Charles Francis WILLIAMS, Jr. v. STATE of Maryland.
No. 16, Sept. Term, 2010.
Court of Appeals of Maryland.
Jan. 5, 2011.
10 A.3d 1167
Douglas F. Gansler, Atty. Gen. of Maryland (Jeremy M. McCoy, Asst. Atty. Gen., Baltimore, MD), on brief, for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, BARBERA, JJ.
BATTAGLIA, J.
In this case, we enter into the constitutional fray involving the scope of the Second Amendment right to bear arms,1 recently explored by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, — U.S. —, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Petitioner, Charles F. Williams, Jr., seeks to overturn his conviction in the Circuit Court for Prince George‘s County for unlawful possession of a handgun, pursuant to
Are
Md.Code Ann. Criminal Law § 4-203 ,Public Safety §§ 5-301, et seq. , and COMAR 29.03.02.04 unconstitutional in light of Heller v. District of Columbia?3
We shall hold that
The facts, as stipulated, had the matter gone to trial, the facts would show that on October 1, 2007, at approximately 5:00 p.m., Officer Molake with the Prince George‘s County Police Department, was in the area of the Baltimore—Washington Parkway and Landover Road in Prince George‘s County, Maryland, and as he was driving in that
area, he observed the defendant going through a backpack near a wooded area nearby the cross area, and at one time, as the officer turned his cruiser around, he observed the defendant turn and place something in the brush area as if he was hiding something.
Officer Molake made contact with the defendant, who he would identify as the gentleman seated to the left with the green shirt and asked him what he was doing. The defendant told him he was going through the backpack to see what was in it. He then asked the defendant what he went and hid in the bushes, and the defendant hesitated and then stated “my gun.”
The facts described the police officer‘s recovery of Williams‘s handgun and Williams‘s statement to police:
Officer Molake then recovered an Austria [sic] made, black Glock handgun with 15 rounds in the magazine in the brush area where he saw the defendant go.
The defendant gave a written statement after being given his Miranda rights by Officer Santa Cruz, admitting to possession of the gun and placing the gun in the bush area where the officer subsequently located it.
The handgun test-fired as positive.
The facts provided the following, regarding Williams‘s purchase of the handgun, apparently for “self-defense“:
The defense would have provided evidence by way of documents that would show that the defendant purchased the handgun in Realco at 6108 Marlboro Pike in Forestville, Maryland, on August 15 of 2007, and that would be shown through Exhibit 1. Paid the balance that was due on that handgun on September 14, 2007, which will be shown in Exhibit 2; that the defense would have provided evidence that the defendant completed the Maryland State Police application and affidavit to purchase a regulated firearm application, which is a total of three pages, on August 15, 2007, which will be shown in Exhibit 3. He received the certificate of completion, which is shown in Exhibits 4 and 5, on August 15, 2007.
The defendant would have testified that he purchased the handgun for self-defense, and that on the date of this arrest, he had just left the handgun at his girlfriend‘s house, place of residence. When he got off work, he went to her residence and picked up that handgun and was en route to his home when the arrest occurred behind the bus stop.
The defendant was again given Miranda rights and gave a written statement that will be shown in the State‘s Exhibits Number 3 and 4.
Judge Wallace found Williams guilty of wearing, carrying, or transporting a handgun in violation of
Before us, as he did in the Circuit Court in a “Motion to Dismiss Indictment,” and in his brief before the Court of Special Appeals, Williams asserts that the prohibition in Section 4-203(a) against wearing, carrying, or transporting a handgun without a permit and outside of one‘s home, infringes upon his Second Amendment right “to keep and bear arms.” He contends that the Supreme Court opinions in Heller and McDonald make clear that the Second Amendment establishes a general “right of persons to keep and bear arms for lawful purposes.”
We begin by exploring the dictates of
(a) Prohibited.—(1) Except as provided in subsection (b) of this section, a person may not:
(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person; or
(ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State.
The exceptions to the prohibition, contained in
(b) Exceptions.—This section does not prohibit:
(1) the wearing, carrying, or transporting of a handgun by a person who is on active assignment engaged in law enforcement, is authorized at the time and under the circumstances to wear, carry, or transport the handgun as part of the person‘s official equipment, and is:
(i) a law enforcement official of the United States, the State, or a county or city of the State;
(ii) a member of the armed forces of the United States or the National Guard on duty or traveling to or from duty;
(iii) a law enforcement official of another state or subdivision of another state temporarily in this State on official business;
(iv) a correctional officer or warden of a correctional facility in the State;
(v) a sheriff or full-time assistant or deputy sheriff of the State; or
(vi) a temporary or part-time sheriff‘s deputy;
(2) the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under [§§ 5-301-5-314 of the Public Safety Article, Maryland Code (2003)];
(3) the carrying of a handgun on the person or in a vehicle while the person is transporting the handgun to or from the place of legal purchase or sale, or to or from a bona fide repair shop, or between bona fide residences of the person, or between the bona fide residence and place of business of the person, if the business is operated and owned substantially by the person;
(4) the wearing, carrying, or transporting by a person of a handgun used in connection with an organized military activity, a target shoot, formal or informal target practice, sport shooting event, hunting, a Department of Natural Resources—sponsored firearms and hunter safety class, trapping, or a dog obedience training class or show, while the person is engaged in, on the way to, or returning from that activity;
(5) the moving by a bona fide gun collector of part or all of the collector‘s gun collection from place to place for public or private exhibition if each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(6) the wearing, carrying, or transporting of a handgun by a person on real estate that the person owns or leases or where the person resides or within the confines of a business establishment that the person owns or leases;
(7) the wearing, carrying, or transporting of a handgun by a supervisory employee:
(i) in the course of employment;
(ii) within the confines of the business establishment in which the supervisory employee is employed;
(iii) when so authorized by the owner or manager of the business establishment; or
(8) the carrying or transporting of a signal pistol or other visual distress signal approved by the United States Coast Guard in a vessel on the waterways of the State or, if the signal pistol or other visual distress signal is unloaded and carried in an enclosed case, in a vehicle.
Here, the relevant exceptions are
Williams, nevertheless, principally relies upon the Supreme Court‘s opinions in Heller, 554 U.S. at 570, and McDonald, — U.S. at —, 130 S.Ct. at 3020, 177 L.Ed.2d at 894, in asserting that the Second
(a) Except as otherwise provided in this unit, no person or organization in the District of Columbia (“District“) shall receive, possess, control, transfer, offer for sale, sell, give, or deliver any destructive device, and no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm.
(a) A registration certificate shall not be issued for a:
(1) Sawed-off shotgun;
(2) Machine gun;
(3) Short-barreled rifle; or
(4) Pistol8 not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee‘s duty hours or to a police officer who has retired from the Metropolitan Police Department.
Except for law enforcement personnel described in § 7-2502.01(b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.
(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in § 22-4515....
Section 22-4515 of the D.C.Code (2001) in turn, stated:
Any violation of any provision of this chapter for which no penalty is specifically provided shall be punished by a fine of not more than $1,000 or imprisonment for not more than 1 year, or both.
Mr. Heller filed a complaint in the United States District Court for the District of Columbia seeking declaratory and injunctive relief from the denial of his application for a “registration certificate” to possess a handgun in his home, the licensing requirement insofar as it prohibited the carrying of a handgun in the home, and the trigger-lock requirement insofar as it prohibited the possession of “functional firearms” in the home. The District Court dismissed the complaint, and the United States Court of Appeals for the District of Columbia Circuit reversed, reasoning that the Second Amendment precluded the District from “flatly ban[ning] the keeping of a handgun in the home.” Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.Cir.2007). The Supreme Court granted the District‘s petition for a writ of certiorari, presenting the following question:
Whether the following provisions—D.C.Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the Second
Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
Before the Court, the District argued that the Second Amendment protects “only militia-related firearm rights.” Alternatively, the District contended that prohibiting handgun possession in the home was reasonable, because residents were permitted to possess shotguns and rifles, albeit unloaded or bound by a trigger lock. Mr. Heller countered that the Second Amendment protects an individual right to possess a firearm for “traditionally lawful purposes, such as self-defense within the home.” 554 U.S. at 577, 128 S.Ct. at 2789, 171 L.Ed.2d at 648.
Embracing an original meaning approach, Justice Antonin Scalia, writing for the Court, interpreted the language of the Second Amendment as conferring an individual right “to keep and bear Arms.” 554 U.S. at 581, 128 S.Ct. at 2791, 171 L.Ed.2d at 651. The Court considered the substance of that individual right as “simply a common way of referring to possessing arms, for militiamen and everyone else.” Id. at 583, 128 S.Ct. at 2792, 171 L.Ed.2d at 652. Similarly, the phrase “bear Arms,” reasoned the Court, referred to the “carrying of weapons,” both in an organized militia and for other purposes, such as self-defense. Id. at 584-87, 128 S.Ct. at 2793-94, 171 L.Ed.2d at 653-54. The Court concluded that “preserving the militia” was not the only aim of the Second Amendment, as the founders “most undoubtedly thought it even more important for self-defense and hunting.” Id. at 599, 128 S.Ct. at 2801, 171 L.Ed.2d at 662. This right “to keep and bear Arms,” however, has limitations:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through 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. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second
Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27, 128 S.Ct. at 2816-17, 171 L.Ed.2d at 678 (internal citations omitted).
In declaring Sections 7-2502.02(a)(4) (prohibiting the registration of handguns, without a home exception) and 22-4504(a) (prohibiting carrying a handgun within one‘s home, without a license) unconstitutional, the Court emphasized that handguns were “overwhelmingly chosen by American society” for self-defense and determined that under any standard of scrutiny, “banning from the home the most preferred firearm in the nation to keep and use for protection of one‘s home and family, would fail constitutional muster.” Id. at 628-29, 128 S.Ct. at 2817-18, 171 L.Ed.2d at 679 (citation omitted) (internal quotation marks omitted). The District‘s trigger-lock requirement, contained in Section 7-2507.02, did not fare any better, according to the Court, because the provision “ma[de] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense” within the home. Id. at 630, 128 S.Ct. at 2818, 171 L.Ed.2d at 680. Therefore, the prohibition against handguns, even within one‘s home, as well as the trigger-lock requirement for all firearms kept within the home, were declared unconstitutional.
Shortly thereafter, in McDonald, — U.S. at —, 130 S.Ct. at 3020, 177 L.Ed.2d at 894, the Supreme Court was asked to consider whether the Second Amendment applied to the States.9 In that case, Otis McDonald, Adam Orlov, Colleen
The statutes at issue were “similar to the District of Columbia‘s,” according to the Court. McDonald, — U.S. at —, 130 S.Ct. at 3026, 177 L.Ed.2d at 903.
The district court judge entered judgment on the pleadings for both municipalities. The United States Court of Appeals for the Seventh Circuit affirmed, reasoning that the Supreme
In reversing, the Supreme Court determined that the Second Amendment right to keep and bear arms “is fundamental to our scheme of ordered liberty,” and as a result, the Due Process Clause rendered it applicable to the States. McDonald, — U.S. at —, 130 S.Ct. at 3036, 177 L.Ed.2d at 914, citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Court characterized Heller as safeguarding an individual right of “self-defense,” when home possession was in issue, id. at —, 130 S.Ct. at 3036, 177 L.Ed.2d at 914, but, nevertheless, reiterated that regulatory schemes prohibiting handgun ownership by dangerous individuals, or prohibiting wearing, carrying, or transporting handguns in various public places outside of the home, were permissible:
We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Id. at —, 130 S.Ct. at 3047, 177 L.Ed.2d at 926, quoting Heller, 554 U.S. at 626-27, 128 S.Ct. at 2817, 171 L.Ed.2d at 678.10
Williams, however, attempts to bring his conviction of wearing, carrying, or transporting a handgun in public, without a permit, within the ambit of Heller and McDonald by claiming that those opinions would prohibit his conviction. This is not the case, because Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession, the dicta in McDonald that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,” notwithstanding. McDonald, — U.S. at —, 130 S.Ct. at 3044, 177 L.Ed.2d at 922. Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.
Williams was convicted of wearing, carrying, or transporting a handgun in public, rather than for possession of a handgun in his home, for which he could not be prosecuted under
In affirming Williams’ conviction, we find persuasive opinions from other courts, addressing analogous situations, in which a defendant was convicted pursuant to a statute prohibiting public possession of a firearm, while providing an excep
“(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm;
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(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense[.]”
Id., 343 Ill.Dec. 274, 934 N.E.2d at 604, quoting
In Little v. United States, 989 A.2d 1096 (D.C.2010), Little was convicted by a jury of one count of carrying a pistol without a license, one count of possession of an unregistered firearm, and one count of unlawful possession of ammunition, as a result of his involvement in an attempted robbery. Little argued that his convictions must be reversed in light of the Supreme Court‘s decision in Heller, because the statutes “functioned as a total ban on handguns.” Id. at 1100. The District of Columbia Court of Appeals rejected that argument and affirmed Little‘s conviction, reasoning that in Heller, “the issue was the constitutionality of the District of Columbia‘s ban on ‘the possession of usable handguns in the home,’ ” id. at 1101, quoting Howerton v. United States, 964 A.2d 1282, 1287 (D.C.2009), and Little had conceded that he was outside of his home.
In People v. Yarbrough, 169 Cal.App.4th 303, 86 Cal.Rptr.3d 674 (Cal.Ct.App.2008), Yarbrough was arrested and convicted of carrying a concealed weapon in public, in violation of a California statute, which provided:
A person is guilty of carrying a concealed firearm when he or she does any of the following:
(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed on the person.
(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.
Id. at 313 n. 5, 86 Cal.Rptr.3d 674, quoting
As a result, we affirm Williams’ conviction of wearing, carrying, or transporting a handgun in violation of
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
MURPHY, J., concurs.
MURPHY, J., concurring.
While I agree with the majority that the Petitioner‘s conviction should be affirmed, I would not hold that the Petitioner‘s conduct is “outside of the scope of the Second Amendment.” I would affirm on the ground that, although the Second Amendment is applicable to an “on the street” possession of a handgun, that Amendment is satisfied by a statute that places reasonable restrictions on the constitutional right to bear arms.