MARYLAND SHALL ISSUE, INC., for itself and its members; ATLANTIC GUNS, INC.; DEBORAH KAY MILLER; SUSAN BRANCATO VIZAS, Plaintiffs - Appellants, and ANA SLIVEIRA; CHRISTINE BUNCH, Plaintiffs, v. WES MOORE, in his capacity as Governor of Maryland; WOODROW W. JONES, III, Colonel, Defendants - Appellees.
No. 21-2017
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 23, 2024
ON REHEARING EN BANC
PUBLISHED
FIREARMS POLICY COALITION, INC.; FPC ACTION FOUNDATION; INDEPENDENCE INSTITUTE; GUN OWNERS OF AMERICA, INC.; GUN OWNERS FOUNDATION; GUN OWNERS OF CALIFORNIA; HELLER FOUNDATION; VIRGINIA CITIZENS DEFENSE LEAGUE; GRASS ROOTS NORTH CAROLINA; RIGHTS WATCH INTERNATIONAL; TENNESSEE FIREARMS ASSOCIATION; TENNESSEE FIREARMS FOUNDATION; AMERICA’S FUTURE; U.S. CONSTITUTIONAL RIGHTS LEGAL DEFENSE FUND; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND, Amici Supporting Appellant.
BRADY CENTER TO PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; MARCH FOR OUR LIVES; MARYLANDERS TO PREVENT GUN VIOLENCE, INC.; EVERYTOWN FOR GUN SAFETY, Amici Supporting Appellee.
MARYLAND SHALL ISSUE, INC.; ATLANTIC GUNS, INC.; DEBORAH KAY MILLER; SUSAN BRANCATO VIZAS, Plaintiffs - Appellees, and ANA SLIVEIRA; CHRISTINE BUNCH, Plaintiffs, v. WES MOORE, in his capacity as Governor of Maryland; WOODROW W. JONES, III, Colonel, Defendants - Appellants.
No. 21-2053
Argued: March 21, 2024 Decided: August 23, 2024
Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, AGEE, WYNN, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING, HEYTENS, BENJAMIN, and BERNER, Circuit Judges, and KEENAN, Senior Circuit Judge.
ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Ryan Robert Dietrich, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Cary J. Hansel, III, Baltimore, Maryland; Mark W. Pennak, MARYLAND SHALL ISSUE, INC., Baltimore, Maryland, for Appellants. James W. Porter, III, Marc A. Nardone, Connor M. Blair, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellant Atlantic Guns, Inc. Brian E. Frosh, Attorney General, Robert A. Scott, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. David B. Kopel, INDEPENDENCE INSTITUTE, Denver, Colorado; Joseph G.S. Greenlee, FPC ACTION FOUNDATION, Las Vegas, Nevada, for Amici Firearms Policy Coalition, FPC Action Foundation, and Independence Institute. Douglas N. Letter, Shura Lauren Feldman, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C., for Amicus Brady Center to Prevent Gun Violence. William T. Clark, New York, New York, Esther Sanchez-Gomez, GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE, San Francisco, California, for Amicus Giffords Law Center to Prevent Gun Violence. Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York, for Amicus March for Our Lives. George J. Hazel, Katherine Moran Meeks, Claire Madill, Hayley Lawrence, Kirsten Bleiweiss, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amici Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence, March for Our Lives, and Marylanders to Prevent Gun Violence.
OPINION
BARBARA MILANO KEENAN, Senior Circuit Judge:
In the aftermath of mass shootings across the country, the Maryland General Assembly passed the Firearm Safety Act of 2013 (FSA). Among other measures,1 the FSA contains a statutory licensing regime for handgun purchasers to ensure comprehensive background checks, to prevent straw purchases, and to aid in the safe and legal use of firearms (the handgun qualification statute, or the HQL statute). Under this law, the state of Maryland does not retain any discretion to deny a “handgun qualification license” to applicants who meet the statutory requirements. This type of law is commonly referred to as a “shall-issue” licensing law, as opposed to a “may-issue” licensing law in which the state retains some discretion in deciding whether to issue a firearm license to an applicant. The plaintiffs in this appeal assert a facial challenge to the constitutionality of the “shall-issue” HQL statute, chiefly contending that any “temporary deprivation” of the ability to purchase a handgun violates the Second Amendment right to keep and bear arms.2
This case requires us to apply the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). We conclude that the Supreme Court in Bruen foreclosed the plaintiffs’ “temporary deprivation” argument by stating that, despite some delay occasioned by “shall-issue” permit processes, this type of licensing law is presumptively constitutional because it operates merely to ensure that individuals seeking to exercise their Second Amendment rights are “law-abiding” persons. Bruen, 597 U.S. at 38 n.9. We hold that the plaintiffs have failed to rebut this presumption of constitutionality afforded to “shall-issue” licensing laws like the handgun qualification statute. So the plaintiffs’ challenge to the HQL statute fails, and we affirm the district court’s award of summary judgment to the state of Maryland.
I.
A.
Under the HQL statute, most Maryland residents must obtain a handgun qualification license before purchasing a handgun.3
The firearms safety training course must include at least four hours of instruction and be approved by the Secretary of the Maryland State Police (the Secretary).
The statute requires that individuals applying for a handgun qualification license submit (1) a set of their fingerprints, (2) proof that they have satisfied the training requirement, (3) a statement that they are not prohibited by law from possessing a handgun, and (4) a $50 application fee to cover the costs of administering the program.
Handgun qualification licenses remain valid for 10 years, and individuals may renew their licenses for additional 10-year periods as long as they retain the qualifications for issuance of the license and pay a $20 fee to cover program administration costs.
B.
In 2016, Maryland Shall Issue, Inc., Atlantic Guns, Inc., Deborah Kay Miller, and Susan Brancato Vizas (the plaintiffs)5 sued the Governor of Maryland and the Secretary and Superintendent of the Maryland State Police (the state, or Maryland), alleging that the HQL statute violates their Second Amendment rights.6 The parties filed cross-motions for summary judgment and, in August 2021, the district court issued a decision analyzing the constitutionality
Applying this framework, the district court held that the HQL statute was subject to intermediate scrutiny, and that the government had shown that the HQL statute was “reasonably adapted to a substantial governmental interest.” Maryland Shall Issue, 566 F. Supp. 3d at 421, 422, 426, 440. The district court awarded summary judgment to Maryland, id. at 440, and the plaintiffs later filed the present appeal, which we held in abeyance pending the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
C.
In Bruen, the Supreme Court addressed a Second Amendment challenge to a New York state statute known as the “Sullivan Law.” 597 U.S. at 11. Under that “public carry” law, any person who sought a license to carry a firearm for self-defense outside that person’s home or place of business had to prove first that “proper cause exist[ed]” to issue the license (the proper-cause requirement). Id. at 12. Although “proper cause” was not defined by the statute, New York courts had interpreted the phrase as requiring “a special need for self-protection distinguishable from that of the general community.” Id. (citation omitted). The Supreme Court explained that under this type of “may-issue” licensing regime, “authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license.” Id. at 14. Each of the petitioners in Bruen had applied for and had been denied an unrestricted license to carry a handgun in public for general self-defense. Id. at 15–16.
In assessing whether New York’s proper-cause requirement violated the Second Amendment, the Supreme Court rejected the means-based analysis previously applied by our court and around which many Courts of Appeals “ha[d] coalesced.” Id. at 17. Instead, the Court established a new, two-step framework for evaluating Second Amendment challenges. At the first step of this framework, courts look to “the text of the Second Amendment to see if it encompasses the desired conduct at issue” (step one). See Bianchi, 2024 WL 3666180, at *5 (citing Bruen, 597 U.S. at 24); United States v. Price, No. 22-4609, 2024 WL 3665400, at *5 (4th Cir. Aug. 6, 2024) (en banc) (identifying several textual limitations on the scope of the Second Amendment right (citing Bruen, 597 U.S. at 31–32)). “If the text does not extend to the desired conduct, that conduct falls outside the ambit of the Second Amendment, and the government may regulate it.” Bianchi, 2024 WL 3666180, at *5.
If the
Applying this framework to New York’s proper-cause requirement, the Supreme Court held that the plain text of the Second Amendment covered the plaintiffs’ desired conduct, and that the government had not satisfied its burden under step two. Bruen, 597 U.S. at 33, 38–39. The Court thus held that the “proper-cause” requirement of the New York law was unconstitutional. Id. at 71.
But the Court did not limit its discussion in Bruen to the proper-cause requirement challenged by the petitioners or to other “may-issue” licensing regimes. Instead, the Court discussed in dicta the presumptive lawfulness of what the Court referred to as “shall-issue” licensing laws. Id. at 38 n.9. The Court explained:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion“—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
Id. (citations omitted) (hereafter referred to as the Supreme Court’s “shall-issue” discussion).
* * *
Following the Supreme Court’s issuance of its decision in Bruen, a panel of this Court held that the HQL statute was unconstitutional under the Second Amendment. Maryland Shall Issue, Inc. v. Moore, 86 F.4th 1038 (4th Cir. 2023), reh’g en banc granted, No. 21-2017(L), 2024 WL 124290 (4th Cir. Jan. 11, 2024). That decision was vacated by a vote of the full court, and we now consider this appeal en banc.
II.
We review de novo the district court’s decision on the parties’ cross-motions for summary judgment.7 Libertarian Party of Va. v. Judd, 718 F.3d 308, 312–13 (4th Cir. 2013). Summary judgment may be granted only 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.”
A.
i.
Because this case presents our first opportunity after Bruen to evaluate the constitutionality of a “shall-issue” licensing law, we begin by examining how the Supreme Court’s “shall-issue” discussion bears on our analysis. Under the first step of the Bruen framework, a court must consider the text of the Second Amendment:
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.
In its seminal Second Amendment decisions, the Supreme Court has not conducted an exhaustive evaluation of the term “infringe,” most likely because the Court has not been required to do so. In Bruen, for example, the state of New York had denied the petitioners’ applications for unrestricted public carry licenses, thereby prohibiting them from carrying handguns in public for self-defense. 597 U.S. at 70–71. The proper-cause requirement
The laws challenged in the Supreme Court’s other Second Amendment decisions similarly banned or effectively banned the possession or carry of arms. In District of Columbia v. Heller, the Court addressed the constitutionality of a District of Columbia statutory scheme that banned handgun possession in the home. 554 U.S. 570, 628 (2008) (“The handgun ban amounts to a prohibition of an entire class of ‘arms‘” and “extends . . . to the home.“). In McDonald v. Chicago, the Court addressed the constitutionality of Chicago laws that “effectively bann[ed] handgun possession by almost all private citizens who reside in the City.” 561 U.S. 742, 750 (2010). In Caetano v. Massachusetts, the Court assessed the constitutionality of a Massachusetts law prohibiting the possession of stun guns. 577 U.S. 411, 411 (2016). And in United States v. Rahimi, the Court considered the constitutionality of a federal statute prohibiting the possession of a firearm by an individual subject to a domestic violence restraining order. 144 S. Ct. at 1894. So in these cases, there was no question that the laws “infringed” the right to keep or bear arms because the government, either by law, regulation, or means of a discretionary governmental determination, prevented individuals from exercising these rights.
But Bruen, in explicitly distinguishing “shall-issue” licensing laws, also introduced a more nuanced consideration of the concept of “infringement.” The Court emphasized that “shall-issue” licensing laws ”do not necessarily prevent law-abiding, responsible citizens from exercising their Second Amendment right[s]” and require a more refined analysis. 597 U.S. at 38 n.9 (emphasis added) (internal quotation marks and citation omitted). In the “shall-issue” discussion, the Court established guideposts that reviewing courts may use to determine whether a “shall-issue” licensing law “infringes” the right to keep and bear arms. The Court explained that “shall-issue” licensing laws, which employ “narrow, objective, and definite standards” and do not give authorities discretion with regard to issuing a license, ordinarily do not prevent law-abiding individuals from exercising their Second Amendment rights. See id. (citation omitted). Thus, such laws generally do not “infringe” the right to keep and bear arms. But the Court further stated that it did not “rule out constitutional challenges” to “shall-issue” licensing laws that “deny ordinary citizens their right to public carry.” Id. And the Court provided as examples challenges to “shall-issue” licensing laws “put toward abusive ends,” such as those imposing “lengthy” wait times or “exorbitant” fees. Id.
We are not free to ignore the Supreme Court’s substantive dictum on “shall-issue” licensing laws. See McRorey v. Garland, 99 F.4th 831, 837 (5th Cir. 2024) (explaining that dicta “doesn’t get more recent or detailed than [the ‘shall-issue’ discussion in] Bruen“). And we observe that Bruen is not the first case in which the Supreme Court has discussed in dicta types of regulations not before the Court when announcing limits on the Second Amendment right. In the course of striking down the District of Columbia’s ban on handgun
Like most rights, the right secured by the Second Amendment is not unlimited. 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.
554 U.S. at 626. Continuing, the Court in Heller described as “presumptively lawful” certain “longstanding prohibitions,” such as prohibitions on the possession of firearms by felons. Id. at 626–27 & n.26 (also describing as “presumptively lawful” “prohibitions on the possession of firearms by . . . 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“). The Court reiterated this “assurance[]” two years later in McDonald, and the Court again cited this language in its recent decision in Rahimi. McDonald, 561 U.S. at 786; Rahimi, 144 S. Ct. at 1902; see also Bruen, 597 U.S. at 72 (Alito, J., concurring) (“Nor have we disturbed anything that we said in Heller or [McDonald] about restrictions that may be imposed on the possession or carrying of guns.“); id. at 81 (Kavanaugh, J., concurring).
In the years following Heller and McDonald, we and our sister circuits have relied on this dictum from Heller in rejecting myriad constitutional challenges to laws prohibiting the possession of firearms by felons. Indeed, when we considered a defendant’s challenge to the federal felon-in-possession statute in United States v. Moore, we began our analysis “by noting the unanimous result reached by every court of appeals that [18 U.S.C.] § 922(g)(1) is constitutional, . . . usually based at least in part on the ‘presumptively lawful’ language from Heller.” 666 F.3d 313, 316–17, 319–20 (4th Cir. 2012); id. at 318 (“[T]he clear declaration in Heller that such felon in possession laws are a presumptively lawful regulatory measure resolves [a facial constitutional] challenge fairly quickly.“). And following Bruen, in United States v. Canada we again rejected a facial constitutional challenge to
Consistent with our treatment of this dictum from Heller and our practice to “routinely afford substantial, if not controlling deference to dicta from the Supreme Court,” we apply Bruen’s clear guidance on “shall-issue” licensing laws to our analysis of the constitutionality of the HQL statute. Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 281–82 (4th Cir. 2019) (en banc); see also Bianchi, 2024 WL 3666180, at *26 (explaining that “we are bound to respect” both the “language of entitlement” and the “language of limitation” from Heller and Bruen). So, in accord with the Supreme Court’s “shall-issue” discussion, we hold that non-discretionary “shall-issue” licensing laws are presumptively constitutional and generally do not “infringe” the Second Amendment right to keep and bear arms under step one of the Bruen framework. See McRorey, 99 F.4th at 837, 840 (holding that the challenged federal background check requirement was not “abusive”
If, however, a plaintiff rebuts this presumption of constitutionality by showing that a “shall-issue” licensing law effectively “den[ies]” the right to keep and bear arms, the burden shifts to the government to demonstrate that the regulation “is consistent with this Nation’s historical tradition of firearm regulation.”9 Bruen, 597 U.S. at 17, 38 n.9. If the government satisfies its burden under step two, then even a “shall-issue” licensing law that effectively denies the Second Amendment right can be enforced consistent with the Second Amendment. Cf. Rahimi, 144 S. Ct. at 1902 (holding that the tradition of firearm regulation justified the challenged firearm prohibition). But if the government does not satisfy its burden in such cases, then the “shall-issue” licensing law violates the Second Amendment. Cf. Bruen, 597 U.S. at 38, 71 (holding that the government had not identified a tradition justifying the challenged “may-issue” licensing law).
ii.
Before turning to apply these legal principles to the HQL statute, we address the plaintiffs’ and the dissent’s preliminary arguments that the “shall-issue” discussion is inapplicable to the present case or to the step one inquiry. The plaintiffs initially assert that because the “shall-issue” discussion addresses only public carry laws, that discussion is irrelevant to a “shall-issue” licensing law regulating the possession of firearms. We reject this contention because the distinction advanced by the plaintiffs rests on a false premise, namely, that the Supreme Court has recognized different levels of constitutional protection for the Second Amendment right to “keep” arms and the Second Amendment right to “bear” arms.
As the Supreme Court explained in Bruen, “[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.” 597 U.S. at 32, 70. Moreover, the rationale supporting the Supreme Court’s “shall-issue” discussion applies with equal force to “shall-issue” licensing laws governing the possession of firearms, and nothing in that discussion signals a contrary intent. So we decline the plaintiffs’ request to bypass the Supreme Court’s “shall-issue” discussion on the basis that the Court cited only “shall-issue” public carry laws.10
The plaintiffs separately contend that under Bruen, the “shall-issue” discussion pertains to a step two historical analysis, rather than to a step one plain text inquiry, because the Supreme Court appended the footnote containing the “shall-issue” discussion to the Court’s analysis regarding historical regulations relating to public carry. We find no merit in this argument.
Moreover, in the “shall-issue” discussion the Court did not refer to any of the hallmarks of a step two historical inquiry, such as the historical tradition of “shall-issue” licensing laws or, conversely, the lack of a historical tradition for “shall-issue” licensing laws that may be subject to constitutional challenge. Id. at 38 n.9. Instead, without explicitly referencing the plain text of the Second Amendment, the Court grounded the “shall-issue” discussion in step one by explaining that even a presumptively constitutional “shall-issue” licensing law may go too far if it imposes conditions that effectively deny an individual the right to keep and bear arms.
The dissent attempts to circumvent the “shall-issue” discussion and move directly to step two by relying on Rahimi’s language that “when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to ‘justify its regulation.‘” 144 S. Ct. at 1897 (citation omitted); Dissenting Op., at 61–62. But the parties in Rahimi did not place in issue whether the challenged ban on the possession of firearms was covered by the plain text of the Second Amendment. So the Supreme Court was not required in Rahimi to conduct a plain text inquiry and moved directly to its step two analysis of the challenged firearms prohibition. Rahimi, 144 S. Ct. at 1899. When viewed in this context, the dissent’s leap to step two is not supported by the holding in Rahimi and effectively would collapse Bruen’s two-part framework into merely one step, improperly treating the plain text inquiry as a meaningless check-the-box exercise.11 See Bruen, 597 U.S. at 31–32. We therefore remain guided by Bruen and its “shall-issue” discussion in our consideration of the HQL statute.
B.
Turning to apply the “shall-issue” discussion to the present case, we examine in our step one analysis (1) whether the HQL statute qualifies as a presumptively constitutional “shall-issue” licensing law and, if so, (2) whether the plaintiffs have rebutted that presumption by demonstrating that
i.
We need address only briefly our conclusion that the HQL statute qualifies as a presumptively constitutional “shall-issue” licensing law. The HQL statute allows any law-abiding person who seeks to obtain a handgun qualification license to do so by completing the objective criteria outlined in the statute. The state may not deny an individual a license
once the statutory requirements have been satisfied. Moreover, the very requirements on which the plaintiffs focus their constitutional attack are the same requirements the Supreme Court cited as presumptively constitutional components of a “shall-issue” licensing law, namely, background checks and firearms safety courses. Id.
The HQL statute thus falls easily within the scope of “shall-issue” licensing laws that the Supreme Court has indicated are presumptively constitutional.12 See id. Accordingly, the plaintiffs’ constitutional challenge to the HQL statute can survive step one of the Bruen analysis only if they can demonstrate that the law “infringes,” or effectively “den[ies],” the Second Amendment right. Id.
ii.
The plaintiffs raise three arguments to rebut the presumptive constitutionality of the “shall-issue” HQL statute. They contend that the HQL statute “has been put toward abusive ends” because (1) any “temporary deprivation” of the Second Amendment right constitutes “infringement,” (2) the HQL statute imposes “lengthy” wait times, and (3) Maryland‘s separate 77R firearm application (the 77R process) renders redundant the background check required under the HQL statute.13
Before addressing these arguments, we emphasize the difficulty of challenging the facial constitutionality of a statute. Plaintiffs contesting the validity of a firearms law under the Second Amendment may bring either an “as-applied” or a “facial” challenge to the law. Moore, 666 F.3d at 317-20. In an as-applied challenge, the court focuses on the circumstances of the particular plaintiffs and whether, in
By contrast, in a facial constitutional challenge a plaintiff asks the court to declare that the statute is invalid. As the Supreme Court has explained, “facial challenges are ‘disfavored’ because they ‘often rest on speculation,’ ‘short circuit the democratic process,’ and ‘run contrary to the fundamental principle of judicial restraint.‘” Bianchi, 2024 WL 3666180, at *10 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). So to succeed in a facial constitutional challenge, a plaintiff confronts a much more difficult task, namely, to establish that there is “no set of circumstances” under which the law would be valid. Rahimi, 144 S. Ct. at 1898 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see also Moore, 666 F.3d at 318-19 (“[T]he Supreme Court has long declared that a statute cannot be held unconstitutional if it has constitutional application.“). “The stakes are higher in a facial challenge, so the bar goes up as well.” United States v. Veasley, 98 F.4th 906, 909 (8th Cir. 2024).
1.
With these principles in mind, we consider the merits of the plaintiffs’ arguments. First, we reject the plaintiffs’ argument that any delay resulting from compliance with the HQL statute qualifies as “infringement.” The plaintiffs center this argument on language in Heller and maintain that the Court “declared” that Second Amendment rights “shall not be infringed, curtailed, or broken in upon, in the smallest degree.” But the Court did not make such a declaration. Rather, the language cited by the plaintiffs appears in a longer passage the Court quoted from Nunn v. State, a decision by the Georgia Supreme Court in 1846:
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.
Heller, 554 U.S. at 612-13 (quoting Nunn, 1 Ga. 243, 251 (1846)). When the Court introduced this passage, it explained that the state court in Nunn “perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause.” Id. at 612. In other words, the Court relied on Nunn to explain its conclusion that the Second Amendment right “was an individual right unconnected to militia service,” not to explain when a law “infringes” the Second Amendment right.14 Heller, 554 U.S. at 612.
The
2.
The plaintiffs alternatively contend that compliance with the HQL statute results in the type of “lengthy” wait time that would qualify under the “shall-issue” discussion as a “denial” of an applicant‘s Second Amendment rights. Without identifying any support for their argument in the record, the plaintiffs maintain that the actual time involved to obtain a handgun qualification license “self-evidently takes longer than 30 days.”
At the outset, this argument is flawed because it would require us to assume that the state takes the entire permissible 30-day period to process each application. The record before us squarely refutes such an assumption: “Through the first quarter of calendar year 2018, there were no completed HQL applications pending disposition for longer than 15 days.” And of particular relevance to this facial challenge in which we consider whether the HQL statute “may constitutionally be applied in at least some ‘set of circumstances,‘” Canada, 103 F.4th at 258 (citation omitted), the record reflects that completed applications “can be and have been” processed within 24 hours of submission to the Maryland State Police.
The record therefore reveals that, in some cases, the process for obtaining a handgun qualification license can take only a few days. This time period is far shorter than many of the permissible processing periods cited by the Supreme Court in Bruen. See, e.g., 597 U.S. at 13 n.1. We decline to construe the Supreme Court‘s reference to “lengthy” processing periods as including within its scope the relatively brief application, review, and approval process of the HQL statute.15 See also McRorey, 99 F.4th at 836, 840
3.
In their final argument, the plaintiffs contend that the HQL statute is “abusive”
Unlike the HQL statute, which directs that each individual obtain a license before purchasing, renting, or receiving a handgun, the 77R process applies to the purchase, rental, or transfer of every regulated firearm.16
We find no merit in any contention that the time required to comply with this separate law renders the HQL statute presumptively unconstitutional.
Once the 77R application is completed, the Secretary conducts a background investigation.
In addition to this substantive difference between the background checks required by each law, these investigations also may take place at different points in time. As noted above, the initial background check under the HQL statute occurs when applicants submit their fingerprints with their application for a handgun qualification license. After this initial investigation, the law requires that the Maryland Department of Public Safety and Correctional Services provide the State Police with updated criminal history information for handgun qualification license holders.
In sum, background checks under the 77R process and the HQL statute differ because only the HQL statute involves the submission of fingerprints, and the background checks for each process may occur at different points in time. In light of these distinctions, and because the HQL statute effectively strengthens the 77R process, we reject the plaintiffs’ argument that the HQL statute‘s background check is wholly redundant and so abusive as to “infringe” the Second Amendment right under step one of the Bruen framework.19
* * *
The plaintiffs have not met their burden to show that the HQL statute “infringes” the Second Amendment right to keep and bear arms and, thus, they have failed to rebut the presumption of constitutionality afforded to the HQL statute. We therefore reject their facial constitutional challenge at step one of the Bruen framework, and do not reach their argument under step two that the HQL statute lacks a historical analogue.
III.
Since the Supreme Court issued Bruen, courts across the country have struggled to answer the many questions resulting from the Court‘s new analytical framework. But this uncertainty does not extend to “shall-issue” licensing laws, which the Supreme Court has indicated should not be cast aside in rote fashion by relying on Bruen‘s invalidation of “may-issue” licensing laws. We are not free to ignore the Supreme Court‘s clear guidance on the presumptive constitutionality of “shall-issue” licensing regimes, nor to unduly constrain legislatures seeking to employ such measures to prevent handgun misuse and violent criminal activity. So, in line with the Court‘s “shall-issue” discussion, governments may continue to enforce “shall-issue” firearms licensing regulations that impose non-abusive, objective requirements like background checks and firearm safety training. And because the plaintiffs in this case have failed to rebut the presumptive constitutionality of the “shall-issue” HQL statute, we reject their facial constitutional challenge. We affirm the district court‘s judgment.
AFFIRMED
RUSHING, Circuit Judge, with whom Judges GREGORY and QUATTLEBAUM join, concurring in the judgment:
In Maryland, most people who wish to acquire a handgun must first obtain a “handgun qualification license.”
A majority of this Court concludes that Maryland‘s handgun license requirement doesn‘t implicate the plain text of the Second Amendment, which preserves “the right of the people to keep and bear Arms.”
The handgun license requirement is nevertheless constitutional because it is consistent with the principles underlying our Nation‘s historical tradition of firearm regulation. In New York State Rifle and Pistol Association v. Bruen, the Supreme Court signaled that shall-issue licensing regimes designed to ensure that individuals bearing arms are “law-abiding, responsible citizens,” and which do so through “narrow, objective, and definite standards,” are relevantly similar to laws our regulatory tradition permits. 142 S. Ct. 2111, 2138 n.9 (2022) (internal quotation marks omitted). Maryland‘s handgun license requirement fits that paradigm. Following the Supreme Court‘s guidance, I would conclude that Maryland‘s handgun license requirement is consistent with the Second Amendment. I therefore concur only in the judgment.
I.
All Second Amendment claims must be assessed within the text-and-history framework the Supreme Court established in Bruen. Under that rubric, we first ask if the challenged law addresses conduct covered by the “plain text” of the Second Amendment. Id. at 2129-2130. If so, then the government must “justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 2130.
Maryland‘s handgun license requirement obviously regulates conduct covered by the text of the Second Amendment. As Judge Richardson explains in his dissenting opinion, Maryland‘s law applies to “the people,” handguns are “Arms,” and the law regulates acquisition, which is a prerequisite to “keep[ing] and bear[ing]” those arms.
The majority concludes that the conduct addressed by Maryland‘s law—acquiring a handgun—is not covered by the text of the Second Amendment. That is “an implausible reading” of the constitutional text, not to mention the Court‘s opinion in Bruen. Diss. Op. 58. Here again, I agree with the dissent. See Diss. Op. 58-61. Because Maryland‘s handgun license requirement “regulates [protected] conduct, . . . [Maryland] bears the burden to justify its regulation.” United States v. Rahimi, 144 S. Ct. 1889, 1897 (2024) (internal quotation marks omitted).
II.
When, as here, the government places conditions on conduct covered by the plain text of the Second Amendment, it must show that those conditions are “consistent with this Nation‘s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2135. This inquiry is necessarily an exercise in analogical reasoning, because “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” Rahimi, 144 S. Ct. at 1897-1898; see also Bruen, 142 S. Ct. at 2132. “[T]he appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 144 S. Ct. at 1898. A court “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit.” Id. (quoting Bruen, 142 S. Ct. at 2132). Central to this inquiry is “[w]hy and how the regulation burdens the right.” Id.; see also Bruen, 142 S. Ct. at 2133. In this respect, the law “must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.‘” Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 142 S. Ct. at 2133).
Bruen‘s Footnote Nine gives us significant direction in evaluating a shall-issue licensing requirement under this standard. Recall that in Bruen the Supreme Court considered the constitutionality of New York‘s public-carry licensing regime, which required an individual to demonstrate “a special need for self-protection distinguishable from that of the general community” in order to receive a license to carry a firearm outside his home or place of business for self-defense. Bruen, 142 S. Ct. at 2123 (internal quotation marks omitted). Because licensing officials retained discretion “to deny licenses based on a perceived lack of need or suitability,” the Court dubbed New York‘s law a “may-issue” licensing regime, as distinguished from the “shall-issue” licensing laws in “the vast majority of States,” pursuant to which “authorities must issue concealed-carry licenses” whenever applicants satisfy non-discretionary threshold criteria. Id. at 2123-2124; see also id. at 2123 n.1. After a comprehensive historical review, the Court held New York‘s licensing law unconstitutional because it prevented “law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.” Id. at 2150; see also id. at 2156.
The Court was quick to distinguish “shall-issue licensing regimes, under which a general desire for self-defense is sufficient to obtain a permit.” Id. at 2138 n.9 (internal quotation marks and brackets omitted). “[N]othing” in the Court‘s historical analysis, it warned, “should be interpreted to suggest the unconstitutionality of the 43 States’ shall-issue licensing regimes.” Id. “Because these [shall-issue] licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” Id. (quoting Heller, 554 U.S. at 635). “Rather,” the Court reasoned, “it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ And they likewise appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials,” unlike New York‘s proper-cause standard. Id. (first quoting Heller, 554 U.S. at 635, and then quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)).
That said, the Court “d[id] not rule out constitutional challenges to shall-issue regimes” that are “put toward abusive ends“—for example, where “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” Id. In other words, “shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice.” Id. at 2162 (Kavanaugh, J., joined by Roberts, C.J., concurring).
Of course, the Court‘s analysis of shall-issue licensing regimes must be read in harmony with the rest of the Bruen opinion. Footnote Nine is not, as the State urges here, “a different analysis” separate from or in addition to the history-and-tradition framework the Court instructed us to employ in Bruen. Appellees’ Supp. Br. 11. There is no indication that Footnote Nine is an exception from or contrary to the Second Amendment doctrine the Court articulated just a few pages earlier in its opinion. Indeed, it would be bizarre for the Court to double down on the interpretive standard from Heller, which “centered on constitutional text and history,” Bruen, 142 S. Ct. at 2128-2129, and then, in a footnote, introduce an entirely distinct standard for only a small subset of regulations. Commonsensically, Footnote Nine‘s assessment of shall-issue licensing regimes must be understood within the analytical framework the Court described and followed elsewhere in Bruen.
Viewed through that lens, Footnote Nine gives lower courts insight into the degree of fit necessary for a shall-issue licensing regime to be relevantly similar to historical analogues and thus consistent with the Nation‘s historical tradition of firearm regulation. The Supreme Court has instructed that “how and why” modern and historical regulations burden Second Amendment rights are “‘central’ considerations when engaging in [this] analogical inquiry,” so we should begin there. Id. at 2133 (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)).
First is the justification for shall-issue licensing laws, or the “why.” Id. By requiring applicants “to undergo a background check or pass a firearms safety course,” shall-issue licensing laws “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.‘” Id. at 2138 n.9 (quoting Heller, 554 U.S. at 635). In other words, the shall-issue licensing laws considered in Bruen burdened Second Amendment rights in order to keep firearms out of the hands of individuals who were not “law-abiding, responsible citizens” but whose public carry of firearms instead threatened public safety. That justification is comparable to historical regulations restricting certain persons’ ability to possess and publicly carry weapons because of the danger they posed. See, e.g., id. at 2148-2150 (discussing historical surety statutes); Heller, 554 U.S. at 626 (noting “longstanding prohibitions on the possession of firearms by felons and the mentally ill“).
Similarly here, the State relies on the tradition of regulating firearm possession by dangerous individuals, a historical justification that precedent well supports. What Heller and Bruen presumed, courts have confirmed through more exhaustive analysis
The justification for Maryland‘s handgun license requirement is relevantly similar to this historical tradition. Like the shall-issue licensing laws considered in Bruen, Maryland‘s law “require[s] a license applicant to undergo fingerprinting” for “a background check” and “a mental health records check,” Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., joined by Roberts, C.J., concurring), and to “pass a firearms safety course,” id. at 2138 n.9 (majority opinion). See
As Plaintiffs point out, a permitting scheme is undeniably different from historical laws that prohibited dangerous persons from keeping or carrying weapons and penalized them when they did so. By subjecting everyone to a licensing requirement, the government temporarily prevents a much wider swath of people from possessing or carrying firearms than the narrower category of dangerous persons who can be disarmed long term. Plaintiffs argue that, for this reason, a permitting scheme that licenses lawful gun owners in advance cannot be considered relevantly similar to historical laws that retrospectively punished unlawful gun owners.
That argument cannot be squared with Bruen‘s Footnote Nine. There, the Supreme Court acknowledged that some shall-issue licensing regimes are constitutional. Yet all licensing schemes share the feature that Plaintiffs claim is unconstitutional—whether the delay is one day or thirty, a person entitled to a license will temporarily be prevented from exercising his rights while he awaits government approval. Despite this fact, the Supreme Court was untroubled by a licensing regime requiring advance permission to carry a gun, at least when the criteria for receiving permission from the government are objective and tied to historically defensible
The Court‘s recent Rahimi decision is illustrative. There, the Court considered the constitutionality of
“forfeiture of the arms and imprisonment.” Id. at 1901 (internal quotation marks, brackets, and ellipsis omitted).
The enforcement mechanisms of those historical laws were materially different from that of
Similarly here, although a shall-issue licensing regime designed to prevent dangerous individuals from obtaining firearms “does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.‘” Id. at 1898 (quoting Bruen, 142 S. Ct. at 2133). The theory underlying Plaintiffs’ argument—that the Second Amendment prohibits any advance permission regulatory scheme—is inconsistent with the Supreme Court‘s reasoning in Footnote Nine. Despite the different enforcement mechanism, a shall-issue licensing regime can be consistent with the historical tradition of disarming those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten public safety. In Bruen, the Court indicated that a shall-issue licensing scheme consistent with historical principles would use “only
Applying these criteria to Maryland‘s handgun license requirement, no one disputes that the law contains only “narrow, objective, and definite standards” for distinguishing between individuals prohibited from receiving a handgun and everyone else. Id. (internal quotation marks omitted). Plaintiffs contend that the licensing process results in a lengthy wait time, but the majority correctly rejects that argument on the facts and the law. See Maj. Op. 24-25. Plaintiffs also argue that the handgun license requirement is redundant of a separate Maryland permit requirement and therefore abusive. However, as the majority correctly explains, differences between the two requirements disprove Plaintiffs’ premise. See Maj. Op. 26-28. Accordingly, Maryland‘s handgun license requirement fits comfortably within Bruen‘s criteria for a constitutional shall-issue licensing regime.
* * *
In conclusion, I would affirm the district court‘s award of summary judgment to the State of Maryland. Its handgun license law regulates conduct covered by the Second Amendment. But, following the Supreme Court‘s guidance in Bruen, I would conclude that Maryland‘s licensing requirement is consistent with our Nation‘s historical tradition of firearm regulation.
NIEMEYER, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment:
Before us is the question of whether a portion of Maryland‘s handgun licensing regime is unconstitutional under the Second Amendment. The law at issue requires a would-be purchaser of a handgun first to obtain a “handgun qualification license,”
In addition to Maryland, over 40 other States have shall-issue licensing regimes.
The majority opinion finds Maryland‘s regime constitutional, relying on footnote 9 in the Supreme Court‘s recent decision in New York State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1, 38 n.9 (2022). In Bruen, the Court held that a New York law governing the process to obtain a license to carry a handgun in public was unconstitutional because the law conditioned the license‘s issuance on the applicant‘s demonstrating that he or she had some “special need” that justified carrying a handgun beyond a general interest in self-defense. Id. at 11-13, 38. Without demonstrating that special need, a citizen in New York could not carry a handgun in public for self-defense.
In holding New York‘s law unconstitutional, the Bruen Court began by articulating the applicable test for analyzing a government regulation under the Second Amendment. It stated:
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.
Bruen, 597 U.S. at 24 (emphasis added) (cleaned up). The Court thus adopted a two-step text-and-history test for determining whether a regulation violates the Second Amendment. See also United States v. Rahimi, 144 S. Ct. 1889, 1897 (2024).
Explaining the test, the Bruen Court noted that at the first step, a court must focus on the plaintiff‘s conduct and determine whether it is covered by the text of the Amendment—“the right of the people to keep and bear Arms.” 597 U.S. at 32 (quoting
After the Court established and explained the two-step analysis for application of the Second Amendment, it then turned to the New York law and, focusing on the conduct regulated, it readily concluded that the “textual” step of its test was satisfied, stating, “The Second Amendment‘s plain text thus presumptively guarantees petitioners Koch and Nash a right to ‘bear’ arms in public for self-defense.” Bruen, 597 U.S. at 33. But that was just the first step in determining the scope of the “right” protected. The second step required New York to demonstrate that there was a historical tradition that justified its requiring a license applicant to demonstrate a special need to carry a handgun beyond the needs of ordinary self-defense. On that step, the Court concluded that New York had shown no “historical tradition limiting public carry only to those . . . who demonstrate a special need.” Id. at 38. Accordingly, the Court held, after completing the second step, that the New York licensing law was unconstitutional.
While rendering that holding, Court distinguished the New York law from the shall-issue licensing laws that, it noted, were in force in 43 other States. Bruen, 597 U.S. at 38 n.9. The Court explained, in footnote 9, that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which a general desire for self-defense is sufficient to obtain a permit.” Id. (cleaned up). But the Court cautioned that
The majority opinion relies on Bruen footnote 9 to uphold the constitutionality of Maryland‘s licensing regime, and I concur in its doing so. The Maryland law is a “shall-issue” licensing regime, and facially, it has not been “put toward abusive ends,” insofar as it does not impose unreasonably lengthy wait times or exorbitant fees. Bruen, 597 U.S. at 38 n.9.
The majority opinion should have ended with that analysis. Instead, for a reason I have difficulty fathoming, the majority opinion launches into illogical dicta to alter Bruen‘s clear test for applying the Second Amendment by requiring a plaintiff, as part of step one, to demonstrate that the regulation “infringes” the Second Amendment right. Specifically, the opinion states that, “[u]nder the first step of the Bruen framework, a court must consider the text of the Second Amendment” and that, “[a]mong other plain-text requirements [of the first step], a regulation falls within the ambit of the Second Amendment only if the regulation ’infringes’ the Second Amendment right to keep and bear arms.” Ante at 12 (emphasis added). Gratuitously applying that test to the Maryland licensing regime, the opinion then concludes:
The plaintiffs have not met their burden to show that the [Maryland licensing law] ”infringes” the Second Amendment right to keep and bear arms . . . . We therefore reject their facial constitutional challenge at step one of the Bruen framework, and do not reach their argument under step two that the [Maryland licensing law] lacks a historical analogue.
Ante at 28-29 (emphasis added).
Thus, the majority now makes infringement part of the showing that must be made at step one. Doing so, however, sets the Bruen test on its head. Rather than requiring the plaintiff to prove infringement at step one, as the majority does, Bruen requires the plaintiff to show only that his or her conduct is covered by the Amendment‘s plain text. 597 U.S. at 17, 24; see also Rahimi, 144 S. Ct. at 1897. Moreover, in addition to flipping the burden of the Bruen test on its head, the majority‘s newly created test is also circular and begs the question. Under it, the plaintiff must prove that the regulation “infringes” before the government is required to demonstrate the permissibility of the regulation by reference to historical tradition. Yet, Bruen makes clear that it is only after both steps are taken that infringement can be found. This new test is plainly wrong.
Under the actual Bruen framework, as noted, the first question is simply whether “the Second Amendment‘s plain text covers an individual‘s conduct.” 597 U.S. at 24; see also Rahimi, 144 S. Ct. at 1897. And if the conduct being regulated involves keeping or bearing a firearm, then it is presumptively protected. But that, of course, does not end the analysis, because the right may nonetheless be regulated in accordance with historical tradition, which must be demonstrated by the State. If a court finds that the government regulation “is consistent with the Nation‘s historical tradition of firearm regulation,” only then may it “conclude that the individual‘s conduct falls outside the Second Amendment‘s unqualified command“—i.e., that the regulation does not “infringe” the right. Bruen, 597 U.S. at 24 (cleaned up). In other words, the scope of
Were this not clear enough, the Supreme Court again in Rahimi reiterated its text-history two-step analysis, distinguishing between conduct, which the text addresses, and the regulation, which history must justify and on which the government has the burden. Explaining Bruen, the Rahimi Court stated, “We also clarified that when the Government regulates arms-bearing conduct, . . . it bears the burden to ‘justify its regulation.‘” 144 S. Ct. at 1897 (emphasis added) (quoting Bruen, 597 U.S. at 24). And, as Rahimi repeated, the way the government carries this burden is by showing that the “challenged regulation fits within” “our ‘historical tradition of firearm regulation.‘” Id. (quoting Bruen, 597 U.S. at 17).
By instead requiring plaintiffs bringing a Second Amendment claim to demonstrate, at step one, the ultimate issue of whether the challenged law infringes the Second Amendment right, the majority fails to recognize that such a conclusion can only be reached after step two. The majority‘s new test is thus illogical, requiring plaintiffs to establish infringement before infringement can logically be determined. Not only does this analysis beg the ultimate question, it fails to recognize that the scope of the Second Amendment right—an antecedent to a finding of infringement—can only be determined by considering both the constitutional text and the historical tradition.
I quickly add that the majority‘s new “infringement” analysis—which appears nowhere in Bruen—is also completely unnecessary to the majority‘s analysis of the Maryland licensing regime. The majority opinion fairly explains why footnote 9 is dispositive.
Thus, I concur in the court‘s holding that the Maryland licensing regime is constitutional by virtue of the Supreme Court‘s explanation in footnote 9 of Bruen, but I dissent from the “infringement” analysis and the adoption of the new “infringement” test, as described herein. Finally, I concur in the judgment.
RICHARDSON, Circuit Judge, with whom Judge AGEE joins, dissenting:
Maryland law prohibits anyone from acquiring a handgun without a “handgun qualification license.”
Deterred by these requirements, Plaintiffs challenged this regime as violating their Second Amendment rights. Maryland eventually defended its law before a panel of our Court. But rather than identifying any relevant historical support for its regulation, Maryland rested its case on a footnote in a Supreme Court opinion. The panel, unmoved by this effort to bypass controlling principles, held that Maryland‘s law violates the Second Amendment.
Now, our en banc Court carries Maryland‘s defense across the finish line. Yet to do so, the majority stretches implications from Supreme Court dicta to establish a carveout from Supreme Court doctrine. It then defends this result by grounding it in
I cannot assent to this transparent workaround of governing doctrine. The Supreme Court established a two-step, text-and-history framework for assessing all Second Amendment claims. I would treat Maryland‘s law like any other and analyze it under this framework. Because Maryland‘s law regulates protected conduct under the amendment‘s text, and because Maryland has identified no historical basis for its law, I would hold that it violates the Second Amendment. I thus respectfully dissent.
I. Maryland‘s handgun licensing requirement regulates conduct that falls within the plain text of the Second Amendment.
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.”
Plaintiffs easily make this threshold showing. Maryland does not contest that its law applies to “the people.” District of Columbia v. Heller, 554 U.S. 570, 580 (2008);
Plaintiffs have thus established a prima facie Second Amendment claim. Yet to the majority, none of this matters. According to the majority, Bruen‘s Footnote Nine blessed licensing schemes like Maryland‘s unless they are particularly abusive. And since Plaintiffs have not alleged that Maryland‘s scheme is particularly abusive, the majority finds that they cannot even establish a prima facie case for Second Amendment protection.
But the majority errs in reading Footnote Nine to control this case. Contrary to the majority‘s claims, Footnote Nine did
Like any written or spoken language, Footnote Nine‘s meaning stems from its context. Bruen involved a constitutional challenge to New York‘s requirement that applicants demonstrate a special need for self-protection in order to obtain a license for public carry. Id. at 12-13. New York‘s regime was a type of “may-issue” licensing law, which grant public authorities discretion to deny licenses even if applicants satisfy the statutory criteria for obtaining them. Id. at 13-15. May-issue licensing regimes are distinct from “shall-issue” licensing regimes, like Maryland‘s, which require authorities to issue a license upon an applicant‘s showing that she meets established statutory criteria. Id. at 13.
The Supreme Court began its analysis of New York‘s law by determining whether the plaintiffs—who had unsuccessfully applied for a license—sought to engage in conduct that fell within the plain text of the Second Amendment. To that end, the Court considered three things: (1) whether the plaintiffs were part of “the people“; (2) whether their desired weapons—handguns—were “Arms“; and (3) whether their proposed course of conduct—“carrying handguns publicly for self-defense“—constituted “bear[ing]” arms. Id. at 31-32. The Court found that the plaintiffs satisfied all three textual requirements. Id. at 31-33. At no point did the Court consider the degree of burden imposed by the regulation at the plain-text stage. Rather, it was enough that New York regulated protected conduct to entitle the plaintiffs to prima facie protection. Id. at 17 (explaining that, when the plain text covers individual conduct, the Government must “justify its regulation” (emphasis added)); see also id. at 24 (analogizing to First Amendment doctrine in which the government bears the burden of proving constitutionality any time it “restricts speech” (citation omitted)).
The Court then considered whether New York‘s law was consistent with history and tradition. Earlier in its opinion, the Court had established that the Government must justify a firearm regulation that falls under the Second Amendment‘s plain text (step one) by analogizing it to its historical forebears, which partly requires assessing “whether modern and historical regulations impose a comparable burden on the right of armed self-defense.” Id. at 29 (emphasis added). At this second step of analysis, the Court therefore measured the burden imposed by New York‘s law and determined that it “prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Id. at 71; see also id. at 38 (“broadly prohibit[ed] the public carry of commonly used firearms for self-defense“); id. at 60 (“prevent[ed] law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose“). The Court then compared this burden to those imposed by historical regulations, along with the comparable justifications for those laws, and found that no historical tradition justified the onerous burden New York imposed on the right to bear arms. See, e.g., id. at 38 (“Throughout modern Anglo-American
Along the way, the Court clarified the limits of its holding. A careless reader might have interpreted the Court‘s analysis to suggest that all licensing regimes fail Second Amendment scrutiny. So immediately after stating that New York‘s law flunked the history-and-tradition test, the Court added Footnote Nine and explained that its analysis should not “be interpreted to suggest the unconstitutionality of” shall-issue licensing regimes. Id. at 38 n.9. Unlike may-issue regimes, the Court explained, shall-issue regimes “do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” Id. (quoting Heller, 554 U.S. at 635). Such regimes are, in the main, guided by “narrow, objective, and definite standards” and do not require the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” so they do not necessarily impose the same burden on public carry as did New York‘s law. Id. (first quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969); and then quoting Cantwell v. Connecticut, 310 U.S. 296, 305 (1940)). At the same time, however, the Court clarified that some shall-issue regimes might operate to “deny ordinary citizens their right to public carry,” such as those featuring “lengthy wait times” or “exorbitant fees,” and therefore might resemble may-issue regimes like New York‘s in practice. Id.
The majority reads Footnote Nine to establish the presumptive constitutionality of all shall-issue licensing regimes, including Maryland‘s. But read in context, Footnote Nine‘s role was much more modest. Footnote Nine merely clarified that shall-issue licensing regimes are not necessarily unconstitutional just because may-issue regimes are. Unlike may-issue regimes, shall-issue regimes generally impose a lesser burden on the right to keep and bear arms, since they do not require heightened showings or grant significant discretion to state officials. So it is possible that the burden they impose is akin to those imposed by historical regulations, in contrast with may-issue regimes. Footnote Nine thus invited courts to independently assess the pedigree of shall-issue licensing regimes against the historical record. Only when a shall-issue regime effectively operates like a may-issue regime is such an inquiry unnecessary, for then it is unconstitutional for the reasons announced in Bruen.
Reading Footnote Nine to accomplish anything more risks elevating perceived implications from dicta over doctrine. Bruen mandated that whenever a law regulates protected conduct, the Government must prove that the regulation is consistent with history and tradition. Id. at 19; see also Rahimi, 144 S. Ct. at 1896 (“In Bruen, we explained that when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction ‘is consistent with the Nation‘s historical tradition of firearm regulation.‘” (quoting Bruen, 597 U.S. at 24)). But the constitutionality of shall-issue licensing regimes was not before the Court in Bruen, so it had no opportunity to consider their historical pedigree. And though we sometimes afford substantial weight to Supreme Court dicta, the Supreme Court has expressly cautioned against “read[ing] a footnote” in an opinion to “establish the general rule” for a class of cases. United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 755 n.6 (2023). Without such caution, we risk cherry-picking “stray comments and stretch[ing] them beyond their context—all to justify an outcome inconsistent with th[e] Court‘s reasoning and judgments.” Brown v. Davenport, 596 U.S. 118, 141 (2022).
The Court‘s decision in Rahimi illustrates the peril of stretching perceived implications from dicta. In both Heller and Bruen, the Court arguably suggested that the Second Amendment only protects the rights of “responsible citizens.” Heller, 554 U.S. at 635; Bruen, 597 U.S. at 70. Emboldened by these statements, the Government in Rahimi argued that individuals subject to domestic-violence restraining orders are not protected by the Second Amendment, since they are not “responsible.” Rahimi, 144 S. Ct. at 1903. Yet the Court in Rahimi renounced having ever adopted such a limit, questioning whether the term “responsible” could provide meaningful guidance and emphasizing that “such a line [did not] derive from our case law,” since “[t]he question was simply not presented” in prior cases. Id. The Court instead conducted afresh a text-history-and-tradition analysis of the constitutionality of the restriction. Id. at 1898–903. Rahimi is a warning that courts must not rely on suggestions drawn from dicta to establish exceptions outside the mandated Bruen framework.
Rather than heeding this warning, however, the majority circumvents it by contriving a creative way to ground its reading of Footnote Nine in the Second Amendment‘s plain text. The majority observes that a law only violates the Second Amendment if it “infringes” the right to keep or bear arms. Majority Op. at 12. It adds that each of the Supreme Court‘s recent Second Amendment cases involved laws that “banned or effectively banned the possession or carry of arms.” Id. at 13. From this, the majority concludes that Footnote Nine must reflect the Supreme Court‘s finding that shall-issue regimes do not infringe the Second Amendment right, absent particularly abusive circumstances, since they do not ban or effectively ban the possession or carry of arms. Id. at 14.
This is an implausible reading of Bruen. Nowhere in Footnote Nine did the Supreme Court tie shall-issue licensing to the plain meaning of “infringe.” Indeed, the Court never mentioned this word at all in its plain-text inquiry or in Footnote Nine. The Court rather appended Footnote Nine to a sentence explaining why there was no historical support for New York‘s may-issue regime. In contrasting the burden imposed by shall-issue regimes to may-issue regimes, the Court merely clarified that its historical analysis of the latter‘s constitutionality did not determine the constitutionality or unconstitutionality of the former. Nothing about this discussion had any bearing on how we analyze the Second Amendment‘s plain text.1
If there were any doubt on this front, the Court foreclosed it in Rahimi. There, the Court clarified that “when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to “justify its regulation.“” Rahimi, 144 S. Ct. at 1897 (quoting Bruen, 597 U.S. at 24 (emphasis added)). Two other Justices, writing separately, similarly explained that the mere targeting of protected conduct triggers Second Amendment scrutiny. See id. at 1907 (Gorsuch, J., concurring) (“In this case, no one questions that the law Mr. Rahimi challenges addresses individual conduct covered by the text of the Second Amendment.“); see also id. at 1932 (Thomas, J., dissenting) (asking whether a regulation ”target[s] conduct protected by the Second Amendment‘s plain text” (emphasis added)). Rahimi establishes what was already apparent: A law need only regulate protected conduct to trigger Second Amendment scrutiny, and any regulation unjustified by our historical tradition “infringe[s]” the right.5
Thus, the majority‘s construction of the Second Amendment‘s plain text is baseless. Bruen did not instruct courts to consider how significantly a regulation burdens protected conduct at the plain-text stage. And it certainly did not tie Footnote Nine to the plain-text meaning of “infringe.” Rather, text, history, and Supreme Court precedent establish that any regulation of protected conduct, if unjustified, infringes the Second Amendment right. Because shall-issue licensing regimes like Maryland‘s regulate protected conduct under the amendment‘s plain text, they must be justified according to history and tradition.
Because the challenged law regulates conduct protected by the Second Amendment‘s plain text, Maryland must show under Bruen‘s second step that it is consistent with our Nation‘s historical tradition of firearms regulation. Bruen, 597 U.S. at 17.6 Maryland offers two potential historical analogues for its regulation. First, Maryland argues that its law is analogous to the historical tradition of prohibiting dangerous people from possessing weapons. Second, Maryland argues that its law is analogous to militia training laws from the Founding. But neither tradition is relevantly similar to Maryland‘s licensing scheme. So the challenged law is unconstitutional.
1. The historical tradition of prohibiting “dangerous” people from owning firearms does not justify Maryland‘s law.
Maryland first argues that its licensing scheme is analogous to historical limitations on the ability of “dangerous” people to own firearms. Appellees’ Br. at 32-33. Outside of several modern U.S. code provisions,7 Maryland does not cite any historical regulations to support its position. See Bruen, 597 U.S. at 66 n.28 (“20th-century evidence . . . does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.“). But Maryland does point to several court decisions that have held, to varying degrees, that dangerous people may be disarmed. In Rahimi, for example, the Supreme Court held that history and tradition support the temporary disarmament of an “individual [who] poses a clear threat of physical violence to another.” 144 S. Ct. at 1901. Some judges have gone further and argued that history and tradition permit legislatures to permanently disarm categories of people considered dangerous to public peace and safety. See Kanter v. Barr, 919 F.3d 437, 451-64 (7th Cir. 2019) (Barrett, J., dissenting); Folajtar v. Att‘y Gen., 980 F.3d 897, 912-20 (3d Cir. 2020) (Bibas, J., dissenting); Antonyuk v. Chiumento, 89 F.4th 271, 314 (2d Cir. 2023), cert. granted, judgment vacated sub. nom. Antonyuk v. James, No. 23-910 (U.S. July 2, 2024) (“There is widespread agreement among both courts of appeals and scholars that restrictions forbidding dangerous individuals from carrying guns comport with this Nation‘s historical tradition of firearm regulation . . . .” (internal quotation marks and citation omitted)).8 Maryland argues that its licensing regime fits within this tradition because it ensures that dangerous people prohibited from owning handguns cannot acquire them.9
I need not decide how far history and tradition support the disarming of a dangerous person. For regardless of how far it does, Maryland‘s law is not “relevantly similar” to historical laws within this tradition. Bruen, 597 U.S. at 29. Bruen identified two metrics for determining whether modern and historical laws are analogous: “how” and “why” the regulations burden a citizen‘s Second Amendment right. Id. Put differently, “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are “central” considerations when engaging in an analogical inquiry.” Id. (quoting McDonald, 561 U.S. at 767 (cleaned up)); see also Rahimi, 144 S. Ct. at 1898 (reaffirming this approach). Maryland‘s licensing law might share an analogous “why” with historical restrictions on dangerous people. But it does not share a relevantly similar “how” because it imposes a burden that is materially different from the one imposed by every other restriction within this tradition.
Every historical law limiting the ability of dangerous people to keep or bear arms targeted those found dangerous by the government—either individually or as a class—and penalized them for having or carrying firearms. For example, the Militia Act of 1662 authorized royal officers to disarm persons that they determined were “dangerous to the Peace of the Kingdom.” Folajtar, 980 F.3d at 914 (Bibas, J., dissenting) (quoting 13 & 14 Car. 2, c. 3, § 13). Some American colonies, meanwhile, disarmed Catholics and loyalists unless they swore an oath of loyalty to the sovereign, since it was feared that they owed fealty to a foreign higher power. Kanter, 919 F.3d at 457 (Barrett, J., dissenting); Folajtar, 980 F.3d at 914 (Bibas, J., dissenting). Many states also enacted surety laws, which required individuals found to give another person “reasonable cause to fear” violence to post a bond before going armed. Rahimi, 144 S. Ct. at 1900. And “going armed” laws, enacted in several colonies and states, penalized anyone who went armed with dangerous and unusual weapons to terrify the people with forfeiture of arms and imprisonment. Id. at 1900-01. As these examples demonstrate, each law within this tradition targeted only people determined to be dangerous and subjected them to various penalties.
Maryland‘s law operates through an entirely different mechanism. It does not identify dangerous people and then target them with restrictions and sanctions. Rather, Maryland‘s law bars everyone from acquiring handguns until they can prove that they are not dangerous. By preemptively depriving all citizens of firearms to keep them out of dangerous hands, Maryland‘s law utilizes a meaningfully different mechanism and thereby goes far beyond historical dangerousness regulations. So these regulations cannot justify Maryland‘s law. See id. at 1898 (“Even when a law regulates arms-bearing for a permissible reason, . . . it may not be compatible with the right if it does so to an extent beyond what was done at the founding.“).
This is not some trivial difference. The contrast in mechanism between past and present laws is precisely how the Supreme Court has assessed potential analogues within this exact tradition. In Bruen, the Court concluded that New York‘s may-issue licensing regime was not analogous to historical surety laws because the two sets of laws employed meaningfully different mechanisms. “While New York presumes that individuals have no public carry right without a showing of heightened need,” the Court explained, “the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.“” Bruen, 597 U.S. at 56 (quoting Mass. Rev. Stat., ch. 134, § 16 (1836)). In Rahimi, by contrast, the Court concluded that
These early licensing laws were treated as constitutional on the ground that people of color—who were considered categorically dangerous at that time—were not entitled to the full enjoyment of constitutional rights. See Robert Leider, Our Non-Originalist Right to Bear Arms, 89 Ind. L.J. 1587, 1611 (2014). For example, when upholding a licensing requirement for free blacks, the North Carolina Supreme Court explained that “free people of color have been among us, as a separate and distinct class, requiring, from necessity, in many cases, separate and distinct legislation.” State v. Newsom, 27 N.C. (5 Ired.) 250, 252 (1844). Similarly, the Virginia Supreme Court explained that firearm restrictions that would otherwise be “inconsistent with the letter and spirit of the Constitution . . . as respects the free whites” were constitutional when applied to racial minorities. Aldridge v. Commonwealth, 2 Va. 447, 449 (1824); see also Waters v. State, 1 Gill. 302, 309 (Md. 1843) (describing free blacks as “a vicious and dangerous population,” which is why laws “make it unlawful for them to bear arms“); State v. Allmond, 7 Del. 612, 641 (Gen. Sess. 1856) (explaining that states could disarm people of color under the police power). And the Supreme Court in Dred Scott v. Sandford made clear that if blacks were ever recognized as citizens, “it would give them the full liberty . . . to keep and carry arms wherever they went.” 60 U.S. (919 How.) 393, 417 (1857); Cooper v. Savannah, 4 Ga. 72, 72 (1848) (“Free persons of color have never been recognized here as citizens; they are not entitled to bear arms . . . .“).13
I do not cite these examples because I believe they stand for some constitutional principle. Far from it—these laws were based on the ill-founded belief that their targets were not entitled to constitutional protection, and they were eventually overruled by legislative and constitutional reforms
Some undoubtedly think that Maryland‘s licensing requirement strikes a beneficial balance between individual liberty and public safety. But it is not the role of judges to balance these two competing interests. Our job is to enforce the Second Amendment, which “is the very product of an interest balancing by the people.” Heller, 554 U.S. at 635. By adopting a mechanism inconsistent with “the traditions of the American people,” Maryland‘s law transgresses that original balance. Bruen, 597 U.S. at 26.
2. Maryland‘s law is not analogous to militia training laws.
Maryland further argues that its law is analogous to historical laws requiring training for members of the militia. Before and after the Founding, many colonies and states required most able-bodied men of a certain age to participate in the militia. See Hirschfeld v. ATF, 5 F.4th 407, 428-30 (4th Cir.), vacated as moot, 14 F.4th 332 (4th Cir. 2021). They likewise required members of the militia to arrive with their own weapons and report for regular training. Id. at 428-32. Maryland argues that its licensing law is analogous to these historical regulations because it ensures “that individuals who may use a handgun have some knowledge and training to do so safely.” Appellees’ Br. at 34.
Contrary to Maryland‘s claims, however, these militia laws were not part of our Nation‘s historical tradition of firearms regulation. In reality, they did not regulate the right to keep or bear arms in any way but rather imposed service obligations, unconnected with the ownership of firearms, on all members of the militia. So they cannot serve as relevant analogues for Maryland‘s licensing regime.
Consider two examples. In 1778, New Jersey enacted a law requiring militiamen to “assemble, properly armed and accoutered, twice in the Year, at such Times and Place or Places as the Field-Officers, or a Majority of them, shall direct for the Purpose of Training and Exercise.” 1778 N.J. Sess. Laws 42, 46 § 15. “[I]n case of Absence” from training, the law imposed a monetary sanction based on the absentee‘s rank.
Delaware enacted a similar law in 1782. It required the militia to “be duly exercised and instructed once in every Month,” 1782 Del. Sess. Laws 1, 3 § 5, and penalized all who “shall neglect or refuse to appear on the Parade . . . not having reasonable Excuse,”
These examples illustrate why historical militia laws are not relevant analogues for
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Three times, our en banc Court has considered Second Amendment challenges in Bruen‘s aftermath. And three times, our Court has disposed of these challenges at the plain-text stage, each time relying on a different threshold limit unsupported by the plain text and appearing nowhere in the Supreme Court‘s precedent. See Bianchi, No. 21-1255, 2024 WL 3666180, at *17; Price, No. 22-4609, 2024 WL 3665400, at *4-5; Majority Op. at 12-17. It is disheartening that our Court has gone out of its way to avoid applying the framework announced in Bruen. I can only hope that in future cases we will reverse course and assess firearm regulations against history and tradition.
I thus respectfully dissent.