Gentlemen, I can confirm that we were successful in the first stage of the litigation. Thank you for all of your support.
I'll leave appropriate commentary to others, but here is a link to the opinion for those with Pacer access and as much of the opinion that the server will permit me to post - I'll follow up with the second half of the opinion shortly:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RAYMOND WOOLLARD, et al.
v. Civil Case No. L-10-2068
TERRENCE SHERIDAN, et al.
This case calls upon the Court to determine whether the State of Maryland‘s handgun regulation statute violates the Second Amendment to the United States Constitution insofar as it requires an applicant to demonstrate ―good and substantial reason‖ for the issuance of a handgun permit. Plaintiffs Raymond Woollard and The Second Amendment Foundation1 bring suit against Terrence Sheridan, Secretary of the Maryland State Police, and three members of the Maryland Handgun Permit Review Board. The facts of the case are undisputed, and both sides have moved for summary judgment. See Docket Nos. 21 and 25.2 The issues have been comprehensively briefed and the Court has heard oral argument.
1 The Second Amendment Foundation is a non-profit organization, the stated purposes of which include ―promoting the exercise of the right to keep and bear arms; and education, research, publishing and legal action focusing on the Constitutional right to privately own and possess firearms, and the consequences of gun control.‖ Am. Compl. 2. For ease of reference, Plaintiffs will be collectively referred to as ―Woollard‖ throughout.
2 The Court thanks counsel for their thorough and skillful briefs. The Court also thanks amici curiae, the Brady Center to Prevent Gun Violence and the Legal Community Against Violence, for their useful submissions. Case 1:10-cv-02068-BEL Document 52 Filed 03/02/12 Page 1 of 23
Because the ―good and substantial reason‖ requirement is not reasonably adapted to a substantial government interest, the Court finds this portion of the Maryland law to be unconstitutional. Woollard is entitled to summary judgment.
The state of Maryland prohibits the carrying of a handgun outside the home, openly or concealed, without a permit. See MD. CODE ANN., CRIM. LAW § 4-203; MD. CODE ANN., PUB. SAFETY § 5-303.3 The Secretary of the State Police (―Secretary‖) is required to issue permits, but only to individuals who meet certain enumerated conditions. An applicant must establish that he has not been convicted of a felony or a misdemeanor for which a term of imprisonment greater than one year was imposed, has not been convicted of a drug crime, is not an alcoholic or drug addict, and has not exhibited a propensity for violence or instability. Of significance to this case, the Secretary must also make a determination that the applicant ―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.‖ MD. CODE ANN., PUB. SAFETY § 5-306(a)(5)(ii).
In deciding whether the applicant has satisfied these criteria, the Handgun Permit Unit (―Permit Unit‖), which reviews applications as the Secretary‘s designee, is required to take various factors into consideration. These include ―the reasons given by the applicant as to whether those reasons are good and substantial,‖ ―whether the applicant has any alternative
3 Maryland law does allow the transport of an unloaded handgun to and from places where it may legally be possessed without a permit, such as the owner‘s home, a repair shop, a target range, or a gun show. See MD. CODE ANN., CRIM. LAW § 4-203(b). With limited exceptions, Maryland also allows the unrestricted carrying of a ―long gun,‖ i.e., a rifle or shotgun, outside the home. Case 1:10-cv-02068-BEL Document 52 Filed 03/02/12 Page 2 of 23
available to him for protection other than a handgun permit,‖ and ―whether the permit is necessary as a reasonable precaution for the applicant against apprehended danger.‖ MD. CODE REGS. 29.03.02.04.
An individual whose permit application has been denied may appeal the decision to the Handgun Permit Review Board (the ―Board‖). MD. CODE ANN., PUB. SAFETY, § 5-312. The Board may sustain, reverse, or modify the Permit Unit‘s decision. Id.
Plaintiff Raymond Woollard lives on a farm in a remote part of Baltimore County, Maryland. 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.
Abbott was convicted of first degree burglary and sentenced to three years‘ probation. He was later incarcerated after he violated his probation by assaulting a police officer and by committing another burglary.
In 2003, Woollard applied for, and was granted, a handgun carry permit. He was allowed to renew the permit in 2006, shortly after Abbott was released from prison.4 In 2009, however, when Woollard again sought to renew his permit, he was informed that his request was incomplete. He was directed to submit evidence ―to support apprehended fear (i.e. –copies of
4 Permits expire ―on the last day of the holder‘s birth month following two years after the date the permit is issued‖ and may be renewed for successive three-year terms. MD. CODE ANN., PUB. SAFETY, § 5-309. Case 1:10-cv-02068-BEL Document 52 Filed 03/02/12 Page 3 of 23
police reports for assaults, threats, harassments, stalking).‖ Letter from M. Cusimano, Handgun Permit Section Supervisor, to Robert Woollard (Feb. 2, 2009), Pls.‘ Mot. Summ. J. Ex. A, Docket No. 12-3. Because Woollard was unable to produce evidence of a current threat, his application was denied.
Woollard appealed this decision, first through the Handgun Permit Unit‘s informal review procedures and eventually to the Board. On November 12, 2009, in a decision by Defendants Gallagher, Goldstein, and Thomas, the Board affirmed the denial of Woollard‘s application, finding that Woollard ―ha[d] not submitted any documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun.‖ The Board concluded that Woollard ―ha[d] not demonstrated a good and substantial reason to wear, carry or transport a handgun as a reasonable precaution against apprehended danger in the State of Maryland.‖ Pls.‘ Mot Summ. J. Ex. D, Docket No. 12-6.
On July 29, 2010, Woollard filed the instant suit, arguing that Maryland‘s handgun permitting scheme is facially violative of both the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. He avers that, separate and apart from any concern he may have regarding Abbott, he wishes to wear and carry a handgun for general self-defense.
II. LEGAL STANDARD
The Court may grant summary judgment when ―the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (recognizing that trial
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judges have ―an affirmative obligation‖ to prevent factually unsupported claims and defenses from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of material fact, the Court must view the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). Hearsay statements or conclusory statements with no evidentiary basis cannot support or defeat a motion for summary judgment. See Greensboro Prof‘l Fire Fighters Ass‘n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
―When both parties file motions for summary judgment . . . [a] court applies the same standard of review.‖ McCready v. Standard Ins. Co., 417 F. Supp. 2d 684, 695 (D. Md. 2006) (citing Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). Furthermore, ―each motion [will be considered by a court] separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.‖ Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).
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.‖ U.S. CONST. amend. II. These 27 words, so long untroubled by significant judicial scrutiny, have become newly fertile ground for interpretation following the Supreme Court‘s 2008 decision in District of Columbia v. Heller, 554 U.S. 570 (2008). In brief, Heller presented the question whether the Second Amendment confers an individual right to bear arms, or protects only the right to possess and carry a firearm in connection with militia service. After a lengthy examination of the historical record, the Heller majority held that the Constitution guarantees
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―the individual right to possess and carry weapons in case of confrontation,‖ but left the contours of that right largely undefined. Id. at 592. Two years later, in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the Supreme Court held that the Second Amendment‘s protections, whatever their bounds, apply fully to the States through the Fourteenth Amendment.
This case requires the Court to answer two fundamental questions. The first asks whether the Second Amendment‘s protections extend beyond the home, ―where the need for defense of self, family, and property is most acute.‖ Heller, 554 U.S. at 628. This question was left unanswered in Heller, and has not been authoritatively addressed in the Fourth Circuit‘s post-Heller decisions. Second, if the right to bear arms does extend beyond the home, the Court must decide whether Maryland‘s requirement that a permit applicant demonstrate ―good and substantial reason‖ to wear or carry a handgun passes constitutional muster. In undertaking these inquiries, the Court is guided by the Fourth Circuit‘s recent opinion in United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), which helpfully laid the foundation for resolution of the case at bar.
A. Level of Scrutiny
The Supreme Court has traditionally chosen among three levels of scrutiny when examining laws challenged on constitutional grounds. The rational basis test presumes the law‘s validity and asks only whether the law is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Intermediate scrutiny requires more; the government‘s interest must be ―significant,‖ ―substantial,‖ or ―important,‖ see, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994), and the ―fit‖ between the challenged regulation and the asserted objective must be reasonable, though not perfect. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001). Finally, strict scrutiny requires the
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government to show that the law ―furthers a compelling interest and is narrowly tailored to achieve that interest.‖ Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (citing FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449, 464 (2007)).
The Heller majority declined to articulate the level of constitutional scrutiny that courts must apply when examining laws that are in tension with the Second Amendment. It determined that the regulation then under consideration would have failed ―[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.‖ 554 U.S. at 628. The majority did, however, reject both rational basis review, see id. at 628 n.27, and the ―freestanding ‗interest-balancing‘ approach‖ advocated by Justice Breyer in dissent. Id. at 634–35; see also id. at 689–90 (Breyer, J., dissenting).
The case of United States v. Chester, 628 F.3d 673 (4th Cir. 2010), called upon the Fourth Circuit Court of Appeals to decide the level of scrutiny applicable in a challenge to 18 U.S.C. § 922(g)(9), which prohibits the possession of a firearm by any person convicted of a misdemeanor crime of domestic violence.5 Because Chester‘s prior conviction put him outside the ambit of the ―core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense,‖ the court determined that intermediate scrutiny was more appropriate than strict scrutiny. Id. at 683 (emphasis original).
Soon thereafter, Masciandaro presented the Fourth Circuit with another case involving the assertion of Second Amendment rights outside the ―core‖ territory staked out by Heller. Sean Masciandaro was convicted of possessing a loaded handgun in a motor vehicle within a
5 Commonly referred to as the ―felon in possession‖ statute, § 922(g) is best known for proscribing the possession of a firearm or ammunition by anyone convicted of a crime punishable by a term of imprisonment exceeding one year. Lesser-known subsections also forbid firearm possession to those who have been dishonorably discharged from the armed forces, illegal aliens, and domestic violence misdemeanants. Case 1:10-cv-02068-BEL Document 52 Filed 03/02/12 Page 7 of 23
national park, a combination made unlawful at the time by a federal regulation, 36 C.F.R. § 2.4(b). 638 F.3d at 459. On appeal, Masciandaro argued that because the Second Amendment guaranteed him the right to possess and carry a weapon in case of confrontation, it shielded him from prosecution for exercising that right in a national park. The Fourth Circuit, in upholding Masciandaro‘s conviction, rejected his argument that the regulation should be tested under strict scrutiny. It noted that while Masciandaro, unlike Chester, was a law-abiding citizen with a clean criminal record, he possessed the handgun not in his home but in a public park. Id. at 469–70.
Drawing from First Amendment jurisprudence, the appeals court reasoned as follows:
[W]e might expect that courts will employ different types of scrutiny in assessing burdens on Second Amendment rights, depending on the character of the Second Amendment question presented.
* * * *
As we observe that any law regulating the content of speech is subject to strict scrutiny, 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.
Id. at 470 (citation omitted).
The court concluded that ―a lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home,‖ and determined that intermediate scrutiny was appropriate to Masciandaro‘s challenge. Id. at 471. The court cited with approval precedent applying intermediate scrutiny to content-neutral time, place, and manner restrictions on speech in general, and on commercial speech in particular ―in light of its ‗subordinate position in the scale of First Amendment values.‘ ‖ Id. (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), and Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989)). Case 1:10-cv-02068-BEL Document 52 Filed 03/02/12 Page 8 of 23
Woollard‘s asserted right falls within this same category of non-core Second Amendment protection. He already enjoys an unchallenged right to possess a handgun in his home; but, like Masciandaro, he also seeks to carry one into the wider world for general self-defense. The statute he challenges, therefore, is properly viewed through the lens of intermediate scrutiny, which places the burden on the Government to demonstrate a reasonable fit between the statute and a substantial governmental interest. See Chester, 628 F.3d at 683.
B. Scope of the Right
In Masciandaro, Judge Wilkinson, writing for the panel on this issue only,6 found it ―unnecessary to explore in this case the question of whether and to what extent the Second Amendment right recognized in Heller applies outside the home.‖ 638 F.3d at 474. Judge Wilkinson reasoned that, if the right to carry a handgun outside the home does exist, the burden placed on that right by the regulation at issue clearly withstood intermediate scrutiny. He then determined that that the principle of constitutional avoidance counseled that the case be resolved on this narrower ground. See id. at 475 (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). Because the Supreme Court had not clearly articulated the Second Amendment‘s reach, the Fourth Circuit declined to forge ahead into what Judge Wilkinson characterized as ―a vast terra incognita.‖ Id. Rather, the court concluded that ―[t]here simply is no need in this litigation to break ground that our superiors have not tread.‖ Id.
In considering the case at bar, this Court is mindful of 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.‖ Id. Today, however, such necessity exists. Woollard
6 Though the balance of the opinion is authored by Judge Niemeyer, his view as to the necessity of reaching the question of the Second Amendment‘s scope did not garner support from a majority of the three-judge panel. Thus, Judge Wilkinson‘s position on that issue is controlling. Case 1:10-cv-02068-BEL Document 52 Filed 03/02/12 Page 9 of 23
has squarely presented the question, and resolution of his case requires an answer. While we may leave for another day the dauntingly nuanced ―litigation over schools, airports, parks, public thoroughfares, and various additional government facilities,‖ see id., the instant suit does require the Court to determine whether Maryland‘s broad restriction on handgun possession outside the home burdens any Second Amendment right at all.
In undertaking this imposing task, the Court finds a ready guide in Judge Niemeyer‘s analysis in Masciandaro. While a majority of the panel found that Judge Niemeyer‘s reasoning was not essential to disposition of the case, it is both sound and persuasive. As Judge Niemeyer points out, the Heller Court‘s description of its holding as applying to the home, where the need ―for defense of self, family, and property is most acute,‖ suggests that the right also applies in some form ―where that need is not ‗most acute.‘ ‖ Id. at 468 (Niemeyer, J., concurring) (quoting Heller, 554 U.S. at 628). This reasoning is consistent with the Supreme Court‘s historical understanding of the right to keep and bear arms as ―an individual right protecting against both public and private violence.‖ Heller, 554 U.S. at 594. In addition to self-defense, the right was also understood to allow for militia membership and hunting. See id. at 598. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ―self-defense has to take place wherever [a] person happens to be.‖ Masciandaro, 638 F.3d at 468 (Niemeyer, J., concurring) (quoting Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1515–18 (2009)).