ROBERT L. FOOKS v. STATE OF MARYLAND
No. 24
In the Supreme Court of Maryland
June 6, 2025
September Term, 2022
Circuit Court for Wicomico County, Case No. C-22-CR-21-000030
Argued: March 2, 2023
Fader, C.J., Watts, *Hotten, Booth, Biran, Gould, Eaves, JJ.
Opinion by Fader, C.J.
Watts, J., concurs.
Gould, J., concurs.
Biran, J., dissents.
Filed: June 6, 2025
*Hotten, J., now a Senior Justice, participated in the hearing and conference of this case while an active member of this Court. After being recalled pursuant to
Robert L. Fooks, the petitioner, was convicted by the Circuit Court for Wicomico County of violating
The framework applicable to Second Amendment challenges has evolved over the course of four decisions issued by the United States Supreme Court in the last 17 years, along with the efforts of lower courts to implement those decisions. In 2008, the Court determined that the right to keep and bear arms codified in the Second Amendment is an individual right, unconstrained by the reference in its prefatory clause to militia service, and that a District of Columbia ban on the possession of handguns for home self-defense violated that right. See District of Columbia v. Heller, 554 U.S. 570, 595, 598-99, 635-36 (2008). In doing so, the Court engaged in a review of the text of the Second Amendment, the historical understanding of the right to keep and bear arms before and contemporaneous
In 2022, the Supreme Court concluded that the Second Amendment right applies outside of the home, and that a New York state statute requiring applicants for public carry licenses to demonstrate a “special need for self-protection” also violated that right. N.Y. State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1, 8-14 (2022) (citation omitted). In Bruen, the Court also expressly rejected a two-part framework for assessing Second Amendment claims that had been nearly universally adopted by lower courts attempting to apply Heller and McDonald. Id. at 17-19. In its place, the Court adopted a new test for Second Amendment challenges, which it described as follows:
[W]hen the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation‘s historical tradition may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s “unqualified command.”
Id. at 17 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Last year, the Court held that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the
BACKGROUND
A. Maryland Legal Framework
Constructive criminal contempt is a common law offense in Maryland that is not characterized as either a felony or a misdemeanor. Like other common law offenses, there is no minimum or maximum sentence applicable to constructive criminal contempt. Evans v. State, 420 Md. 391, 397 n.7 (2011) (“[W]here the Legislature fails to provide a penalty for a common law offense . . . the sentence is left to the ‘sound discretion of the trial court,
B. Background
In 2016, Mr. Fooks was convicted of constructive criminal contempt for his willful failure to pay child support, for which he received a sentence of imprisonment for four years and six months. The record does not identify how much of his sentence he served.
In 2020, based on records of pawn transactions, officers determined that Mr. Fooks was in possession of one handgun on November 30, 2019 and another on February 6, 2020.
A grand jury issued a 14-count indictment against Mr. Fooks, including 13 firearms-related counts and one count of theft. Mr. Fooks moved to dismiss the firearms-related counts on the ground that the underlying statutes violated his Second Amendment rights. The circuit court denied his motion. Mr. Fooks and the State then entered a plea agreement pursuant to which Mr. Fooks entered a conditional guilty plea to two of the firearms-related counts. The State agreed not to proceed with the remaining 12 counts. The circuit court accepted the plea.3
Mr. Fooks appealed to the Appellate Court, where he argued that
DISCUSSION
I. THE EVOLUTION OF THE FRAMEWORK FOR ANALYZING SECOND AMENDMENT CHALLENGES
A. Heller and McDonald
In the United States Supreme Court‘s landmark decision in Heller, the Court engaged in its first extensive examination of the Second Amendment right in deciding a challenge to a District of Columbia ban on the possession of usable handguns within the home. 554 U.S. at 573. In analyzing whether the Second Amendment right is individual or collective, the Court focused first on the amendment‘s text and then turned to history.
First, the Court analyzed the Second Amendment‘s text to discern the “normal and ordinary” meaning of its terms. Id. at 576 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)). Based on its analysis of “textual elements,” the Court concluded that the
Second, the Court turned to the “historical background of the Second Amendment,” which the Court concluded “strongly confirmed” its textual analysis. Id. The Court did so, it asserted, “because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” Id. Focusing on the analogous provision of the 1689 English Bill of Rights, “long . . . understood to be the predecessor to our Second Amendment,” id. at 592-93, the Court declared there to be “no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms,” id. at 595.
Third, the Court turned to other historical sources for further confirmation. The Court first analyzed “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment,” which it concluded confirmed its interpretation of the text. Id. at 600-05. The Court then engaged in an extensive review of historical sources reflecting how the Second Amendment was interpreted “from immediately after its ratification through the end of the 19th century.” Id. at 605. The Court defended its use of such sources as relevant to “determin[ing] the public understanding of [the Second Amendment] in the period after its enactment or ratification,” which the Court deemed “a critical tool of constitutional interpretation.” Id. The most recent source cited by the Court as authority concerning its interpretation of the Second Amendment was from 1891. Id. at 619 (citing and quoting J. Ordronaux, Constitutional Legislation in the United States 241-42 (1891)).
After concluding that analytical exercise, the Court emphasized that “the right secured by the Second Amendment is not unlimited.” Id. at 626. In a passage that has played a critical role in Second Amendment jurisprudence ever since, and will be important to our resolution of this appeal, the Court provided the following assurance:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27. In a footnote, the Court explained that it “identif[ied] these presumptively lawful regulatory measures only as examples,” and that the “list does not purport to be exhaustive.” Id. at 627 n.26. The Court then recognized “another important limitation on the right to keep and carry arms,” which was that it protected only weapons “in common use at the time.” Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).
Applying its interpretation of the Second Amendment to the District of Columbia law under review, the Court held that the law could not survive “any of the standards of scrutiny that we have applied to enumerated constitutional rights[.]” Id. at 628-29. The Court therefore declined to identify which standard of scrutiny would apply to Second Amendment claims, although it rejected out-of-hand a “freestanding ‘interest-balancing’ approach” suggested by Justice Breyer. Id. at 634. It also rejected any test that would have resulted in upholding the District of Columbia law under review because, the Court stated,
Notably for our purposes, the Court referred back to its list of “presumptively lawful regulatory measures” at least five times in the remainder of the opinion, each time characterizing those measures as limitations on or exceptions to the Second Amendment right, rather than as open issues left for future consideration. First, the Court described the “in common use” limitation as “another important limitation on the right,” implying that the presumptively lawful regulatory measures were themselves limitations on the right. Id. at 627 (emphasis added). Second, in responding to a criticism from one of the dissenters, the Court characterized the measures as “those regulations of the right that we describe as permissible,” not possibly permissible. Id. at 635. Third, in defending its identification of those measures without providing a supporting rationale, the Court stated that there would be “time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”4 Id.
Notably, all five passages refer to the identified presumptively lawful regulatory measures as either limitations on the Second Amendment right or, in the case of the final reference, as options available to governments to combat gun violence. The Court thus implied that although its explanation for how it identified those measures to be lawful would be delayed, it had already determined that they were.
Two years later, in McDonald, the Court held “that the Second Amendment right is fully applicable to the States.” 561 U.S. at 750. The Court determined that the critical question in determining whether the Second Amendment is incorporated against the States via the Due Process Clause of the Fourteenth Amendment is “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is ‘deeply rooted in this Nation‘s history and tradition.‘” Id. at 767 (citation omitted) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). That, the Court observed, was settled in Heller. Id. at 767-68. In reviewing the historical
After an extensive reiteration of applicable history and precedent, the Court observed that the Second Amendment right “is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.” Id. at 785. In responding to arguments of the respondents and their amici, the Court emphasized that it had
made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Id. at 786 (quoting Heller, 554 U.S. at 626-27). To emphasize the point, the Court took the unusual step of following its approving quotations of the relevant passages from Heller with an express statement of re-adoption: “We repeat those assurances here.” Id. at 786.
B. Lower Court Case Law Between McDonald and Bruen
Following Heller and McDonald, lower courts across the country struggled to reconcile the Supreme Court‘s focus on text and history in explaining its interpretation of the scope of the Second Amendment right with the Court‘s identification of presumptively lawful measures. See, e.g., United States v. Chester, 628 F.3d 673, 678, 680 (4th Cir. 2010) (discussing Heller and ultimately concluding that “it appears to us that the Court would apply some form of heightened constitutional scrutiny if a historical evaluation did not end the matter“); Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (stating that among the issues Heller did not resolve is “the standards for determining when and
Some courts additionally observed that although the Court appeared to ground its interpretation of the Second Amendment in an exploration of text and history that focused on the ratification period through the end of the 19th century, the Court also identified categories of acknowledged limitations on the right that, by and large, were not formally enacted until after that period.5 See, e.g., Chester, 628 F.3d at 679 (observing that “[f]ederal felon dispossession laws . . . were not on the books until the twentieth century“); Kachalsky, 701 F.3d at 90 n.11 (observing that the measures identified as presumptively lawful in Heller “were not enacted until the early twentieth century” (citing Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial
Lower courts also observed that the Supreme Court had analogized its treatment of the Second Amendment to the First Amendment and so looked to First Amendment jurisprudence for guidance. See, e.g., Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011) (“Borrowing from the Court‘s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law‘s burden on the right.“); United States v. Marzzarella, 614 F.3d 85, 89 n.4 (3d Cir. 2010) (”Heller itself repeatedly invokes the First Amendment in establishing principles governing the Second Amendment. . . . We think this implies the structure of First Amendment doctrine should inform our analysis of the Second Amendment.“). In doing so, those courts were informed by First Amendment
Ultimately, lower courts almost universally adopted a two-step analytical framework for addressing Second Amendment claims that closely mirrored the framework applied to First Amendment free speech claims. Under that approach,
[t]he first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment‘s guarantee. This historical inquiry seeks to determine whether the conduct at issue
was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.
Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (quoting Chester, 628 F.3d at 680); see also, e.g., Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018); N.Y. State Rifle & Pistol Ass‘n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); Marzzarella, 614 F.3d at 89; Nat‘l Rifle Ass‘n of Am., Inc., 700 F.3d at 194; United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Ezell, 651 F.3d at 703-04; United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng‘rs, 788 F.3d 1318, 1322 (11th Cir. 2015); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011).
C. Bruen
In Bruen, the Supreme Court expressly disavowed the “‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.” 597 U.S. at 17. The Court acknowledged that federal intermediate appellate courts interpreting Heller and McDonald had “coalesced around” that framework, id. at 17, 19 n.4, but held that the two steps the framework required were “one step too many,” id. at 19. The Court considered the first of those steps to be consistent with Heller, “which demands a test rooted in the Second Amendment‘s text, as informed by history,” but decided that means-end scrutiny analysis has no place when considering Second Amendment challenges. Id. In place of that framework, the Court adopted a new one:
[W]e hold that when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation‘s historical tradition may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s “unqualified command.”
Id. at 17 (quoting Konigsberg, 366 U.S. at 50 n.10).
In explaining its new standard, the Court stated that it “accords with how we protect other constitutional rights,” focusing specifically on “the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms.” Id. at 24. The Court observed that “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” Id. (alteration in Bruen) (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000)).
In further explicating its new standard, the Court in Bruen explained that the standard “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment‘s text and historical understanding.” Id. at 26. Where a challenged regulation seeks to address “a general societal problem” that has existed since 1791, the Court observed, “the lack of a distinctly similar historical regulation” would be evidence of an incompatibility with the Second Amendment. Id. The inquiry will not necessarily be so straightforward in “cases implicating unprecedented societal concerns or dramatic technological changes[, which] may require a more nuanced approach.” Id. at 27. In those cases, the Court observed, courts will need to conduct historical inquiries involving
The Court added two further pieces of guidance in applying its new standard. First, although examining the comparability of the burdens of regulations and the justifications for those burdens was part of the required “analogical inquiry,” the Court cautioned that such comparability did “not mean that courts may engage in independent means-end scrutiny under the guise of an analogical inquiry.” Id. at 29 n.7. In other words, courts are to examine the burdens of and justifications for modern firearms regulations only to assist in determining whether they are analogous to potentially relevant historical regulations, not to conduct a balancing inquiry. Second, “analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. at 30. As an example, the Court observed that “new and analogous sensitive places” might be added to the “settled” list of those “where arms carrying could be prohibited consistent with the Second Amendment.” Id.
The Court then turned to the statute before it, under which New York banned the carry of handguns in public by those who could not prove that they had “proper cause” to do so. Id. at 31. The Court found the first part of its new standard—whether the text of the Second Amendment covers the conduct at issue—to be easily satisfied because: (1) the petitioners, as “two ordinary, law-abiding, adult citizens,” were “part of ‘the people’ whom the Second Amendment protects“; and (2) the conduct in which they sought to engage, “carrying handguns publicly for self-defense,” is protected by the Second Amendment. Id. at 31-32.
Based on its extensive review of these historical sources, the Court concluded that public carry had “traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms,” but found little evidence of a tradition of broadly prohibiting public carry of common weapons for self-defense or of “limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” Id. at 38. Absent any such historical tradition, the Court concluded that New York had not borne its burden, and that its proper cause requirement was unconstitutional.7 Id. at 38-39.
Second, Justice Kavanaugh wrote separately for himself and Chief Justice Roberts “to underscore two important points about the limits of the Court‘s decision.” Id. at 79 (Kavanaugh, J., concurring). Justice Kavanaugh first emphasized that the majority opinion
In dissent, three Justices would have upheld the constitutionality of the New York law‘s proper cause requirement. Id. at 83-133 (Breyer, J., dissenting, joined by Sotomayor & Kagan, JJ.).
D. Post-Bruen
Lower courts across the country struggled to apply the new Bruen test. That point is illustrated well by three decisions issued by federal intermediate appellate courts in cases challenging restrictions found in federal law.
A majority of the entire Third Circuit reversed. Range v. Att‘y Gen., 69 F.4th 96 (3d Cir. 2023) (en banc). The court held that felons were among “the people” protected by the Second Amendment, and that the government had failed to carry its burden of identifying a historical tradition of prohibiting possession of firearms by an individual in Mr. Range‘s circumstance. Id. at 103. The court considered the federal felon dispossession statute to be too new to benefit from the assurances in Heller and rejected the other historical regulations on which the government relied as insufficiently analogous. Id. at 103-04. The Supreme Court later vacated the Third Circuit‘s decision and remanded the case for further consideration in light of Rahimi. Garland v. Range, 144 S. Ct. 2706, 2706-07 (2024). The Third Circuit, again sitting en banc, released a revised decision reaching the same conclusion for largely the same reasons on December 23, 2024. Range v. Att‘y Gen., 124 F.4th 218 (3d Cir. 2024) (“Range II“).
In United States v. Rahimi, the Fifth Circuit took a similar approach to the Third Circuit‘s en banc decision in regard to
In United States v. Jackson, the Eighth Circuit came to a conclusion similar to that of the panel in Range in upholding the constitutionality of § 922(g)(1) as applied to a defendant with a prior conviction for the sale of a controlled substance. 69 F.4th 495 (8th Cir. 2023). Relying on the assurances provided by the Supreme Court in Heller, McDonald, and Bruen, “and the history that supports them,” the court “conclude[d] that there is no need for felony-by-felony litigation regarding the constitutionality of
E. Rahimi
In United States v. Rahimi, the Supreme Court upheld the constitutionality of
Applying its clarified test, the Court concluded that founding-era surety laws and “going armed” laws were sufficiently analogous to uphold modern regulations temporarily disarming persons found to pose a credible threat to the safety of another. See id. at 697-701. Surety laws required that persons as to whom there was “a probable ground to suspect of future misbehavior” could be required to post a bond, which would be forfeited if the public peace was, in fact, disturbed. Id. at 693-97 (quoting 4 William Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787)). While not addressed only to firearms, some surety laws “also targeted the misuse of firearms.” Id. at 696. Going armed laws, derived from the 13th century English Statute of Northampton, “prohibited ‘riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land.‘” Id. at 697 (alteration in Rahimi) (quoting 4 Blackstone at 149). A violation could lead to a “forfeiture of the arms . . . and imprisonment.” Id. (omission in Rahimi) (quoting 4 Blackstone at 149).
Although the Supreme Court did not describe the level of specificity at which its history and tradition analysis should be performed, its use of surety and going armed laws to uphold § 922(g)(8) is instructive. Perhaps the most notable common feature of those laws for our purposes is that neither type disarmed individuals based on a determination that they posed a credible threat to the safety of another. Rather, surety laws required an individual believed to constitute a possible threat to post a bond—as a disincentive to engage in misbehavior—but did not disarm anyone. And the only disarmament associated
Two additional points about the majority opinion in Rahimi are particularly notable for our purposes. First, although the Court “note[d] that Section 922(g)(8) applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another,” it emphasized that it was “not suggest[ing] that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse[.]” Id. at 698-99 (quoting
Eight of the Court‘s nine Justices joined the majority opinion in Rahimi. Five of them penned separate concurrences to discuss issues of constitutional interpretation and application, some of which are relevant to our analysis. They fit roughly into three categories.
First, two opinions on behalf of three Justices expressed continued opposition to the Court‘s strict focus on history for evaluating Second Amendment claims, but nonetheless favored the majority‘s clarification of the test as focusing on principles. Justice Sotomayor, joined by Justice Kagan, reiterated her opposition to the history and tradition test, stating: “History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.” See id. at 706 (Sotomayor, J., concurring, joined by Kagan, J.). Justice Sotomayor remained “troubled by Bruen‘s myopic focus on history and tradition” and its inability to give “full consideration to the real and present stakes of the problems facing our society today,” id., but found it worth repeating that the task for courts applying the Bruen test
Second, in separate concurrences, Justices Kavanaugh and Barrett explained their approaches to the history and tradition analysis and why those approaches support the majority‘s clarification of the test articulated in Bruen. Each offers a different rationale for taking a broader approach to the test than the way Bruen had been interpreted. Justice Kavanaugh emphasized the primacy of the constitutional text, followed by pre-ratification history, and, if those sources prove “elusive or inconclusive,” “post-ratification history.”10 Id. at 723 (Kavanaugh, J., concurring). He argued that post-ratification history, on which the Court has relied in interpreting constitutional amendments for “more than two centuries,” can be helpful to contemporary judges because it represents the “collective
Justice Barrett concurred to “identify the basic premises of originalism.” Id. at 737 (Barrett, J., concurring). According to Justice Barrett, originalism is “built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the ‘discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.‘” Id. (quoting Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 378 (2013)). But for Justice Barrett, the history that matters is that immediately surrounding ratification, not the history that significantly post-dates ratification. Rahimi, 602 U.S. at 737-38 (Barrett, J., concurring). Justice Barrett then addressed what she viewed as the source of lower courts’ struggle with Bruen‘s use of history, stating that to survive Second Amendment scrutiny, a regulatory measure must be “consistent with historical limits, . . . not . . . an updated model of a historical counterpart.” Id. at 739. She describes two significant problems with requiring overly specific historical analogues to justify modern regulations. The first is that it limits modern policymakers “to follow late-18th-century policy choices,” thus trapping the law “in amber.” Id. The second is that “it assumes that founding-era legislatures maximally
Third, Justice Gorsuch argued that the directives of the Constitution are, in fact, “trapped in amber.” Id. at 709 (Gorsuch, J., concurring). Although Justice Gorsuch‘s explication of the history and tradition test is stricter than that articulated by the majority or any other of the concurring Justices, he nonetheless agreed with the majority that the surety and going armed laws provide a strong analogue to § 922(g)(8). Id. at 710-13.
II. APPLICATION TO MR. FOOKS‘S CHALLENGE
Mr. Fooks first asks us to identify the correct standard to apply to his Second Amendment challenge and to ascertain whether the Appellate Court properly applied that standard.13 He contends that the appropriate standard is the general standard the Supreme Court set forth in Bruen:
[W]hen the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government . . . must demonstrate that the regulation is
consistent with this Nation‘s historical tradition of firearm regulation.
Mr. Fooks does not believe Rahimi impacts this analysis, save to demonstrate that Second Amendment restrictions may apply when an individual is found to pose “a credible threat to the physical safety of others.” See 602 U.S. at 700. The State agrees with this general standard but argues that, after Rahimi, modern regulations need only be analogues to principles found in our history and tradition of firearms regulation to survive Second Amendment review. The State is correct. In Rahimi, the Court clarified that the “appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” and the “principles underlying the Second Amendment.” Id. at 693.
The State further argues that we cannot ignore the statement, originated in Heller, affirmed in McDonald, and expressly re-avowed by three of the six Justices in the majority in Bruen and again by the majority in Rahimi, that “prohibitions on the possession of firearms by felons” are presumptively lawful. Mr. Fooks contends that such language is inapposite here because he is not a felon. Our first task is therefore to determine whether
The underlying crime of which Mr. Fooks was convicted is constructive criminal contempt, a common law crime for which he received a sentence of imprisonment for more than four years. In Maryland, constructive criminal contempt is not expressly classified as a felony or a misdemeanor. Instead, constructive criminal contempt is an unclassified
As an initial matter, in referring generally to felon dispossession statutes in Heller, McDonald, Bruen, and Rahimi, the Supreme Court was obviously not focused on Maryland‘s relatively unique system of classification—or, as more appropriate here, non-classification—of certain common law criminal offenses. Indeed, the federal felon dispossession statute,
The common thread among felon dispossession statutes is thus not any magic afforded to the use of the word “felony” but a general intent to prohibit the possession of firearms by individuals who have committed offenses the respective legislative body has deemed serious enough to be eligible for a significant term of imprisonment.
In sum, we agree with the State that
B. Public Safety § 5-133(b)(2) Is Constitutional on Its Face.
Having determined that
1. The United States Supreme Court Has Identified Felon Dispossession Statutes as Presumptively Lawful.
The United States Supreme Court‘s identification of a set of presumptively lawful regulatory measures, along with its subsequent characterizations of that set of measures, could arguably be subject to different and conflicting interpretations. It could be posited that the Supreme Court provided those assurances to avoid a rush to judgment that its rulings in Heller, McDonald, and Bruen spelled the end of all firearms regulations. Under that theory, its identification of certain measures as presumptively lawful was not intended to signal that it had reached any conclusions, even preliminarily, as to the constitutionality of those measures. That theory is perhaps best supported by the fact that the majority opinions in Bruen and Rahimi did not identify any express exceptions to the text-and-history standard the Court has set forth for evaluating Second Amendment challenges.
Conversely, several passages in Heller, McDonald, two of the Bruen concurrences, and the majority opinion in Rahimi strongly suggest that the Court already has determined that the categories of measures it describes as presumptively lawful are constitutional, “subject of course to an as-applied challenge” if a measure “does not operate in that manner in practice.” Bruen, 597 U.S. at 80 (Kavanaugh, J., concurring). First, as set forth above,
Second, in McDonald, issued two years after Heller and premised in part on a close reading of Heller, the Court did not identify or clarify any imprecision in language concerning the presumptively lawful regulations. To the contrary, the Court quoted the relevant passage from Heller and expressly affirmed it. McDonald, 561 U.S. at 786.
Third, in Bruen, which also was premised in part on a close reading of Heller, the Court did not disavow any aspect of that opinion‘s treatment of the presumptively lawful regulatory measures. And although the majority opinion does not repeat the assurances the Court previously had made concerning those measures, two concurring opinions joined by three of the Justices in the majority do. Notably, the statements made in those two opinions were hardly passing references. Justice Kavanaugh‘s concurring opinion, joined by Chief Justice Roberts, addressed only two points, one of which was to emphasize the ongoing validity of those specific assurances. Bruen, 597 U.S. at 79-81 (Kavanaugh, J., concurring). And the primary point of Justice Alito‘s concurrence was to emphasize the
Fourth, in Rahimi, the Court once again reaffirmed the validity of the categories of presumptively lawful regulations, noting with approval its statement in Heller “that many . . . prohibitions[ applicable to firearm possession in the home], like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.‘” See Rahimi, 602 U.S. 699 (quoting Heller, 554 U.S. at 626-27, 627 n.26). Justice Kavanaugh‘s concurrence also separately quoted from the same passage. Id. at 735 (Kavanaugh, J., concurring).
On balance, we conclude that in Heller, the Supreme Court identified categories of firearms regulations that it determined are generally consistent with the right to keep and bear arms codified in the Second Amendment. In context, the Court‘s identification of such measures as “presumptively” lawful was simply an acknowledgment that regulations that deviate from the generally accepted contours of the categories such that they do not operate in the same way remain subject to an “as-applied challenge” on that basis.20 Bruen, 597 U.S. at 80 (Kavanaugh, J., concurring). That understanding was confirmed by the
In arguing against reliance on these repeated statements from the Supreme Court, Mr. Fooks contends that prohibitions on the possession of firearms by individuals with felony criminal convictions are, “[a]t best,” constitutional only to the extent they are premised on dangerousness. As support, Mr. Fooks points to a handful of pre-Bruen concurring and dissenting opinions that he contends “demonstrate[] that the historical focus of . . . restrictions [on felon possession] was on dangerousness.”21 He also argues that the decision in Rahimi was narrow and focused on people who “pose a credible threat to the physical safety of another.” Mr. Fooks contends that, viewed in that light,
Mr. Fooks‘s contention is inconsistent with our interpretation of Heller, Bruen, and Rahimi. The Supreme Court has repeatedly identified prohibitions on the possession of firearms “by felons” as presumptively lawful regulatory measures and permissible limitations on the Second Amendment right. The Court has not limited those statements to prohibitions on possession of firearms by violent felons or by individuals who have
Mr. Fooks also contends that
Based on our conclusion that
We also hold that felon dispossession laws like
The Second Amendment provides: “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.”
Surrounding the ratification of the Second Amendment, the right to keep and bear arms was not viewed as inconsistent with the prohibition of the possession of firearms by categories of individuals thought to present a special danger unrelated to whether they had previously engaged in or demonstrated a propensity for violence. Although the bases chosen for that determination were often abhorrent—including prohibitions based on race and religion that are now prohibited by other constitutional amendments—what is relevant to the Second Amendment analysis is whether the categorical disarmament of individual
Both in England and the United States leading up to and surrounding the ratification of the Bill of Rights, distrusted religious minorities were sometimes categorically disarmed
In United States v. Williams, the Sixth Circuit acknowledged that “governments in England and colonial America long disarmed groups that they deemed to be dangerous,” but stated that “[e]ach time, however, individuals could demonstrate that their particular possession of a weapon posed no danger to peace.” 113 F.4th 637, 657 (6th Cir. 2024). We do not share that interpretation of the historical sources. For example, we are not aware of a legal avenue by which disarmed Native Americans or enslaved persons could petition
Most importantly, while statutes specifically disarming felons did not appear until the 20th century, felons did not historically enjoy the right to keep and bear arms.29 Nor was the right to keep and bear arms the only right that could be denied felons in the founding era. For example, felons could be stripped of property rights and banned from
Based on many of these same sources, the Eighth Circuit concluded that “[t]his historical record suggests that legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a danger of misuse by those who deviated from legal norms, not merely to address a person‘s demonstrated propensity for violence.”32 Jackson II, 110 F.4th at 1127; see also id. (concluding that “history supports the authority of [a legislature] to prohibit possession of firearms by persons who have
These historical regulations and practices are even more closely tied to felon dispossession laws than the historical regulations on which the Court relied in Rahimi were
Mr. Fooks interprets Rahimi differently, continuing to argue that his conviction cannot disqualify him from firearms ownership absent what amounts to a close historical analogue that expressly disenfranchised individuals found in criminal contempt for failing to pay child support. Mr. Fooks also contends that the State‘s focus on whether he is a “law-abiding, responsible citizen” is an approach that Rahimi rejected. To the contrary, although the Court in Rahimi stepped back from an approach to Second Amendment claims focused on whether an individual is a “responsible” citizen, which the Court found to be “vague” and “unclear,” 602 U.S. at 701-02, the Court neither disavowed nor confirmed the significance of its prior use of the term “law-abiding.” Regardless, our analysis is not premised on the Court‘s repeated use of the term “law-abiding” in Bruen but on its analysis
C. Public Safety § 5-133(b)(2) Is Constitutional as Applied to Mr. Fooks.
In the alternative, Mr. Fooks contends that even if
Mr. Fooks‘s alternative, as-applied argument is simply the flip side of his argument that
The General Assembly, like the United States Congress and other state legislatures around the country, has concluded that individuals convicted of serious criminal offenses should not be permitted to possess firearms, regardless of whether the particular offenses they previously committed are themselves violent. Without carving out any exceptions, on four occasions over the course of 16 years, Justices constituting a majority of the Supreme Court of the United States have identified laws like
CONCLUSION
In sum, we affirm the Appellate Court of Maryland and hold that
JUDGMENT OF THE APPELLATE COURT OF MARYLAND AFFIRMED; COSTS TO BE PAID BY PETITIONER.
Case No. C-22-CR-21-000030
Argued: March 2, 2023
IN THE SUPREME COURT
OF MARYLAND
No. 24
September Term, 2022
ROBERT L. FOOKS
v.
STATE OF MARYLAND
Fader, C.J.
Watts
*Hotten
Booth
Biran
Gould
Eaves,
JJ.
Concurring Opinion by Watts, J.
Filed: June 6, 2025
*Hotten, J., now a Senior Justice, participated in the hearing and conference of this case while an active member of this Court. After being recalled pursuant to
But, because I would hold that Mr. Fooks‘s conduct of possessing and pawning stolen firearms falls outside of the protections of the Second Amendment, I would not reach the issue of how to apply the Supreme Court‘s decisions in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024). In my view, Mr. Fooks had no Second Amendment right to possess the firearms in this case, because his unsanctioned possession of firearms belonging to another person was not lawful conduct and his possession of firearms was not consistent with the Supreme Court of the United States’ description of the Second Amendment Right as applying to law-abiding people. See Bruen, 597 U.S. at 8-10.
On January 26, 2021, in the Circuit Court for Wicomico County, the State charged Mr. Fooks with one count of theft, ten counts of illegal possession of a rifle or shotgun, and three counts of illegal possession of a regulated firearm. The State accused Mr. Fooks of stealing several firearms from a relative and selling them at pawn shops. Mr. Fooks faced the firearms possession charges under
Subsequently, the State and Mr. Fooks reached a plea agreement. The written agreement, which Mr. Fooks and defense counsel signed, provided that Mr. Fooks would conditionally plead guilty to two charges under
On April 27, 2021, the circuit court conducted a guilty plea proceeding. The circuit court confirmed the details of the bargain with Mr. Fooks during the proceeding:
THE COURT: The plea agreement contemplates that the State is going to enter a nol pros as to count 14 [the theft charge], and the parties are in agreement that on appeal they agree that the motion to dismiss would be dispositive of the entire case, if you were to win on an appeal; you understand that?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: But the bargain that‘s entered here is the State‘s agreeing to that on your part and you‘re agreeing to enter this conditional plea of guilt to count four, illegal possession of a regulated firearm, which carries a maximum penalty of five years incarceration and a $10,000 fine -- and/or a $10,000 fine. And a conditional plea of guilt to count seven, illegal possession of a regulated firearm, also carrying a maximum penalty of five years incarceration and/or a $10,000 fine. At the time of sentencing the State‘s going to make a recommendation of five years on both counts, both counts completely suspended, but run consecutive to each other. So basically it‘s ten years all suspended. You understand that?
THE DEFENDANT: Yes, sir, Your Honor.
After noting that Mr. Fooks would be entitled to argue for a different sentence, the circuit court recounted the term of the plea bargain pertaining to Mr. Fooks’ agreement to pay restitution:
THE COURT: Pursuant to the bargain that‘s been [reached] between the two sides it also contemplates that you would pay restitution in the amount $9,949 to Marilyn Murray-Artis, and you‘re agreeing to pay that even though you‘re not entering a guilty plea to the theft charge; you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: But that‘s part of the contemplation of the plea agreement, you understand that?
THE DEFENDANT: Yes, sir.
Both defense counsel and the State agreed that the foregoing was “a fair recitation of the plea agreement” by the court.
After ascertaining that Mr. Fooks was knowingly, willingly, and voluntarily entering into the plea agreement, the circuit court asked the State to read the agreed-to statement of facts:
Your Honor, had this matter proceeded to trial the State would have produced testimony and evidence that on July 18, 2020, Officer Culver, Sergeant Jackson and Officer Swanger of the Fruitland Police Department responded to 503 St. Luke‘s Road, Fruitland, Maryland, 21826. An investigation of that address led Sergeant Jackson to conduct a RAPIDS search that found that Mr. Fooks, who would be identified as the individual seated to the left of defense counsel today, was in possession of a Smith and Wesson 19-4 .357 caliber handgun, as well as a Smith and Wesson 10-6 .38 special handgun on the dates of November 30, 2019, and February 6, 2020, respectively.
With this information Officer Culver conducted a followup investigation which determined that Mr. Fooks is prohibited from possessing firearms based on a 2017 conviction for constructive criminal contempt, a common law crime in which he received a sentence of more than two years of incarceration.
All events did occur in Wicomico County, Maryland.
The “RAPIDS search” refers to “the Regional Automated Property Information Database (‘RAPID‘)” that “tracks pawn shop sales[.]” Gross v. State, 229 Md. App. 24, 28, 142 A.3d 692, 695 (2016). This database was created after the General Assembly required pawn shops to submit electronically their daily records of purchases and sales of certain items, including firearms, which they are mandated to provide to local law enforcement. See 2009 Md. Laws 3162 (Vol. IV, Ch. 562, S.B. 597); see also
On October 1, 2009, SB 597 took effect requiring pawnbrokers and secondhand precious metal dealers to electronically report daily transactions to law enforcement. In order to manage this information and make it accessible to all law enforcement around the state, the Regional Automated Property Information Database (RAPID) was created: a central repository for all transaction data of pawn, secondhand precious metal, and automotive dismantler transition records in the state. RAPID has quickly become a favorite crime fighting tool to reduce property crime, both in Maryland and its bordering states, and is currently used as an investigative tool by over 2,000 users in 130 agencies[.]
Governor‘s Off. of Crime Control and Prevention, Fact Sheet: Reg‘l Automated Prop. Info. Database (RAPID) (January 2012), https://mdstatedocs.slrc.info/digital/api/collection/mdgov/id/7190/download [https://perma.cc/NXJ5-XMFZ]. In this case, according to the agreed upon statement of facts, Sergeant Jackson conducted a RAPID search that found that Mr. Fooks was in possession of, i.e., had sold to a pawn shop, a Smith and Wesson 19-4 .357 handgun and a Smith and Wesson 10-6 .38 special handgun on two different dates, November 30, 2019, and February 6, 2020, respectively.
Although in the written plea agreement, Mr. Fooks specifically reserved the right to appeal the constitutionality of
The statement of charges for the theft count signed by an Assistant State‘s Attorney
On July 18, 2020, officers from the Fruitland Police Department responded to 503 St. Lukes Rd. Fruitland, Md. Upon arrival, officers met with the victim who reported that his guns had been stolen from his garage. The victim reported to officers that in March of 2020, he asked an individual by the name of Robert Fooks, to move some guns to the shed for him because of the extermination of the house. Following the extermination, the victim asked Mr. Fooks to retrieve the guns and bring them in the house. Mr. Fooks stated that he could not retrieve the guns, at which point the victim called the police.
Taking this information from the victim, Ofc. Weldon, of the Fruitland Police Department ran a RAPDS [sic] check which revealed that Mr. Fooks had pawned 13 firearms since November 12, 2018. The victim was able to identify the 13 pawned firearms as ones missing and belonging to him.
Ms. Murray-Artis was clearly connected by a spousal or familial relationship to Mr. Artis, the complaining victim, who was likely deceased when Mr. Fooks entered his guilty plea, given that she became the restitution payee.3
At the plea proceeding, prior to imposing a sentence, the circuit court asked Mr. Fooks if there was anything he would like to say, and Mr. Fooks responded:
I put myself in a situation that is kind of a little awkward, trying to protect, and not realizing my previous conviction for child support. I don‘t have a
common practice of dealing with firearms at all in regards it‘s not my thing, but I kind of put myself—but I wanted to thank and apologize to the Court for taking up your time.
Afterwards, the circuit court stated:
I appreciate it. The facts aren‘t, you know, they‘re not the worst set of facts I have ever seen. Unfortunately, you know, Mr. Artis isn‘t here to clarify the situation either for the State‘s behalf or for your behalf. And so I think this is probably a pretty fair resolution. As long as you stay out of trouble it will take care of itself.
As a result of his plea of guilty to the firearms offenses but not to the theft offense, the circuit court sentenced Mr. Fooks to two consecutive five-year terms of imprisonment, suspending all but time served (73 days), with two years of supervised probation, and ordered Mr. Fooks to pay restitution of $9,949 to Ms. Murray-Artis.
After Mr. Fooks appealed to the Appellate Court of Maryland, but before that Court issued its decision, the Supreme Court of the United States decided Bruen. See Fooks v. State, 255 Md. App. 75, 90, 278 A.3d 208, 217 (2022). In Bruen, 597 U.S. at 9, the Supreme Court concluded “that ordinary, law-abiding citizens have a [] right to carry handguns publicly for their self-defense” pursuant to the Second Amendment. The Supreme Court struck as unconstitutional New York‘s licensing scheme for carrying a firearm in public, which required applicants to show “a special need for self-protection distinguishable from that of the general community,” id. at 12 (cleaned up), because “it prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms[,]” id. at 71.
Significantly, in Bruen, 597 U.S. at 9, 15, 26, 29-31, 33 n.8, 38 & n.9, 60, 70, the
This was not new language, but rather a pattern consistent with the word choice of the Supreme Court in earlier decisions in Heller, 554 U.S. 570, and McDonald v. Chicago, 561 U.S. 742 (2010), both cases invalidating firearms licensing laws that restricted “the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” Bruen, 597 U.S. at 8-9. In Heller, 554 U.S. at 625, 628, the Supreme Court made clear that the scope of the Second Amendment‘s protection is limited to possession of firearms for “lawful purposes.” The Supreme Court stated that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. In McDonald, 561 U.S. at 780, the Supreme Court declared that Heller‘s “central holding” was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”
The Supreme Court‘s emphasis on “law-abiding citizens” and “lawful conduct” shows that “the right secured by the Second Amendment is not unlimited” and does not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626 (citations omitted). For all of the confusion resulting from the language in Bruen and its concurrences and McDonald and Heller, as aptly discussed by the Majority, this much is clear: the Second Amendment does not protect firearms possession for criminal purposes. See Maj. Slip Op. at 2, 18-20.
Recently in Rahimi, 602 U.S. at 701-02, the Supreme Court concluded that citizens are not deprived of Second Amendment protections simply because they are not “responsible.” Although the Supreme Court stated that the term “responsible” is a vague term and that it does not dictate the Second Amendment‘s applicability, the Court did not disavow or discredit the premise that individuals who are not law abiding are excluded from Second Amendment protection. Id.
In Rahimi, id. at 684, 690, 693, 700-01, the Supreme Court upheld the
“Like most rights,” though, “the right secured by the Second Amendment is not unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Heller, this Court held that the right applied to ordinary citizens within the home. Even as we did so, however, we recognized that the right was never thought to sweep indiscriminately. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Ibid.
Rahimi, 602 U.S. at 690-91. Elaborating on its holding in Bruen, the Supreme Court stated that the appropriate analysis of a challenged regulation involves “considering whether the [] regulation is consistent with the principles that underpin our regulatory tradition” and that “the Government must show that the restriction is consistent with the Nation‘s historical tradition of firearm regulation.” Rahimi, 602 U.S. at 689, 692 (cleaned up). Courts “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.” Id. at 692 (cleaned up).
In holding that 18 U.S.C. § 922(g)(8) was constitutional as applied, the Supreme Court rejected the government‘s argument that Rahimi could be disarmed merely because he was not “responsible.” Rahimi, 602 U.S. at 701. The Court explained that, in Heller and Bruen, the term “responsible” was used to describe a class of citizens who undoubtedly enjoyed a Second Amendment right but that those decisions did not define the term and
In Range v. Attorney General, 69 F.4th 96, 103 (3d Cir. 2023) (en banc), after determining that Range was one of the “people” entitled to Second Amendment protection but prior to assessing whether the challenged law had a historical analogue, the Third Circuit considered what it referred to as the “easy question” of whether the statute at issue,
The Supreme Court vacated the Third Circuit‘s decision and remanded the case for further consideration in light of Rahimi. See Garland v. Range, 144 S. Ct. 2706 (2024). On December 23, 2024, the Third Circuit issued its opinion on remand. See Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc). The Third Circuit stated that it “agree[s] with Range that, despite his false statement conviction, he remains among ‘the people’ protected by the Second Amendment. And because the Government did not carry its burden of showing that the principles underlying our Nation‘s history and tradition of firearm regulation support disarming Range, we will reverse and remand.” Id.
Neither Range nor any of the cases discussed above are like this one. Mr. Fooks‘s conduct that led to his unlawful possession of a firearm conviction involved stealing or possessing stolen guns, pawning the guns without permission, and agreeing as part of a guilty plea to pay restitution to the owner of the guns. Separate and apart from the question of whether, based on his prior conviction,
The agreed upon statement of facts and the circumstances of Mr. Fooks‘s guilty plea demonstrated that Mr. Fooks did not possess the firearms for a lawful purpose, see Heller, 554 U.S. at 620, 624-25, much less the purpose of self-defense that is the “core lawful purpose” protected by the Second Amendment, see id. at 630. As much as is unknown about where precisely the limits of this “not unlimited” right may lay, I am confident that
In addition to falling outside the scope of “lawful purpose,” Mr. Fooks‘s unlawful possession of the firearms also places him outside of the category of the “law-abiding,
The conduct that places Mr. Fooks outside of the “lawful purposes” and “law abiding citizen” categories is not just his possession of a firearm in violation of
The circumstances of the case demonstrate that Mr. Fooks unlawfully possessed, i.e., stole or possessed as stolen property, the firearms at issue and agreed to pay restitution to Ms. Murray-Artis for the firearms. Merriam-Webster‘s Dictionary defines “restitution” as “an act of restoring or a condition of being restored: such as [] a restoration of something
Likewise, in Maryland, restitution is a criminal sanction, that may be ordered as part of a sentence, and “serves to recompense the victim, [and] also to punish and rehabilitate the criminal.” State v. Stachowski, 440 Md. 504, 512, 103 A.3d 618, 623 (2014) (citing Pete v. State, 384 Md. 47, 55, 862 A.2d 419, 423 (2004)). The Criminal Procedure Article,
A trial court may order restitution, in the sound exercise of its discretion, when, ”as a direct result of the crime or delinquent act, property of the victim was stolen, damaged, destroyed, converted, or unlawfully obtained, or its value substantially decreased . . . .” CP § 11-603(a)(1) (emphasis added). Medical and funeral expenses, direct out-of-pocket loss, loss of earnings, and certain government expenses may provide the basis for restitution. See CP § 11-603(a). The term “victim” is defined as “a person who suffered death, personal injury, or property damage or loss as a direct result of a crime or delinquent act; or, if the person is deceased, the personal representative [of] the estate of the person.” CP § 11-601(j).
Stachowski, 440 Md. at 512-13, 103 A.3d at 623 (footnote omitted).
Here, Mr. Fooks explicitly agreed to pay restitution to the victim, Ms. Murray-Artis, “even though [Mr. Fooks was] not entering a guilty plea to the theft charge[.]” Under our case law, restitution by Mr. Fooks was appropriate not only as a punishment for his crimes, i.e., theft of the firearms as charged or possession of the stolen firearms, but also to recompense Ms. Murray-Artis because “as a direct result of” his crime she must have “suffered . . . a direct out-of-pocket loss[.]” Id. at 512-13, 103 A.3d at 623. Mr. Fooks‘s unlawful possession of stolen firearms and the sale of the firearms at a pawn shop were established in the agreed-upon statement of facts via information about the RAPIDS search that led to the discovery of Mr. Fooks‘s possession of the guns, as well as his agreement to pay restitution as part of the plea bargain. Ms. Murray-Artis‘s status as the victim of his crime, i.e., the owner of the firearms, was established by Mr. Fooks‘s agreement to pay her restitution of $9,949.
In light of the textual and historical emphasis of Heller, McDonald, Bruen, and Rahimi, it is impossible to imagine that the Framers would have meant for the Second
In my view, this case also serves as a cautionary tale to trial courts to be watchful for conditional plea agreements that may obscure the unlawful or criminal nature of the possession of firearms and reserve the right to appeal where a defendant enters a plea to a firearms offense. For instance, if a defendant were charged with assault for unjustifiably shooting someone with his own unregistered gun, but ultimately reached a plea agreement only to an unlawful possession of a firearm charge, it would be incongruous to allow a challenge to the constitutionality of the firearm statute, because of the nature of the underlying conduct. At the very least an inquiry should be made on the record to determine whether the State is in possession of sufficient evidence to establish the other criminal offense(s) at issue even though a plea agreement may have been reached that does not require the defendant to plead guilty to an offense that would demonstrate that the possession of a firearm was not under lawful purposes.
With the advent of the Supreme Court‘s holdings in Bruen and Rahimi and the renewed interest in challenging the constitutionality of gun statutes, prosecutors and trial courts alike must be on the lookout for potential plea agreements that obscure the fact that a case involves the possession of a firearm during a criminal act or for unlawful purposes.
For the above reasons, respectfully, I concur.
Case No. C-22-CR-21-000030
Argued: March 2, 2023
IN THE SUPREME COURT
OF MARYLAND
No. 24
September Term, 2022
ROBERT L. FOOKS
v.
STATE OF MARYLAND
Fader, C.J.,
Watts,
*Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Concurring Opinion by Gould, J.
Filed: June 6, 2025
*Hotten, J., now a Senior Justice, participated in the hearing and conference of this case while an active member of this Court. After being recalled pursuant to Maryland Constitution, Article IV, § 3A, she also participated in the decision and adoption of this opinion.
The primary evidence that the Bruen test was not intended to apply to state felon-in-possession statutes comes directly from the Supreme Court‘s own words in District of Columbia v. Heller, 554 U.S. 570 (2008), and in Bruen. In Heller, the Court said:
Like most rights, the right secured by the Second Amendment is not unlimited. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
554 U.S. at 626-27. And in footnote 26, the Court said: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Id. at 627 n.26. Thus, in Heller, the Supreme Court identified a class of regulations—including state felon-in-possession laws—that are presumptively constitutional.
In Bruen, the Supreme Court did not call into question any aspect of its opinion in Heller; to the contrary, the Supreme Court instead plainly intended to build upon the
When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s “unqualified command.”
Id. at 24 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
So, under Heller, state felon-in-possession laws are presumptively constitutional, and under Bruen, state felon-in-possession statutes are presumptively unconstitutional. Both cannot be true. The only way to square that circle is to conclude that Bruen‘s test does not apply to state felon-in-possession laws.
The Second Amendment did not create the right to keep and bear arms; rather, it enshrined the right to keep and bear arms that existed when the Constitution was written and ratified. See Heller, 554 U.S. at 598-600. By its own terms, the Bruen test purports to apply to a specific question: whether an individual‘s “conduct” falls within or “outside” the scope of the Second Amendment. Bruen, 597 U.S. at 24; id. at 19 (“[T]he government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” (emphasis added)); id. at 21 (“[W]e also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right.“); id. at 22 (stating that in “suggesting the outer limits of the right, . . . Heller relied on text and history” (emphasis added)).
Indeed, applying Bruen to a state felon-in-possession statute is a non sequitur because, as the Court in Heller stated, the Second Amendment was originally understood to apply “only to the Federal Government.” 554 U.S. at 620 n.23. The Second Amendment was made applicable to the states through the Fourteenth Amendment, ratified in 1868. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 777 (2010). Whether states historically exercised their police power to punish criminal conduct with a forfeiture of Second Amendment rights tells us nothing about whether people—at the time of the country‘s founding or in 1868—believed that the state had the power to do so under its police powers.
The State‘s police power includes the power to establish a criminal code and impose consequences for criminal conduct. Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O‘Connor, J., dissenting) (“The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.“); Engle v. Isaac, 456 U.S. 107, 128 (1982) (“The States possess primary authority for defining and enforcing the criminal law.“); Argersinger v. Hamlin, 407 U.S. 25, 38 (1972) (“How crimes should be classified is largely a state matter.“).
This same principle is firmly embedded in Maryland‘s jurisprudence. Rice v. State, 311 Md. 116, 126 (1987) (“The legislature has broad power to define what acts shall
That doesn‘t mean that the State‘s police power is unlimited. As this Court stated almost 80 years ago:
Necessarily there are limits to the valid exercise of the police power of the State. Otherwise[,] the State Legislature would have unbounded power and the Fourteenth Amendment would be ineffective, for then it would be enough to say that any piece of legislation was enacted for the purpose of conserving the health, morals or welfare of the people. If, therefore, a statute designed for the promotion of the public health, morals, or welfare has no real or substantial relation to those objects, or is a manifest invasion of rights secured by the fundamental law, it is the duty of the court to adjudge accordingly, and thereby give effect to the Constitution.
But the police power is broad in scope, and the Legislature is vested with large discretion to determine not only what is injurious to the health, morals or welfare of the people, but also what measures are necessary or appropriate for the protection of those interests. The exercise of the police power may inconvenience individual citizens, increase their labor, or decrease the value of their property. The courts will not interfere with the exercise of the power except where the regulations are arbitrary, oppressive or unreasonable. The wisdom or expediency of the regulations is not subject to judicial review. Of course, the police power is subject to the limitations imposed by the State and Federal Constitutions upon every power of government, and the Legislature will not be allowed to invade the fundamental liberties of the citizen. But unless regulations are so utterly unreasonable and extravagant in their nature and purpose that the personal and property rights of the citizen are interfered with or destroyed unnecessarily and in a wholly arbitrary manner without due process of law, they do not extend beyond the power of the Legislature to enact, and they form no subject for interference by the Court on the ground of violation of the Fourteenth Amendment.
Davis v. State, 183 Md. 385, 396-98 (1944) (citations omitted).
In my view, United States v. Rahimi, 602 U.S. 680 (2024), on which the Majority
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (alteration in original) (quoting THE FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961)). Thus, in my view, any analysis of a state felon-in-possession statute under the Second Amendment that does not account for the allocation of power between the federal government and the states in our constitutional order will miss the mark.
As I stated above, Mr. Fooks does not appear to be arguing that
Accordingly, I concur in the judgment.
Notes
The Dissent interprets Justice Barrett‘s statement differently, viewing it through the lens of Justice Thomas‘s statement in Bruen requiring the identification of “a distinctly similar historical regulation” to uphold a modern regulation addressing societal problems that existed (in at least some form) at the time of the founding. See Dissenting Op. of Biran, J. at 59-61 (quoting Bruen, 597 U.S. at 26). However, that statement is not referenced anywhere in Justice Barrett‘s concurrence—or, indeed, in any other Rahimi opinion other than Justice Thomas‘s dissent. See Rahimi, 602 U.S. at 750 (Thomas, J., dissenting). As discussed, the Rahimi majority refocused that test on principles. In grounding its analysis on the conclusion that “[f]ounding-era lawmakers chose not to disarm such citizens,” i.e., felons, Dissenting Op. of Biran, J. at 54, the Dissent mistakes the decisions founding-era legislatures made based on the concerns and exigencies of the era, including those related to militia service, with conclusions about the extent of their power to act.
The Majority notes that the State contended that Mr. Fooks‘s conduct was not protected by the Second Amendment because the firearms were stolen and illegally pawned, but “decline[s] to reach that issue.” Maj. Slip Op. at 53-54 n.38. I see the issue, though, as a threshold question that must be addressed because the Supreme Court has described the Second Amendment as protecting the “right to keep and bear arms for lawful purposes[.]” See McDonald, 561 U.S. at 780. The first step of the Bruen inquiry requires ascertaining whether “the Second Amendment‘s plain text covers an individual‘s conduct[.]” Bruen, 597 U.S. at 17. Necessarily, this requires ascertaining whether the challenger‘s conduct at issue was lawful.United States v. Jackson, 110 F.4th 1120, 1125 n.2 (8th Cir. 2024) (“Jackson II“).The most recent available annual data show that only 18.2 percent of felony convictions in state courts and 4.2 percent of federal felony convictions were for “violent offenses.” Sean Rosenmerkel et al., Felony Sentences in State Courts, 2006 – Statistical Tables 3 tbl.1.1 (revised Nov. 2010), https://bjs.ojp.gov/content/pub/pdf/fssc06st.pdf; Mark
Motivans, Federal Justice Statistics, 2022, at 12 tbl.7 (Jan. 2024), https://uat.bjs.ojp.gov/document/fjs22.pdf.
The Third Circuit‘s holding in Range was also based on the specific circumstances of Mr. Range‘s case, which are different from those here. In 1995, Mr. Range pleaded guilty to one count of making a false statement to obtain food stamps based on signing an application prepared by his wife that understated their income. Id. at 222-23. At the time, they were struggling financially and raising three young children. Id. at 223. Mr. Range accepted full responsibility for his crime, received no jail time, and paid in full his restitution, costs, and fine. Id. He had no record of subsequent criminal conduct aside from minor traffic offenses and complied with the ban on his firearm possession once he learned of it. Id. Given all of that, the Third Circuit found no “basis to fear that Range is disloyal to his country.” Id. at 230. As discussed in this opinion, even if we were to agree with the Third Circuit concerning the level of specificity required to identify a match with historical firearm restrictions, the same cannot be said of Mr. Fooks‘s much more recent and serious history of willful disregard of his legal obligations and court orders.