Fooks v. State

Circuit Court for Wicomico County

Case No. C-22-CR-21-000030

Argued: March 2, 2023

IN THE SUPREME COURT

OF MARYLAND

No. 24

September Term, 2022

______________________________________

ROBERT L. FOOKS

v.

STATE OF MARYLAND

______________________________________

Fader, C.J.,

Watts,

*Hotten,

Booth,

Biran,

Gould,

Eaves,

JJ.

______________________________________

Opinion by Fader, C.J.

Watts, J., concurs.

Gould, J., concurs.

Biran, J., dissents.

______________________________________

Filed: June 6, 2025

*Hotten, J., now a Senior Justice, participated

Pursuant to the Maryland Uniform Electronic Legal in the hearing and conference of this case while

Materials Act (§§ 10-1601 et seq. of the State

Government Article) this document is authentic.

an active member of this Court. After being

recalled pursuant to Maryland Constitution,

2025.06.06 Article IV, § 3A, she also participated in the

'00'04- 16:38:17 decision and adoption of this opinion.

Gregory Hilton, Clerk

Section 5-133(b)(2) of the Public Safety Article (2022 Repl.) prohibits a person

from possessing certain firearms if the person has been convicted of a common law crime

and received a sentence of more than two years in prison. We hold that § 5-133(b)(2) is,

in substance, a law prohibiting the possession of firearms by felons and, as such, is

consistent with the Second Amendment to the United States Constitution. 1

Robert L. Fooks, the petitioner, was convicted by the Circuit Court for Wicomico

County of violating § 5-133(b)(2). Mr. Fooks does not contest that he was subject to that

prohibition based on his prior conviction and more than four-year sentence for the common

law crime of constructive criminal contempt. He argues, however, that § 5-133(b)(2)

cannot survive Second Amendment scrutiny, and that his convictions must be overturned.

The framework applicable to Second Amendment challenges has evolved over the

course of four decisions issued by the United States Supreme Court in the last 17 years,

along with the efforts of lower courts to implement those decisions. In 2008, the Court

determined that the right to keep and bear arms codified in the Second Amendment is an

individual right, unconstrained by the reference in its prefatory clause to militia service,

and that a District of Columbia ban on the possession of handguns for home self-defense

violated that right. See District of Columbia v. Heller, 554 U.S. 570, 595, 598-99, 635-36

(2008). In doing so, the Court engaged in a review of the text of the Second Amendment,

the historical understanding of the right to keep and bear arms before and contemporaneous

1

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.

with the ratification of the amendment, the historical understanding of the right following

ratification through the end of the 19th century, and precedent. Id. at 576-625. In 2010,

the Court held that the Second Amendment right recognized in Heller applies to the States

by operation of the Fourteenth Amendment to the United States Constitution, and that

handgun bans by two municipalities therefore also violated that right. See McDonald v.

City of Chicago, 561 U.S. 742, 750, 778, 791 (2010).

In 2022, the Supreme Court concluded that the Second Amendment right applies

outside of the home, and that a New York state statute requiring applicants for public carry

licenses to demonstrate a “special need for self-protection” also violated that right. N.Y.

State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 8-14 (2022) (citation omitted). In Bruen,

the Court also expressly rejected a two-part framework for assessing Second Amendment

claims that had been nearly universally adopted by lower courts attempting to apply Heller

and McDonald. Id. at 17-19. In its place, the Court adopted a new test for Second

Amendment challenges, which it described as follows:

[W]hen the Second Amendment’s plain text covers an individual’s conduct,

the Constitution presumptively protects that conduct. To justify its

regulation, the government may not simply posit that the regulation promotes

an important interest. Rather, the government must demonstrate that the

regulation is consistent with this Nation’s historical tradition of firearm

regulation. Only if a firearm regulation is consistent with this Nation’s

historical tradition may a court conclude that the individual’s conduct falls

outside the Second Amendment’s “unqualified command.”

Id. at 17 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).

Last year, the Court held that “[a]n individual found by a court to pose a credible

threat to the physical safety of another may be temporarily disarmed consistent with the

2

Second Amendment.” United States v. Rahimi, 602 U.S. 680, 702 (2024). In doing so, the

Court clarified the Bruen test, which lower courts had struggled to apply. The Court

explained that to survive Second Amendment scrutiny, a challenged law “must comport

with the principles underlying the Second Amendment” and be “consistent with the

principles that underpin our regulatory tradition.” Id. at 692. That requires courts to

determine whether a challenged law is “relevantly similar” to “laws that our tradition is

understood to permit[.]” Id. at 692 (quoting Bruen, 597 U.S. at 29). The Court left open a

determination of the level of generality at which courts should examine the regulatory

tradition, but the historical laws the Court deemed sufficient to support the law under

review in Rahimi are instructive.

Section 5-133(b)(2) is, in substance, a prohibition on the possession of firearms by

felons. In Heller, the Court identified such laws as “presumptively lawful regulatory

measures,” 554 U.S. at 626-27, 627 n.26, a statement it has subsequently repeated and

bolstered in majority and concurring opinions, see, e.g., Rahimi, 602 U.S. at 699; Bruen,

597 U.S. at 72 (Alito, J., concurring); id. at 80-81 (Kavanaugh, J., concurring, joined by

Roberts, C.J.). That assurance is consistent with the Court’s identification of the Second

Amendment right as applying to law-abiding individuals, see, e.g., Bruen, 597 U.S. at 8-10

(identifying the right recognized in Heller and McDonald as “the right of an ordinary, law-

abiding citizen to possess a handgun in the home for self-defense”), as well as the Court’s

confirmation in Rahimi that its jurisprudence contains no suggestion that “the Second

Amendment prohibits the enactment of laws banning the possession of guns by categories

of persons thought by a legislature to present a special danger of misuse,” 602 U.S. at 698.

3

The Court’s repeated assurances of the lawfulness of bans on the possession of firearms by

felons and the principles revealed by our Nation’s historical tradition of firearms regulation

both support the constitutionality of § 5-133(b)(2). We will therefore affirm the judgment

of the Appellate Court of Maryland upholding the constitutionality of § 5-133(b)(2).

BACKGROUND

A. Maryland Legal Framework

Section 5-133(b) of the Public Safety Article identifies 15 2 categories of individuals

who are prohibited from possessing a “regulated firearm,” a term that includes all handguns

and a list of “specific assault weapons or their copies[.]” See Pub. Safety §§ 5-101(r),

5-133(b) (2024 Supp.). The category at issue here includes individuals who “ha[ve] been

convicted of a violation classified as a common law crime and received a term of

imprisonment of more than 2 years[.]” Id. § 5-133(b)(2).

Constructive criminal contempt is a common law offense in Maryland that is not

characterized as either a felony or a misdemeanor. Like other common law offenses, there

is no minimum or maximum sentence applicable to constructive criminal contempt. Evans

v. State, 420 Md. 391, 397 n.7 (2011) (“[W]here the Legislature fails to provide a penalty

for a common law offense . . . the sentence is left to the ‘sound discretion of the trial court,

2

At the time of the facts underlying Mr. Fooks’s conviction, § 5-133(b) listed 13

categories of prohibited individuals. In 2023, the General Assembly added two additional

categories: (1) individuals convicted of violating § 4-104 of the Criminal Law Article

under certain circumstances, 2023 Md. Laws, Ch. 858; and (2) individuals on supervised

probation after being convicted of certain offenses, 2023 Md. Laws, Ch. 651.

4

subject only to the constitutional prohibition against cruel and unusual punishment.’”

(quoting Street v. State, 307 Md. 262, 267 (1986))).

B. Background

In 2016, Mr. Fooks was convicted of constructive criminal contempt for his willful

failure to pay child support, for which he received a sentence of imprisonment for four

years and six months. The record does not identify how much of his sentence he served.

In 2020, based on records of pawn transactions, officers determined that Mr. Fooks

was in possession of one handgun on November 30, 2019 and another on February 6, 2020.

A grand jury issued a 14-count indictment against Mr. Fooks, including 13

firearms-related counts and one count of theft. Mr. Fooks moved to dismiss the firearms-

related counts on the ground that the underlying statutes violated his Second Amendment

rights. The circuit court denied his motion. Mr. Fooks and the State then entered a plea

agreement pursuant to which Mr. Fooks entered a conditional guilty plea to two of the

firearms-related counts. The State agreed not to proceed with the remaining 12 counts.

The circuit court accepted the plea. 3

Mr. Fooks appealed to the Appellate Court, where he argued that § 5-133(b)(2)

violates the Second Amendment. In a reported opinion, the Appellate Court disagreed.

Fooks v. State, 255 Md. App. 75 (2022). The intermediate appellate court held that

3

The court imposed the sentence the State had agreed to recommend in the plea

agreement, including consecutive five-year sentences on each count suspending all but

time served, two years of supervised probation, and restitution of $9,949 to be paid to a

Marilyn Murray-Artis. The transcript of the plea hearing does not explain Ms. Murray-

Artis’s role.

5

§ 5-133(b)(2) is neither facially unconstitutional nor unconstitutional as applied to

Mr. Fooks, and therefore affirmed Mr. Fooks’s convictions. Id. at 81, 106. Mr. Fooks then

filed a petition for writ of certiorari in this Court, which we granted to address three issues:

(1) the proper framework for analyzing Second Amendment challenges post-Bruen;

(2) whether the Appellate Court properly applied that framework; and (3) the

constitutionality of § 5-133(b)(2). Fooks v. State, 482 Md. 141 (2022). After oral

argument but before a decision was released, the Supreme Court of the United States

granted certiorari in Rahimi. At the request of the parties, this Court entered a stay pending

the decision in Rahimi. After the Supreme Court handed down its decision, we allowed

for further briefing on the application of that case to this one. We now affirm.

DISCUSSION

I. THE EVOLUTION OF THE FRAMEWORK FOR ANALYZING SECOND

AMENDMENT CHALLENGES

A. Heller and McDonald

In the United States Supreme Court’s landmark decision in Heller, the Court

engaged in its first extensive examination of the Second Amendment right in deciding a

challenge to a District of Columbia ban on the possession of usable handguns within the

home. 554 U.S. at 573. In analyzing whether the Second Amendment right is individual

or collective, the Court focused first on the amendment’s text and then turned to history.

First, the Court analyzed the Second Amendment’s text to discern the “normal and

ordinary” meaning of its terms. Id. at 576 (quoting United States v. Sprague, 282 U.S. 716,

731 (1931)). Based on its analysis of “textual elements,” the Court concluded that the

6

Second Amendment’s operative clause “guarantee[s] the individual right to possess and

carry weapons in case of confrontation.” Id. at 592.

Second, the Court turned to the “historical background of the Second Amendment,”

which the Court concluded “strongly confirmed” its textual analysis. Id. The Court did

so, it asserted, “because it has always been widely understood that the Second Amendment,

like the First and Fourth Amendments, codified a pre-existing right.” Id. Focusing on the

analogous provision of the 1689 English Bill of Rights, “long . . . understood to be the

predecessor to our Second Amendment,” id. at 592-93, the Court declared there to be “no

doubt, on the basis of both text and history, that the Second Amendment conferred an

individual right to keep and bear arms,” id. at 595.

Third, the Court turned to other historical sources for further confirmation. The

Court first analyzed “analogous arms-bearing rights in state constitutions that preceded and

immediately followed adoption of the Second Amendment,” which it concluded confirmed

its interpretation of the text. Id. at 600-05. The Court then engaged in an extensive review

of historical sources reflecting how the Second Amendment was interpreted “from

immediately after its ratification through the end of the 19th century.” Id. at 605. The

Court defended its use of such sources as relevant to “determin[ing] the public

understanding of [the Second Amendment] in the period after its enactment or ratification,”

which the Court deemed “a critical tool of constitutional interpretation.” Id. The most

recent source cited by the Court as authority concerning its interpretation of the Second

Amendment was from 1891. Id. at 619 (citing and quoting J. Ordronaux, Constitutional

Legislation in the United States 241-42 (1891)).

7

Fourth, the Court determined that its own precedents did not “foreclose[] [its]

adoption of the original understanding of the Second Amendment.” Id. at 619-26.

After concluding that analytical exercise, the Court emphasized that “the right

secured by the Second Amendment is not unlimited.” Id. at 626. In a passage that has

played a critical role in Second Amendment jurisprudence ever since, and will be important

to our resolution of this appeal, the Court provided the following assurance:

Although we do not undertake an exhaustive historical analysis today of

the full scope of the Second Amendment, nothing in our opinion should

be taken to cast doubt on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the commercial sale of

arms.

Id. at 626-27. In a footnote, the Court explained that it “identif[ied] these presumptively

lawful regulatory measures only as examples,” and that the “list does not purport to be

exhaustive.” Id. at 627 n.26. The Court then recognized “another important limitation on

the right to keep and carry arms,” which was that it protected only weapons “in common

use at the time.” Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).

Applying its interpretation of the Second Amendment to the District of Columbia

law under review, the Court held that the law could not survive “any of the standards of

scrutiny that we have applied to enumerated constitutional rights[.]” Id. at 628-29. The

Court therefore declined to identify which standard of scrutiny would apply to Second

Amendment claims, although it rejected out-of-hand a “freestanding ‘interest-balancing’

approach” suggested by Justice Breyer. Id. at 634. It also rejected any test that would have

resulted in upholding the District of Columbia law under review because, the Court stated,

8

“whatever else it leaves to future evaluation, [the Second Amendment] surely elevates

above all other interests the right of law-abiding, responsible citizens to use arms in defense

of hearth and home.” Id. at 635.

Notably for our purposes, the Court referred back to its list of “presumptively lawful

regulatory measures” at least five times in the remainder of the opinion, each time

characterizing those measures as limitations on or exceptions to the Second Amendment

right, rather than as open issues left for future consideration. First, the Court described the

“in common use” limitation as “another important limitation on the right,” implying that

the presumptively lawful regulatory measures were themselves limitations on the right. Id.

at 627 (emphasis added). Second, in responding to a criticism from one of the dissenters,

the Court characterized the measures as “those regulations of the right that we describe as

permissible,” not possibly permissible. Id. at 635. Third, in defending its identification of

those measures without providing a supporting rationale, the Court stated that there would

be “time enough to expound upon the historical justifications for the exceptions we have

mentioned if and when those exceptions come before us.” 4 Id. Fourth, in describing the

4

This passage contains some ambiguity. On the one hand, the Court contemplates

that the “exceptions” may at some future date “come before” it, perhaps suggesting some

lack of finality. On the other hand, the Court describes the measures as “exceptions,” not

“potential” or “possible” exceptions, and states that it will set forth the historical

justifications for them when the time comes, not that it will explore whether such

justifications exist. Considering the extensive historical analysis the Court performed in

Heller—and the certainty the Court conveyed in the correctness of its interpretation of the

historical record—it is unsurprising that the Court would feel confident in stating that it

would be able to set forth historical justifications for the presumptively lawful regulatory

measures, even while not feeling compelled to set those justifications forth in an opinion

in which they were not at issue.

9

implications of its holding, the Court said that Mr. Heller would be able to register his

handgun and obtain a carry license “[a]ssuming that Heller is not disqualified from the

exercise of Second Amendment rights,” id. at 635, which the Court previously recognized

would be the case “if he is not a felon and is not insane,” id. at 631. And fifth, the Court

observed that “[t]he Constitution leaves the District of Columbia a variety of tools for

combating [the] problem [of handgun violence], including some measures regulating

handguns[.]” Id. at 636. The Court followed that passage immediately with a cross-

reference to the pages on which the presumptively lawful regulatory measures are

identified. Id.

Notably, all five passages refer to the identified presumptively lawful regulatory

measures as either limitations on the Second Amendment right or, in the case of the final

reference, as options available to governments to combat gun violence. The Court thus

implied that although its explanation for how it identified those measures to be lawful

would be delayed, it had already determined that they were.

Two years later, in McDonald, the Court held “that the Second Amendment right is

fully applicable to the States.” 561 U.S. at 750. The Court determined that the critical

question in determining whether the Second Amendment is incorporated against the States

via the Due Process Clause of the Fourteenth Amendment is “whether the right to keep and

bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related

context, whether this right is ‘deeply rooted in this Nation’s history and tradition.’” Id. at

767 (citation omitted) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

That, the Court observed, was settled in Heller. Id. at 767-68. In reviewing the historical

10

record, the Court once again focused primarily on sources covering periods beginning with

the 1689 English Bill of Rights and ending in the 19th century. See id. at 768-70.

After an extensive reiteration of applicable history and precedent, the Court

observed that the Second Amendment right “is fully binding on the States and thus limits

(but by no means eliminates) their ability to devise solutions to social problems that suit

local needs and values.” Id. at 785. In responding to arguments of the respondents and

their amici, the Court emphasized that it had

made it clear in Heller that our holding did not cast doubt on such

longstanding regulatory measures as “prohibitions on the possession of

firearms by felons and the mentally ill,” “laws forbidding the carrying of

firearms in sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the commercial sale of

arms.”

Id. at 786 (quoting Heller, 554 U.S. at 626-27). To emphasize the point, the Court took

the unusual step of following its approving quotations of the relevant passages from Heller

with an express statement of re-adoption: “We repeat those assurances here.” Id. at 786.

B. Lower Court Case Law Between McDonald and Bruen

Following Heller and McDonald, lower courts across the country struggled to

reconcile the Supreme Court’s focus on text and history in explaining its interpretation of

the scope of the Second Amendment right with the Court’s identification of presumptively

lawful measures. See, e.g., United States v. Chester, 628 F.3d 673, 678, 680 (4th Cir. 2010)

(discussing Heller and ultimately concluding that “it appears to us that the Court would

apply some form of heightened constitutional scrutiny if a historical evaluation did not end

the matter”); Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (stating

that among the issues Heller did not resolve is “the standards for determining when and

11

how the [Second Amendment] right can be regulated by a government”); United States v.

Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (“The whole matter strikes us as a vast

terra incognita that courts should enter only upon necessity and only then by small

degree.”); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &

Explosives, 700 F.3d 185, 194 (5th Cir. 2012) (“Heller did not set forth an analytical

framework with which to evaluate firearms regulations in future cases.”); United States v.

Skoien, 587 F.3d 803, 808 (7th Cir. 2009) (“The Court [in Heller] . . . conspicuously

declined to set a standard of review. We take all this to mean that gun laws—other than

those like the categorically invalid one in Heller itself—must be independently justified.

But by what kind of justification? . . . [T]he language about presumptive exceptions makes

for some analytical difficulty[.]” (citation omitted)).

Some courts additionally observed that although the Court appeared to ground its

interpretation of the Second Amendment in an exploration of text and history that focused

on the ratification period through the end of the 19th century, the Court also identified

categories of acknowledged limitations on the right that, by and large, were not formally

enacted until after that period. 5 See, e.g., Chester, 628 F.3d at 679 (observing that

“[f]ederal felon dispossession laws . . . were not on the books until the twentieth century”);

Kachalsky, 701 F.3d at 90 n.11 (observing that the measures identified as presumptively

lawful in Heller “were not enacted until the early twentieth century” (citing Carlton F.W.

Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial

5

As we discuss below, 18th and 19th century felons were often disarmed in more

final ways, including through real or civil death. See discussion below at 42-47.

12

Ipse Dixit, 60 Hastings L.J. 1371, 1374-79 (2009))); United States v. Skoien, 614 F.3d 638,

641 (7th Cir. 2010) (en banc) (observing that the measures identified as presumptively

lawful in Heller “are of 20th Century vintage”); Nat’l Rifle Ass’n of Am., Inc. v.

Swearingen, 545 F. Supp. 3d 1247, 1263-64 (N.D. Fla. 2021) (observing that three of the

four “longstanding” regulations listed in Heller—all but restrictions on carry in sensitive

places—“arose in the early-[]to mid-twentieth century”); see also C. Kevin Marshall, Why

Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 698-713 (2009)

(surveying the history of state laws limiting felon entitlement to possess firearms); Joseph

G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons From

Possessing Arms, 20 Wyo. L. Rev. 249, 273-75 (2020) (discussing early state and federal

disarmament statutes); Dru Stevenson, In Defense of Felon-in-Possession Laws, 43

Cardozo L. Rev. 1573, 1592 (2022) (“[T]he original 1938 federal firearm disqualification

statute was the first federal law that banned gun sales to and firearm possession by any

felons and misdemeanants convicted of a statutorily defined ‘crime of violence.’” (citing

Federal Firearms Act, Pub. L. No. 75-785, §§ 1(6), 2(d)-2(f), 52 Stat. 1250, 1250-51

(1938))).

Lower courts also observed that the Supreme Court had analogized its treatment of

the Second Amendment to the First Amendment and so looked to First Amendment

jurisprudence for guidance. See, e.g., Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th

Cir. 2011) (“Borrowing from the Court’s First Amendment doctrine, the rigor of this

judicial review will depend on how close the law comes to the core of the Second

Amendment right and the severity of the law’s burden on the right.”); United States v.

13

Marzzarella, 614 F.3d 85, 89 n.4 (3d Cir. 2010) (“Heller itself repeatedly invokes the First

Amendment in establishing principles governing the Second Amendment. . . . We think

this implies the structure of First Amendment doctrine should inform our analysis of the

Second Amendment.”). In doing so, those courts were informed by First Amendment

jurisprudence that looks to history to determine whether certain types of speech have

historically been excluded from the scope of the First Amendment’s protection and, if not,

applies an applicable standard of scrutiny, generally either intermediate or strict depending

on how closely the abridgment comes to the core right. See, e.g., United States v. Stevens,

559 U.S. 460, 468, 472 (2010) (declining to add “depictions of animal cruelty” to the list

of “historic and traditional categories” of speech exempted from the First Amendment’s

general prohibition of content-based restrictions on speech); Williams-Yulee v. Fla. Bar,

575 U.S. 433, 444, 446 (2015) (applying strict scrutiny and observing that “a history and

tradition of regulation are important factors in determining whether to recognize ‘new

categories of unprotected speech’” (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,

791 (2011))); Brown, 564 U.S. at 799 (applying strict scrutiny to a restriction on the content

of protected speech); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661-62 (1994)

(applying intermediate scrutiny to a content-neutral regulation).

Ultimately, lower courts almost universally adopted a two-step analytical

framework for addressing Second Amendment claims that closely mirrored the framework

applied to First Amendment free speech claims. Under that approach,

[t]he first question is whether the challenged law imposes a burden on

conduct falling within the scope of the Second Amendment’s guarantee.

This historical inquiry seeks to determine whether the conduct at issue

14

was understood to be within the scope of the right at the time of

ratification. If it was not, then the challenged law is valid. If the

challenged regulation burdens conduct that was within the scope of the

Second Amendment as historically understood, then we move to the

second step of applying an appropriate form of means-end scrutiny.

Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (quoting Chester, 628 F.3d at

680); see also, e.g., Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018); N.Y. State Rifle

& Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); Marzzarella, 614 F.3d at 89;

Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 194; United States v. Greeno, 679 F.3d 510, 518

(6th Cir. 2012); Ezell, 651 F.3d at 703-04; United States v. Chovan, 735 F.3d 1127, 1136

(9th Cir. 2013); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010);

GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir.

2015); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011).

C. Bruen

In Bruen, the Supreme Court expressly disavowed the “‘two-step’ framework for

analyzing Second Amendment challenges that combines history with means-end scrutiny.”

597 U.S. at 17. The Court acknowledged that federal intermediate appellate courts

interpreting Heller and McDonald had “coalesced around” that framework, id. at 17, 19

n.4, but held that the two steps the framework required were “one step too many,” id. at

19. The Court considered the first of those steps to be consistent with Heller, “which

demands a test rooted in the Second Amendment’s text, as informed by history,” but

decided that means-end scrutiny analysis has no place when considering Second

Amendment challenges. Id. In place of that framework, the Court adopted a new one:

15

[W]e hold that when the Second Amendment’s plain text covers an

individual’s conduct, the Constitution presumptively protects that

conduct. To justify its regulation, the government may not simply posit

that the regulation promotes an important interest. Rather, the

government must demonstrate that the regulation is consistent with this

Nation’s historical tradition of firearm regulation. Only if a firearm

regulation is consistent with this Nation’s historical tradition may a court

conclude that the individual’s conduct falls outside the Second

Amendment’s “unqualified command.”

Id. at 17 (quoting Konigsberg, 366 U.S. at 50 n.10).

In explaining its new standard, the Court stated that it “accords with how we protect

other constitutional rights,” focusing specifically on “the freedom of speech in the First

Amendment, to which Heller repeatedly compared the right to keep and bear arms.” Id. at

24. The Court observed that “[w]hen the Government restricts speech, the Government

bears the burden of proving the constitutionality of its actions.” Id. (alteration in Bruen)

(quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000)).

In further explicating its new standard, the Court in Bruen explained that the

standard “requires courts to assess whether modern firearms regulations are consistent with

the Second Amendment’s text and historical understanding.” Id. at 26. Where a challenged

regulation seeks to address “a general societal problem” that has existed since 1791, the

Court observed, “the lack of a distinctly similar historical regulation” would be evidence

of an incompatibility with the Second Amendment. Id. The inquiry will not necessarily

be so straightforward in “cases implicating unprecedented societal concerns or dramatic

technological changes[, which] may require a more nuanced approach.” Id. at 27. In those

cases, the Court observed, courts will need to conduct historical inquiries involving

16

reasoning by analogy, including considering “how and why the regulations burden a law-

abiding citizen’s right to armed self-defense.” Id. at 29.

The Court added two further pieces of guidance in applying its new standard. First,

although examining the comparability of the burdens of regulations and the justifications

for those burdens was part of the required “analogical inquiry,” the Court cautioned that

such comparability did “not mean that courts may engage in independent means-end

scrutiny under the guise of an analogical inquiry.” Id. at 29 n.7. In other words, courts are

to examine the burdens of and justifications for modern firearms regulations only to assist

in determining whether they are analogous to potentially relevant historical regulations,

not to conduct a balancing inquiry. Second, “analogical reasoning requires only that the

government identify a well-established and representative historical analogue, not a

historical twin.” Id. at 30. As an example, the Court observed that “new and analogous

sensitive places” might be added to the “settled” list of those “where arms carrying could

be prohibited consistent with the Second Amendment.” Id.

The Court then turned to the statute before it, under which New York banned the

carry of handguns in public by those who could not prove that they had “proper cause” to

do so. Id. at 31. The Court found the first part of its new standard—whether the text of

the Second Amendment covers the conduct at issue—to be easily satisfied because: (1) the

petitioners, as “two ordinary, law-abiding, adult citizens,” were “part of ‘the people’ whom

the Second Amendment protects”; and (2) the conduct in which they sought to engage,

“carrying handguns publicly for self-defense,” is protected by the Second Amendment. Id.

at 31-32.

17

Having crossed that hurdle, the Court engaged in a detailed analysis of whether New

York had carried its burden to demonstrate that its “proper-cause requirement is consistent

with this Nation’s historical tradition of firearm regulation.” Id. at 33-34. In doing so, the

Court reviewed historical evidence extending from “English history and custom before the

founding,” id. at 37-47, through “the late-19th century,” id. at 64-70. Although the

respondents and their amici also proffered 20th-century historical evidence, the Court

rejected it, and declined even to discuss it, on the ground that it “does not provide insight

into the meaning of the Second Amendment when it contradicts earlier evidence.” 6 Id. at

66 n.28.

Based on its extensive review of these historical sources, the Court concluded that

public carry had “traditionally been subject to well-defined restrictions governing the intent

for which one could carry arms, the manner of carry, or the exceptional circumstances

under which one could not carry arms,” but found little evidence of a tradition of broadly

prohibiting public carry of common weapons for self-defense or of “limiting public carry

only to those law-abiding citizens who demonstrate a special need for self-defense.” Id. at

38. Absent any such historical tradition, the Court concluded that New York had not borne

its burden, and that its proper cause requirement was unconstitutional. 7 Id. at 38-39.

6

In stating that historical evidence after the turn of the 20th century lacks value as

part of the relevant inquiry “when it contradicts earlier evidence,” Bruen, 597 U.S. at 66

n.28, the Court seemingly left open the possibility that such evidence may be worthy of

consideration if it aligns with the Court’s interpretation of earlier historical evidence. It is

unclear how such a dichotomy might be employed in practice.

7

In dicta, the Court provided assurance 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].’”

18

Four of the six Justices in the majority wrote or signed onto concurrences, two of

which are particularly notable for our purposes. First, Justice Alito joined the majority

opinion “in full” but wrote separately to respond to the dissent, primarily to emphasize

what he viewed as the narrowness of the majority opinion. Id. at 71-79 (Alito, J.,

concurring). According to Justice Alito, the majority opinion decided only that New York

could not enforce a law “that effectively prevents its law-abiding residents from carrying a

gun” “to defend themselves.” Id. at 71-72. That “holding decides nothing about who may

lawfully possess a firearm or the requirements that must be met to buy a gun,” nor “the

kinds of weapons that people may possess.” Id. at 72. Nor, he confirmed, “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.

Second, Justice Kavanaugh wrote separately for himself and Chief Justice Roberts

“to underscore two important points about the limits of the Court’s decision.” Id. at 79

(Kavanaugh, J., concurring). Justice Kavanaugh first emphasized that the majority opinion

Bruen, 597 U.S. at 38 n.9 (alteration in Bruen) (quoting Drake v. Filko, 724 F.3d 426, 442

(3d Cir. 2013) (Hardiman, J., dissenting)). The Court explained that “[b]ecause 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.” Id. (quoting Heller, 554 U.S. at 635).

Instead, those “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.’” Id. The Court did not explain

how it squared its explanation for its approval of shall-issue licensing regimes—that they

do not “prevent” exercise of the Second Amendment right, present only a minimal burden

in exchange for identifying who is able to enjoy the Second Amendment right, and are

based on objective criteria—with either its adoption of a general standard based exclusively

on text and history or its rejection of means-end scrutiny. Id.

19

“does not prohibit States from imposing licensing requirements for carrying a handgun for

self-defense,” such as the “shall-issue” regimes referenced by the majority. 8 Id. Those

regimes, he stated, “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 80. Justice Kavanaugh next emphasized that, “[p]roperly interpreted, the Second

Amendment allows a ‘variety’ of gun regulations.” Id. (quoting Heller, 554 U.S. at 636).

To prove the point, without any additional comment or explanation, Justice Kavanaugh

block quoted the paragraphs from Heller, reiterated in McDonald, and quoted above,

concerning presumptively lawful regulations and the right being limited to weapons in

common use. Id. at 81.

In dissent, three Justices would have upheld the constitutionality of the New York

law’s proper cause requirement. Id. at 83-133 (Breyer, J., dissenting, joined by Sotomayor

& Kagan, JJ.).

D. Post-Bruen

Lower courts across the country struggled to apply the new Bruen test. That point

is illustrated well by three decisions issued by federal intermediate appellate courts in cases

challenging restrictions found in federal law.

8

Like the majority, see footnote 7 above, Justice Kavanaugh did not point to any

historical analogues to justify the burden placed on the Second Amendment right by shall-

issue licensing regimes. Bruen, 597 U.S. at 80-81 (Kavanaugh, J., concurring). Instead,

also like the majority, his explanation focused on the relatively light burden and objective

nature of such regimes. See id.

20

In Range v. Attorney General, a panel of the United States Court of Appeals for the

Third Circuit reviewed an as-applied challenge to the federal felon dispossession statute,

18 U.S.C. § 922(g)(1). 53 F.4th 266, 266 (3d Cir. 2022) (per curiam). The challenger,

who had pleaded guilty to the nonviolent crime of making false statements about his

income to obtain food stamp assistance, contended that his disarmament was inconsistent

with the text and history of the Second Amendment and was therefore unconstitutional

under Bruen. Id. The panel disagreed, holding that “those who have demonstrated

disregard for the rule of law through the commission of felony and felony-equivalent

offenses, whether or not those crimes are violent,” fell outside the protection of the Second

Amendment and that laws disarming such individuals were consistent with the Nation’s

historical tradition. Id. The Third Circuit panel also observed that none of Bruen,

McDonald, or Heller “cast[] doubt on § 922(g)(1),” id. at 272, and highlighted that the

Court repeatedly described “prohibitions on the possession of firearms by felons” as

“longstanding” and “presumptively lawful,” id. (quoting Heller, 554 U.S. at 626-27, 627

n.26).

A majority of the entire Third Circuit reversed. Range v. Att’y Gen., 69 F.4th 96

(3d Cir. 2023) (en banc). The court held that felons were among “the people” protected by

the Second Amendment, and that the government had failed to carry its burden of

identifying a historical tradition of prohibiting possession of firearms by an individual in

Mr. Range’s circumstance. Id. at 103. The court considered the federal felon dispossession

statute to be too new to benefit from the assurances in Heller and rejected the other

historical regulations on which the government relied as insufficiently analogous. Id. at

21

103-04. The Supreme Court later vacated the Third Circuit’s decision and remanded the

case for further consideration in light of Rahimi. Garland v. Range, 144 S. Ct. 2706,

2706-07 (2024). The Third Circuit, again sitting en banc, released a revised decision

reaching the same conclusion for largely the same reasons on December 23, 2024. Range

v. Att’y Gen., 124 F.4th 218 (3d Cir. 2024) (“Range II”).

In United States v. Rahimi, the Fifth Circuit took a similar approach to the Third

Circuit’s en banc decision in regard to 18 U.S.C. § 922(g)(8), a statute that prohibits the

possession of firearms by persons subject to domestic violence restraining orders. 61 F.4th

443, 448 (5th Cir. 2023). There, the Fifth Circuit first held that the defendant was among

“the people” whose rights were protected by the Second Amendment because individuals

subject to domestic violence restraining orders had not “historically been stripped of their

Second Amendment rights[.]” Id. at 452-53. The court then rejected as insufficiently

analogous three sets of laws the government proffered as historical analogues to

§ 922(g)(8), including surety laws and “going armed” laws, id. at 456-61, both of which

we will discuss further below. The Supreme Court granted certiorari in Rahimi and, as we

discuss in the next section, reversed.

In United States v. Jackson, the Eighth Circuit came to a conclusion similar to that

of the panel in Range in upholding the constitutionality of § 922(g)(1) as applied to a

defendant with a prior conviction for the sale of a controlled substance. 69 F.4th 495 (8th

Cir. 2023). Relying on the assurances provided by the Supreme Court in Heller,

McDonald, and Bruen, “and the history that supports them,” the court “conclude[d] that

there is no need for felony-by-felony litigation regarding the constitutionality of

22

§ 922(g)(1).” Id. at 502. Reviewing historical sources, id. at 502-04, the court ultimately

concluded that “legislatures traditionally employed status-based restrictions to disqualify

categories of persons from possessing firearms. Whether those actions are best

characterized as restrictions on persons who deviated from legal norms or persons who

presented an unacceptable risk of dangerousness, Congress acted within the historical

tradition when it enacted § 922(g)(1),” id. at 505. The Supreme Court later vacated the

Eighth Circuit’s decision and remanded the case for further consideration in light of

Rahimi. Jackson v. United States, 144 S. Ct. 2710 (2024). The Eighth Circuit vacated its

panel decision, United States v. Jackson, 2024 WL 3768055 (8th Cir. Aug. 8, 2024), and

issued a new decision reaching the same result, United States v. Jackson, 110 F.4th 1120,

1125 (8th Cir. 2024).

E. Rahimi

In United States v. Rahimi, the Supreme Court upheld the constitutionality of 18

U.S.C. § 922(g)(8) against a facial challenge, concluding that an “individual found by a

court to pose a credible threat to the physical safety of another may be temporarily disarmed

consistent with the Second Amendment.” 602 U.S. 680, 702 (2024). In doing so, the Court

clarified that the history and tradition test was not meant to trap the law “in amber.” Id. at

691. Rather, gun regulations should be “consistent with the principles that underpin our

regulatory tradition.” Id. at 692 (emphasis added). As such, to survive Second Amendment

scrutiny, the Court reiterated that a challenged regulation does not need to be a “historical

twin,” id. (quoting Bruen, 597 U.S. at 30), or even a close analogue to a specific law or

type of law that was prevalent at the time of the founding, see id. Instead, the test aims to

23

ascertain whether a new law is “relevantly similar” to the “balance struck by the founding

generation to modern circumstances.” Id. (quoting Bruen, 597 U.S. at 29).

Applying its clarified test, the Court concluded that founding-era surety laws and

“going armed” laws were sufficiently analogous to uphold modern regulations temporarily

disarming persons found to pose a credible threat to the safety of another. See id. at

697-701. Surety laws required that persons as to whom there was “a probable ground to

suspect of future misbehavior” could be required to post a bond, which would be forfeited

if the public peace was, in fact, disturbed. Id. at 693-97 (quoting 4 William Blackstone,

Commentaries on the Laws of England 251 (10th ed. 1787)). While not addressed only to

firearms, some surety laws “also targeted the misuse of firearms.” Id. at 696. Going armed

laws, derived from the 13th century English Statute of Northampton, “prohibited ‘riding or

going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the

land.’” Id. at 697 (alteration in Rahimi) (quoting 4 Blackstone at 149). A violation could

lead to a “forfeiture of the arms . . . and imprisonment.” Id. (omission in Rahimi) (quoting

4 Blackstone at 149).

Although the Supreme Court did not describe the level of specificity at which its

history and tradition analysis should be performed, its use of surety and going armed laws

to uphold § 922(g)(8) is instructive. Perhaps the most notable common feature of those

laws for our purposes is that neither type disarmed individuals based on a determination

that they posed a credible threat to the safety of another. Rather, surety laws required an

individual believed to constitute a possible threat to post a bond—as a disincentive to

engage in misbehavior—but did not disarm anyone. And the only disarmament associated

24

with the going armed laws was “forfeiture of the arms” as criminal punishment for

violating the statute. 9 Id. at 697. Those laws regulated the conduct of persons believed to

pose a potential threat to public safety in a way the people of the time believed would make

such threats less likely to materialize. Although neither disarmed anyone before proof of

a criminal offense, they were nonetheless deemed to support the proposition that “[w]hen

an individual poses a clear threat of physical violence to another, the threatening individual

may be disarmed.” Id. at 698. That principle, in turn, was sufficient to sustain the facial

constitutionality of § 922(g)(8), even as the Court acknowledged that it was “by no means

identical to these founding era regimes[.]” Id. Indeed, the Court characterized § 922(g)(8)

as “fit[ting] neatly within the tradition the surety and going armed laws represent.” Id.

Two additional points about the majority opinion in Rahimi are particularly notable

for our purposes. First, although the Court “note[d] that Section 922(g)(8) applies only

once a court has found that the defendant ‘represents a credible threat to the physical safety’

of another,” it emphasized that it was “not suggest[ing] that the Second Amendment

prohibits the enactment of laws banning the possession of guns by categories of persons

thought by a legislature to present a special danger of misuse[.]” Id. at 698-99 (quoting 18

U.S.C. § 922(g)(8)(C)(i)). Second, in making that point, the Court cited the page in Heller

in which it identified presumptively lawful regulatory measures, id. at 698 (citing Heller,

9

Of course, both surety and going armed laws allowed for disarmament in another

manner common to many other offenses at the time, which was by imprisonment. Surety

laws provided for imprisonment of an individual who refused to post a bond, Rahimi, 602

U.S. at 695, and going armed laws provided for imprisonment of those convicted of

violating the law, id. at 697.

25

554 U.S. at 626), including “prohibitions on the possession of firearms by felons,” Heller,

554 U.S. at 626. The Court then cited that same passage from Heller again on the following

page, stating: “Heller never established a categorical rule that the Constitution prohibits

regulations that forbid firearm possession in the home. In fact, our opinion stated that many

such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’

are ‘presumptively lawful.’” Rahimi, 602 U.S. at 699 (quoting Heller, 554 U.S. at 626-27,

627 n.26).

Eight of the Court’s nine Justices joined the majority opinion in Rahimi. Five of

them penned separate concurrences to discuss issues of constitutional interpretation and

application, some of which are relevant to our analysis. They fit roughly into three

categories.

First, two opinions on behalf of three Justices expressed continued opposition to the

Court’s strict focus on history for evaluating Second Amendment claims, but nonetheless

favored the majority’s clarification of the test as focusing on principles. Justice Sotomayor,

joined by Justice Kagan, reiterated her opposition to the history and tradition test, stating:

“History has a role to play in Second Amendment analysis, but a rigid adherence to history,

(particularly history predating the inclusion of women and people of color as full members

of the polity), impoverishes constitutional interpretation and hamstrings our democracy.”

See id. at 706 (Sotomayor, J., concurring, joined by Kagan, J.). Justice Sotomayor

remained “troubled by Bruen’s myopic focus on history and tradition” and its inability to

give “full consideration to the real and present stakes of the problems facing our society

today,” id., but found it worth repeating that the task for courts applying the Bruen test

26

going forward will be to consider “whether the challenged regulation is consistent with the

principles that underpin our regulatory tradition,” id. at 703-04 (quoting the majority

opinion at 692). Justice Jackson, who was not on the Court when Bruen was decided, wrote

separately to explain that although she would have voted with the dissenters in Bruen, she

agreed with the majority’s opinion interpreting it. Id. at 741 (Jackson, J., concurring). She

also highlighted many of the difficulties lower courts were having as they grappled with

Bruen’s focus on “history to the exclusion of all else,” requiring courts and legislators alike

to be something for which they are ill-equipped: amateur historians. Id. at 744.

Second, in separate concurrences, Justices Kavanaugh and Barrett explained their

approaches to the history and tradition analysis and why those approaches support the

majority’s clarification of the test articulated in Bruen. Each offers a different rationale for

taking a broader approach to the test than the way Bruen had been interpreted. Justice

Kavanaugh emphasized the primacy of the constitutional text, followed by pre-ratification

history, and, if those sources prove “elusive or inconclusive,” “post-ratification history.” 10

Id. at 723 (Kavanaugh, J., concurring). He argued that post-ratification history, on which

the Court has relied in interpreting constitutional amendments for “more than two

centuries,” can be helpful to contemporary judges because it represents the “collective

10

Justice Kavanaugh stated in a footnote that “[t]he historical approach applies

when the text is vague. But the text of the Constitution always controls. So history contrary

to clear text is not to be followed.” Rahimi, 602 U.S. at 718 n.2 (Kavanaugh, J.,

concurring). Elsewhere, however, he acknowledged that the individual rights amendments

have never been read literally, because “American law has long recognized, as a matter of

original understanding and original meaning, that constitutional rights generally come with

exceptions.” Id. at 716. It is not entirely clear to us how the tension in those statements is

resolved.

27

understanding of Americans who, over time, have interpreted and applied the broadly

worded constitutional text[.]” 11 Id. at 723-24.

Justice Barrett concurred to “identify the basic premises of originalism.” Id. at 737

(Barrett, J., concurring). According to Justice Barrett, originalism is “built on two core

principles: that the meaning of constitutional text is fixed at the time of its ratification and

that the ‘discoverable historical meaning . . . has legal significance and is authoritative in

most circumstances.’” Id. (quoting Keith E. Whittington, Originalism: A Critical

Introduction, 82 Fordham L. Rev. 375, 378 (2013)). But for Justice Barrett, the history

that matters is that immediately surrounding ratification, not the history that significantly

post-dates ratification. Rahimi, 602 U.S. at 737-38 (Barrett, J., concurring). Justice Barrett

then addressed what she viewed as the source of lower courts’ struggle with Bruen’s use

of history, stating that to survive Second Amendment scrutiny, a regulatory measure must

be “consistent with historical limits, . . . not . . . an updated model of a historical

counterpart.” Id. at 739. She describes two significant problems with requiring overly

specific historical analogues to justify modern regulations. The first is that it limits modern

policymakers “to follow late-18th-century policy choices,” thus trapping the law “in

amber.” Id. The second is that “it assumes that founding-era legislatures maximally

11

Justice Kavanaugh noted James Madison’s explanation in The Federalist No. 37

“that the meaning of vague text would be ‘liquidated and ascertained by a series of

particular discussions and adjudications.’” Rahimi, 602 U.S. at 725 (Kavanaugh, J.,

concurring) (quoting The Federalist No. 37, at 229 (James Madison)). Justice Kavanaugh

interpreted that as an endorsement of the use of post-ratification history as “a proper and

important tool to help constitutional interpreters determine the meaning of vague

constitutional text.” Id.

28

exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative

authority. Such assumptions are flawed, and originalism does not require them.” 12 Id. at

739-40. Thus, she concluded, analogical reasoning under Bruen “demands a wider lens:

Historical regulations reveal a principle, not a mold.” Id. at 740.

Third, Justice Gorsuch argued that the directives of the Constitution are, in fact,

“trapped in amber.” Id. at 709 (Gorsuch, J., concurring). Although Justice Gorsuch’s

explication of the history and tradition test is stricter than that articulated by the majority

or any other of the concurring Justices, he nonetheless agreed with the majority that the

surety and going armed laws provide a strong analogue to § 922(g)(8). Id. at 710-13.

12

The second of these points strikes us as particularly supportive of the Court’s

overall pivot to focusing on principles derived from the types of laws that existed at the

time of ratification rather than searching for modern updates of specific founding-era laws.

Justice Sotomayor’s concurring opinion makes a similar point in criticizing the dissent’s

approach as constraining “the legislatures of today . . . not by a distant generation’s

determination that such a law was unconstitutional, but by a distant generation’s failure to

consider that such a law might be necessary.” Rahimi, 602 U.S. at 705-06 (Sotomayor, J.,

concurring).

The Dissent interprets Justice Barrett’s statement differently, viewing it through the

lens of Justice Thomas’s statement in Bruen requiring the identification of “a distinctly

similar historical regulation” to uphold a modern regulation addressing societal problems

that existed (in at least some form) at the time of the founding. See Dissenting Op. of

Biran, J. at 59-61 (quoting Bruen, 597 U.S. at 26). However, that statement is not

referenced anywhere in Justice Barrett’s concurrence—or, indeed, in any other Rahimi

opinion other than Justice Thomas’s dissent. See Rahimi, 602 U.S. at 750 (Thomas, J.,

dissenting). As discussed, the Rahimi majority refocused that test on principles. In

grounding its analysis on the conclusion that “[f]ounding-era lawmakers chose not to

disarm such citizens,” i.e., felons, Dissenting Op. of Biran, J. at 54, the Dissent mistakes

the decisions founding-era legislatures made based on the concerns and exigencies of the

era, including those related to militia service, with conclusions about the extent of their

power to act.

29

Justice Thomas, the author of Bruen, dissented. He addressed what he saw as major

differences between § 922(g)(8) and the surety and going armed laws. He observed that

the surety laws had a “common justification with § 922(g)(8),” but concluded that they

“imposed a materially different burden” that, critically, “did not alter an individual’s right

to keep and bear arms.” Id. at 764 (Thomas, J., dissenting). And he noted that the going

armed laws did not prohibit “carrying firearms at home or even public carry generally.”

Id. at 769. Instead, they prohibited only carry combined with circumstances that would

terrify people, and only in certain places, whereas § 922(g)(8) is a complete prohibition on

possession by those it affects. Id. at 768-71. He further noted that those were criminal

laws, subject to a heightened burden of proof and guarantees of due process, in contrast to

the civil proceedings that give rise to a prohibition under § 922(g)(8). See id. at 770-71.

Fundamentally, Justice Thomas’s test requires a narrow harmony between a modern

firearm regulation and a historical regulation, including as to purpose, mechanism, and

burden.

II. APPLICATION TO MR. FOOKS’S CHALLENGE

Mr. Fooks first asks us to identify the correct standard to apply to his Second

Amendment challenge and to ascertain whether the Appellate Court properly applied that

standard. 13 He contends that the appropriate standard is the general standard the Supreme

Court set forth in Bruen:

[W]hen the Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that conduct. To justify

13

For purposes of this opinion, we assume that the first part of the Bruen test—

whether the text of the Second Amendment covers the conduct at issue—is satisfied. That

30

its regulation, the government . . . must demonstrate that the regulation is

consistent with this Nation’s historical tradition of firearm regulation.

597 U.S. at 17.

Mr. Fooks does not believe Rahimi impacts this analysis, save to demonstrate that

Second Amendment restrictions may apply when an individual is found to pose “a credible

threat to the physical safety of others.” See 602 U.S. at 700. The State agrees with this

general standard but argues that, after Rahimi, modern regulations need only be analogues

to principles found in our history and tradition of firearms regulation to survive Second

Amendment review. The State is correct. In Rahimi, the Court clarified that the

“appropriate analysis involves considering whether the challenged regulation is consistent

with the principles that underpin our regulatory tradition” and the “principles underlying

the Second Amendment.” Id. at 693.

The State further argues that we cannot ignore the statement, originated in Heller,

affirmed in McDonald, and expressly re-avowed by three of the six Justices in the majority

in Bruen and again by the majority in Rahimi, that “prohibitions on the possession of

firearms by felons” are presumptively lawful. Mr. Fooks contends that such language is

inapposite here because he is not a felon. Our first task is therefore to determine whether

§ 5-133(b)(2) of the Public Safety Article is a law falling within the category of those

establishing “prohibitions on the possession of firearms by felons” and, if so, what the

implications of that are for Mr. Fooks’s appeal.

is, we assume that Mr. Fooks, notwithstanding his conviction, is “part of ‘the people’ whom

the Second Amendment protects” and that the purpose for which he seeks to own a firearm

is to engage in conduct that is constitutionally protected. See Bruen, 597 U.S. at 31-32.

31

A. Section 5-133(b)(2) Is, in Purpose and Effect, a Prohibition on the

Possession of Firearms by Felons.

Section 5-133(b) of the Public Safety Article identifies categories of individuals

who are prohibited from possessing a regulated firearm. Section 5-133(b)(1) prohibits such

possession by individuals convicted of a “disqualifying crime,” which includes (1) “a crime

of violence,” (2) “a violation classified as a felony in the State,” and (3) “a violation

classified as a misdemeanor in the State that carries a statutory penalty of more than 2

years.” Pub. Safety § 5-101(g). Section 5-133(b)(2) then prohibits possession by an

individual who “has been convicted of a violation classified as a common law crime and

received a term of imprisonment of more than 2 years[.]” Collectively, § 5-133(b)(1) and

(2) thus prohibit possession of regulated firearms by individuals convicted of any crime of

violence and any other crime serious enough to be classified as a felony or punishable by

more than two years’ imprisonment. 14

The underlying crime of which Mr. Fooks was convicted is constructive criminal

contempt, a common law crime for which he received a sentence of imprisonment for more

than four years. In Maryland, constructive criminal contempt is not expressly classified as

a felony or a misdemeanor. Instead, constructive criminal contempt is an unclassified

14

Other categories of prohibited individuals include fugitives from justice,

individuals who are addicted to controlled dangerous substances, individuals suffering

from a mental disorder and having a history of violent behavior, individuals who have been

found not criminally responsible or incompetent to stand trial, individuals who have been

voluntarily admitted to a mental health facility for more than 30 days or who have been

involuntarily admitted to such a facility, individuals for whom a court has appointed a

guardian, and individuals who are subject to a current civil protective order. See Pub.

Safety § 5-133(b)(5), (7)-(15).

32

common law crime. But Mr. Fooks argues that because constructive criminal contempt is

not classified as a felony, he is not a felon and therefore § 5-133(b)(2) is not presumptively

lawful as to him. That argument misapprehends the scope of what constitutes a

“prohibition[] on the possession of firearms by felons” as used in Heller and its progeny.

As an initial matter, in referring generally to felon dispossession statutes in Heller,

McDonald, Bruen, and Rahimi, the Supreme Court was obviously not focused on

Maryland’s relatively unique system of classification—or, as more appropriate here,

non-classification—of certain common law criminal offenses. Indeed, the federal felon

dispossession statute, 18 U.S.C. § 922(g)(1), does not even use the words felon or felony,

instead prohibiting the possession of firearms by anyone “who has been convicted in any

court of[] a crime punishable by imprisonment for a term exceeding one year.” 15 Federal

law separately defines “felony” to mean “an offense punishable by a maximum term of

imprisonment of more than one year[.]” 18 U.S.C. § 3156. It is thus the seriousness of the

crime, gauged by the length of the possible sentence, that defines whether a conviction will

result in a prohibition against firearm possession for purposes of § 922(g)(1).

15

Under 18 U.S.C. § 3559, an offense that is not otherwise classified is classified

as a felony or misdemeanor (and further by class within each of those classifications) based

on the maximum term of imprisonment. In that system, the dividing line between a felony

and a misdemeanor is a maximum term of one year of imprisonment. See id. § 3559(a)(5),

(6) (classifying an offense with a maximum term of imprisonment “less than five years but

more than one year, as a Class E felony” and an offense with a maximum term of “one year

or less but more than six months, as a Class A misdemeanor”).

33

Similarly, 21 of our sister states classify as felonies crimes bearing a maximum

sentence of either one year or more than one year, 16 and 17 others classify as a felony any

criminal offense that would subject an individual to incarceration in the state correctional

system. 17 Other states have other ways of classifying crimes as felonies or

misdemeanors. 18 As a general matter, however, the federal government and states that

classify offenses as either felonies or misdemeanors reserve the felony classification for

more serious offenses, generally identified by the availability of a significant term or type

16

Most states in this category define “felony” as a crime for which a sentence to a

term of imprisonment in excess of one year is authorized. See Ala. Code § 13A-1-2(8);

Alaska Stat. Ann. § 11.81.900(b)(26); Conn. Gen. Stat. Ann. § 53a-25(a); Fla. Stat. Ann.

§ 775.08(1); Ga. Code Ann. § 16-1-3(5); Haw. Rev. Stat. Ann. § 701-107(2); Ind. Code

Ann. § 35-50-2-1(b); Mo. Ann. Stat. § 556.061(26); Mont. Code Ann. § 45-2-101(23);

N.H. Rev. Stat. Ann. § 625:9, III; N.Y. Penal Law § 10.00(5); Ohio Rev. Code Ann.

§ 2901.02(E); Or. Rev. Stat. Ann. § 161.525; 11 R.I. Gen. Laws Ann. § 11-1-2; Wash. Rev.

Code Ann. § 9A.04.040(2); Wyo. Stat. Ann. § 6-10-101. Others define “felony” as a crime

for which a sentence to a term of imprisonment of one year or more is authorized. See 720

Ill. Comp. Stat. Ann. 5/2-7; Ky. Rev. Stat. Ann. § 500.080(5); N.M. Stat. Ann. § 30-1-

6(A); Minn. Stat. Ann. § 609.02, subdiv. 2; Tenn. Code Ann. § 39-11-110.

17

See Ariz. Rev. Stat. Ann. § 13-105(18); Cal. Penal Code § 17(a); Colo. Const. art.

XVIII, § 4; Idaho Code Ann. § 18-111; Kan. Stat. Ann. § 21-5102(a); Mass. Gen. Laws

Ann. ch. 274, § 1; Mich. Comp. Laws Ann. § 750.7; Miss. Code Ann. § 1-3-11; Nev. Rev.

Stat. Ann. § 193.120(2); N.C. Gen. Stat. Ann. § 14-1; Okla. Stat. Ann. tit. 21, § 5; S.D.

Codified Laws § 22-1-4; Tex. Penal Code Ann. § 1.07(a)(23); Va. Code Ann. § 18.2-8;

W. Va. Code Ann. § 61-11-1; Wis. Stat. Ann. § 939.60; cf. La. Stat. Ann. § 14:2(4)

(defining “felony” as “any crime for which an offender may be sentenced to death or

imprisonment at hard labor”).

18

Several states use a classification system in which offenses are explicitly

designated as a “felony” or otherwise, some with different degrees of felonies. See Ark.

Code Ann. § 5-1-106(a); Del. Code Ann. tit. 11, § 233(c); Iowa Code Ann. § 701.7; Mo.

Ann. Stat. § 557.016; Neb. Rev. Stat. Ann. § 28-105(1); N.D. Cent. Code Ann.

§ 12.1-32-01; 18 Pa. Stat. and Cons. Stat. § 106; S.C. Code Ann. § 16-1-10; Utah Code

Ann. § 76-3-103. Maine and New Jersey do not classify crimes as felonies or

misdemeanors, but instead have divided crimes into five classes, Me. Rev. Stat. Ann. tit.

17-A, § 4, and four classes, N.J. Stat. Ann. § 2C:1-4, respectively.

34

of imprisonment. Of those, only Vermont defines felonies by reference to a maximum

term of imprisonment longer than a year and one day. See Vt. Stat. Ann. tit. 13, § 1 (“[A]ny

offense whose maximum term of imprisonment is more than two years, for life, or which

may be punished by death is a felony.”). We have not found any jurisdiction in which the

maximum term of imprisonment qualifying an offense as a felony is greater than two years

and one day.

The common thread among felon dispossession statutes is thus not any magic

afforded to the use of the word “felony” but a general intent to prohibit the possession of

firearms by individuals who have committed offenses the respective legislative body has

deemed serious enough to be eligible for a significant term of imprisonment. Section

5-133(b)(2) fits squarely within that framework. Although constructive criminal contempt

does not carry any specific maximum penalty, Mr. Fooks was sentenced to a term of

imprisonment of more than four years. That is a greater sentence than that necessary to

qualify as a felony under federal law or under the laws of any state that classifies felonies

based on the length of the maximum available sentence.

In sum, we agree with the State that § 5-133(b)(2) is the equivalent of a

“prohibition[] on the possession of firearms by felons,” as that phrase has been employed

by the Supreme Court. See Heller, 554 U.S. at 626. We next turn to considering the import

of that conclusion.

B. Public Safety § 5-133(b)(2) Is Constitutional on Its Face.

Having determined that § 5-133(b)(2) is the equivalent of a felon dispossession

statute, we must acknowledge that we are not writing on a clean slate. The Supreme Court

35

has reiterated on multiple occasions, albeit in dicta, that such statutes are at least

presumptively constitutional. We will first address the implications of that considered dicta

here. We will then turn to an independent application of whether § 5-133(b)(2) is

consistent with our country’s historical tradition of firearm regulation. The answer in both

cases will be that § 5-133(b)(2) is constitutional on its face.

1. The United States Supreme Court Has Identified Felon

Dispossession Statutes as Presumptively Lawful.

The United States Supreme Court’s identification of a set of presumptively lawful

regulatory measures, along with its subsequent characterizations of that set of measures,

could arguably be subject to different and conflicting interpretations. It could be posited

that the Supreme Court provided those assurances to avoid a rush to judgment that its

rulings in Heller, McDonald, and Bruen spelled the end of all firearms regulations. Under

that theory, its identification of certain measures as presumptively lawful was not intended

to signal that it had reached any conclusions, even preliminarily, as to the constitutionality

of those measures. That theory is perhaps best supported by the fact that the majority

opinions in Bruen and Rahimi did not identify any express exceptions to the text-and-

history standard the Court has set forth for evaluating Second Amendment challenges.

Conversely, several passages in Heller, McDonald, two of the Bruen concurrences,

and the majority opinion in Rahimi strongly suggest that the Court already has determined

that the categories of measures it describes as presumptively lawful are constitutional,

“subject of course to an as-applied challenge” if a measure “does not operate in that manner

in practice.” Bruen, 597 U.S. at 80 (Kavanaugh, J., concurring). First, as set forth above,

36

Heller itself contains at least five passages describing or referring to the measures it

identifies as actual, rather than just possible, limitations on the Second Amendment right.

See discussion above at 6-11. Any one of those could perhaps be excused individually as

imprecise language—although such imprecision in an opinion emphasizing the importance

of the constitutional text would carry some irony—but in combination, they reflect that the

Court had reached a conclusion, albeit one that it was not yet prepared to explain or justify.

See Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L.

Rev. 246, 267-68 (2008) (writing that Heller’s “disclaimers” did not leave “the nature of

the right unclear,” and that “[t]hey trim, rather than refuse to decide”).

Second, in McDonald, issued two years after Heller and premised in part on a close

reading of Heller, the Court did not identify or clarify any imprecision in language

concerning the presumptively lawful regulations. To the contrary, the Court quoted the

relevant passage from Heller and expressly affirmed it. McDonald, 561 U.S. at 786.

Third, in Bruen, which also was premised in part on a close reading of Heller, the

Court did not disavow any aspect of that opinion’s treatment of the presumptively lawful

regulatory measures. And although the majority opinion does not repeat the assurances the

Court previously had made concerning those measures, two concurring opinions joined by

three of the Justices in the majority do. Notably, the statements made in those two opinions

were hardly passing references. Justice Kavanaugh’s concurring opinion, joined by Chief

Justice Roberts, addressed only two points, one of which was to emphasize the ongoing

validity of those specific assurances. Bruen, 597 U.S. at 79-81 (Kavanaugh, J.,

concurring). And the primary point of Justice Alito’s concurrence was to emphasize the

37

narrowness of the majority’s holding, including by pointing out that it did not “disturb[]

anything that we said in Heller or McDonald . . . about restrictions that may be imposed on

the possession or carrying of guns.” 19 Id. at 72 (Alito, J., concurring) (emphasis added).

When considering the views of the three Justices in the dissent, it appears that a majority

of the Court at the time continued to view those measures as lawful.

Fourth, in Rahimi, the Court once again reaffirmed the validity of the categories of

presumptively lawful regulations, noting with approval its statement in Heller “that many

. . . prohibitions[ applicable to firearm possession in the home], like those on the possession

of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” See Rahimi, 602

U.S. 699 (quoting Heller, 554 U.S. at 626-27, 627 n.26). Justice Kavanaugh’s concurrence

also separately quoted from the same passage. Id. at 735 (Kavanaugh, J., concurring).

On balance, we conclude that in Heller, the Supreme Court identified categories of

firearms regulations that it determined are generally consistent with the right to keep and

bear arms codified in the Second Amendment. In context, the Court’s identification of

such measures as “presumptively” lawful was simply an acknowledgment that regulations

that deviate from the generally accepted contours of the categories such that they do not

operate in the same way remain subject to an “as-applied challenge” on that basis. 20 Bruen,

19

Justice Alito’s characterization of Heller and McDonald as identifying

“restrictions that may be imposed” is similar to the passages from Bruen, discussed above,

that treat Heller as having decided the basic constitutionality of the presumptively lawful

regulatory measures, not as having identified them for future consideration of their

constitutionality.

20

For example, a term-of-imprisonment-based felon dispossession statute would

presumably fall outside the generally accepted contours of such statutes if a state were to

increase to two years the term of imprisonment for minor crimes, such as the jaywalking

38

597 U.S. at 80 (Kavanaugh, J., concurring). That understanding was confirmed by the

Court’s decisions in McDonald, Bruen, and most recently, Rahimi.

In arguing against reliance on these repeated statements from the Supreme Court,

Mr. Fooks contends that prohibitions on the possession of firearms by individuals with

felony criminal convictions are, “[a]t best,” constitutional only to the extent they are

premised on dangerousness. As support, Mr. Fooks points to a handful of pre-Bruen

concurring and dissenting opinions that he contends “demonstrate[] that the historical focus

of . . . restrictions [on felon possession] was on dangerousness.” 21 He also argues that the

decision in Rahimi was narrow and focused on people who “pose a credible threat to the

physical safety of another.” Mr. Fooks contends that, viewed in that light, § 5-133(b)(2) is

overly broad because it disqualifies individuals based on criminal conduct that is not

suggestive of dangerousness.

Mr. Fooks’s contention is inconsistent with our interpretation of Heller, Bruen, and

Rahimi. The Supreme Court has repeatedly identified prohibitions on the possession of

firearms “by felons” as presumptively lawful regulatory measures and permissible

limitations on the Second Amendment right. The Court has not limited those statements

to prohibitions on possession of firearms by violent felons or by individuals who have

and speeding examples posited by the Dissent. See Dissenting Op. of Biran, J. at 62. In

that case, the available term of imprisonment would no longer constitute an appropriate

measure of the perceived seriousness of the offenses.

21

Mr. Fooks cites Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016)

(Hardiman, J., concurring in part); Kanter v. Barr, 919 F.3d 437, 445 (7th Cir. 2019)

(Barrett, J., dissenting); and Folajtar v. Attorney General, 980 F.3d 897 (3d Cir. 2020)

(Bibas, J., dissenting).

39

committed crimes of violence or by individuals found to be dangerous. 22 Equally notable,

as discussed above, prohibitions on the possession of firearms by felons generally apply to

all felons or to all individuals convicted of crimes eligible for a term of imprisonment of a

certain length. 23 We will not assume that justices of the Supreme Court—in six opinions

authored by four different Justices in four different cases decided over the span of 16

years—were mistaken either in their descriptions of the categories of regulatory measures

of which they were expressing presumptive approval or of their understanding of the

ordinary provisions of such measures. 24

22

By contrast, there are other categories of restrictions, not mentioned by the

Supreme Court in Heller or Bruen, that are based on the violent nature of an individual’s

offense. Public Safety § 5-133(b)(1), for example, prohibits the possession of a regulated

firearm by an individual convicted of a “disqualifying crime.” “Disqualifying crime” is

then defined in Public Safety § 5-101(g) to include three categories of offenses, one of

which is “a crime of violence” and another of which is a felony conviction. The Supreme

Court identified prohibitions on possession by individuals falling into the latter category,

not the former, as presumptively lawful. That is not, of course, to suggest any

constitutional defect in a prohibition that is premised on conviction for a crime of violence;

we merely point out that that is not the category identified by the Supreme Court in Heller,

McDonald, Bruen, and Rahimi.

23

We also find it noteworthy that the general standard for compliance with the

Second Amendment identified in Bruen is historical pedigree. Although dangerousness

would presumably have been at the heart of the inquiry under a means-end scrutiny analysis

examining the governmental interest in a regulatory measure and its burden on the Second

Amendment right, the test under Bruen is focused on searching for historical analogues.

24

To that extent, it bears mentioning that a majority of felony crimes are not violent:

The most recent available annual data show that only 18.2 percent of

felony convictions in state courts and 4.2 percent of federal felony

convictions were for “violent offenses.” Sean Rosenmerkel et al., Felony

Sentences in State Courts, 2006 – Statistical Tables 3 tbl.1.1 (revised

Nov. 2010), https://bjs.ojp.gov/content/pub/pdf/fssc06st.pdf; Mark

40

Mr. Fooks also contends that § 5-133(b)(2) is fatally flawed because it shifts the

burden of proving disqualification from the State to the individual. He believes that by

conclusively foreclosing an individual from the right to possess a firearm based on a

sentence the individual received, which may be based on factors having nothing to do with

whether an individual should be precluded from exercising the Second Amendment right,

§ 5-133(b)(2) absolves the State from its burden of having to show that the individual

should be disqualified. That contention, as well, is inconsistent with the Supreme Court’s

identification of categories of presumptively lawful regulatory measures. If anything, a

law that premises disqualification on the length of a sentence received for an offense, rather

than the length of a sentence that may theoretically be imposed for the offense, is more,

not less, tailored to the defendant’s individual circumstances and the severity of the

underlying conduct.

Based on our conclusion that § 5-133(b)(2) is the equivalent of a prohibition on the

possession of firearms by felons, and the United States Supreme Court’s repeated

references to such prohibitions as presumptively constitutional, we conclude that it satisfies

Second Amendment scrutiny and is facially constitutional. Cf. United States v. Jackson,

110 F.4th 1120, 1125 (8th Cir. 2024) (“Jackson II”) (“Given these assurances by the

Supreme Court, and the history that supports them, we conclude that there is no need for

felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”).

Motivans, Federal Justice Statistics, 2022, at 12 tbl.7 (Jan. 2024),

https://uat.bjs.ojp.gov/document/fjs22.pdf.

United States v. Jackson, 110 F.4th 1120, 1125 n.2 (8th Cir. 2024) (“Jackson II”).

41

2. Felon Dispossession Laws Like § 5-133(b)(2) Are Consistent

with Our Nation’s Historical Tradition of Firearm

Regulation.

We also hold that felon dispossession laws like § 5-133(b)(2) are consistent with

our Nation’s historical tradition of firearm regulation.

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. Although phrased in absolute terms, the right has never

been understood to be absolute. Heller, 554 U.S. at 626 (“Like most rights, the right

secured by the Second Amendment is not unlimited.”). Indeed, as recognized in Rahimi,

the Supreme Court has never suggested that the Second Amendment “prohibits the

enactment of laws banning the possession of guns by categories of persons thought by a

legislature to present a special danger of misuse[.]” 602 U.S. at 698.

Surrounding the ratification of the Second Amendment, the right to keep and bear

arms was not viewed as inconsistent with the prohibition of the possession of firearms by

categories of individuals thought to present a special danger unrelated to whether they had

previously engaged in or demonstrated a propensity for violence. Although the bases

chosen for that determination were often abhorrent—including prohibitions based on race

and religion that are now prohibited by other constitutional amendments—what is relevant

to the Second Amendment analysis is whether the categorical disarmament of individual

42

members of those groups for reasons other than demonstrated dangerousness was viewed

as consistent with the right. 25 It was.

Both in England and the United States leading up to and surrounding the ratification

of the Bill of Rights, distrusted religious minorities were sometimes categorically disarmed

25

We acknowledge significant discomfort in finding support for our holding in

historical laws and practices that overtly discriminated based on race, ethnicity, and

religion, among other factors. See Rahimi, 602 U.S. at 706 (Sotomayor, J., concurring)

(“History has a role to play in Second Amendment analysis, but a rigid adherence to

history, (particularly history predating the inclusion of women and people of color as full

members of the polity), impoverishes constitutional interpretation and hamstrings our

democracy.”). Given the text, history, and tradition test adopted by the United States

Supreme Court for Second Amendment challenges, however, those laws are relevant. See

Jackson II, 110 F.4th at 1127 (“While some of these categorical prohibitions of course

would be impermissible today under other constitutional provisions, they are relevant here

in determining the historical understanding of the right to keep and bear arms.”); United

States v. Hunt, 123 F.4th 697, 706-07 (4th Cir. 2024) (noting the same). It is, of course,

the fact that disarming categories of distrusted individuals was viewed as consistent with

the right to keep and bear arms that is most relevant, not necessarily the categories

themselves. But when looking back at historical periods in which most Americans were

excluded from the protection of many or all basic constitutional rights, and most recorded

views reflecting an understanding of those rights were those of a small, relatively

homogenous minority, it can be difficult to disentangle repugnant (and now

constitutionally prohibited) purposes from constitutionally valid ones in identifying

principles underlying regulations. See Adam Winkler, Racist Gun Laws and the Second

Amendment, 135 Harv. L. Rev. F. 537, 537 (2022) (“[T]he history of racist gun laws will

complicate the emergent Second Amendment test that looks to ‘text, history, and tradition’

to determine the scope of the Second Amendment. . . . [S]ome of the antecedents courts

will be required to consider were at least partially motivated by racism or reflected racist

attitudes.”); Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second

Amendment Adjudication, 133 Yale L.J. 99, 165 (2023) (“These problems can be mitigated

by asking why earlier generations disarmed certain groups of people, rather than asking

only whom they disarmed.”); Jamal Greene, Originalism’s Race Problem, 88 Denv. U. L.

Rev. 517, 522 (2011) (“A racially[ ]sensitive constitutionalism must always . . . hold out

the possibility of legitimate dissent from history.”); Thurgood Marshall, The Constitution’s

Bicentennial: Commemorating the Wrong Document?, 40 Vand. L. Rev. 1337 (1987)

(explaining that racism played a fundamental role in the founding-era constitutional

system). We have nonetheless endeavored to do so here.

43

based solely on their religion or, in England, their refusal to submit to a different religion. 26

States also disarmed racial minorities 27 and those who refused to declare an oath of

loyalty. 28 See Jackson II, 110 F.4th at 1126-28.

26

In the late 1600s, England “disarmed non-Anglican Protestants who refused to

participate in the Church of England[.]” Jackson II, 110 F.4th at 1126 (citing Joyce Lee

Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 45 (1994)).

The 1689 English Bill of Rights, the most direct forerunner to the Second Amendment,

Heller, 554 U.S. at 593, provided that Protestants, but not Catholics, “may have Arms for

their Defence suitable to their Conditions,” and even then, only “as allowed by Law,” id.

(quoting 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441). Here in Maryland, as well as

the neighboring Commonwealths of Virginia and Pennsylvania, Catholics were also

disarmed. Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms

Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 574 (1998); Joseph G.S. Greenlee, The

Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20

Wyo. L. Rev. 249, 263 (2020).

27

In early America, there were restrictions on selling arms to Native Americans and

prohibitions on Native American firearm possession. Bellesiles, cited above in footnote

26, at 578-79; Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1683, 1687 (2012);

Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80

Law & Contemp. Probs. 55, 72 (2017). Between 1791 and 1868, several states passed laws

prohibiting Black people from obtaining arms. See, e.g., Michael J. Klarman, Unfinished

Business; Racial Equality in American History 14 (2007); Saul Cornell, A Well-Regulated

Militia: The Founding Fathers and the Origins of Gun Control in America 28-29 (2006);

Spitzer, cited above, at 79; Winkler, cited above in footnote 25, at 537.

28

Greenlee, cited above in footnote 26, at 263-64; see also 4 Journals of the

Continental Congress, 1774-1789, at 205 (Worthington Chauncey Ford ed., 1906); Act of

Mar. 14, 1776, ch. 21, 1775-1776 Mass. Acts 479, at 31-32, 35; Act of May 1777, ch. III,

in 9 Hening’s Statutes at Large 281, 281-82 (1821); Being a Collection of all the Laws of

Virginia 281-82 (1821); Act of June 13, 1777, ch. 756, §§ 2-4, 1777 Pa. Laws 110, 111-13;

Act of June 1776, 7 Records of the Colony of Rhode Island and Providence Plantations in

New England 566-67 (1862); Act of Nov. 15, 1777, ch. 6, 1777 N.C. Sess. Laws 231; Act

of Sept. 20, 1777, ch. 40, 1777 N.J. Laws 90.

In United States v. Williams, the Sixth Circuit acknowledged that “governments in

England and colonial America long disarmed groups that they deemed to be dangerous,”

but stated that “[e]ach time, however, individuals could demonstrate that their particular

possession of a weapon posed no danger to peace.” 113 F.4th 637, 657 (6th Cir. 2024).

We do not share that interpretation of the historical sources. For example, we are not aware

of a legal avenue by which disarmed Native Americans or enslaved persons could petition

44

Most importantly, while statutes specifically disarming felons did not appear until

the 20th century, felons did not historically enjoy the right to keep and bear arms. 29 Nor

was the right to keep and bear arms the only right that could be denied felons in the

founding era. For example, felons could be stripped of property rights and banned from

for exceptions and offer proof that they were not dangerous. And although some states

chose to permit loyalists to prove they were not dangerous, others did not. See, e.g., Act

of June 13, 1777, ch. 756, §§ 2-4, 1777 Pa. Laws 110, 111-13 (disarming loyalists without

any reference to an exception for non-dangerousness); An Act to Amend an Act Declaring

What Crimes and Practices against the State Shall Be Treason, ch. 6, § 9, 1777 N.C. Sess.

Laws 41, 43-44 (James Davis 1778) (providing the same). Other laws the Sixth Circuit

cites as permitting exceptions did so based not on dangerousness but on the need of the

individual. Williams, 113 F.4th at 654 (citing Massachusetts and Rhode Island laws

allowing exceptions for “satisfactory reasons” for needing weapons or “by the order” of

colonial committees). In both cases, it appears that disarmament laws permitting

exceptions did so as a policy choice, not based on a belief that the right compelled it. Cf.

Rahimi, 602 U.S. at 739-40 (Barrett, J. concurring) (warning that requiring overly specific

historical analogues to justify modern regulations incorrectly “assumes that founding-era

legislatures maximally exercised their power to regulate”).

29

See Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn.

L. Rev. 461, 480 (1995) (“Thus, felons . . . were excluded from the right to arms precisely

as (and for the same reasons) they were excluded from the franchise[.]”); Don B. Kates,

Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich.

L. Rev. 204, 266 (1983) (“Felons simply did not fall within the benefits of the common

law right to possess arms. That law punished felons with automatic forfeiture of all goods,

usually accompanied by death. We may presume that persons confined in gaols awaiting

trial on criminal charges were also debarred from the possession of arms.”); Thomas

Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative

Power of the States of the American Union 57 (7th ed. 1903) (writing that felons were

“almost universally excluded” from the franchise and that the “people” were synonymous

with qualified voters); Akhil Reed Amar, The Second Amendment: A Case Study in

Constitutional Interpretation, 2001 Utah L. Rev. 889, 895 (2001) (noting that “felons have

never had a Second Amendment right to own guns”); Robert Dowlut & Janet A. Knoop,

State Constitutions and the Right to Keep and Bear Arms, 7 Okla. City U. L. Rev. 177, 191

(1982) (“Felons, persons of tender years, idiots and lunatics are classes that have almost

universally been excluded from the arms guarantee.”).

45

voting, 30 rights that were seen as connected to the right to keep and bear arms. 31 And in

many jurisdictions, committing a long list of felonies could result in capital punishment.

See, e.g., Bucklew v. Precythe, 587 U.S. 119, 129 (2019) (“[D]eath was ‘the standard

penalty for all serious crimes’ at the time of the founding.” (quoting Stuart Banner, The

Death Penalty: An American History 23 (2002))); Tennessee v. Garner, 471 U.S. 1, 13

(1985) (“[V]irtually all felonies were punishable by death.”); United States v. Blake, 89 F.

Supp. 2d 328, 342 (E.D.N.Y. 2000) (“At the end of the eighteenth century, New York had

30

See, e.g., Bond’s Lessee v. Swearingen, 1 Ohio 395, 396 (1824) (“In England there

are many cases where the commission of crimes operated a forfeiture of estates. Such laws,

too, have prevailed in some of the states of this Union[.]”); Rankin’s Heirs v. Rankin’s

Ex’rs, 22 Ky. 531, 536 (1828) (explaining that forfeiture of estate was permitted, but it was

limited to the lifetime of the offender); White v. Fort, 10 N.C. 251, 265 (1824) (opinion of

Hall, J.) (explaining that “[i]t cannot be denied but that forfeiture for felony was part of the

laws of England; and that the law in that respect . . . has not been altered by the laws of this

state” while also caveating that North Carolina had not “availed herself of the right which

accrued by forfeiture”); Nathaniel F. Cantor, Crime, Criminals and Criminal Justice 373

(1932) (writing that one convicted of a felony at common law was given a civil death and

“deprived of all civil rights”); Alec C. Ewald, “Civil Death”: The Ideological Paradox of

Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1062

(2002) (“Many constitutions disqualified felons explicitly, or directed their legislatures to

do so: between 1776 and 1821, eleven state constitutions disqualified criminals from

voting.”); Ohio Const. art. IV, § 4 (1802) (“The Legislature shall have full power to exclude

from the privilege of electing, or being elected, any person convicted of bribery, perjury,

or any other infamous crime.”). Although some states, including Maryland, limited or

eliminated forfeiture of estate upon the commission of felonies, see Md. Const. Decl. of

Rts. Art. 24 (1776) (providing that “there ought to be no forfeiture of any part of the estate

of any person for any crime except murder, or treason against the state, and then only on

conviction and attainder”), other attributes of “civil death” were undisturbed.

31

See Reynolds, cited above in footnote 29, at 480 (observing that “the franchise

and the right to arms were ‘intimately linked’ in the minds of the Framers and of prior and

subsequent republican thinkers”); Akhil Reed Amar & Les Adams, The Bill of Rights

Primer: A Citizen’s Guidebook to the American Bill of Rights 87-88 (2013) (explaining

that the right to bear arms was linked with other political rights not granted to the entire

citizenry).

46

an extremely long list of capital crimes including housebreaking and malicious

mischief[.]”); A Digest of the Laws of Maryland 255-56 (1799) (providing that persons

“shall suffer death” for crimes of forgery). State legislatures thus “authorized punishments

that subsumed disarmament—death or forfeiture of a perpetrator’s entire estate—for non-

violent offenses involving deceit and wrongful taking of property.” Jackson II, 110 F.4th

at 1127; see also United States v. Duarte, 2025 WL 1352411, at *9 (9th Cir. May 9, 2025)

(en banc) (“[T]hese punishments were not limited to violent felonies[.]”); Medina v.

Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019) (“[I]t is difficult to conclude that the public,

in 1791, would have understood someone facing death and estate forfeiture to be within

the scope of those entitled to possess arms.”); cf. Rahimi, 602 U.S. at 699 (concluding that

because “going armed laws provided for imprisonment,” the lesser restriction of temporary

disarmament must also be permissible).

Based on many of these same sources, the Eighth Circuit concluded that “[t]his

historical record suggests that legislatures traditionally possessed discretion to disqualify

categories of people from possessing firearms to address a danger of misuse by those who

deviated from legal norms, not merely to address a person’s demonstrated propensity for

violence.” 32 Jackson II, 110 F.4th at 1127; see also id. (concluding that “history supports

the authority of [a legislature] to prohibit possession of firearms by persons who have

32

The Eighth Circuit observed that its conclusion was “bolstered by the Supreme

Court’s repeated statements in Bruen that the Second Amendment protects the right of a

‘law-abiding citizen’ to keep and bear arms.” Jackson II, 110 F.4th at 1127 (quoting Bruen,

597 U.S. at 8, 15, 26, 29-31, 33 n.8, 38, 60, 70).

47

demonstrated disrespect for legal norms of society”). 33 The Ninth Circuit has similarly

observed that the “historical record reveals a host of regulations that disarmed those whom

the legislature deemed dangerous on a categorical basis.” Duarte, 2025 WL 1352411, at

*12. We agree. Based on largely the same evidence, the Eighth Circuit also concluded

that the historical record suggests that “[l]egislatures historically prohibited possession by

[the same] categories of persons based on a conclusion that the category as a whole

presented an unacceptable risk of danger if armed.” Jackson II, 110 F.4th at 1128; see also

Duarte, 2025 WL 1352411, at *12-13 (stating that “through the late 1800s states continued

to promulgate categorical restrictions on the possession of firearms by certain groups of

people” thought to “present[] a danger to the community if armed”). We again agree. We

are aware of no historical support for the proposition that a legislature lacks authority to

impose a ban on firearm possession by a category of individuals characterized by their

33

The Dissent, using our quotation of these sentences in Jackson II as a strawman,

refutes a non-existent conclusion that there is a historical tradition of permitting

disarmament for any deviation from any legal norm, no matter how small or unconnected

to dangerousness. Dissenting Op. of Biran, J. at 2, 51-53, 60 n.21, 62. To the contrary, the

historical tradition referenced in Jackson II was of the dispossession of categories of people

possessing firearms to “address a danger of misuse” of those firearms, based on the belief

that the particular deviations gave rise to such a danger. Jackson II, 110 F.4th at 1127. In

other words, the perceived deviations gave rise to the perception of danger; they were not

disassociated from it. In line with that historical tradition, the Maryland General Assembly

has determined that there is a danger of misuse of firearms by the category of individuals

who have been convicted of common law crimes based on conduct so severe that a judge

imposed a sentence of more than two years of imprisonment for it. That determination

echoes those of the United States Congress and state legislatures in laws dispossessing

categories of individuals from owning firearms based on the severity of sentences available

or imposed for crimes they committed. It is that determination we are reviewing today, not

a counter-factual, strawman determination that anyone who violates a legal norm or

jaywalks may be dispossessed from future ownership of firearms.

48

disrespect for and unwillingness to follow the law—to such an extent that they have

received significant sentences of incarceration—in the absence of an individualized

determination of dangerousness. 34

These historical regulations and practices are even more closely tied to felon

dispossession laws than the historical regulations on which the Court relied in Rahimi were

34

The Third Circuit, sitting en banc, recently reaffirmed its contrary conclusion.

Range v. Att’y Gen., 124 F.4th 218 (3d Cir. 2024) (“Range II”). In that opinion, the court

held that the federal government had not carried its burden of showing that applying the

federal felon dispossession statute, 18 U.S.C. § 922(g)(1), to Mr. Range was consistent

with the historical tradition of firearm regulation. Id. at 228. That holding was based

largely on the court’s determinations that: (1) felon dispossession laws, as such, are not

sufficiently longstanding to be part of the relevant historical tradition, id. at 228-31; and

(2) the other historical examples of bans on possession by other groups relied on by the

government are not “relevantly similar” to the law applicable to Mr. Range, id. at 231. In

our view, although the Third Circuit acknowledged the Supreme Court’s intervening

decision in Rahimi, its analysis did not take into account the Court’s focus in that decision

on principles rather than a search for a historical twin. See, e.g., id. at 229 (stating that the

fact that “Founding-era governments disarmed groups they distrusted like Loyalists, Native

Americans, Quakers, Catholics, and Blacks does nothing to prove that Range is part of a

similar group today”); see also id. at 252 (Kraus, J. concurring) (criticizing the majority

opinion for “treat[ing] the Supreme Court’s remand as essentially pro forma and fil[ing] an

opinion today that is largely unchanged”).

The Third Circuit’s holding in Range was also based on the specific circumstances

of Mr. Range’s case, which are different from those here. In 1995, Mr. Range pleaded

guilty to one count of making a false statement to obtain food stamps based on signing an

application prepared by his wife that understated their income. Id. at 222-23. At the time,

they were struggling financially and raising three young children. Id. at 223. Mr. Range

accepted full responsibility for his crime, received no jail time, and paid in full his

restitution, costs, and fine. Id. He had no record of subsequent criminal conduct aside

from minor traffic offenses and complied with the ban on his firearm possession once he

learned of it. Id. Given all of that, the Third Circuit found no “basis to fear that Range is

disloyal to his country.” Id. at 230. As discussed in this opinion, even if we were to agree

with the Third Circuit concerning the level of specificity required to identify a match with

historical firearm restrictions, the same cannot be said of Mr. Fooks’s much more recent

and serious history of willful disregard of his legal obligations and court orders.

49

tied to 18 U.S.C. § 922(g)(8). As discussed, neither the surety laws nor the going armed

laws permitted the disarming of an individual before the individual had committed a

criminal offense, but the principle underlying those laws was nonetheless considered

sufficient to support a modern regulation that did just that. In this case, legislatures

extending to before the founding era and ever since have had the authority to preclude

firearm ownership by categories of individuals who were perceived to present a special

danger to society for reasons other than an individualized determination of dangerousness,

including a demonstrated willingness to break the law. Because § 5-133(b)(2) precludes

firearm possession only by people who have demonstrated a willingness to break the law

by committing a criminal offense for which they received a sentence of at least two years’

imprisonment, it falls comfortably within our Nation’s historical tradition of firearm

regulation.

Mr. Fooks interprets Rahimi differently, continuing to argue that his conviction

cannot disqualify him from firearms ownership absent what amounts to a close historical

analogue that expressly disenfranchised individuals found in criminal contempt for failing

to pay child support. Mr. Fooks also contends that the State’s focus on whether he is a

“law-abiding, responsible citizen” is an approach that Rahimi rejected. To the contrary,

although the Court in Rahimi stepped back from an approach to Second Amendment claims

focused on whether an individual is a “responsible” citizen, which the Court found to be

“vague” and “unclear,” 602 U.S. at 701-02, the Court neither disavowed nor confirmed the

significance of its prior use of the term “law-abiding.” Regardless, our analysis is not

premised on the Court’s repeated use of the term “law-abiding” in Bruen but on its analysis

50

in that case, as clarified in Rahimi, and its repeated and consistent characterization of

“prohibitions on the possession of firearms by felons” as “presumptively lawful.”

C. Public Safety § 5-133(b)(2) Is Constitutional as Applied to

Mr. Fooks.

In the alternative, Mr. Fooks contends that even if § 5-133(b)(2) is facially

constitutional, it is not constitutional as applied to him because “his was not [a] violent or

dangerous crime, and he is not a violent or dangerous person.” In essence, Mr. Fooks

contends that if the purpose of § 5-133(b)(2) is to “prohibit violent or dangerous persons

from possessing a firearm,” it cannot be constitutionally applied to someone like him, who

was convicted of a non-violent crime and is not alleged to be a violent or dangerous person.

Mr. Fooks’s alternative, as-applied argument is simply the flip side of his argument

that § 5-133(b)(2) is overly broad to the extent it applies to individuals convicted of non-

violent offenses. We therefore reject it for the reasons already discussed. Moreover,

although Mr. Fooks attempts to trivialize his misconduct, the crime of which he was

convicted reflects a particularly egregious flouting of legal requirements. 35 Mr. Fooks was

found in contempt of court for refusing to pay court-ordered child support in circumstances

so egregious that he was ordered to serve a sentence of incarceration of more than four

35

The Dissent suggests a lack of clarity concerning the dividing line between when

an offense is and is not serious enough to warrant disqualification, arguing that there is no

way to distinguish Mr. Fooks’s offense from more minor violations. See Dissenting Op.

of Biran, J. at 62. The answer, however, is the distinguishing criterion drawn in those

“longstanding prohibitions on the possession of firearms . . . by felons” repeatedly

referenced by the Supreme Court, see discussion above at 36-41, which is whether the

offenses have been deemed serious enough to warrant punishment by a lengthy period of

incarceration, see discussion above at 32-35.

51

years. 36 A parent’s obligation to provide support for a child is a “fundamental obligation.”

Carroll County Dept. of Soc. Servs. v. Edelmann, 320 Md. 150, 171 (1990). As a result,

when imposed, the legal obligation to pay child support is subject to robust enforcement

mechanisms that often extend well beyond other obligations. 37 And, in the most extreme

cases, that obligation can be enforced through criminal penalties, including imprisonment.

Md. Code Ann., Fam. Law § 10-203(c) (2019 Repl.) (providing potential imprisonment for

36

Since the founding era, contemnors have been subject to significant possible

punishment. See, e.g., United States v. More, 7 U.S. 159, 167 (1805) (“By the act of 1801,

the justices of the peace are to have the same powers, in all matters, civil and criminal, as

were exercised by the justices of the peace in Maryland. In resorting to the Maryland code

of laws, we find a very early act of assembly, which gives to justices of the peace the power

of punishing contempts in their presence. Indeed, they possess a vast accumulation of

powers. They may inflict whipping, imprisonment, and fine as high as 500 pounds of

tobacco.”).

37

See, e.g., 11 U.S.C. 362(b)(1), (2)(ii) (providing that bankruptcy stay does not

extend to child support payments nor prohibit criminal contempt of court for failure to pay

child support); Md. Code Ann., Fam. Law § 10-140(a) (2019 Repl.) (establishing that an

unpaid child support obligation constitutes a lien on all real and personal property);

§§ 13-101, 13-102 (requiring child support to persist past the age of majority if the “adult

child” cannot support themselves due to mental or physical infirmity); Stambaugh v. Child

Support Enf’t Admin., 323 Md. 106, 111 (1991) (holding that Maryland public policy

dictates that “the duty to support one’s minor children may not be bargained away or

waived”); 42 U.S.C. § 666(a)(13) (requiring states to record social security numbers on

applications for professional, driver’s, occupational, or recreational licenses in order to

better effectuate child support payments); Md. Code Ann., Transp. § 16-203 (2020 Repl.)

(outlining a statutory regime for the suspension and restriction of licenses for child support

arrearages); Motor Vehicle Admin. v. Geppert, 470 Md. 28, 37 n.5 (2020) (explaining that

Maryland law matches federal law in requiring social security numbers for licenses “for

the purpose of enforcing child support obligations”); Montgomery County Off. of Child

Support Enf’t ex rel Cohen v. Cohen, 238 Md. App. 315, 327-30, 342 (2018) (reviewing

federal and Maryland laws and regulations providing that passports may be denied or held

due to child support arrearages); cf. Attorney Grievance Comm’n v. Whitted, 487 Md. 501,

510-12 (2024) (indefinitely suspending an attorney for his failure to pay child support and

related dishonesty).

52

willful failure to pay child support); Ashford v. State, 358 Md. 552, 556-57, 565-68, 572

(2000) (discussing common law criminal contempt for failure to pay child support).

Mr. Fooks’s sentence of more than four years’ imprisonment for criminal contempt is

attributable to an egregious refusal to comply with a court order concerning one of society’s

most basic obligations, betraying a disrespect for the law and the legitimacy of the courts

that enforce it. Precluding firearm possession by individuals convicted of such an offense

and sentenced to a term of imprisonment of more than two years is well within our Nation’s

historical regulation of firearms.

The General Assembly, like the United States Congress and other state legislatures

around the country, has concluded that individuals convicted of serious criminal offenses

should not be permitted to possess firearms, regardless of whether the particular offenses

they previously committed are themselves violent. Without carving out any exceptions, on

four occasions over the course of 16 years, Justices constituting a majority of the Supreme

Court of the United States have identified laws like § 5-133(b)(2) as presumptively lawful.

We will not presume that to have been a mistake. 38

CONCLUSION

In sum, we affirm the Appellate Court of Maryland and hold that § 5-133(b)(2) is

the equivalent of a felon dispossession statute, satisfies Second Amendment review as set

38

The State further contends that Mr. Fooks’s conduct was not protected by the

Second Amendment because the firearms he was convicted of possessing were stolen and

the purpose for which he possessed them was to illegally pawn them. The record suggests

that very well may be the case, especially Mr. Fooks’s agreement to pay restitution and

that the statement of facts in support of Mr. Fooks’s guilty plea reflects that the finding that

he was in possession of two handguns on two specific dates resulted from “a RAPID[]

53

forth in Heller, Bruen, and Rahimi, and is constitutional on its face and as applied to

Mr. Fooks.

JUDGMENT OF THE APPELLATE

COURT OF MARYLAND AFFIRMED;

COSTS TO BE PAID BY PETITIONER.

search.” “RAPID” stands for the Regional Automated Property Information Database,

which contains information about pawn transactions. See, e.g., Transaction Filing -

Secondhand Precious Metal Objects Dealers & Pawnbrokers, Md. Dep’t of Lab., available

at https://www.dllr.state.md.us/license/pm/pmtrans.shtml [https://perma.cc/2T5E-XJNK].

On the other hand: (1) the circuit court did not find Mr. Fooks guilty of theft or possession

of stolen property; (2) Mr. Fooks did not admit to theft or possession of stolen property;

(3) the basis for Mr. Fooks’s restitution obligation was not identified on the record; (4) the

parties agreed that Mr. Fooks’s obligation to pay restitution would turn on the success of

his appeal of the two firearms charges of which he was convicted; and (5) the court

appeared somewhat uncertain of the facts relevant to the theft allegations, lamenting that

the individual to whom restitution was ordered “isn’t here to clarify the situation either for

the State’s behalf or for [Mr. Fooks’s] behalf.” In light of the state of the record, as well

as our disposition of Mr. Fooks’s appeal on other grounds, we decline to reach that issue.

54

Circuit Court for Wicomico County

Case No. C-22-CR-21-000030

Argued: March 2, 2023

IN THE SUPREME COURT

OF MARYLAND

No. 24

September Term, 2022

______________________________________

ROBERT L. FOOKS

v.

STATE OF MARYLAND

______________________________________

Fader, C.J.

Watts

*Hotten

Booth

Biran

Gould

Eaves,

JJ.

______________________________________

Concurring Opinion by Watts, J.

______________________________________

Filed: June 6, 2025

*Hotten, J., now a Senior Justice, participated in

the hearing and conference of this case while an

active member of this Court. After being

recalled pursuant to Maryland Constitution,

Article IV, § 3A, she also participated in the

decision and adoption of this opinion.

Respectfully, I concur. I agree with the Majority that Md. Code Ann., Pub. Safety

(2003, 2018 Repl. Vol.) (“PS”) § 5-133(b)(2) is the equivalent of a law prohibiting the

possession of firearms by an individual convicted of a felony, and that the Supreme Court

of the United States would uphold its constitutionality. See Maj. Slip Op. at 1, 3-4. I also

would affirm Mr. Fooks’s convictions.

But, because I would hold that Mr. Fooks’s conduct of possessing and pawning

stolen firearms falls outside of the protections of the Second Amendment, I would not reach

the issue of how to apply the Supreme Court’s decisions in New York State Rifle & Pistol

Association, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680

(2024). In my view, Mr. Fooks had no Second Amendment right to possess the firearms

in this case, because his unsanctioned possession of firearms belonging to another person

was not lawful conduct and his possession of firearms was not consistent with the Supreme

Court of the United States’ description of the Second Amendment Right as applying to

law-abiding people. See Bruen, 597 U.S. at 8-10.

On January 26, 2021, in the Circuit Court for Wicomico County, the State charged

Mr. Fooks with one count of theft, ten counts of illegal possession of a rifle or shotgun,

and three counts of illegal possession of a regulated firearm. The State accused Mr. Fooks

of stealing several firearms from a relative and selling them at pawn shops. Mr. Fooks

faced the firearms possession charges under PS § 5-133(b)(2) and § 5-205(b)(2) because

of his 2017 conviction for constructive criminal contempt, a common law crime for which

he received a sentence of four years of incarceration. On February 1, 2021, Mr. Fooks,

via counsel, filed a motion to dismiss the thirteen firearms-related counts, contending that

PS §§ 5-133 and 5-205 were unconstitutional under the Second Amendment of the United

States Constitution. In its response, the State argued that Mr. Fooks’s conduct was not

protected by the Second Amendment, stating: “In the case sub judice, the guns were not

the Defendant’s, and he sold the guns at a local pawn shop. The conduct by the Defendant

removes his conduct from being within the protected right of law-abiding, responsible

citizens to use arms in defense of hearth and home.” After holding a hearing on Mr.

Fooks’s motion, and receiving supplemental briefing from Mr. Fooks and the State, the

circuit court issued an order denying the motion to dismiss the firearms possession charges

“for the reasons stated in the State’s Response.”

Subsequently, the State and Mr. Fooks reached a plea agreement. The written

agreement, which Mr. Fooks and defense counsel signed, provided that Mr. Fooks would

conditionally plead guilty to two charges under PS § 5-133(b)(2), reserving his right to

appeal on the issue of the statutes’ constitutionality. In the written plea agreement, Mr.

Fooks agreed that he would pay restitution in the amount of $9,949 1 to Marilyn Murray-

Artis. In exchange, the State agreed to nol pros the theft charge and the remaining unlawful

possession of firearms charges as well. The State also agreed to make a recommendation

at sentencing of the statutory maximum for each charge, five years incarceration, to run

consecutively, with service of the sentence suspended. 2 Under the agreement, Mr. Fooks

1

The amount of restitution that Mr. Fooks agreed to pay reflects the total value of

the 13 firearms that the State alleged Mr. Fooks had stolen and sold to pawn shops, as

reflected in the State’s response to Mr. Fooks’s demand for a bill of particulars.

2

The theft charge carried the same maximum penalty. See Md. Code Ann., Crim.

Law (2002, 2021 Repl. Vol.) 7-104(g)(1)(i).

-2-

was entitled to argue for a lesser sentence.

On April 27, 2021, the circuit court conducted a guilty plea proceeding. The circuit

court confirmed the details of the bargain with Mr. Fooks during the proceeding:

THE COURT: The plea agreement contemplates that the State is going to

enter a nol pros as to count 14 [the theft charge], and the parties are in

agreement that on appeal they agree that the motion to dismiss would be

dispositive of the entire case, if you were to win on an appeal; you understand

that?

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: But the bargain that’s entered here is the State’s agreeing to

that on your part and you’re agreeing to enter this conditional plea of guilt to

count four, illegal possession of a regulated firearm, which carries a

maximum penalty of five years incarceration and a $10,000 fine -- and/or a

$10,000 fine. And a conditional plea of guilt to count seven, illegal

possession of a regulated firearm, also carrying a maximum penalty of five

years incarceration and/or a $10,000 fine. At the time of sentencing the

State’s going to make a recommendation of five years on both counts, both

counts completely suspended, but run consecutive to each other. So basically

it’s ten years all suspended. You understand that?

THE DEFENDANT: Yes, sir, Your Honor.

After noting that Mr. Fooks would be entitled to argue for a different sentence, the circuit

court recounted the term of the plea bargain pertaining to Mr. Fooks’ agreement to pay

restitution:

THE COURT: Pursuant to the bargain that’s been [reached] between the two

sides it also contemplates that you would pay restitution in the amount $9,949

to Marilyn Murray-Artis, and you’re agreeing to pay that even though you’re

not entering a guilty plea to the theft charge; you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: But that’s part of the contemplation of the plea agreement,

you understand that?

-3-

THE DEFENDANT: Yes, sir.

Both defense counsel and the State agreed that the foregoing was “a fair recitation of the

plea agreement” by the court.

After ascertaining that Mr. Fooks was knowingly, willingly, and voluntarily

entering into the plea agreement, the circuit court asked the State to read the agreed-to

statement of facts:

Your Honor, had this matter proceeded to trial the State would have produced

testimony and evidence that on July 18, 2020, Officer Culver, Sergeant

Jackson and Officer Swanger of the Fruitland Police Department responded

to 503 St. Luke’s Road, Fruitland, Maryland, 21826. An investigation of that

address led Sergeant Jackson to conduct a RAPIDS search that found that

Mr. Fooks, who would be identified as the individual seated to the left of

defense counsel today, was in possession of a Smith and Wesson 19-4 .357

caliber handgun, as well as a Smith and Wesson 10-6 .38 special handgun on

the dates of November 30, 2019, and February 6, 2020, respectively.

With this information Officer Culver conducted a followup investigation

which determined that Mr. Fooks is prohibited from possessing firearms

based on a 2017 conviction for constructive criminal contempt, a common

law crime in which he received a sentence of more than two years of

incarceration.

All events did occur in Wicomico County, Maryland.

The “RAPIDS search” refers to “the Regional Automated Property Information Database

(‘RAPID’)” that “tracks pawn shop sales[.]” Gross v. State, 229 Md. App. 24, 28, 142

A.3d 692, 695 (2016). This database was created after the General Assembly required

pawn shops to submit electronically their daily records of purchases and sales of certain

items, including firearms, which they are mandated to provide to local law enforcement.

See 2009 Md. Laws 3162 (Vol. IV, Ch. 562, S.B. 597); see also Md. Code Ann., Bus. Reg.

-4-

(1992, 2015 Repl. Vol.) §§ 12-301 to 12-304. In January 2012, the Governor’s Office of

Crime Control and Prevention described the development of the system:

On October 1, 2009, SB 597 took effect requiring pawnbrokers and

secondhand precious metal dealers to electronically report daily transactions

to law enforcement. In order to manage this information and make it

accessible to all law enforcement around the state, the Regional Automated

Property Information Database (RAPID) was created: a central repository for

all transaction data of pawn, secondhand precious metal, and automotive

dismantler transition records in the state. RAPID has quickly become a

favorite crime fighting tool to reduce property crime, both in Maryland and

its bordering states, and is currently used as an investigative tool by over

2,000 users in 130 agencies[.]

Governor’s Off. of Crime Control and Prevention, Fact Sheet: Reg’l Automated Prop. Info.

Database (RAPID) (January 2012), https://mdstatedocs.slrc.info/digital/api/collection/

mdgov/id/7190/download [https://perma.cc/NXJ5-XMFZ]. In this case, according to the

agreed upon statement of facts, Sergeant Jackson conducted a RAPID search that found

that Mr. Fooks was in possession of, i.e., had sold to a pawn shop, a Smith and Wesson 19-

4 .357 handgun and a Smith and Wesson 10-6 .38 special handgun on two different dates,

November 30, 2019, and February 6, 2020, respectively.

Although in the written plea agreement, Mr. Fooks specifically reserved the right to

appeal the constitutionality of PS § 5-133(b)(2) and § 5-205(b)(2) and although the

information about the guns would have been available to the prosecutor and Mr. Fooks’s

counsel, conspicuously, the agreed statement of facts did not mention the purported owner

of the guns, the location at which the guns were found/recovered, or that the guns were

reported to have been stolen by Mr. Fooks.

The statement of charges for the theft count signed by an Assistant State’s Attorney

-5-

and filed in the circuit court stated that Mr. Fooks “did steal firearms property of Johnnie

Artis having a value of at least $1,500 but less than $25,000, in [] violation of CR 7-104 of

the Annotated Code of Maryland[.]” In its Answer to Defendant’s Motion for Separate

Trials (Mr. Fooks’s motion), the State explained:

On July 18, 2020, officers from the Fruitland Police Department responded

to 503 St. Lukes Rd. Fruitland, Md. Upon arrival, officers met with the

victim who reported that his guns had been stolen from his garage. The

victim reported to officers that in March of 2020, he asked an individual by

the name of Robert Fooks, to move some guns to the shed for him because

of the extermination of the house. Following the extermination, the victim

asked Mr. Fooks to retrieve the guns and bring them in the house. Mr. Fooks

stated that he could not retrieve the guns, at which point the victim called the

police.

Taking this information from the victim, Ofc. Weldon, of the Fruitland Police

Department ran a RAPDS [sic] check which revealed that Mr. Fooks had

pawned 13 firearms since November 12, 2018. The victim was able to

identify the 13 pawned firearms as ones missing and belonging to him.

Ms. Murray-Artis was clearly connected by a spousal or familial relationship to Mr.

Artis, the complaining victim, who was likely deceased when Mr. Fooks entered his guilty

plea, given that she became the restitution payee. 3

At the plea proceeding, prior to imposing a sentence, the circuit court asked Mr.

Fooks if there was anything he would like to say, and Mr. Fooks responded:

I put myself in a situation that is kind of a little awkward, trying to protect,

and not realizing my previous conviction for child support. I don’t have a

3

Under Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) (“CP”) § 11-601(j), for

the purposes of restitution, the “victim” to whom restitution is owed is defined as “(1) a

person who suffered death, personal injury, or property damage or loss as a direct result of

a crime or delinquent act; or, (2) if the person is deceased, the personal representative of

the estate of the person.” (Line break omitted).

-6-

common practice of dealing with firearms at all in regards it’s not my thing,

but I kind of put myself—but I wanted to thank and apologize to the Court

for taking up your time.

Afterwards, the circuit court stated:

I appreciate it. The facts aren’t, you know, they’re not the worst set of facts

I have ever seen. Unfortunately, you know, Mr. Artis isn’t here to clarify the

situation either for the State’s behalf or for your behalf. And so I think this

is probably a pretty fair resolution. As long as you stay out of trouble it will

take care of itself.

As a result of his plea of guilty to the firearms offenses but not to the theft offense, the

circuit court sentenced Mr. Fooks to two consecutive five-year terms of imprisonment,

suspending all but time served (73 days), with two years of supervised probation, and

ordered Mr. Fooks to pay restitution of $9,949 to Ms. Murray-Artis.

After Mr. Fooks appealed to the Appellate Court of Maryland, but before that Court

issued its decision, the Supreme Court of the United States decided Bruen. See Fooks v.

State, 255 Md. App. 75, 90, 278 A.3d 208, 217 (2022). In Bruen, 597 U.S. at 9, the

Supreme Court concluded “that ordinary, law-abiding citizens have a [] right to carry

handguns publicly for their self-defense” pursuant to the Second Amendment. The

Supreme Court struck as unconstitutional New York’s licensing scheme for carrying a

firearm in public, which required applicants to show “a special need for self-protection

distinguishable from that of the general community,” id. at 12 (cleaned up), because “it

prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their

right to keep and bear arms[,]” id. at 71.

Significantly, in Bruen, 597 U.S. at 9, 15, 26, 29-31, 33 n.8, 38 & n.9, 60, 70, the

-7-

Supreme Court used variations of the phrase “law-abiding citizens” consistently 4 when

referring to the holders of Second Amendment rights. The Supreme Court focused its

historical analysis on “how and why [firearms] regulations burden a law-abiding citizen’s

right to armed self-defense,” id. at 29, and repeatedly characterized the challengers to the

New York law as “law-abiding, adult citizens[,]” id. at 15, 31-32. In addition, the Supreme

Court described presumptively constitutional “shall-issue” licensing regimes as “designed

to ensure [] that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible

citizens.’” Id. at 38 n.9 (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)).

This was not new language, but rather a pattern consistent with the word choice of

the Supreme Court in earlier decisions in Heller, 554 U.S. 570, and McDonald v. Chicago,

561 U.S. 742 (2010), both cases invalidating firearms licensing laws that restricted “the

right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”

Bruen, 597 U.S. at 8-9. In Heller, 554 U.S. at 625, 628, the Supreme Court made clear that

the scope of the Second Amendment’s protection is limited to possession of firearms for

“lawful purposes.” The Supreme Court stated that the Second Amendment “elevates above

all other interests the right of law-abiding, responsible citizens to use arms in defense of

hearth and home.” Id. at 635. In McDonald, 561 U.S. at 780, the Supreme Court declared

that Heller’s “central holding” was “that the Second Amendment protects a personal right

to keep and bear arms for lawful purposes, most notably for self-defense within the home.”

4

By my count, holders of Second Amendment rights were described as “law-

abiding” 14 times in the majority opinion and 7 more times in two concurring opinions by

Justices who joined in the majority opinion.

-8-

The Supreme Court reiterated the connection between the Second Amendment and the

“lawful purpose” of self-defense. 5 McDonald, 561 U.S. at 767-68.

The Supreme Court’s emphasis on “law-abiding citizens” and “lawful conduct”

shows that “the right secured by the Second Amendment is not unlimited” and does not

confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and

for whatever purpose.” Heller, 554 U.S. at 626 (citations omitted). For all of the confusion

resulting from the language in Bruen and its concurrences and McDonald and Heller, as

aptly discussed by the Majority, this much is clear: the Second Amendment does not protect

firearms possession for criminal purposes. See Maj. Slip Op. at 2, 18-20.

Recently in Rahimi, 602 U.S. at 701-02, the Supreme Court concluded that citizens

are not deprived of Second Amendment protections simply because they are not

“responsible.” Although the Supreme Court stated that the term “responsible” is a vague

term and that it does not dictate the Second Amendment’s applicability, the Court did not

disavow or discredit the premise that individuals who are not law abiding are excluded

from Second Amendment protection. Id.

In Rahimi, id. at 684, 690, 693, 700-01, the Supreme Court upheld the

5

The Fourth, Sixth, and Second Circuits have held that possession of firearms

believed to be stolen, see United States v. Pruess, 703 F.3d 242 (4th Cir. 2012), or in

connection with trafficking in controlled substances (even for self-defense in such a

context), see United States v. Greeno, 679 F.3d 510, 520-21 (6th Cir. 2012) abrogated on

other grounds by Bruen, 597 U.S. 1, United States v. Bryant, 711 F.3d 364 (2d Cir. 2013),

falls outside the protections of the Second Amendment. To conclude otherwise “would

suggest that the Second Amendment protects an individual’s right to possess a weapon for

criminal purposes.” Greeno, 679 F.3d at 520.

-9-

constitutionality of a federal statute, 18 U.S.C. 922(g)(8), that prohibited an individual

subject to a domestic violence restraining order from possessing a firearm as applied to the

defendant. In doing so, the Supreme Court explained:

“Like most rights,” though, “the right secured by the Second Amendment is

not unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct.

2783, 171 L.Ed.2d 637 (2008). In Heller, this Court held that the right

applied to ordinary citizens within the home. Even as we did so, however,

we recognized that the right was never thought to sweep indiscriminately.

“From Blackstone through the 19th-century cases, commentators and courts

routinely explained that the right was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever purpose.”

Ibid.

Rahimi, 602 U.S. at 690-91. Elaborating on its holding in Bruen, the Supreme Court stated

that the appropriate analysis of a challenged regulation involves “considering whether the

[] regulation is consistent with the principles that underpin our regulatory tradition” and

that “the Government must show that the restriction is consistent with the Nation’s

historical tradition of firearm regulation.” Rahimi, 602 U.S. at 689, 692 (cleaned up).

Courts “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition

is understood to permit, applying faithfully the balance struck by the founding generation

to modern circumstances.” Id. at 692 (cleaned up).

In holding that 18 U.S.C. § 922(g)(8) was constitutional as applied, the Supreme

Court rejected the government’s argument that Rahimi could be disarmed merely because

he was not “responsible.” Rahimi, 602 U.S. at 701. The Court explained that, in Heller

and Bruen, the term “responsible” was used to describe a class of citizens who undoubtedly

enjoyed a Second Amendment right but that those decisions did not define the term and

- 10 -

did not address the status of citizens who are not responsible. Rahimi, 602 U.S. at 701-02.

As the Court put it, “the question was simply not presented.” Id. at 702. To be sure, in

Rahimi, there is no indication that the government contended that Rahimi was not law

abiding or that he had engaged in conduct that was not law abiding other than violating 18

U.S.C. § 922(g)(8) in connection with his possession of the gun at issue. 6 Nonetheless, it

is significant that while rejecting the government’s argument that Second Amendment

protection applies only to responsible citizens, the Supreme Court did not contradict the

often-mentioned principle that it is “ordinary, law-abiding citizens” who have a right to

possess handguns pursuant to the Second Amendment. 7 See Bruen, 597 U.S. at 8-9; Heller,

554 U.S. at 625, 635; McDonald, 561 U.S. at 780.

In Range v. Attorney General, 69 F.4th 96, 103 (3d Cir. 2023) (en banc), after

determining that Range was one of the “people” entitled to Second Amendment protection

but prior to assessing whether the challenged law had a historical analogue, the Third

Circuit considered what it referred to as the “easy question” of whether the statute at issue,

6

The gun in question was recovered from Rahimi’s home pursuant to a search

warrant. See Rahimi, 602 U.S. at 688. At the time that the search warrant was executed

and the gun recovered, there was no indication that Rahimi was currently engaged in a

crime other than the unlawful possession of the weapon. See id.

7

In Rahimi, the majority and concurring opinions do not reference “law-abiding

citizen” or “lawful conduct” at all. The only instance in which the phrase “law-abiding

citizen” is mentioned is in Justice Thomas’s dissenting opinion, in which he now claims

that the Second Amendment applies to “the people,” not just law-abiding citizens, and that

the phrase “ordinary, law-abiding citizens” in Bruen simply described “those who were

unable to publicly carry a firearm in New York.” Rahimi, 602 U.S. at 773-74 & n.7

(Thomas, J., dissenting) (cleaned up).

- 11 -

8 U.S.C.A. § 922(g)(1), regulated Second Amendment conduct and concluded that it did

because “Range’s request—to possess a rifle to hunt and a shotgun to defend himself at

home—tracks the constitutional right as defined by Heller.” (Citation omitted). In 1995,

Range pleaded guilty to one count of making a false statement to obtain food stamps in

violation of Pennsylvania law and was sentenced to three years’ probation, which he

successfully completed. See id. at 98. Later, Range learned that he was barred from buying

a firearm under 18 U.S.C. § 922 (g)(1) because of his 1995 conviction. See id. at 99. Range

sought a declaratory judgment in the United District Court for the Eastern District of

Pennsylvania that 18 U.S.C. § 922(g)(1) violated the Second Amendment as applied to

him. See id. Only after reaching the conclusion that Range was engaged in lawful conduct

in possessing guns after his conviction did the Third Circuit undertake the analysis that

resulted in its conclusion that the law in question was unconstitutional as applied to Range.

See id. at 103-06.

The Supreme Court vacated the Third Circuit’s decision and remanded the case for

further consideration in light of Rahimi. See Garland v. Range, 144 S. Ct. 2706 (2024).

On December 23, 2024, the Third Circuit issued its opinion on remand. See Range v.

Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc). The Third Circuit

stated that it “agree[s] with Range that, despite his false statement conviction, he remains

among ‘the people’ protected by the Second Amendment. And because the Government

did not carry its burden of showing that the principles underlying our Nation’s history and

tradition of firearm regulation support disarming Range, we will reverse and remand.” Id.

- 12 -

at 222. The Third Circuit stated that “[a]t root, the Government’s claim [is] that felons are

not among the people protected by the Second Amendment[.]” Id. at 228 (cleaned up).

The Third Circuit rejected this approach, concluding that “such extreme deference gives

legislatures unreviewable power to manipulate the Second Amendment by choosing a

label.” Id. (cleaned up).

Neither Range nor any of the cases discussed above are like this one. Mr. Fooks’s

conduct that led to his unlawful possession of a firearm conviction involved stealing or

possessing stolen guns, pawning the guns without permission, and agreeing as part of a

guilty plea to pay restitution to the owner of the guns. Separate and apart from the question

of whether, based on his prior conviction, PS § 5-133(b)(2) is constitutional as applied to

him, Mr. Fooks engaged in unlawful conduct in possessing the firearms at issue. For this

reason, I would hold that Mr. Fooks’s challenge in this case must fail before even reaching

the issue of the constitutionality of the statute in question. This is so because Mr. Fooks’s

conduct in possessing stolen firearms placed him outside of the protection of the Second

Amendment. Using the approach set forth in Bruen and Heller leads to the conclusion that

Mr. Fook’s conduct is not protected by the Second Amendment.

The agreed upon statement of facts and the circumstances of Mr. Fooks’s guilty plea

demonstrated that Mr. Fooks did not possess the firearms for a lawful purpose, see Heller,

554 U.S. at 620, 624-25, much less the purpose of self-defense that is the “core lawful

purpose” protected by the Second Amendment, see id. at 630. As much as is unknown

about where precisely the limits of this “not unlimited” right may lay, I am confident that

- 13 -

when the Supreme Court stated that the Second Amendment “was not a right to keep and

carry any weapon whatsoever in any manner whatsoever and for whatever purpose,”

possession of a stolen firearm was not among the rights intended to be protected. See

Heller, 554 U.S. at 626. 8

In addition to falling outside the scope of “lawful purpose,” Mr. Fooks’s unlawful

possession of the firearms also places him outside of the category of the “law-abiding,

8

Citing Sullivan v. Louisiana, 508 U.S. 275, 280 (1993), Justice Biran concludes

that whether a citizen’s possession of a firearm is not protected under the Second

Amendment is a matter that the State must prove and should not be the subject of appellate

speculation. See Dissenting Slip Op. at 17-18 n.6 (Biran, J., dissenting). For Justice Biran,

Mr. Fooks’s agreement to pay restitution is not proof of unlawful conduct. These

conclusions are faulty for at least three reasons. First, not every case concerning the

Second Amendment right to possess a firearm will involve an underlying criminal case in

which the State will have an opportunity to prove unlawful conduct or a trier of fact will

be called upon to make an express finding of guilt. None of the conduct at issue in Bruen

Heller, and McDonald arose in the context of a criminal case involving the State or a

prosecuting authority. Yet, even where there has been no dispute as to whether a party was

law abiding or sought to possess a firearm for an unlawful purpose, the Supreme Court of

the United States has made clear that the scope of the Second Amendment’s protection is

limited to law-abiding people and lawful purposes. See Bruen, 597 U.S. at 9, 71; Heller,

554 U.S. at 625, 628, 635; McDonald, 561 U.S. at 780. Second, comparing the

circumstances of Mr. Fooks’s case to a capital murder case in which a constitutionally

deficient reasonable doubt instruction was given and the issue before the federal appellate

court and the Supreme Court of the United States involved what a jury might have found

if the correct instruction had been given, see Sullivan, 508 U.S. at 276-77, 280, is not

instructive for determining how an appellate court should assess lawful or unlawful

conduct in determining the scope of Second Amendment coverage. Third, stating that

neither Mr. Fooks’s agreement to pay restitution or the trial court’s order that Mr. Fooks

pay restitution is proof that Mr. Fooks stole the firearms overlooks the circumstance that

Mr. Fooks agreed to pay restitution in the context of resolving a criminal case that charged

both theft and possession of stolen property. In addition, case law of the Supreme Court

cannot be read to require that an actual conviction of a crime is a prerequisite for a

determination that a person’s possession of a firearm is not protected under the Second

Amendment.

- 14 -

responsible citizen” that the Supreme Court has repeatedly invoked in discussing Second

Amendment rights. Whatever else that phrase might mean, at the very least it must require

that the person asserting the right be “law-abiding” in the moment of possession. An

exhaustive historical analysis is unnecessary to conclude that no one in the Founding Era

would have believed that the Second Amendment protected a person’s right to possess a

firearm for the purpose of, or in the course of, committing a crime.

The conduct that places Mr. Fooks outside of the “lawful purposes” and “law-

abiding citizen” categories is not just his possession of a firearm in violation of PS § 5-

133(b)(2), a statute regulating gun possession. As a threshold matter, it is his possession

of firearms that were stolen and fenced at a pawn shop, and for which he agreed to pay

restitution to the owner in lieu of pleading guilty to theft, that places his conduct beyond

the scope of the Second Amendment. That Mr. Fooks did not plead guilty to the theft

charge does not require a different result. The State agreed to not prosecute the theft charge

as part of the plea bargain. Nonetheless, the facts of the plea agreement and the record of

the plea proceedings demonstrate that Mr. Fooks unlawfully possessed firearms, that were

sold to a pawn shop, and that he paid restitution to a victim of his crime to compensate for

the theft of the firearms.

The circumstances of the case demonstrate that Mr. Fooks unlawfully possessed,

i.e., stole or possessed as stolen property, the firearms at issue and agreed to pay restitution

to Ms. Murray-Artis for the firearms. Merriam-Webster’s Dictionary defines “restitution”

as “an act of restoring or a condition of being restored: such as [] a restoration of something

- 15 -

to its rightful owner [or] a making good of or giving an equivalent for some injury” or as

“a legal action serving to cause restoration of a previous state.” Restitution, Merriam-

Webster (2023), https://www.merriam-webster.com/dictionary/restitution [https://

perma.cc/2VHW-JAHB]. Black’s Law Dictionary defines “restitution” as

“[c]ompensation for loss; esp., full or partial compensation paid by a criminal to a victim,

not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a

condition of probation.” Restitution, Black’s Law Dictionary (11th ed. 2019).

Likewise, in Maryland, restitution is a criminal sanction, that may be ordered as part

of a sentence, and “serves to recompense the victim, [and] also to punish and rehabilitate

the criminal.” State v. Stachowski, 440 Md. 504, 512, 103 A.3d 618, 623 (2014) (citing

Pete v. State, 384 Md. 47, 55, 862 A.2d 419, 423 (2004)). The Criminal Procedure Article,

Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) (“CP”) Title 11, Subtitle 6, 9

establishes the requirements for restitution:

A trial court may order restitution, in the sound exercise of its discretion,

when, “as a direct result of the crime or delinquent act, property of the victim

was stolen, damaged, destroyed, converted, or unlawfully obtained, or its

value substantially decreased . . . .” CP § 11-603(a)(1) (emphasis added).

Medical and funeral expenses, direct out-of-pocket loss, loss of earnings, and

certain government expenses may provide the basis for restitution. See CP §

11-603(a). The term “victim” is defined as “a person who suffered death,

personal injury, or property damage or loss as a direct result of a crime or

delinquent act; or, if the person is deceased, the personal representative [of]

the estate of the person.” CP § 11-601(j).

Stachowski, 440 Md. at 512-13, 103 A.3d at 623 (footnote omitted).

9

Changes made to these statutes since Stachkowski have not affected this language.

- 16 -

Our case law elaborates that “[d]etermining whether an injury is a ‘direct result’ of

the criminal conduct is central traditionally to mapping the outer limits of a trial court’s

discretion in ordering restitution in most cases.” Stachowski, 440 Md. at 513, 103 A.3d at

623. Further, “restitution may be compelled only where the injury results from the actions

that made the defendant’s conduct criminal.” Id. at 513, 103 A.3d at 623. However,

restitution can be proper if “ordered for charged crimes for which no conviction ensued . .

. as the result of a plea agreement as to the crime for which a conviction was entered” and

the defendant explicitly agreed, such as paying restitution to the victim of a theft even

though the defendant does not plead guilty to theft. Id. at 513-16, 103 A.3d at 623-25.

Here, Mr. Fooks explicitly agreed to pay restitution to the victim, Ms. Murray-Artis,

“even though [Mr. Fooks was] not entering a guilty plea to the theft charge[.]” Under our

case law, restitution by Mr. Fooks was appropriate not only as a punishment for his crimes,

i.e., theft of the firearms as charged or possession of the stolen firearms, but also to

recompense Ms. Murray-Artis because “as a direct result of” his crime she must have

“suffered . . . a direct out-of-pocket loss[.]” Id. at 512-13, 103 A.3d at 623. Mr. Fooks’s

unlawful possession of stolen firearms and the sale of the firearms at a pawn shop were

established in the agreed-upon statement of facts via information about the RAPIDS search

that led to the discovery of Mr. Fooks’s possession of the guns, as well as his agreement to

pay restitution as part of the plea bargain. Ms. Murray-Artis’s status as the victim of his

crime, i.e., the owner of the firearms, was established by Mr. Fooks’s agreement to pay her

restitution of $9,949.

- 17 -

Mr. Fooks’s agreement to pay Ms. Murray-Artis a not insignificant amount in

restitution was an act of “giving an equivalent for some injury” and “compensation for a

loss.” Such injury and loss could not have resulted from Mr. Fooks’s legitimate possession

of the firearms. In other words, the firearms must have belonged to Mr. Artis (or his estate

of which Ms. Murray-Artis was personal representative) or there would have been no

reason for the restitution. All that was missing was the formality of the plea to the theft

charge. 10 Having agreed to pay restitution for his conduct of possessing stolen firearms,

that the plea hearing transcript established was uncovered via an investigation of property

at a pawn shop, the only conclusion is that Mr. Fooks’s possession was some form of theft,

and therefore criminal, not lawful, conduct. If Mr. Fooks had not “stolen, . . . converted,

or unlawfully obtained” the “property of the victim,” i.e., the firearms, there would have

been no need for restitution. Stachowski, 440 Md. at 512-13, 103 A.3d at 623 (cleaned

up). 11

In light of the textual and historical emphasis of Heller, McDonald, Bruen, and

Rahimi, it is impossible to imagine that the Framers would have meant for the Second

If Mr. Fooks, like the defendant in Lee v. State, 307 Md. 74, 76, 512 A.2d 372,

10

373 (1986), had assented to the factual basis for the nol-prossed theft charge, there would

be no question that his possession of the firearms was unlawful. Nonetheless, the record

here establishes sufficient facts to reach the same conclusion. As we stated in Stachowski,

440 Md. at 520, 103 A.3d at 627, “allowing a defendant to consent to pay restitution for

his or her other crimes in addition to the crime for which he or she stands convicted, as the

result of a plea agreement, is consistent with the goals and purposes of Maryland’s

restitution statute.”

11

Further, CR § 7-104(g)(1)(i)(2) requires a person convicted of theft under that

statute to “restore the property taken to the owner or pay the owner the value of the property

or services[.]”

- 18 -

Amendment to protect Mr. Fooks’s criminal possession of firearms. Having at a minimum

possessed stolen firearms and fenced the firearms in question, Mr. Fooks was not a “law-

abiding citizen” nor was he engaged in “lawful conduct” and therefore his conduct was

outside the bounds of the Second Amendment, apart from any question concerning his prior

felony-like conviction under PS § 5-133(b)(2).

In my view, this case also serves as a cautionary tale to trial courts to be watchful

for conditional plea agreements that may obscure the unlawful or criminal nature of the

possession of firearms and reserve the right to appeal where a defendant enters a plea to a

firearms offense. For instance, if a defendant were charged with assault for unjustifiabl

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