Raymond WOOLLARD; Second Amendment Foundation, Inc., Plaintiffs-Appellees, v. Denis GALLAGHER; Seymour Goldstein; Charles M. Thomas, Jr.; Marcus L. Brown, Defendants-Appellants, and Terrence Sheridan, Defendant.
No. 12-1437
United States Court of Appeals, Fourth Circuit
Decided: March 21, 2013
712 F.3d 865
American Public Health Association; American College of Preventive Medicine; Legal Community Against Violence; Legal Historians; Brady Center to Prevent Gun Violence; Maryland Chiefs of Police Association; International Brotherhood of Police Officers; Major Cities Chiefs Association, Amici Supporting Appellants,
NRA Civil Rights Defense Fund; Buckeye Firearms Foundation, Inc.; International Law Enforcement Educators & Trainers Association; International Association of Law Enforcement Firearms Instructors, Inc.; Professor Clayton Cramer; Independence Institute; Commonwealth of Virginia; State of Alabama; State of Arkansas; State of Florida; State of Kansas; Commonwealth of Kentucky; State of Maine; State of Michigan; State of Nebraska; State of New Mexico; State of Oklahoma; State of South Carolina; State of South Dakota; State of West Virginia; Professors of Law, History, Politics, and Government; California Rifle and Pistol Association Foundation; Virginia Shooting Sports Association; Center for Constitutional Jurisprudence; Gun Owners Foundation; Gun Owners of America, Incorporated; Virginia Gun Owners Coalition; Virginia Citizens Defense League, Inc.; United States Justice Foundation; Conservative Legal Defense and Education Fund; The Associated Gun Clubs of Baltimore, Inc.; The Monumental Rifle & Pistol Club; The Illinois State Rifle Association; The New York Rifle and Pistol Association; The Association of New Jersey Rifle & Pistol Clubs, Inc.; The Hawaii Rifle Association; National Rifle Association of America, Inc., Amici Supporting Appellees.
Argued: Oct. 24, 2012.
Before KING, DAVIS, and DIAZ, Circuit Judges.
Reversed by published opinion. Judge KING wrote the opinion, in which Judge DAVIS and Judge DIAZ joined.
OPINION
KING, Circuit Judge:
The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having “good and substantial reason” to do so. Necessary to the entry of the court‘s injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland‘s good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012). Because we disagree with the court‘s conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment.
I.
A.
Under its permitting scheme, Maryland obliges “[a] person [to] have a permit is-
- Members of law enforcement and the military on active assignment;
- Persons moving handguns to and from places of legal purchase and sale, to and from bona fide repair shops, and between personal residences and businesses;
- Persons engaged in target shoots and practices, sport shooting events, hunting and trapping, firearms and hunter safety classes sponsored by the Department of Natural Resources, and dog obedience training classes and shows;
- Gun collectors participating in public and private exhibitions;
- Supervisory employees armed with handguns in the course of their employment and within the confines of the business establishment, when so authorized by the establishment‘s owner or manager;
- Boaters equipped with signal pistols and other visual distress signals approved by the United States Coast Guard; and
- Persons effecting court-ordered surrenders of their handguns.
See
Handgun permits are issued by the Secretary of the Maryland State Police or the Secretary‘s designee. See
has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.
The Handgun Permit Unit has identified “four primary categories” under which an applicant may demonstrate “good and substantial reason” to obtain a handgun permit:
(1) for business activities, either at the business owner‘s request or on behalf of an employee; (2) for regulated professions (security guard, private detective, armored car driver, and special police
The Handgun Permit Unit is guided by precedent of the Court of Special Appeals of Maryland, recognizing that “whether there is ‘apprehended danger’ to the applicant” is an objective inquiry, and that apprehended danger cannot be established by, inter alia, a “vague threat” or a general fear of “liv[ing] in a dangerous society.” Scherr v. Handgun Permit Review Bd., 163 Md.App. 417, 880 A.2d 1137, 1148 (2005) (quoting Snowden v. Handgun Permit Review Bd., 45 Md. App. 464, 413 A.2d 295, 298 (1980)). That same precedent, as the Permit Unit interprets it, “caution[s] the Unit against relying exclusively on apprehended threats.” J.A. 60 (explaining that “failure to meet [the apprehended threat] criterion is not dispositive“). So, the Permit Unit examines such factors as
- the “nearness” or likelihood of a threat or presumed threat;
- whether the threat can be verified;
- whether the threat is particular to the applicant, as opposed to the average citizen;
- if the threat can be presumed to exist, what is the basis for the presumption; and
- the length of time since the initial threat occurred.
Id. The Permit Unit treats those factors as nonexhaustive, however, and “takes the applicant‘s entire situation into account when considering whether a ‘good and substantial reason’ exists.” Id.
An initial handgun permit “expires on the last day of the holder‘s birth month following 2 years after the date the permit is issued,” and “may be renewed for successive periods of 3 years each if, at the time of an application for renewal, the applicant possesses the qualifications for the issuance of a permit.”
B.
On July 29, 2010, Raymond Woollard and the Second Amendment Foundation, Inc. (together, the “Appellees“), initiated this action in the District of Maryland pursuant to
On Christmas Eve, 2002, Woollard was at home with his wife, children, and grandchildren when an intruder shattered a window and broke into the house. The intruder was Kris Lee Abbott, Woollard‘s son-in-law. Abbott, who was high on drugs and intent on driving into Baltimore city to buy more, was looking for his wife‘s car keys. Woollard grabbed a shotgun and trained it on Abbott, but Abbott wrested the shotgun away. Woollard‘s son restored order by pointing a second gun at Abbott. Woollard‘s wife called the police, who took two-and-a-half hours to arrive.
Id. at 465. Abbott, the son-in-law, received a sentence of probation for the Christmas Eve 2002 incident, but was subsequently incarcerated for probation violations. Id. Woollard‘s 2006 permit renewal came shortly after Abbott was released from prison. Id. In 2009, however, the Secretary (via the Handgun Permit Unit) and the Handgun Permit Review Board refused Woollard a second renewal because he failed to satisfy the good-and-substantial-reason requirement. Id. at 465-66.
The Handgun Permit Review Board‘s decision of November 12, 2009, reflected that Woollard proffered solely the Christmas Eve 2002 incident in support of his request for a second renewal—i.e., as evidence that such a renewal was necessary as a reasonable precaution against apprehended danger—though he acknowledged that he had “not had any contact with his son-in-law [in the seven years since the 2002 incident].” J.A. 15. The decision also observed that, despite being advised that such proof was required in the circumstances of his renewal application, Woollard did not “submit documented threats or incidents that had occurred in the last three years,” nor did he provide “documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun.” Id. Accordingly, the Permit Review Board concluded that Woollard had “not demonstrated a good and substantial reason to wear, carry, or transport a handgun as a reasonable precaution against apprehended danger,” and upheld the Permit Unit‘s denial of a second permit renewal. Id. at 16. Instead of employing the state court appeal process provided by Maryland law, Woollard elected to join with Appellee Second Amendment Foundation in this federal action, challenging the constitutionality of the good-and-substantial-reason requirement and asserting jurisdiction under
Notably, the district court gave considerable attention to our Masciandaro decision. There, Masciandaro challenged his conviction of carrying or possessing a loaded handgun in a motor vehicle within a national park area, in contravention of since-superseded
In the present case, although the district court acknowledged “Judge Wilkinson‘s admonition that one should venture into the unmapped reaches of Second Amendment jurisprudence ‘only upon necessity and only then by small degree,‘” the court deemed itself obliged “to determine whether Maryland‘s broad restriction on handgun possession outside the home burdens any Second Amendment right at all.” Woollard, 863 F.Supp.2d at 469 (quoting Masciandaro, 638 F.3d at 475 (Wilkinson, J., writing for the Court as to Part III.B)). Guided by Judge Niemeyer‘s separate opinion in Masciandaro, as well as so-called “signposts” left by Heller and other recent precedent, the district court concluded that the individual right to possess and carry weapons for self-defense is not limited to the home. See id. at 469-71. Purporting to apply intermediate scrutiny, the court then recognized that the good-and-substantial-reason requirement is un-
The district court thus awarded summary judgment to the Appellees, see Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012), ECF No. 53, and permanently enjoined enforcement of the good-and-substantial-reason requirement, see Woollard v. Brown, No. 1:10-cv-02068 (D.Md. Mar. 30, 2012), ECF No. 63. After the State noted this appeal, the district court dissolved a preliminary stay of its judgment and denied the State‘s request for a stay pending appeal. See Woollard v. Brown, No. 1:10-cv-02068 (D.Md. July 23, 2012), ECF No. 72. Nevertheless, on August 1, 2012, we entered our own stay pending appeal and expedited the appel-
II.
We review de novo a district court‘s award of summary judgment, viewing the facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. See FOP Lodge No. 89 v. Prince George‘s Cnty., 608 F.3d 183, 188 (4th Cir.2010). Summary judgment is appropriate only if the record shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Consistently with the summary judgment standard, our review of a decision granting an injunction is de novo where the contested issue is a question of law. See Bacon v. City of Richmond, 475 F.3d 633, 638 (4th Cir.2007). That is, although “decisions pertaining to injunctive relief normally are reviewed solely for abuse of discretion in applying the injunction standard, we review such a decision de novo where it rests solely on a premise as to the applicable rule of law, and the facts
III.
A.
In the familiar words 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.”
Two years after issuing its Heller decision, in McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court considered the constitutionality of municipal bans in Chicago and one of its suburbs on the possession of handguns in the home. On account of the similarities between those bans and the District of Columbia prohibition struck down in Heller, the McDonald defendants were left to “argue that their laws are constitutional because the Second Amendment has no application to the States.” See McDonald, 130 S.Ct. at 3026. The Court recognized, however, that “the Second Amendment right is fully applicable to the States,” and reiterated Heller‘s holding “that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” Id. at 3026, 3050. Accordingly, “a considerable degree of uncertainty remains as to the scope of [the Heller] right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.” United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir.2011); see also Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir.2012) (“What we know from [Heller and McDonald] is that Second Amendment guarantees are at their zenith within the home. What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government.” (citation omitted)).
Like several of our sister circuits, we have found that “a two-part approach to Second Amendment claims seems appropriate under Heller.” See United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010) (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010)); see also Nat‘l Rifle Ass‘n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir.2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); lumbia” cite=“670 F.3d 1244” pinpoint=“1252” court=“D.C. Cir.” date=“2011“>Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir.2011); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir.2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010). Pursuant to our two-part Chester inquiry,
[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.
Chester, 628 F.3d at 680 (citations and internal quotation marks omitted).
As we have recognized, however, we are not obliged to impart a definitive ruling at the first step of the Chester inquiry. And indeed, we and other courts of appeals have sometimes deemed it prudent to instead resolve post-Heller challenges to firearm prohibitions at the second step—including where the challenge focuses on an outside-the-home prohibition. Masciandaro is just one example of such an incidence. See also, e.g., Nat‘l Rifle Ass‘n of Am., 700 F.3d at 204 (“Although we are inclined to uphold the challenged federal laws [banning the sale of firearms to persons under the age of twenty-one] at step one of our analytical framework, in an abundance of caution, we proceed to step two. We ultimately conclude that the challenged federal laws pass constitutional muster even if they implicate the Second Amendment guarantee.“); United States v. Mahin, 668 F.3d 119, 123-24 (4th Cir.2012) (declining Mahin‘s invitation to “recognize that Second Amendment protections apply outside the home and extend to persons subject to domestic protective orders,” because we could assume Mahin “engaged in activity which implicates the Second Amendment” and yet “uphold [his] conviction“). But cf. Kachalsky, 701 F.3d at 89 (“Although the Supreme Court‘s cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court‘s analysis suggests[] ... that the Amendment must have some application in the very different context of the public possession of firearms. Our analysis proceeds on this assumption.” (footnote omitted)).5
Of course, in addition to the district court herein, a handful of courts—most prominently the Seventh Circuit—have declared outright that the Heller right extends beyond the home. See Moore v. Madigan, 702 F.3d 933, 942 (7th Cir.2012) (“The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.“); see also, e.g., Bateman v. Perdue, 881 F.Supp.2d 709, 714 (E.D.N.C.2012) (“Although consider-
Other courts have ruled to the contrary, concluding that the Heller right is confined to the home. Notably, Maryland‘s highest court falls within the latter category. See Williams v. State, 417 Md. 479, 10 A.3d 1167, 1169 (2011) (“hold[ing] that Section 4-203(a)(1)(i) of the Criminal Law Article [of the Maryland Code], which prohibits wearing, carrying, or transporting a handgun, without a permit and outside of one‘s home, is outside the scope of the Second Amendment“). On a related note, the Tenth Circuit recently held “that the carrying of concealed firearms is not protected by the Second Amendment.” Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir.2013).
We hew to a judicious course today, refraining from any assessment of whether Maryland‘s good-and-substantial-reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and-substantial-reason requirement passes constitutional muster under what we have deemed to be the applicable standard—intermediate scrutiny.
B.
In Masciandaro, we announced that intermediate scrutiny applies “to laws that burden [any] right to keep and bear arms outside of the home.” See Masciandaro, 638 F.3d at 470-71 (explaining that “we assume that any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense“); accord Kachalsky, 701 F.3d at 96 (“Because our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public, we conclude that intermediate scrutiny is appropriate in this case.“). As explained herein, the State has satisfied the intermediate scrutiny standard, in that it has demonstrated that the good-and-substantial-reason requirement for obtaining a Maryland handgun permit, as applied to Appellee Woollard, “is reasonably adapted to a substantial governmental interest.” See Masciandaro, 638 F.3d at 471.
1.
We begin with the issue of whether the governmental interest asserted by the State constitutes a “substantial” one. The State explains that, by enacting the handgun permitting scheme, including the good-and-substantial-reason requirement, the General Assembly endeavored to serve Maryland‘s concomitant interests in protecting public safety and preventing crime—particularly violent crime committed with handguns. Such purpose is reflected in codified legislative findings that
- the number of violent crimes committed in the State has increased alarmingly in recent years;
- a high percentage of violent crimes committed in the State involves the use of handguns;
- the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals;
- current law has not been effective in curbing the more frequent use of handguns in committing crime; and
- additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.
The General Assembly‘s findings are buttressed by more recent evidence proffered by the State in these proceedings.6 The State‘s evidence reflects that, although there has been “a significant improvement over past violent crime, homicide, and robbery totals,” Maryland had the “eighth highest violent crime rate,” “the third highest homicide rate,” and “the second highest robbery rate of any state in 2009.” J.A. 116. Over the course of that year, “97.4% of all homicides by firearm were committed with handguns,” and handguns were “the weapon of choice” for robberies and carjackings. Id. at 116-17; see also id. at 110 (explaining that “[h]andguns are the weapon of choice for criminal activity in Baltimore because they are small, relatively lightweight, easy to carry and conceal, easy to load and fire, deadly at short range, and ideal for surprise attacks“). Furthermore, handguns have persisted as “the largest threat to the lives of Maryland‘s law enforcement officers.” Id. at 117 (recounting that, “of the 158
In these circumstances, we can easily appreciate Maryland‘s impetus to enact measures aimed at protecting public safety and preventing crime, and we readily conclude that such objectives are substantial governmental interests. See, e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (referring to “the significant governmental interest in public safety“); United States v. Salerno, 481 U.S. 739, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (characterizing “the Government‘s general interest in preventing crime” as “compelling“); United States v. Chapman, 666 F.3d 220, 227 (4th Cir.2012) (relying on Schenck and Salerno in holding “that reducing domestic gun violence is a substantial governmental objective“); Masciandaro, 638 F.3d at 473 (same in concluding that “the government has a substantial interest in providing for the safety of individuals who visit and make use of the national parks“). The district court itself recognized that, “[b]eyond peradventure, public safety and the prevention of crime are substantial, indeed compelling, government interests.” Woollard, 863 F.Supp.2d at 473.
For their part, the Appellees concede that “a compelling government interest in public safety” generally exists, but they maintain “that no legitimate government interest is at stake” here, because the State “cannot have an interest in suppress-
Unfortunately for the Appellees, their argument is foreclosed by our precedent. First, in Chester, we rejected the proposition that we must “apply strict scrutiny whenever a law impinges upon a [fundamental] right.” Chester, 628 F.3d at 682 (employing intermediate, rather than strict, scrutiny in Chester‘s Second Amendment challenge to ban on firearm possession by domestic violence misdemeanants). Then, ruling in Masciandaro that intermediate scrutiny applies to laws burdening the assumed right to carry firearms in public, we recognized a “longstanding out-of-the-home/in-the-home distinction bear[ing] directly on the level of scrutiny applicable.” Masciandaro, 638 F.3d at 470. The Appellees therefore do not dissuade us from applying intermediate scrutiny, or from concluding that Maryland‘s interests in protecting public safety and preventing crime satisfy the “significant governmental interest” aspect of the intermediate scrutiny standard.8
2.
We thus turn to the question of whether the good-and-substantial-reason requirement, as applied to Appellee Woollard, is “reasonably adapted” to Maryland‘s significant interests. That is, we must decide if the State has demonstrated that there is a “reasonable fit” between the good-and-substantial-reason requirement and the governmental objectives of protecting public safety and preventing crime. See Chester, 628 F.3d at 683. Importantly, the State must show a fit that is “reasonable, not perfect.” United States v. Carter, 669 F.3d 411, 417 (4th Cir.2012) (quoting Marzzarella, 614 F.3d at 98). That test is satisfied if Maryland‘s interests are “substantially served by enforcement of the” good-and-substantial-reason requirement. See id. There is no necessity ei-
a.
At the outset of our reasonable fit inquiry, we must consider the precise contours of Maryland‘s handgun permitting scheme. See Chapman, 666 F.3d at 227 (citing United States v. Staten, 666 F.3d 154, 162 (4th Cir.2011)). Under that scheme, even without a permit, Woollard may wear, carry, and transport handguns not only in his own home and on his personal and business properties, but also in many public places. See
Nevertheless, absent “good and substantial reason” to do so, Woollard cannot carry handguns in other public places where a permit is mandated. See
The State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carrying of handguns protects citizens and inhibits crime by, inter alia:
- Decreasing the availability of handguns to criminals via theft, see J.A. 111 (explaining that criminals often target victims “precisely because they possess handguns,” and that Baltimore police have “frequently investigated homicides and robberies where it appears that one, if not the primary, goal of the attacker was to deprive the victim of his handgun or other weapons“); see also id. at 119-20 (“[C]riminals in Maryland are constantly looking for ways to arm themselves with handguns, including by stealing them from others. It is not uncommon for criminals to obtain these guns during street altercations.“);
- Lessening “the likelihood that basic confrontations between individuals would turn deadly,” id. at 112 (“The presence of a handgun in an altercation, however petty, greatly increases the likelihood that it will escalate into potentially lethal violence.“); see also id. at 132 (“Incidents such as bar fights and road rage that now often end with people upset, but not lethally wounded, take on deadly implications when handguns are involved.“);
- Averting the confusion, along with the “potentially tragic consequences” thereof, that can result from the presence of a third person with a handgun during a confrontation between a police officer and a criminal suspect, id. at 113 (“In [such] a confrontation ..., an additional person bearing a gun might cause confusion as to which side
of the confrontation the person is on, which could lead to hesitation by the police officer and the potential for innocent victims, including the permit holder, innocent bystanders, and police officers.“); see also id. at 128 (“[C]ivilians without sufficient training to use and maintain control of their weapons, particularly under tense circumstances, pose a danger to officers and other civilians.“); - Curtailing the presence of handguns during routine police-citizen encounters, id. at 131 (“If the number of legal handguns on the streets increased significantly, [police] officers would have no choice but to take extra precautions before engaging citizens, effectively treating encounters between police and the community that now are routine, friendly, and trusting, as high-risk stops, which demand a much more rigid protocol and a strategic approach.“);
- Reducing the number of “handgun sightings” that must be investigated, id. (“Increasing the number of people legally carrying handguns in the streets will also force [police] officers to spend more resources responding to reports about handgun sightings and engaging handgun carriers to ensure they are doing so lawfully.“); and
- Facilitating the identification of those persons carrying handguns who pose a menace, id. at 113 (“Police officers would also have a harder time identifying potential security risks if more people without good and substantial reason to carry a handgun were able to do so, making it more difficult to respond when necessary.“).
At the same time that it reduces the number of handguns carried in public, however, the good-and-substantial-reason requirement ensures that those persons in palpable need of self-protection can arm themselves in public places where Maryland‘s various permit exceptions do not apply. Consequently, according to the State, the good-and-substantial-reason requirement “strikes a proper balance between ensuring access to handgun permits for those who need them while preventing a greater-than-necessary proliferation of handguns in public places that ... increases risks to public safety.” J.A. 113.9
b.
We are convinced by the State‘s evidence that there is a reasonable fit between the good-and-substantial-reason requirement and Maryland‘s objectives of protecting public safety and preventing crime. In this regard, we find ourselves in agreement with much of the Second Cir-
The good-and-substantial-reason requirement was inappropriately condemned by the district court for being a “rationing system,” that “does no more to combat [threats to public safety] than would a law indiscriminately limiting the issuance of a permit to every tenth applicant.” See Woollard, 863 F.Supp.2d at 474. The court pointed out, inter alia, that the good-and-substantial-reason requirement “will not prevent those who meet it from having their guns taken from them.” Id. The Appellees have added that, because “[c]rime is largely random and unpredictable,” the State is “plainly incapable of predicting who might be victimized and thus have more practical use for firearms.” Br. of Appellees 68. Additionally, the Appellees have suggested that a “shall-issue” regime, increasing the number of law-abiding handgun carriers, would more effectively protect public safety and prevent crime than does Maryland‘s current permitting scheme. See id. at 63. But we cannot substitute those views for the considered judgment of the General Assembly that the good-and-substantial-reason requirement strikes an appropriate balance between granting handgun permits to those persons known to be in need of self-protection and precluding a dangerous proliferation of handguns on the streets of Maryland. See Kachalsky, 701 F.3d at 100 (“New York determined that limiting handgun possession to persons who have an articulable basis for believing they will need the weapon for self-defense is in the best interest of public safety and outweighs the need to have a handgun for an unexpected confrontation.“).
As the Second Circuit recognized in Kachalsky, “[i]t is the legislature‘s job, not ours, to weigh conflicting evidence and make policy judgments.” Kachalsky, 701 F.3d at 99. The duty of the courts is to ensure that the legislature‘s policy choice substantially serves a significant governmental interest. That is, the courts must be satisfied that there is a reasonable fit between the legislative policy choice and the governmental
Thus, the district court was also wrong to denounce the good-and-substantial-reason requirement‘s failure to single-handedly safeguard the public from every handgun-related hazard. The court expressly faulted the good-and-substantial-reason requirement for not “ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals[,] the mentally ill,” or “anyone whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun“; for not “ban[ning] handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol“; and for not “attempt[ing] to reduce accidents, as would a requirement that all permit applicants complete a safety course.” See Woollard, 863 F.Supp.2d at 474 (internal quotation marks omitted). Aside from disregarding the existence of other laws with many of those very aims—including separate provisions of Maryland‘s handgun permitting scheme—the court improperly conducted a review more reminiscent of strict scrutiny than intermediate scrutiny.
The district court‘s misapplication of the intermediate scrutiny standard is illustrated by its pronouncement that “[a] citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights,” in that “[t]he right‘s existence is all the reason he needs.” Woollard, 863 F.Supp.2d at 475. There simply is no way to harmonize the district court‘s declaration with our recognition in Masciandaro that intermediate scrutiny applies to laws burdening any right to carry firearms outside the home, where “firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” See Masciandaro, 638 F.3d at 470; see also Kachalsky, 701 F.3d at 99 n. 23 (rejecting the notion that “handgun possession in public has the ring of an absolute constitutional right,” and deeming it “quite obvious” that “possession of a weapon in the home has far different implications than carrying a concealed weapon in public“); Br. of Appellants 43 (“The same factors that make handguns the weapon of choice for defense of the home also make them the weapon of choice for criminals outside the home.... Similarly, an individual‘s possession of a handgun in his own home obviously does not present the same risks to public safety as does his carry of the same handgun in public.“).
In summary, although we assume that Appellee Woollard‘s Second Amendment right is burdened by the good-and-substantial-reason requirement, we further conclude that such burden is constitutionally permissible. That is, under the applicable intermediate scrutiny standard, the State has demonstrated that the good-and-substantial-reason requirement is reasonably adapted to Maryland‘s significant interests in protecting public safety and preventing crime.
C.
Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.“).11
IV.
Pursuant to the foregoing, we reverse the judgment of the district court.
REVERSED