing Bruen’s approach (which the panel majority characterized as “a sea change in Second Amendment law”), the majority first asked “whether Plaintiffs’ proposed course of conduct is protected by the Second Amendment’s plain text.”  While the plaintiffs here are clearly within “the people” and seek to possess protected “arms,” the majority noted some complications in the textual inquiry with regard to “keep and bear” and “infringed.”   The opinion first concluded, with little difficulty, that Maryland’s HQL does regulate the keeping and bearing of firearms because “the only way to ‘keep’ or ‘bear’ [a gun] is to get one, either through sale, rental, or gift[, a]nd the challenged law cuts off all three avenues.”  Second, the majority found that—although the law is not a permanent bar on handgun ownership but merely imposes a de facto waiting period while the state processes the permit application—“the challenged law deprives [plaintiffs of the right to keep and bear arms] until their application is approved, no matter what they do,” and thus infringes plaintiffs’ Second Amendment rights.  Thus, according to the majority, “the temporary deprivation that Plaintiffs allege is a facially plausible Second Amendment violation.”

The majority devotes a lengthy footnote to Bruen’s statement that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit].’”  The state relied on this portion of Bruen to argue that its permit-to-purchase law has the Supreme Court’s implicit blessing.  But the Fourth Circuit majority observed that it is perilous to read a footnote in a Supreme Court decision as “establishing a general rule” and interpreted this passage as “the Court suggest[ing] that the Second Amendment barred—at a minimum—certain ‘shall issue’ schemes; but [declining to] say whether that floor was also a ceiling.”

Moving on to Bruen’s second step—assessing the law’s consistency with historical tradition—the panel majority made quick work of the inquiry.  The opinion first observed that “Maryland admitted at oral argument that it had not presented a proper historical analogue for the challenged law, noting that it had identified no Founding-era laws that ‘required advance permission’ before a citizen could purchase a firearm.”  The panel rejected Maryland’s attempt to analogize its HQL to a historical tradition of barring dangerous individuals from purchasing and possessing firearms.  Rather than disqualifying certain presumptively dangerous groups from possessing or acquiring guns, the majority said, Maryland’s law “prohibits all people from acquiring handguns until they can prove that they are not dangerous” and thus imposes a far greater burden on Second Amendment rights.  The majority also rejected the state’s attempt to rely on militia training laws, observing that these laws “never conditioned keeping or bearing arms on participation in militia training” and did not “place[] any restriction on gun ownership.”  Therefore, such laws were not analogues that could support Maryland’s permit-to-purchase system.  Noting that “under the Second Amendment, mechanism matters,” the panel majority reversed the district court’s pre-Bruen decision upholding the Maryland law and invalidated the permit-to-purchase requirement.

Judge Barbara Milano Keenan filed a dissenting opinion arguing that “the majority’s hyperaggressive view of the Second Amendment would render presumptively unconstitutional most non-discretionary laws in this country requiring a permit to purchase a handgun.”  Judge Keenan would have remanded the case to the district court to conduct the Bruen analysis in the first instance and argued that the majority’s contrary decision brushed over important severability issue.  Judge Keenan also emphasized Bruen’s footnote 9 (the same footnote discussed at length by the majority which appears to broadly endorse shall-issue permitting based on objective criteria for concealed carry) as “explicit cautionary language” intended to say that all objective permitting processes are consistent with the Second Amendment.  And she stressed the consequences of the majority’s step-one holding that any delay in obtaining a handgun infringes the right to keep and bear arms and its facial invalidation of the Maryland law.  Judge Keenan argued that this approach is likely to also invalidate all other shall-issue licensing laws, including the concealed carry permit systems that Bruen seemed to endorse. 

The majority opinion in Maryland Shall Issue evaluates Maryland’s licensing law with a strong focus on delay rather than discretion.  The Bruen majority and concurrences are littered with references to the presumptive constitutionality of shall-issue permitting, so long as such a law is not “put toward abusive ends [with] lengthy wait times in processing license applications or exorbitant fees [that] deny ordinary citizens their right to public carry.”  Maryland Shall Issue, however, focuses solely on the maximum time it may take to obtain a permit (the state law requires that a decision on an HQL application be rendered within 30 days) rather than other potentially abusive aspects of a licensing framework.  The majority never discusses, for example, whether the law affords licensing officials too much discretion or is used toward other “abusive ends”—for example, by asking what percentage of applications are granted or asking whether the grant rate differs across different Maryland counties.  Rather, the majority’s step-one holding seems to be that any potential delay in a receiving a permit is enough to trigger a historical-tradition inquiry.  Because all shall-issue permitting and background checks will impose some delay on receipt during the time it takes to verify that application criteria are met or that no disqualifying statuses are present, the scope of the holding appears to be quite broad (an applicant for a Maryland concealed carry license, for example, might wait up to 90 days to receive a permit). 

Reading between the lines, it’s possible the majority’s answer is that shall-issue concealed carry permitting laws don’t regulate “keeping and bearing” and thus don’t impose a time burden on all avenues of gun acquisition.  In other words, because the HQL process imposes a delay on keeping a handgun in the home it is subject to stricter scrutiny than similar concealed carry frameworks governing only public carry, and any delay is problematic.1 But the majority never says this explicitly, missing a major opportunity to strengthen its analysis by explaining how the decision can be squared with the Supreme Court’s broad endorsement of shall-issue carry permit laws.  It’s difficult to imagine that the six Justices in the Bruen majority would articulate a new legal test and approve shall-issue licensing in the same breath, if that test were to require striking down most if not all such laws.  And Maryland’s law contains the exact qualifications that Bruen explicitly endorsed in the concealed carry context: it “require[s] applicants to undergo a background check [and] pass a firearms safety course . . . to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”

Judge Keenan’s argument about a remand is persuasive, I think, and again brings the discretion aspect into focus.  The real question in the case after Bruen should be whether Maryland’s law is susceptible to abusive ends and excessive discretion, and statistics on how the law is actually applied would help to bear that out.  The Supreme Court even felt compelled to do a similar analysis itself in Bruen for a state whose laws were not specifically at issue in the case—albeit not for the New York law at issue—observing that Delaware’s potentially discretionary concealed carry licensing system worked in practice more like a shall-issue framework because “the State has thus far processed 5,680 license applications and renewals in fiscal year 2022 and has denied only 112.”  Compared to other states with shall-issue carrying laws, which might allow denial of a license for those without “good moral character” or those deemed dangerous in the eyes of the licensing authorities, Maryland’s law is quite narrow and seemingly leaves little room for a licensing officer to deny a permit based on any discretionary factor.2 Yet the only way to answer the discretion/abuse question confidently is to figure out how the law operates in practice, as the Supreme Court did for Delaware’s law—a determination the trial court is best suited to undertake. 

Finally, the level of generality issue rears it head when the panel majority compares Maryland’s HQL training requirement to historical militia training laws.  The training requirement is the only piece of the law that suggests any level of discretion or undue delay/expense (and, as Judge Keenan notes, it could potentially be severed from the rest of the statute).  As Justice Gorsuch observed at oral argument in Rahimi, the same level of generality should apply to “the regulation side [as] on the right side”—so, for example, if the relevant historical tradition of regulation is limiting gun possession by dangerous individuals, the definition of “arms” should be similarly capacious.  Yet I think the majority’s dismissal of historical militia training requirements in Maryland Shall Issue upsets that balance.  What rationale is there for defining “infringe” so broadly that any wait time to obtain a firearm is an infringement, while holding that historical laws imposing training requirements are not analogous because they required similar training but did not condition keeping or bearing arms on such training?  A broad definition of “infringe” should presumably, under Justice Gorsuch’s view, be accompanied by an expansive interpretation of historical militia laws as promoting public safety by requiring that certain gunowners train with their firearms.


[1] On the other hand, Maryland requires HQL permits to be processed significantly faster than concealed carry permits, and the permit-to-purchase law doesn’t impose any burden on someone seeking to acquire a rifle (or non-firearm weapon, for that matter) to keep at home. 

[2] This is also the case when comparing to other permit-to-purchase states.  Connecticut, for example, has a much longer list of disqualifications for permit applicants including mental and psychiatric treatment, and it is likely that a lower percentage of applications are granted in Connecticut than in Maryland."