Fourth Circuit En Banc Report Part III: Permitting and Inter-Rights Comparisons

In late March, I attended three en banc oral arguments in Second Amendment cases before the United States Court of Appeals for the Fourth Circuit, sitting in Richmond, Virginia.  The court itself leans left, especially after three Biden appointments—including Judge Nicole Berner, who was confirmed by the Senate and assumed office on March 19, then immediately drove to Richmond and participated in the arguments.  But the cases provide an interesting window into an appellate court grappling with how to reconcile the Supreme Court’s past Second Amendment pronouncements and its recent turn to history in Bruen.  This is the third post in a series of three summarizing the en banc arguments (you can read the first two posts here and here).

Maryland Shall Issue v. Moore deals with the constitutionality of Maryland’s somewhat unique permit requirement to purchase a handgun.  The state requires anyone wishing to purchase a handgun to first obtain a handgun qualification license, or HQL.  That process includes fingerprinting, a background check and completion of a firearms safety course.  The state has up to 30 days to issue an HQL once the application criteria are met.  Before actually obtaining the handgun, the prospective purchaser must then fill out an application and wait for seven days while an additional background check is performed (this is known colloquially as the "77R" process).  In November, in a 2-1 decision that we covered here, a Fourth Circuit panel found that the state’s purchase permitting requirements—specifically, the HQL process—violated the Second Amendment.  The majority decision was written by Judge Julius Richardson, who determined that “the challenged law deprives [plaintiffs of the right to keep and bear arms] until their application is approved, no matter what they do” and that this temporary deprivation was sufficient to infringe the Second Amendment.  Judge Richardson also rejected the state’s reliance on Bruen’s endorsement of objective concealed carry licensing laws and found that the state had failed to offer an analogous historical tradition of an application process or waiting period.

Much of the discussion at oral argument tried to pin down exactly how much delay is too much from a constitutional perspective.  The plaintiffs in the case seemed to suggest that a matter of days was permissible, while a matter of weeks was not.  At other points, the argument seemed to be that anything beyond the time strictly necessary for the state to conduct a background check (which plaintiffs argued could be conducted instantaneously, as it is in Maryland for long gun purchases) would infringe the Second Amendment.  This led to two related lines of questioning.  First, even though the 77R process is not being challenged in Maryland Shall Issue, a number of judges raised concerns about whether it was possible to write an opinion that accepts the plaintiffs’ position without also implicitly invalidating 77R as well.  Second, some judges expressed the view that the plaintiffs’ argument was really about the length of delay alone and that such a challenge can only be brought on an as-applied basis after an individual has applied for a permit (not as a facial challenge to the entire licensing framework).  Judge Niemeyer, for example, characterized the argument as merely an ancillary challenge to the length of the delay.

That said, the judges did appear somewhat perplexed by the nuances of Maryland’s purchase permitting system.  Judge Diaz noted that Bruen’s footnote endorsing objective licensing standards appeared to be limited to the context of public carry.  And some judges questioned why the state would require a second background check, through the 77R process, even when the prospective purchaser had completed the HQL application process quite recently (perhaps even contemporaneously).  Judge Niemeyer, specifically, pressed Maryland’s attorney for a justification for what he called “overlapping requirements.”  And other judges similarly suggested that Maryland’s law might be on more solid footing if the state required prospective purchasers to complete the 77R process only if their HQL application had been processed some number of months or years in the past[1]—in that scenario, the 77R process might be necessary to determine that the applicant had not become a prohibited person during that intervening period. 

The judges also went back and forth about whether the delay imposed by Maryland’s HQL process was consistent with how other constitutional rights are protected.  Judge Richardson (the author of the panel opinion) asked incredulously whether the Fourth Amendment would permit a state to imprison an individual for 30 days without some kind of probable cause showing.  Judge Toby Heytens, on the other hand, noted that permitting is not unique to the Second Amendment and firearms.  He raised permitting requirements that impact First Amendment rights, such as permits for parades or protests, and the Fifth Amendment Takings clause, where Supreme Court decisions hold that limiting the ability to use property for a period of time does not constitute a taking requiring compensation.  To Judge Heytens, these questions relate solely to the textual scope of “abridge” and “take,” respectively, and he would similarly find that Maryland’s law does not “infringe” Second Amendment rights due merely to time delay below a certain threshold.

In discussing these inter-rights comparisons, the judges hit on a related conceptual snag within the Bruen analysis.  Judge DeAndra Benjamin asked what the significance was of Bruen citing First Amendment precedent in its footnote 9 approving shall-issue concealed carry licensing.  Specifically, the Supreme Court cited two First Amendment cases endorsing restrictions on speech that contain only “narrow, objective, and definite” non-discretionary criteria for government officials to follow: Shuttlesworth v. Birmingham, which struck down a city ordinance that “conferred upon the City Commission virtually unbridled and absolute power to prohibit any parade, procession, or demonstration on the city’s streets or public ways”; and Cantrell v. Connecticut, which struck down a state law requiring anyone seeking to solicit donations for a religious cause to first obtain a certificate stating that the cause “is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity.”   These two cases invalidated excessively discretionary prior restraints on speech.  But the Bruen court seemingly cited them for the inverse proposition: that permitting laws with sufficiently definite standards do not abridge the First Amendment.

As Judge Richardson observed, however, these were First Amendment cases and, if the Court had not held that the statutes themselves were inherently too discretionary on their face, it would presumably have engaged in means-end scrutiny under the First Amendment’s time, place and manner rules to determine their substantive constitutionality.  Judge Richardson, however, noted that the Court has specifically forbidden means-end balancing and “ahistorical” analysis in the Second Amendment context because the Second Amendment is governed exclusively by historical tradition.  To me, this only lends more credence to the idea that footnote 9 and any facial examination of a licensing law must be a step one analysis (contrary to the panel majority’s reading, which places the footnote 9 inquiry at the second, historical step because it is “appended to a sentence explaining that there is no historical support for preventing law-abiding citizens from publicly carrying weapons simply because they cannot show a special need”).  If the Supreme Court is endorsing First Amendment comparisons, that seems a clear signal that it is speaking about a threshold part of the inquiry consistent with the Court’s First Amendment precedents.

A recording of the oral argument in Maryland Shall Issue is available here.