Aftermath of Bruen Decision - Maryland Law Just One of Many?

By: Dominic Miranda

Edited by: Alex Brunet and Jonah Elkowitz

In the wake of the 2013 Sandy Hook shooting, Maryland passed the Firearm Safety Act, which implemented new regulations on gun purchasing in the state. These regulations included a new requirement to complete a “gun safety course”, a waiting period of up to 30 days for a license, and mandatory background checks. [1] This legislation brings into view the critical issue of the Second Amendment, or the right to bear arms, as it plays a pivotal role in determining the constitutionality of such laws. Opposed to these new requirements, Second Amendment advocates challenged the constitutionality of the Maryland law in 2016, and the initial decision was based on a “two-step interest-balancing framework”, which requires for each law to pass two tests to be enacted. [2] A new test was introduced by the Supreme Court after a 2022 ruling on gun regulations in New York State Rifle & Pistol Assn., Inc. (NYSRPA) v. Bruen, which the plaintiffs in the Maryland case then used to appeal the initial decision on the Maryland law. [3] In the end, the ruling was split 2-1 in the 4th US Circuit Court of Appeals, with the two-vote majority finding that the licensing requirements of the Firearm Safety Act infringe upon Second Amendment rights since the waiting period and arbitrary awarding of licenses are not constitutionally permissible. [4] Does this ruling give us an initial look into the fate of gun regulations around the country?

For Marylanders, not only does this ruling mean that it will be much easier to purchase guns, but to carry them in public as well, since many of the restrictions that were in place regulated these actions specifically. The Firearm Safety Act dictated that prospective gun purchasers must be twenty-one years of age, be a resident of Maryland, complete a safety course and background check, and then fill out an application with a $50 fee – then possibly they will receive their handgun qualification license within thirty days. [5] Aside from this, if prospective buyers wish to carry their handguns on them, they must apply for a separate permit. [6] The elimination of licensing restrictions like the application and waiting period will likely lead to the proliferation of handguns within the state, within the home, and outside the home. The debate at the center of this law discusses whether the state will be safer in the long run or not, and time will determine the impact this decision will have on gun violence. 

The latest ruling on the Maryland law is based on a Supreme Court ruling from June of 2022, New York State Rifle & Pistol Assn., Inc. (NYSRPA) v. Bruen, where the constitutionality of public carry restrictions had been a part of the heated debate and was settled by a ruling of 6-3 in favor of ending these particular restrictions. [7]  This case directly addressed the constitutionality of carrying in public utilizing the precedents and tests set in District of Columbia v. Heller and McDonald v. Chicago. [8] In New York, they had authorized carry licenses “only for those applicants who can show some special need apart from self-defense.” [9] Second Amendment advocates see this as problematic since states that have these licensing measures have broad discretion over to whom they grant a license, which could result in the denial of normal law-abiding citizens’ right to carry a firearm. In the first step of the test established in the Bruen case, the Court analyzed gun regulation using the explicit text of the Second Amendment, and a “historical test” that makes analyses based on whether the gun regulation was consistent with the Second Amendment’s original view, and if it is, strict scrutiny – the highest standard of review – is applied. [10] The majority believes that a historical process is more efficient for a court’s purposes, over using a sort of “cost-benefit analysis” to make their evaluation since gun laws and public safety are not within the expertise of judges. [11] However, the entire Bruen test was eventually limited to a plain text and historical overview. Given this change, the licensing award system that is part of the Maryland law was ruled unconstitutional, as it wasn’t considered to be consistent with the nation’s historical tradition, since no state had enacted a law restricting gun ownership in this manner during the time of the nation’s founding. [12] As of November, Maryland’s governor Wes Moore is currently considering options on how to proceed. [13]

Given the ruling on this case, this begs the question of the constitutionality of similar regulations in other jurisdictions, given the newfound nuance generated by the precedent from 2022. In New York, the state law that required people to apply for an open carry license was said to violate the Equal Protection Clause of the 14th Amendment of the Constitution, since this amendment is what allows for the Second Amendment to be applied to each state. [14] Simply put, the Second Amendment, as understood by the majority, originally grants the right to a firearm outside of the home. For that reason, states like California, Hawaii, and Massachusetts that keep a “may-issue” system, or discretionary licensing regimes, face difficulties with maintaining restrictions of this nature. [15] On top of that, a federal gun regulation barring individuals who have a felony indictment from purchasing a gun has been ruled unconstitutional based on the Bruen test used in United States v. Quiroz. [16] Based on the new test, the Court found that there was little historical connection between previous regulations and this new federal regulation. Essentially, the Court is declaring that if a gun regulation does not match or align with the nation’s general history of gun regulations, then it shall not be considered constitutional. This test is also more of an overview of the United States’ history, rather than an exhaustive check on all regulations to ever be enacted. 

Can the outcome of this Maryland law predict the effect the Supreme Court decision will have on future gun laws around the country? Although Quiroz represents a case where a long-standing regulation was newly seen as problematic for not passing the new Bruen test, Bruen does not simply spell the end for gun regulations around the country. The majority stated that its decision would not compromise all gun regulations, nor decide who may lawfully possess a firearm or the requirements to buy one. [17] Consequently, states are allowed to retain or institute suitability requirements like ensuring the “good moral character” of prospective buyers. According to the Giffords Law Center, about 88% of gun regulations that were tried in courts after the Bruen ruling have been upheld. [18] For a ruling that was thought to have massive implications on gun regulations in the country, Maryland’s forced wait and discretionary awarding system seems to fall within the narrow confines of an inadmissible regulation. The second majority judge’s concurrence in Bruen further specifies that the ruling does not change much other than addressing the discretionary licensing regimes, given their subjective nature. The overall idea is that laws that prevent otherwise law-abiding citizens from purchasing guns or those that are based on an arbitrarily defined “special need” are deemed unconstitutional. However, any law that addresses the “assault weapon and large-capacity magazine restrictions, ghost gun restrictions, sensitive place laws, permit and licensing laws, and many others” has been, and will likely continue to be upheld. [19] 

Notes:

1. Campbell, Josh. “Maryland Passed a Strict Gun & Licensing Law after Sandy Hook. an Appeals Court Just Struck It Down.” CNN, November 22, 2023. https://www.cnn.com/2023/11/22/us/maryland-gun-law-struck-down/index.html#:~:text=An%20appeals%20court%20struck%20down,deadly%20Sandy%20Hook%20mass%20shooting.&text=A%20federal%20appeals%20court%20struck,conservative%2Dmajority%20US%20Supreme%20Court.

2. Maryland Shall Issue, Inc. et al. v. Moore et al. (United States District Court for the District of Maryland, at Baltimore November 21, 2023).

3. Gresko, Jessica. “Supreme Court Expands Gun Rights, with Nation Divided.” AP News, June 24, 2022. https://apnews.com/article/supreme-court-guns-decision-58d01ef8bd48e816d5f8761ffa84e3e8.

4. Campbell, “Maryland Passed a Strict Gun…”

5. Maryland Shall Issue v. Moore

6. Maryland Shall Issue v. Moore

7. New York State Rifle & Pistol Assn., Inc. v. Bruen (Supreme Court of the United States June 23, 2022).

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Maryland Shall Issue v. Moore

13. Lou Kettering | U. Pittsburgh School of Law, US. “US Appeals Court Strikes down Part of Maryland Gun Law That Requires a ‘firearms Safety Training Course’ before Purchase.” Jurist, November 23, 2023. https://www.jurist.org/news/2023/11/us-appeals-court-strikes-down-part-of-maryland-gun-law-that-requires-a-firearms-safety-training-course-before-purchase/

14. Ibid. Maryland Shall Issue v. Moore

15. Miller, Darrell A. H., Andrew R. Morral, and Rosanna Smart, State Firearm Laws After Bruen. Santa Monica, CA: RAND Corporation, 2022. https://www.rand.org/pubs/perspectives/PEA243-1.html.

16. Court Holds Gun Ban for Felony Defendants Unconstitutional.” Court Holds Gun Ban For Felony Defendants Unconstitutional | Defender Services Office - Training Division, September 20, 2022. https://www.fd.org/news/court-holds-gun-ban-felony-defendants-unconstitutional.

17. New York State Rifle & Pistol Assn., Inc. v. Bruen

18. Clark, Billy, and David Pucino. “Second Amendment Challenges Following the Supreme Court’s Bruen Decision.” Giffords, June 21, 2023. https://giffords.org/memo/second-amendment-challenges-following-the-supreme-courts-bruen-decision/.

19.  Ibid.

bibliography

Campbell, Josh. “Maryland Passed a Strict Gun & Licensing Law after Sandy Hook. an Appeals Court Just Struck It Down.” CNN, November 22, 2023. https://www.cnn.com/2023/11/22/us/maryland-gun-law-struck-down/index.html#:~:text=An%20appeals%20court%20struck%20down,deadly%20Sandy%20Hook%20mass%20shooting.&text=A%20federal%20appeals%20court%20struck,conservative%2Dmajority%20US%20Supreme%20Court.

Clark, Billy, and David Pucino. “Second Amendment Challenges Following the Supreme Court’s Bruen Decision.” Giffords, June 21, 2023. https://giffords.org/memo/second-amendment-challenges-following-the-supreme-courts-bruen-decision/.

Court Holds Gun Ban for Felony Defendants Unconstitutional.” Court Holds Gun Ban For Felony Defendants Unconstitutional | Defender Services Office - Training Division, September 20, 2022. https://www.fd.org/news/court-holds-gun-ban-felony-defendants-unconstitutional. 

Gresko, Jessica. “Supreme Court Expands Gun Rights, with Nation Divided.” AP News, June 24, 2022. https://apnews.com/article/supreme-court-guns-decision-58d01ef8bd48e816d5f8761ffa84e3e8.

Lou Kettering | U. Pittsburgh School of Law, US. “US Appeals Court Strikes down Part of Maryland Gun Law That Requires a ‘firearms Safety Training Course’ before Purchase.” Jurist, November 23, 2023. https://www.jurist.org/news/2023/11/us-appeals-court-strikes-down-part-of-maryland-gun-law-that-requires-a-firearms-safety-training-course-before-purchase/.

Maryland Shall Issue, Inc. et al. v. Moore et al. (United States District Court for the District of Maryland, at Baltimore November 21, 2023).

Miller, Darrell A. H., Andrew R. Morral, and Rosanna Smart, State Firearm Laws After Bruen. Santa Monica, CA: RAND Corporation, 2022. https://www.rand.org/pubs/perspectives/PEA243-1.html.

New York State Rifle & Pistol Assn., Inc. v. Bruen (Supreme Court of the United States June 23, 2022).