MEMORANDUM OPINION
Thomas Corcoran sues Jefferson B. Sessions, Attorney General of the United States;
In 2016, Corcoran was denied a Handgun Qualification License by the Maryland State Police pursuant 'to § 5-133 of the Maryland Public Safety Article.
He brings four claims against the State Defendants, challenging §§ 6—133(b)(1), 5-144, and 5-205(b)(1) of the Maryland Public Safety-Article (the “Maryland Firearms Prohibitions”). In Count I, Corcoran argues, pursuant to the Second Amendment, that the Maryland Firearms Prohibitions are unconstitutional as-applied to him. In Count II, he makes a facial Second Amendment challenge to the Maryland Firearms Prohibitions. Corcoran further alleges that the Maryland Firearms Prohibitions violate the Ex Post Facto Clause of the U.S. Constitution (Count IV) arid have an impermissible retroactive effect (Count V).
The State Defendants have filed a Motion to Dismiss for Failure to State a
In the fall of last year following- a hearing on the cross-motions, ECF No. 16, the Court stayed all proceedings until the case of Hamilton v. Pallozzi, Case No. 16-1222 in the United States Court of Appeals for the Fourth Circuit, could be decided. When the Fourth Circuit issued its opinion in Hamilton, this Court lifted the stay as to the claims against the State Defendants.
For the reasons that follow, the Court will GRANT IN PART and DENY IN PART the State Defendants’ Motion to Dismiss (ECF No. 6) and will DENY Corcoran’s Motion for Summary Judgment (ECF No. 7).
I. FACTUAL HISTORY
A. Corcoran’s 1976 Virginia Conviction
By his own report, in 1976, while a student at American University in Washington, D.C., Corcoran was arrested in Virginia after using his .then-girliriend’s car without her permission. Compl. ¶ 9, ECF No. I.
Section 6—133(b)(1) of the Maryland Public Safety Article prohibits Maryland residents from possessing a regulated firearm if the person “has been convicted of a disqualifying crime.”
C. Corcoran’s Handgun Qualification License Application
Corcoran is now a sixty-five year old resident of Bethesda, Maryland. Compl. ¶ 8, 14. Other than the Virginia conviction forty years ago, he has no other criminal history and has had no run-ins with the criminal justice system. Id. at ¶ 10.
On December 14, 2015, he applied to the Maryland State Police for a Handgun
On January 8, 2016, the Maryland State Police denied Corcoran’s Handgun Qualification License application, citing his 1976 misdemeanor conviction in Virginia. Id. ¶ 16. The Police concluded that Corcoran’s 1976 Virginia conviction was equivalent in nature to § 7-203 of the Maryland Criminal Law Article, “Unauthorized Removal of Property,” denominated a misdemeanor but one that carries a,maximum sentence of incarceration of four years.
II. PROCEDURAL HISTORY
On June 2, 2016, Corcoran filed the present suit. Counts I, II, IV, and V assert Corcoran’s claims against the State Defendants. Id. As indicated, in Count I, he makes an as-applied Second Amendment challenge to the Maryland Firearms Prohibitions pursuant to 42 U.S.C. § 1983. Id. at ¶ 19-22.
On February 17, 2017, the Fourth Circuit issued its opinion in Hamilton v. Pal-lozzi.
III. STANDARD OF REVIEW,
Federal Rule of Civil Procedure 12(b)(6) governs dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville,
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law;” Fed. R. Civ. P. 56(a). This does not mean, however, that “some alleged factual dispute between the parties” defeats the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
IV. ANALYSIS
The Court considers Corcoran’s three constitutional challenges to the Maryland Firearms Prohibitions in logical sequence: (1) the facial challenge to the Maryland Firearms Prohibitions pursuant to the Second Amendment; (2) the as-applied challenge to the Maryland Firearms Prohibitions under the Second Amendment; (3) the assertion that the Prohibitions violate the' Ex Post Facto Clause of the U.S, Constitution and 'have an impermissible retroactive effect..
A. Facial Challenge to the Maryland Firearms Prohibitions (Count II)
Citing the Supreme Court’s holdings in District of Columbia, et al. v. Heller,
To bring a successful facial challenge, Corcoran “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno,
The Second Amendment pro- . vides that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. In Heller, the Supreme Court-held that the Second Amendment right to keep and bear arms is an individual right without regard to militia service. Heller,
In U.S. v. Moore,
The Fourth Circuit’s analysis of the constitutionality of 18 U.S.C. § 922(g)(1) in the context of a Second Amendment facial challenge applies equally to Corcoran’s challenge of the Maryland Firearms Prohibitions.
Corcoran’s attempt to distinguish the federal and Maryland laws is unpersuasive. He is correct that § 922(g)(1) and the Maryland Firearms Prohibitions differ in that the federal law looks to the maximum sentence in the jurisdiction in which the proceedings were held, whereas the Maryland laws look to the closest equivalent crime listed within its own Criminal Article.
The Court will GRANT WITH PREJUDICE the State Defendants’ Motion to Dismiss the facial challenge based on the Second Amendment.
B. As-Applied Challenge to the Maryland Firearms Prohibitions (Count I)
The fact that the Maryland' Firearms Prohibitions may be valid on their face does not resolve Corcoran’s as-applied challenge. See United States v. Moore,
i. Corcoran has plausibly demonstrated that his factual circumstances remove his challenge from the realm of ordinary challenges.
The first prong of the streamlined Chester-test requires the court to consider “whether the challenger’s conduct is within the protected Second Amendment right of ‘law-abiding, responsible citizens to use arms’ ” and whether that use of Arms implicates the “defense of hearth and home.” Hamilton,
1. Corcoran .has plausibly demonstrated that his conduct is within the protected Second Amendment right of a law-abiding, responsible citizen.
Although Hamilton held that “a challenger convicted of a state law felony generally cannot satisfy step one of the Chester inquiry,” it explicitly “[left] open the possibility that persons who are not convicted of felonies, but otherwise fall within the sweep of what we refer to as ‘felon disarmament laws,’ such as persons convicted of crimes labeled as a misdemeanors, but punishable by a term of prison such that the misdemeanor falls within the sweep of a felon disarmament law, may still potentially succeed at step one of the Chester inquiry.” Id. at 625-26, n. 11. See also United States v. Moore,
Hamilton “confin[ed] the step one analysis to the challenger’s criminal history.” Id. at 626. Accordingly, it “considered] only the conviction or convictions causing the disability to the challenger,” and held that “evidence of rehabilitation, likelihood of recidivism, and passage of time are not bases for which a challenger might remain in the protected class of ‘law-abiding, responsible’ citizen[s].” Id.
In scrutinizing the challenger’s underlying convictions, Hamilton emphasized that because in that particular case the challenger’s “theft and fraud crimes were ‘black-letter mala in se felonies reflecting grave misjudgment and maladjustment,’” he could not be a law-abiding, responsible citizen. Hamilton,
The Court will assume that Corcoran, like Hamilton, was convicted of a malum in se (as opposed to a malum prohibitum) offense. However, it bears noting that neither the original Virginia law under which Corcoran was convicted
The relatively innocuous nature of Cor-coran’s criminal activity is brought into focus when measured against as-applied challenges to various provisions of 18 U.S.C. § 922 previously rejected within the Fourth Circuit. In those cases, the challengers had multiple criminal convictions, including felonies. See, e.g., Moore,
Indeed, the Fourth Circuit has previously distinguished an as-applied challenger’s past convictions from the extensive criminal histories of other challengers. In United States v. Kline,
In the Court’s view, Corcoran’s single, non-violent misdemeanor conviction more closely resembles the criminal histories of two as-applied challengers whose cases were recently decided by the U.S. Court of Appeals for the Third Circuit. In a consolidated en bane opinion, the Third Circuit affirmed two separate district court opinions that granted the challengers summary judgment on their as-applied challenges to 18 U.S.C. § 922(g)(1).
The Fourth Circuit has not established a definitive list of factors to be considered in evaluating whether a.challenger remains in the protected class of “law-abiding, responsible citizen.” Binderup nonetheless offers guidance. Just to remind: By his own un-refuted report, Corcoran submits that'his conviction arose from his use of his then-girlfriend’s car without her permission. As this Court has already suggested, this action seems, considerably less “egregious” that the crimes found in other as-applied challenges. The de minimis nature of Cor-coran’s act is underscored by applying the Binderup factors. In Virginia, where Cor-coran committed the crime, the offense was deemed to be a misdemeanor punishable by no more than one year imprisonment. Cf. Hamilton,
2. Corcoran’s intended use of firearms plausibly implicates the defense of hearth and home.
In Heller, the Supreme Court held that self-defense is the “central component”. of the right. D.C. v. Heller,
Here, Corcoran proffers that he desires to possess á firearm for self-defense and protection of the hearth and home. He is not seeking a Concealed carry permit or similar authorization that might permit him to use the gun outside the defense of his home. While his desire may be generalized, it nevertheless remains at the, heart of Second Amendment protections. See generally Heller,
At this juncture, at least, the Court concludes that Corcoran’s conduct conceivably falls within the protected Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’ He has at least plausibly demonstrated that his factual circumstances are outside the realm of ordinary challenges,
ii. Based on the current record, the State Defendants cannot satisfy intermediate scrutiny.
At step two of the Chester framework, the burden of production shifts to the State Defendants to establish that the Maryland Firearms Prohibitions satisfy the appropriate means-ends scrutiny. Chester,
1. Intermediate scrutiny applies.
The Court considers first the level of constitutional scrutiny that applies. “Heller left open the level of scrutiny applicable to review a law that burdens con
Corcoran urges the Court to apply strict scrutiny because application of the Maryland Firearms Prohibitions results in his complete disarmament, and thus imposes a “severe burden” on his Second Amendment right. The State Defendants contend that intermediate scrutiny applies. The Court finds that Corcoran’s argument cuts too far.
In selecting the appropriate level of scrutiny in similar as-applied Second Amendment challenges, the Fourth Circuit has analogized to the First Amendment context, where “the level of scrutiny [applied] depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” Id. (applying intermediate scrutiny even though the challenged law burdened an enumerated, fundamental right because courts “do not apply strict scrutiny whenever a law impinges upon a right specifically enumerated in the Bill of Rights”).
In Chester, the Fourth Circuit concluded that “intermediate scrutiny is more appropriate than strict scrutiny” where a person, “by virtue of [his or her] criminal history,” does not assert a claim “within the core right identified in Heller,” i.e., “the right of a law-abiding, responsible citizen.” Chester,
The Court, following Chester, holds that intermediate scrutiny applies because Cor-coran does not assert a claim within the core right of a law-abiding, responsible citizen. As discussed above, the Maryland laws prohibiting Corcoran from possessing a firearm in light of his Virginia misdemeanor conviction fall within the category of “presumptively lawful,” “longstanding prohibitions on the possession of firearms by felons.” See Heller,
2. The State Defendants have demonstrated a substantial government objective, but based on the current record, have not shown a reasonable fit.
Under the intermediate scrutiny standard, the Government must demonstrate “that there is a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ governmental objective.” Chester,
a. The State Defendants have demonstrated a substantial government objective.
The State Defendants submit, that the Maryland Firearms Prohibitions serve the Government’s compelling interest in promoting public safety and preventing crime by keeping firearms out of .the hands of individuals who, by virtue of their prior convictions, have proven to be particularly likely to misuse firearms. Indeed, the Fourth Circuit has so held that protecting the public and preventing crime are unquestionably substantial government interests. See Kolbe v. Hogan,
The State Defendants, then, have as a matter of law satisfied 'their burden of demonstrating that the objectives of the Maryland Firearms Prohibitions of protecting the public and preventing crime are “substantial.”
b. Based on the current record, however, the State Defendants have not shown a reasonable fit.
The State Defendants must also satisfy their burden of demonstrating that there is a “reasonable fit” between the challenged- regulations—i.e., those intending to keep firearms out of the hands of individuals convicted of Maryland misdemeanors carrying a maximum statutory penalty of more than two years or, for out-of-state sentences, convictions for which the equivalent crime in.Maryland carries a maximum statutory penalty of more than two years—and the State’s interest in protecting the public and preventing crime. On this point, the State Defendants contend that “[t]he Fourth Circuit has repeatedly rejected' as-applied; Second Amendment challenges to laws disarming felons and persons convicted of significant misdemeanor crimes” and that Corcoran’s conviction indicates a “‘manifest disregard’ for the law and ‘the rights of others.’”
Based upon the current record, the Court finds that the State Defendants have not as yet met their burden of establishing a reasonable fit.
Given the present posture of the case and lack of evidence submitted regarding the reasonableness of the fit, the Court finds that the State Defendants have not, as yet, met the burden that intermediate scrutiny requires of them.
For this reason, the State Defendants’ Motion to Dismiss will be DENIED WITHOUT PREJUDICE as to Count I.
iii. Corcoran is not entitled to summary judgment on Count I,
The Court denies Corcoran’s Motion for Summary Judgment for at least two reasons. As of now, Corcoran has simply supported the “facts” of his conviction with assertions in his Complaint and an affidavit supporting his Motion for Summary Judgment.
For the same reason, it would be premature to rule as a matter of law that the State Defendants cannot meet their burden of satisfying the intermediate scrutiny standard. Following discovery, the parties and the Court will be in a better position to analyze whether there is a reasonable fit between the Maryland Firearms Prohibitions and Maryland’s interests in protecting the public and preventing crime. Cf. Holloway v. Sessions,
Accordingly, the Court will DENY Cor-coran’s Motion for Summary Judgment.
C. Ex Post Facto Challenge to the Maryland Firearms Prohibitions (Counts IV and V)
In Counts - IV and V, Corcoran asserts that because the Maryland Firearms Prohibitions were adopted in 1996, some twenty years after his Virginia conviction, they violate the Ex Post Facto Clause of the U.S. Constitution and have an impermissible retroactive effect as applied to him and other similarly situated Maryland residents and citizens who seek to purchase or possess a handgun for defense of the home. He argues that at the time of his conviction in 1976, he would not have been prohibited under Maryland law from owning a firearm in the State of Maryland; therefore, the Maryland Fire-anns Prohibitions created additional, retroactive consequences of the misdemeanor offense, inflicting a greater punishment than the law attached to the conviction at the time it was committed, and have otherwise altered Corcoran’s situation and right to self-defense of the home to his disadvantage. The Court disagrees.
The Constitution prohibits States from enacting Ex Post Facto laws. U.S. Const. art. I, § 10, cl. 1. “To fall within the ex post facto prohibition, a law must be retrospective—that is, it must apply to events occurring before its enactment— and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis,
The Maryland Firearms Prohibitions under challenge here are not retrospective.
United States v. Mitchell,
Here, as in Mitchell, the fact that the firearms prohibition was enacted after Corcoran’s conviction is immaterial. The effect of the Maryland Firearms Prohibi
Corcoran attempts to distinguish Mitchell, emphasizing that unlike him, Mitchell was on trial for having committed a new crime (possession of a firearm in violation of § 922(g)(9)). This is a difference without a distinction. Mitchell’s arrest under § 922(g)(9) was'the result of, as Corcoran puts it, the new legal consequence of his prior criminal conviction. Like Corcoran, Mitchell was prohibited from possessing a firearm because of a previous conviction, which occurred prior to the enactment of the law generating that prohibition. The fundamental question in Mitchell was whether a firearms prohibition violated the Ex Post Facto . Clause since that prohibition was enacted after the disqualifying offense. According to the Fourth Circuit, the fact that Mitchell fáced a criminal charge under § 922(g) made no difference. The court’s determination that the law did not violate the Ex Post Facto Clause would have applied just the same if the posture in Mitchell had reflected the posture of the instant cast (i.e., if Mitchell had sought declaratory and injunctive relief prior to his arrest). For the same reason that firearms prohibitions do not run afoul of the Ex Post Facto Clause when used to prosecute a new offense, they do not offend the Clause when as-applied to prohibit a person from possessing a firearm in the first place.
The Court will GRANT WITH PREJUDICE the State Defendants’ Motion to Dismiss as to Counts IV and V.
V. CONCLUSION
For the foregoing reasons, the State Defendants’ Motion to Dismiss (ECF No. 6) is GRANTED IN PART and DENIED IN PART and Corcoran’s Motion for Summary Judgment (ECF No. 7) is DENIED. The Court DISMISSES WITH PREJUDICE Counts II, .IV, and V of Corcoran’s Complaint (ECF No. 1) WITH PREJUDICE.. The Court DENIES WITHOUT PREJUDICE State Defendants’ Motion to Dismiss as to Count I.
Count I remains in the case for the present. In light of the foregoing and the potential need for discovery, parties SHALL, within 20 days, submit a proposed joint scheduling order.
A separate Order will ISSUE.
Notes
. This case was originally docketed as Corcoran v. Lynch, Brandon, Pallozzi, and Frosh, Loretta Lynch served as Attorney General of the United States until January 20, 2017, On February 9, 2017, Defendant Sessions was sworn into that office. As indicated in the accompanying Order, Sessions has been substituted for Lynch as a co-Defendant,
. Hereinafter, Sessions and Brandon will be referred to as the "Federal Defendants” and Pallozzi and Frosh will be referred to as the "State Defendants,”
. In his sole claim against the Federal Defendants (Count III), Corcoran seeks declaratory relief and an order permanently enjoining the
. Pursuant to a joint motion of Corcoran and the Federal Defendants, the Court stayed the claim against the Federal Defendants pending resolution of the claims against the State Defendants, ECF No. 15. The stay with regard to that claim remains in effect. The Court will not, therefore, discuss the federal claim in this Opinion.
. Corcoran suggests that the Virginia District Court destroyed his case file ten years after his conviction pursuant to the Virginia Code § 16.1-69.57, which requires destruction of certain case records, specifically criminal misdemeanor convictions as opposed to felony convictions. Compl. ¶ 9.
. Section 18.2-102 of the Virginia Criminal Code states:
Any person who shall take, drive or use any animal, aircraft, vehicle, boat or vessel, not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be guilty of a Class 6 felony; provided, however, that if the value of such animal, aircraft, vehicle, boat or vessel shall be less than $200, such person shall be guilty of a Class 1 misdemeanor.... ”
Virginia Criminal Code § 18.2-102.
.Other than his own testimony, Corcoran cites no evidence supporting his contention that he pled guilty to the misdemeanor, as opposed to the felony form of the charge, but, as indicated, there is apparently no record of the case in Virginia’s files.
. Section 5-205 of the Maryland Public Safety Article similarly prohibits a Maryland resident from possessing a rifle or shotgun if that person "has been convicted of a disqualifying crime as defined in § 5-101." Md. Code Ann. Pub. Safety § 5—205(b)(1). Section 5-144 makes it illegal for "a dealer or other person” to "knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle.” Sections 5-133, 5-144, and 5-205, were enacted as part of the Maryland Gun Violence Act of 1996. See Neal v. State,
. In addition to the prohibition in § 5-133(b)(1), the statute also prohibits a Maryland resident from possessing a regulated firearm if that person:
... (2) has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years; (3) is a fugitive from justice; (4) is a habitual drunkard; (5) is addicted to a controlled dangerous substance or is a habitual user; (6) suffers from a mental disorder ... and has a history of violent behavior against the person or another; (7) has been found incompetent to stand trial ... ;(8) has been found not criminally responsible ,..; (9) has been voluntarily admitted for more than 30 consecutive ... ; (10) has been involuntarily committed to a facility ...; (11) is under the protection of a guardian appointed by a court ...; (12) ... is a respondent against whom: (i) a current non ex parte civil protective order has been entered ...; or (ii) an order for protection ... has been issued ...; or (13) if under the age of 30 years at the time of possession, has been adjudicated delinquent by a juvenile court for an act that would be a disqualifying crime if committed by an adult.
Md. Code Ann. Pub. Safety § 5—133(b). Corcoran alleges generally that none of these other provisions apply to him. See Compl. ¶ 8.
.Federal law similarly prohibits the possession of firearms by a person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). However, under federal law, the definition of a “crime punishable by imprisonment for a term exceeding one year” does not include "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U.S.C. § 921(a)(2)(B) (emphasis supplied). Therefore, unlike Maryland, federal law looks to the forum of conviction, not to its own or any other State’s sentencing statutes for an equivalent crime.
. Neither Corcoran nor the State Defendants have addressed whether the equivalent Maryland statute is properly § 7-203 of the Maryland Criminal Law Article. Maryland also has, in its Transportation Article, a "joyriding” statute. Md. Code Ann., Transp. § 14-102. The maximum penalty for that misdemeanor is “imprisonment riot exceeding 2 months or a fine not exceeding $500 or both." Id. § 14-102(d) (effective October 1, 2017) (derived without substantive change from former Md. Code Ann., Transp. § 27—101 (c)(2)). If this is in fact the appropriate counterpart to Corcoran's conviction under the misdemeanor portion of Virginia Criminal Code § 18.2-102 (Virginia does not appear to have a separate "joyriding” statute), that would obviously have the effect of turning this whole case around. Inasmuch as the Court is denying the State Defendants’ Motion to Dismiss Count I, the parties may wish to address the applicability vel non of § 14-102 of Maryland’s Transportation Article in subsequent briefing.
. In Count I, Corcoran seeks declaratory relief and an order permanently enjoining the State Defendants from enforcing the Maryland Firearms Prohibitions against him based on his 1976 Virginia conviction.
. With regard to the facial challenge, Cor-coran seeks declaratory relief that application of the Maryland Firearms Prohibitions violates the . Second and Fourteenth Amendment to the United States Constitution.
. Both Counts IV and V request declaratory relief and an order permanently enjoining the State Defendants from enforcing the Maryland Firearms Prohibitions against him on account of his 1976 Virginia conviction.
. The Fourth Circuit subsequently denied Hamilton’s request for a rehearing en banc, and its mandate issued on March 27, 2017. ’ Hamilton petitioned the Supreme Court for a writ of certiorari, Hamilton v. Pallozzi, et al. No. 16-1517, on June 20, 2017. As of the date of this opinion, the Supreme Court has not ruled on the petition.
. Corcoran also suggests that.. § 5—133(b)(1) is overbroad because § 5—101(g)(1) “includes a ‘crime of violence' as a separate disqualifying crime, and § 5-101(c) outlines eighteen offenses considered as crimes of violence." Although the parties have not discussed this overbreadth argument in their briefings, the Court easily rejects this argument. “[N]o circuit has accepted an overbreadth challenge in the Second Amendment context," and “an individual ‘to whom a statute was constitutionally applied,’ cannot ‘challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the. Court,’" United States v. Chester,
. In fact, "the circuit courts of appeals have continued to speak with one voice, unanimously upholding § 922(g)(1) in the face of Second Amendment attacks.” Hamilton v. Pallozzi,
. See text accompany note 10, supra. Corcor-an argues that this feature of the Maryland Firearms Prohibitions violates the Full Faith and Credit Clause of the Constitution. Article IV, § 1 of the United States Constitution states that, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” He maintains that "[wjhereas the Federal prohibition clearly provides full faith and credit to both the legislative act that created Virginia’s 18.2-102 and its maximum sentence, Maryland's does not.”
This argument, however, is unavailing. Maryland’s use of its own statutory penalties in determining whether a conviction in another State disqualifies an individual from possessing a firearm in Maryland does not support a claim for violation of the Full Faith and Credit Clause. In Hamilton, the Fourth Circuit expressly held that "[t]he Full Faith and Credit Clause does not compel ‘a [S]tate to substitute the statutes of other [S]tates for its own statutes dealing with a subject matter concerning which it is competent to legislate.’ ” Hamilton,
. The Court also observes that the Maryland Court of Special Appeals has held that § 5-133's prohibition on the possession of firearms by those convicted of disqualifying crimes is valid under the Second Amendment. See Spencer v. State,
. As explained in Hamilton:
Chester established a two-prong test for assessing a Second Amendment challenge. The first prong, reflecting Heller’s observation that the Second Amendment embodies rights existing at its ratification, requires our historical review to evaluate whether those rights, as understood in 1791, are "burdened or regulated” by the statute in question. Chester,628 F.3d at 680 . If so, under the second prong,, the statute must pass constitutional muster in accordance with the appropriate level of judicial scrutiny. Id. Moore refined and crystallized our approach, however, explaining that "the .Chester analysis is more streamlined when a presumptively lawful regulatory measure is under review.” Moore,666 F.3d at 318 . In order for [a party] to rebut the presumption of lawfulness regarding § 922(g)(1) as applied to him, he' "must show that his factual circumstances remove his challenge from the realm of ordinary challenges.” Moore, 666 F.3d at 319.
Hamilton,
.The Maryland Firearms Prohibitions extend to persons convicted of “violation[s] classified^ [] misdemeanor[s] in the State that carrfy] a statutory penalty of more than 2 years.” See Md. Code Ann. Pub. Safety §§ 5-133(b)(1), ' 5-101(g). Traditionally, "felons” are people who have been convicted of any
. Corcoran argues that the Fourth Circuit’s limitation on the scope of analysis was restricted to a felony-encumbered challenger, and therefore, does not apply to a misdemeanor-encumbered challenger, like himself. The Court believes this argument misreads the Hamilton opinion, which applied this limitation to step one of the Chester analysis generally.
. As the Fourth Circuit in Hamilton noted, "this portion of the [BinderupJ opinion technically only garnered support from seven of the fifteen judges of the en banc court.” See Hamilton,
. In Hamilton, at the District Court level, Judge Bredar of this Court held:
Although the particular statutes that Plaintiff violated are directed toward misappropriation of credit cards, the underlying misconduct is the kind of misconduct that the law has proscribed from time immemorial, Plaintiff’s crimes are not technical or regulatory offenses: they are- black-letter mala in se felonies reflecting grave misjudgment and maladjustment,
While Plaintiff emphasizes the nonviolent nature of his crimes, studies show a statistically significant risk that persons who commit property crimes may engage in other maladaptive behaviors. For instance, a 2014 study published by the Bureau of Justice Statistics, which tracked' recidivism patterns of 404,638 state prisoners released in 2005, found that 82.1% of former property offenders were arrested for a new offense within five years following their release.
Hamilton, 165 F.Supp,3d at 326-27.
. Section T8.2-102 of the. Virginia Criminal Code states: "Any person who shall take, . drive or-use any animal, aircraft, vehicle, boat or vessel, not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be guilty of a Class 6 felony; provided, however, that if the value of such animal, aircraft, vehicle, boat or vessel shall be less than $200, such person shall be guilty of a Class 1 misdemeanor....”
. Section 7-203 of the Maryland Criminal Law Article states: "Without the permission of the owner, a person may not take and carry
. It is true that the Fourth Circuit has held that "application of the felon-in-possession prohibition to allegedly non-violent felons'... does not violate the Second Amendment.” United States v. Pruess,
. The Court notes that, at various times up to the present and in Maryland itself, particularly when the vehicle whose use was not authorized belonged to a relative or friend, the offence has been known as “joyriding.” See note 11, supra; In re Lakeysha P.,
. The Third Circuit applied a two-prong test very similar to the one set out in Chester. In fact, the Third Circuit’s two-prong test was originally set out in Marzzarella, which served as the basis for the Fourth Circuit's development of the two-part Chester framework. See United States v. Chester,
Judge Hardiman authored a concurrence joined by four judges, setting forth a one-step' test: once a challenger distinguishes himself as a responsible, law-abiding citizen, there is no need for means-end scrutiny. Binderup,
.On January 5, 2017, Defendants filed a Petition for a writ of certiorari in Sessions v. Binderup. No. 16-847. On June 26, 2017, the Supreme Court denied the petition for writ of certiorari. Sessions v. Binderup, _ U.S. _,
.Judge Ambro authored the Opinion of the Court, Although these factors were , only endorsed by two other judges, the decision to affirm the grant, pf summary judgment for the challengers represented the opinion of eight of the fifteen judges. Judge Hardiman’s concurrence, joined by four judges, focused on the non-violent nature of the offenses and the existence of evidence indicating that the challengers were "responsible citizens, each with a job, a family, and a clean record since [their convictions]." Binderup,
. See note 27, supra.
. It may well be that there is a consensus ■ among those States that, do not have "joyriding” statutes but address such crimes under , general unauthorized removal of property statutes in,which lesser categories of seriousness have been established for certain crimes, • as with the misdemeanor and felony forms of § 18,2-102 of the Virginia Criminal Code,
. Corcoran suggests that in Chester, the Fourth Circuit concluded that Chester's claim was "not within the core right identified in Heller" due to the specific nature of his underlying criminal behavior (i.e., the violent nature of his domestic violence misdemean- or). This argument misinterprets the Chester opinion, which did not take the particular nature of Chester's criminal conduct into consideration in making that decision. Rather, the Chester court categorically referred to his "criminal history as a domestic violence mis-demeanant” to explain why "his claim [was] not within the core right identified in Heller." Chester,
. The Fourth Circuit's holding in Kolbe v. Hogan,
. Several circuits have applied intermediate scrutiny to laws restricting, but not eliminating, possession of handguns in the home. See Binderup v. Attorney Gen. United States of Am.,
. The State Defendants have not entered into the record any legislative text, legislative history, or empirical evidence that might establish a reasonabje fit. While a cursory search for arguably relevant evidence revealed cases and a Maryland Attorney General opinion tracing the history of the Maryland Firearms Prohibitions as well as relevant social science studies, it is for the State Defendants to marshal the appropriate evidence, not the Court,
. The Fourth Circuit has twice remanded as-applied Second Amendment challenges to the district court because the records before it were insufficient to determine whether the Government had satisfied its burden of demonstrating reasonable fit. See United States v. Carter,
. See notes 5 and 7, supra.
. The Court also recognizes that the Maryland Firearms Prohibitions are not punitive. The Fourth Circuit distinguishes punitive/penal laws from civil/regulatory laws, holding that "[w]hile laws that retroactively increase ‘punishment’ or impose a ‘penalty’ violate the Ex Post Facto Clause, retroactive civil or regulatory ones do not.” United States v. O’Neal,
First, we must ask whether the legislature’s intent, as discerned from the structure and design of the statute along with any declared legislative intent, was to impose a punishment or merely to enact a civil or regulatory law. Second, even if it appears that the legislature did not intend to impose a punishment, we must determine whether the effect of the law is so punitive in fact that the law may not legitimately be viewed as civil in nature. The analysis under this latter part of the test focuses upon whether the sanction or disability that the law imposes may rationally be connected to the legislature's non-punitive intent, or rather appears excessive in light of that intent.
United States v. Farrow,
The non-penal nature of the Maryland Firearms Prohibitions is highlighted by the very challenger Corcoran brings. In O’Neal and Farrow, the Ex Post Facto challenges were brought by defendants facing criminal punishment who had previously been convicted of criminal offences. Corcoran brings his Ex Post Facto challenge in response to the rejection of his Handgun Qualification License application by the Maryland State Police. Unlike O’Neal and Farrow, Corcoran does not currently face a criminal sanction potentially increased by reason of his 1976 conviction. Cf. United States v. Stegman,
. The Court of Special Appeals of Maryland reached the same conclusion with regard to § 5-133 of the Maryland Public Safety Article. See Octavion Demetrice Ratcliffe v. State,