Raymond Woollard v. Denis Gallagher

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RAYMOND WOOLLARD; SECOND 

AMENDMENT FOUNDATION, INC.,

Plaintiffs-Appellees,

v.

DENIS GALLAGHER; SEYMOUR

GOLDSTEIN; CHARLES M. THOMAS,

JR.; MARCUS L. BROWN,

Defendants-Appellants,

and  No. 12-1437

TERRENCE SHERIDAN,

Defendant.

AMERICAN PUBLIC HEALTH

ASSOCIATION; AMERICAN COLLEGE OF

PREVENTIVE MEDICINE; LEGAL

COMMUNITY AGAINST VIOLENCE;

LEGAL HISTORIANS;



2 WOOLLARD v. GALLAGHER

BRADY CENTER TO PREVENT GUN 

VIOLENCE; MARYLAND CHIEFS OF

POLICE ASSOCIATION; INTERNATIONAL

BROTHERHOOD OF POLICE OFFICERS;

MAJOR CITIES CHIEFS ASSOCIATION,

Amici Supporting Appellants,

NRA CIVIL RIGHTS DEFENSE FUND;

BUCKEYE FIREARMS FOUNDATION,

INC.; INTERNATIONAL LAW

ENFORCEMENT EDUCATORS &

TRAINERS ASSOCIATION;

INTERNATIONAL ASSOCIATION OF LAW

ENFORCEMENT FIREARMS 

INSTRUCTORS, INC.; PROFESSOR

CLAYTON CRAMER; INDEPENDENCE

INSTITUTE; COMMONWEALTH OF

VIRGINIA; STATE OF ALABAMA;

STATE OF ARKANSAS; STATE OF

FLORIDA; STATE OF KANSAS;

COMMONWEALTH OF KENTUCKY;

STATE OF MAINE; STATE OF

MICHIGAN; STATE OF NEBRASKA;

STATE OF NEW MEXICO; STATE OF

OKLAHOMA; STATE OF SOUTH

CAROLINA; STATE OF SOUTH

DAKOTA;



WOOLLARD v. GALLAGHER 3

STATE OF WEST VIRGINIA; 

PROFESSORS OF LAW, HISTORY,

POLITICS, AND GOVERNMENT;

CALIFORNIA RIFLE AND PISTOL

ASSOCIATION FOUNDATION; VIRGINIA

SHOOTING SPORTS ASSOCIATION;

CENTER FOR CONSTITUTIONAL

JURISPRUDENCE; GUN OWNERS

FOUNDATION; GUN OWNERS OF

AMERICA, INCORPORATED; VIRGINIA

GUN OWNERS COALITION; VIRGINIA

CITIZENS DEFENSE LEAGUE, INC.;



UNITED STATES JUSTICE

FOUNDATION; CONSERVATIVE LEGAL

DEFENSE AND EDUCATION FUND; THE

ASSOCIATED GUN CLUBS OF

BALTIMORE, INC.; THE MONUMENTAL

RIFLE & PISTOL CLUB; THE ILLINOIS

STATE RIFLE ASSOCIATION; THE

NEW YORK RIFLE AND PISTOL

ASSOCIATION; THE ASSOCIATION OF

NEW JERSEY RIFLE & PISTOL CLUBS,

INC.; THE HAWAII RIFLE

ASSOCIATION; NATIONAL RIFLE

ASSOCIATION OF AMERICA, INC.,

Amici Supporting Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson Everett Legg, District Judge.

(1:10-cv-02068-BEL)

Argued: October 24, 2012

Decided: March 21, 2013

4 WOOLLARD v. GALLAGHER

Before KING, DAVIS, and DIAZ, Circuit Judges.

Reversed by published opinion. Judge King wrote the opin-

ion, in which Judge Davis and Judge Diaz joined.

COUNSEL

ARGUED: Matthew John Fader, OFFICE OF THE ATTOR-

NEY GENERAL OF MARYLAND, Baltimore, Maryland,

for Appellants. Alan Gura, GURA & POSSESSKY, PLLC,

Alexandria, Virginia, for Appellees. ON BRIEF: Douglas F.

Gansler, Attorney General of Maryland, Baltimore, Maryland,

Dan Friedman, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Annapolis,

Maryland, Stephen M. Ruckman, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF MARY-

LAND, Baltimore, Maryland, for Appellants. Cary Hansel,

JOSEPH, GREENWALD & LAAKE, Greenbelt, Maryland,

for Appellees. Jason M. St. John, Jennifer A. DeRose, SAUL

EWING LLP, Baltimore, Maryland, for American Public

Health Association and American College of Preventive Med-

icine, Amici Supporting Appellants. Mitchell F. Dolin, Peter

Saharko, Jonathan Cohen, COVINGTON & BURLING, LLP,

Washington, D.C., for Legal Community Against Violence,

Amicus Supporting Appellants. Andrew C. White, Erin Mur-

phy, SILVERMAN, THOMPSON, SLUTKIN & WHITE,

LLC, Baltimore, Maryland; Dwight W. Stone, II, WHITE-

FORD, TAYLOR & PRESTON, LLP, Baltimore, Maryland,

for Legal Historians, Amici Supporting Appellants. Jonathan

E. Lowy, Daniel R. Vice, BRADY CENTER TO PREVENT

GUN VIOLENCE, Washington, D.C.; Jonathan L. Diesen-

haus, S. Chartey Quarcoo, Matthew C. Sullivan, HOGAN

LOVELLS US LLP, Washington, D.C., for Brady Center to

Prevent Gun Violence, Maryland Chiefs of Police Associa-

WOOLLARD v. GALLAGHER 5

tion, International Brotherhood of Police Officers, and Major

Cities Chiefs Association, Amici Supporting Appellants. Mat-

thew D. Fender, Robert W. Loftin, MCGUIREWOODS LLP,

Richmond, Virginia, for NRA Civil Rights Defense Fund,

Amicus Supporting Appellees. L. Kenneth Hanson III, FIRE-

STONE, BREHM, HANSON AND WOLF LLP, Delaware,

Ohio, for Buckeye Firearms Foundation, Inc., Amicus Sup-

porting Appellees. David B. Kopel, INDEPENDENCE

INSTITUTE, Denver, Colorado, for International Law

Enforcement Educators & Trainers Association, International

Association Of Law Enforcement Firearms Instructors, Inc.,

Professor Clayton Cramer, and Independence Institute, Amici

Supporting Appellees. Kenneth T. Cuccinelli, II, Attorney

General of Virginia, E. Duncan Getchell, Jr., Solicitor Gen-

eral of Virginia, Michael H. Brady, Assistant Attorney Gen-

eral, Charles E. James, Jr., Chief Deputy Attorney General,

Wesley G. Russell, Jr., Deputy Attorney General, OFFICE

OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Commonwealth of Virginia; State of Alabama; State of

Arkansas; State of Florida; State of Kansas; Commonwealth

of Kentucky; State of Maine; State of Michigan; State of

Nebraska; State of New Mexico; State of Oklahoma; State of

South Carolina; State of South Dakota; State of West Vir-

ginia, Amici Supporting Appellees. David T. Hardy, Tucson,

Arizona, for Professors of Law, History, Politics, and Govern-

ment, Amici Supporting Appellees. Dan M. Peterson, DAN

M. PETERSON PLLC, Fairfax, Virginia; Stephen P. Hal-

brook, Fairfax, Virginia; John C. Eastman, Anthony T. Caso,

CENTER FOR CONSTITUTIONAL JURISPRUDENCE,

Orange, California; C. D. Michel, MICHEL & ASSO-

CIATES, P.C., Long Beach, California, for California Rifle

and Pistol Association Foundation, Virginia Shooting Sports

Association, and Center for Constitutional Jurisprudence,

Amici Supporting Appellees. Gary G. Kreep, U. S. JUSTICE

FOUNDATION, Ramona, California, for U. S. Justice Foun-

dation; William J. Olson, Herbert W. Titus, John S. Miles,

Jeremiah L. Morgan, Robert J. Olson, WILLIAM J. OLSON,

6 WOOLLARD v. GALLAGHER

P.C., Vienna, Virginia, for Gun Owners Foundation, Gun

Owners of America, Incorporated, Virginia Gun Owners

Coalition, Virginia Citizens Defense League, Inc., United

States Justice Foundation, and Conservative Legal Defense

and Education Fund, Amici Supporting Appellees. Brian Stu-

art Koukoutchos, Mandeville, Louisiana, for The Associated

Gun Clubs of Baltimore, Inc., The Monumental Rifle & Pistol

Club, The Illinois State Rifle Association, The New York

Rifle and Pistol Association, The Association of New Jersey

Rifle & Pistol Clubs, Inc., and The Hawaii Rifle Association,

Amici Supporting Appellees. Charles J. Cooper, David H.

Thompson, Peter A. Patterson, COOPER AND KIRK, PLLC,

Washington, D.C., for National Rifle Association of America

Inc., Amicus Supporting Appellees.

OPINION

KING, Circuit Judge:

The district court permanently enjoined enforcement of

section 5-306(a)(5)(ii) of the Public Safety Article of the

Maryland Code, to the extent that it conditions eligibility for

a permit to carry, wear, or transport a handgun in public on

having "good and substantial reason" to do so. Necessary to

the entry of the court’s injunction was its trailblazing pro-

nouncement that the Second Amendment right to keep and

bear arms for the purpose of self-defense extends outside the

home, as well as its determination that such right is imper-

missibly burdened by Maryland’s good-and-substantial-

reason requirement. See Woollard v. Sheridan, 863 F. Supp.

2d 462 (D. Md. 2012). Because we disagree with the court’s

conclusion that the good-and-substantial-reason requirement

cannot pass constitutional muster, we reverse the judgment

without needlessly demarcating the reach of the Second

Amendment.

WOOLLARD v. GALLAGHER 7

I.

A.

Under its permitting scheme, Maryland obliges "[a] person

[to] have a permit issued . . . before the person carries, wears,

or transports a handgun." Md. Code Ann., Pub. Safety § 5-

303. Such permits are not needed, however, by persons in

numerous specified situations, including those who are wear-

ing, carrying, and transporting handguns in their own homes

and businesses or on other real estate that they own or lease.

See Md. Code Ann., Crim. Law § 4-203(b)(6). Maryland’s

statutory permit exceptions also extend to the following:

• Members of law enforcement and the military on

active assignment;

• Persons moving handguns to and from places of

legal purchase and sale, to and from bona fide

repair shops, and between personal residences

and businesses;

• Persons engaged in target shoots and practices,

sport shooting events, hunting and trapping, fire-

arms and hunter safety classes sponsored by the

Department of Natural Resources, and dog obedi-

ence training classes and shows;

• Gun collectors participating in public and private

exhibitions;

• Supervisory employees armed with handguns in

the course of their employment and within the

confines of the business establishment, when so

authorized by the establishment’s owner or man-

ager;

8 WOOLLARD v. GALLAGHER

• Boaters equipped with signal pistols and other

visual distress signals approved by the United

States Coast Guard; and

• Persons effecting court-ordered surrenders of

their handguns.

See id. § 4-203(b)(1), (3)-(5), (7)-(9). Where a permit is man-

dated, a permitless person risks criminal penalties by "wear-

[ing], carry[ing], or transport[ing] a handgun, whether

concealed or open, on or about the person" or "in a vehicle."

Id. § 4-203(a)(1)(i)-(ii). Those penalties begin with imprison-

ment for a term of thirty days to three years, or a fine of $250

to $2500, or both. Id. § 4-203(c)(2)(i).

Handgun permits are issued by the Secretary of the Mary-

land State Police or the Secretary’s designee. See Md. Code

Ann., Pub. Safety § 5-301(d)-(e). The Secretary must issue a

permit upon making enumerated findings, including that the

applicant is an adult without a disqualifying criminal record,

alcohol or drug addiction, or propensity for violence. Id. § 5-

306(a)(1)-(5)(i). Pursuant to the good-and-substantial-reason

requirement, permit eligibility also necessitates the Secre-

tary’s finding, following an investigation, that the applicant

has good and substantial reason to wear, carry, or

transport a handgun, such as a finding that the permit

is necessary as a reasonable precaution against

apprehended danger.

Id. § 5-306(a)(5)(ii). The Secretary has assigned permitting

responsibility to the Handgun Permit Unit, which determines,

inter alia, whether the applicant’s reasons for seeking a permit

"are good and substantial," whether "the applicant has any

alternative available to him for protection other than a hand-

gun permit," and whether "the permit is necessary as a reason-

able precaution for the applicant against apprehended

danger." See Md. Code Regs. 29.03.02.04(G), (L), (O).

WOOLLARD v. GALLAGHER 9

The Handgun Permit Unit has identified "four primary cat-

egories" under which an applicant may demonstrate "good

and substantial reason" to obtain a handgun permit:

(1) for business activities, either at the business

owner’s request or on behalf of an employee; (2) for

regulated professions (security guard, private detec-

tive, armored car driver, and special police officer);

(3) for "assumed risk" professions (e.g., judge,

police officer, public defender, prosecutor, or correc-

tional officer); and (4) for personal protection.

J.A. 57-58.1 Regarding the first three of those categories, "the

‘good and substantial reason’ is usually apparent from the

business activity or profession itself." Id. at 58. As for the

fourth category — personal protection — the Permit Unit

considers whether the applicant needs a handgun permit as a

safeguard against "apprehended danger." Id. at 59-60.

The Handgun Permit Unit is guided by precedent of the

Court of Special Appeals of Maryland, recognizing that

"‘whether there is "apprehended danger" to the applicant’" is

an objective inquiry, and that apprehended danger cannot be

established by, inter alia, a "‘vague threat’" or a general fear

of "liv[ing] in a dangerous society." Scherr v. Handgun Per-

mit Review Bd., 880 A.2d 1137, 1148 (Md. Ct. Spec. App.

2005) (quoting Snowden v. Handgun Permit Review Bd., 413

A.2d 295, 298 (Md. Ct. Spec. App. 1980)). That same prece-

dent, as the Permit Unit interprets it, "caution[s] the Unit

against relying exclusively on apprehended threats." J.A. 60

(explaining that "failure to meet [the apprehended threat] cri-

terion is not dispositive"). So, the Permit Unit examines such

factors as

1

Citations herein to "J.A. __" refer to the contents of the Joint Appendix

filed by the parties in this appeal.

10 WOOLLARD v. GALLAGHER

(1) the "nearness" or likelihood of a threat or pre-

sumed threat; (2) whether the threat can be verified;

(3) whether the threat is particular to the applicant,

as opposed to the average citizen; (4) if the threat

can be presumed to exist, what is the basis for the

presumption; and (5) the length of time since the ini-

tial threat occurred.

Id. The Permit Unit treats those factors as nonexhaustive,

however, and "takes the applicant’s entire situation into

account when considering whether a ‘good and substantial

reason’ exists." Id.

An initial handgun permit "expires on the last day of the

holder’s birth month following 2 years after the date the per-

mit is issued," and "may be renewed for successive periods of

3 years each if, at the time of an application for renewal, the

applicant possesses the qualifications for the issuance of a

permit." Md. Code Ann., Pub. Safety § 5-309(a)-(b). An

applicant denied a permit may request informal review by the

Secretary or immediately appeal to the Handgun Permit

Review Board appointed by the Governor. Id. §§ 5-301(b), 5-

302(b), 5-311, 5-312. In the event the appeal is denied by the

Permit Review Board, an applicant may seek further review

in the Maryland state courts. Id. § 5-312(e).

B.

On July 29, 2010, Raymond Woollard and the Second

Amendment Foundation, Inc. (together, the "Appellees"), ini-

tiated this action in the District of Maryland pursuant to 42

U.S.C. § 1983, asserting, inter alia, that Maryland’s good-and-

substantial-reason requirement for obtaining a handgun permit

contravenes the Second Amendment. The Appellees’ Com-

plaint, as well as their subsequent Amended Complaint of

January 19, 2011, named the Secretary as a defendant,

WOOLLARD v. GALLAGHER 11

together with three members of the Handgun Permit Review

Board (collectively, the "State").2

Adjudicating the parties’ cross-motions for summary judg-

ment, the district court explained that this action was

prompted by the State’s denial in 2009 of Appellee Wool-

lard’s request for a second renewal of a handgun permit origi-

nally granted in 2003 and renewed in 2006. See Woollard,

863 F. Supp. 2d at 465-66. Woollard, who resides on a farm

in a remote part of Baltimore County, had obtained the permit

after a harrowing home invasion:

On Christmas Eve, 2002, Woollard was at home

with his wife, children, and grandchildren when an

intruder shattered a window and broke into the

house. The intruder was Kris Lee Abbott, Wool-

lard’s son-in-law. Abbott, who was high on drugs

and intent on driving into Baltimore city to buy

more, was looking for his wife’s car keys. Woollard

grabbed a shotgun and trained it on Abbott, but

Abbott wrested the shotgun away. Woollard’s son

restored order by pointing a second gun at Abbott.

Woollard’s wife called the police, who took two-

and-a-half hours to arrive.

Id. at 465. Abbott, the son-in-law, received a sentence of pro-

bation for the Christmas Eve 2002 incident, but was subse-

quently incarcerated for probation violations. Id. Woollard’s

2006 permit renewal came shortly after Abbott was released

from prison. Id. In 2009, however, the Secretary (via the

Handgun Permit Unit) and the Handgun Permit Review Board

refused Woollard a second renewal because he failed to sat-

isfy the good-and-substantial-reason requirement. Id. at 465-

66.

2

The then-Secretary and Superintendent of the Maryland State Police,

Terrence Sheridan, has since been replaced by Marcus L. Brown. The

defendant members of the Handgun Permit Review Board are Denis Gal-

lagher, Seymour Goldstein, and Charles M. Thomas, Jr.

12 WOOLLARD v. GALLAGHER

The Handgun Permit Review Board’s decision of Novem-

ber 12, 2009, reflected that Woollard proffered solely the

Christmas Eve 2002 incident in support of his request for a

second renewal — i.e., as evidence that such a renewal was

necessary as a reasonable precaution against apprehended

danger — though he acknowledged that he had "not had any

contact with his son-in-law [in the seven years since the 2002

incident]." J.A. 15. The decision also observed that, despite

being advised that such proof was required in the circum-

stances of his renewal application, Woollard did not "submit

documented threats or incidents that had occurred in the last

three years," nor did he provide "documentation to verify

threats occurring beyond his residence, where he can already

legally carry a handgun." Id. Accordingly, the Permit Review

Board concluded that Woollard had "not demonstrated a good

and substantial reason to wear, carry, or transport a handgun

as a reasonable precaution against apprehended danger," and

upheld the Permit Unit’s denial of a second permit renewal.

Id. at 16. Instead of employing the state court appeal process

provided by Maryland law, Woollard elected to join with

Appellee Second Amendment Foundation in this federal

action, challenging the constitutionality of the good-and-

substantial-reason requirement and asserting jurisdiction

under 28 U.S.C. §§ 1331 and 1343.3

3

Before it disposed of the parties’ cross-motions for summary judgment,

the district court denied the State’s motion to dismiss the Second Amend-

ment Foundation for lack of standing and to dismiss the Appellees’ consti-

tutional claims under the abstention doctrine articulated in Younger v.

Harris, 401 U.S. 37 (1971), and its progeny. See Woollard v. Sheridan,

No. 1:10-cv-02068, slip op. at 1 n.1 (D. Md. Dec. 29, 2010), ECF No. 16

(explaining that, because Woollard had standing to bring a facial challenge

and only injunctive and declaratory relief was sought, there was no need

to "‘consider whether [the Second Amendment Foundation also had]

standing to maintain the suit’" (quoting Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 264 n.9 (1977))); id. at 9 (summa-

rizing that "there is no ongoing state proceeding that warrants abstention

under the Younger doctrine"). On appeal, the State does not contest, and

we do not disturb, the court’s rulings on the standing and Younger absten-

tion issues.

WOOLLARD v. GALLAGHER 13

The district court credited the Appellees’ claim that the

good-and-substantial-reason requirement is facially violative

of the Second Amendment, and thus that Woollard, "separate

and apart from any concern he may have regarding Abbott,"

is entitled "to wear and carry a handgun for general self-

defense." See Woollard, 863 F. Supp. 2d at 466. In so ruling,

the district court "br[oke] ground that our superiors have not

tread," proclaiming that the Second Amendment right recog-

nized by the Supreme Court in District of Columbia v. Heller,

554 U.S. 570 (2008) — the right of individuals to possess and

carry firearms in case of confrontation — is a right that

extends beyond the home. See United States v. Masciandaro,

638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., writing for

the Court as to Part III.B) (recognizing that the Supreme

Court left open "the question of Heller’s applicability outside

the home environment").

Notably, the district court gave considerable attention to

our Masciandaro decision. There, Masciandaro challenged his

conviction of carrying or possessing a loaded handgun in a

motor vehicle within a national park area, in contravention of

since-superseded 36 C.F.R. § 2.4(b), on the ground that the

Second Amendment, as construed in Heller, "guaranteed to

him the right to possess and carry weapons in case of confron-

tation and thus protected him from prosecution under § 2.4(b)

for exercising that right in a national park area." Mascian-

daro, 638 F.3d at 465. Judge Niemeyer, writing only for him-

self, posited that "there is a plausible reading of Heller that

the Second Amendment provides [a right to possess a loaded

handgun for self-defense outside the home], at least in some

form." Id. at 467 (Niemeyer, J., writing separately on this Part

III.B). Judge Wilkinson wrote for the majority of the three-

judge panel, however, that it was "unnecessary to explore in

[Masciandaro’s] case the question of whether and to what

extent the Second Amendment right recognized in Heller

applies outside the home" — rendering it the prudent and

respectful course "to await direction from the [Supreme]

Court itself." Id. at 474, 475 (Wilkinson, J., writing for the

14 WOOLLARD v. GALLAGHER

Court as to Part III.B). That was so because the panel mem-

bers unanimously agreed, by Judge Niemeyer’s opinion for

the Court, that even assuming the Heller right extended

beyond the home, § 2.4(b) "pass[ed] constitutional muster

under the [applicable] standard": intermediate scrutiny. Id. at

473.

In the present case, although the district court acknowl-

edged "Judge Wilkinson’s admonition that one should venture

into the unmapped reaches of Second Amendment jurispru-

dence ‘only upon necessity and only then by small degree,’"

the court deemed itself obliged "to determine whether Mary-

land’s broad restriction on handgun possession outside the

home burdens any Second Amendment right at all." Wool-

lard, 863 F. Supp. 2d at 469 (quoting Masciandaro, 638 F.3d

at 475 (Wilkinson, J., writing for the Court as to Part III.B)).

Guided by Judge Niemeyer’s separate opinion in Mascian-

daro, as well as so-called "signposts" left by Heller and other

recent precedent, the district court concluded that the individ-

ual right to possess and carry weapons for self-defense is not

limited to the home. See id. at 469-71. Purporting to apply

intermediate scrutiny, the court then recognized that the good-

and-substantial-reason requirement is undergirded by a sub-

stantial governmental interest in protecting public safety and

preventing crime, but determined that "[t]he Maryland stat-

ute’s failure lies in the overly broad means by which it seeks

to advance this undoubtedly legitimate end." Id. at 474; see

also id. at 476 ("find[ing] that Maryland’s requirement of a

‘good and substantial reason’ for issuance of a handgun per-

mit is insufficiently tailored to the State’s interest in public

safety and crime prevention," and "impermissibly infringes

the right to keep and bear arms").4

4

In its opinion, the district court did not embrace every theory advanced

by the Appellees in their attack on Maryland’s good-and-substantial-

reason requirement. The court rejected the Appellees’ contention that the

good-and-substantial-reason requirement amounts to an unconstitutional

prior restraint on the exercise of Second Amendment rights. See Woollard,

WOOLLARD v. GALLAGHER 15

The district court thus awarded summary judgment to the

Appellees, see Woollard v. Sheridan, No. 1:10-cv-02068 (D.

Md. Mar. 2, 2012), ECF No. 53, and permanently enjoined

enforcement of the good-and-substantial-reason requirement,

see Woollard v. Brown, No. 1:10-cv-02068 (D. Md. Mar. 30,

2012), ECF No. 63. After the State noted this appeal, the dis-

trict court dissolved a preliminary stay of its judgment and

denied the State’s request for a stay pending appeal. See

Woollard v. Brown, No. 1:10-cv-02068 (D. Md. July 23,

2012), ECF No. 72. Nevertheless, on August 1, 2012, we

entered our own stay pending appeal and expedited the appel-

late proceedings, over which we possess jurisdiction pursuant

to 28 U.S.C. § 1291.

II.

We review de novo a district court’s award of summary

judgment, viewing the facts and inferences reasonably drawn

therefrom in the light most favorable to the nonmoving party.

863 F. Supp. 2d at 472 (expressing doubt that First Amendment prior

restraint analysis applies to Second Amendment claim, and, in any event,

"reject[ing] Woollard’s assertion that Maryland’s permitting scheme vests

officials with unbridled discretion as regards its application"). Addition-

ally, the court would not allow the Appellees to rely on the Equal Protec-

tion Clause of the Fourteenth Amendment as a separate means of attack

on the good-and-substantial-reason requirement. In that regard, the court

reasoned that, having awarded the Appellees relief under the Second

Amendment, there was "no need to venture further into unmapped terri-

tory by determining whether or not Maryland’s permitting scheme would

also be unconstitutional [under the Fourteenth Amendment]." Id. at 475.

The court further recognized that it need not entertain the Appellees’ equal

protection claim because it was essentially a restatement of their Second

Amendment claim, and had been asserted "to obtain review under a more

stringent standard than [intermediate scrutiny]." Id. at 475-76. As the court

explained, "to accept [the Appellees’ equal protection] theory would be to

erase, in one broad stroke, the careful and sensible distinctions that the

Fourth Circuit and other courts have drawn between core and non-core

Second Amendment protections and to ignore the principle that differing

levels of scrutiny are appropriate to each." Id. at 476.

16 WOOLLARD v. GALLAGHER

See FOP Lodge No. 89 v. Prince George’s Cnty., 608 F.3d

183, 188 (4th Cir. 2010). Summary judgment is appropriate

only if the record shows "that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(a).

Consistently with the summary judgment standard, our

review of a decision granting an injunction is de novo where

the contested issue is a question of law. See Bacon v. City of

Richmond, 475 F.3d 633, 638 (4th Cir. 2007). That is,

although "decisions pertaining to injunctive relief normally

are reviewed solely for abuse of discretion in applying the

injunction standard, we review such a decision de novo where

it rests solely on a premise as to the applicable rule of law,

and the facts are established or of no controlling relevance."

Va. Carolina Tools, Inc. v. Int’l Tool Supply, Inc., 984 F.2d

113, 116 (4th Cir. 1993) (citations and internal quotation

marks omitted).

III.

A.

In the familiar words of the Second Amendment, "[a] well

regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not

be infringed." U.S. Const. amend. II. We now know, in the

wake of the Supreme Court’s decision in District of Columbia

v. Heller, that the Second Amendment guarantees the right of

individuals to keep and bear arms for the purpose of self-

defense. See 554 U.S. 570, 592 (2008). Heller, however, was

principally concerned with the "core protection" of the Sec-

ond Amendment: "the right of law-abiding, responsible citi-

zens to use arms in defense of hearth and home." Id. at 634-

35. The Heller Court concluded that the District of Colum-

bia’s outright ban on the possession of an operable handgun

in the home — proscribing "the most preferred firearm in the

nation to keep and use for protection of one’s home and fam-

WOOLLARD v. GALLAGHER 17

ily" — would fail to pass muster "[u]nder any of the standards

of scrutiny that we have applied to enumerated constitutional

rights." Id. at 628-29 (internal quotation marks omitted). Oth-

erwise, the Court recognized that "the right secured by the

Second Amendment is not unlimited" and listed examples of

"presumptively lawful regulatory measures," but declined to

"clarify the entire field" of Second Amendment jurisprudence.

See id. at 626-27 & n.26, 635.

Two years after issuing its Heller decision, in McDonald v.

City of Chicago, 130 S. Ct. 3020 (2010), the Supreme Court

considered the constitutionality of municipal bans in Chicago

and one of its suburbs on the possession of handguns in the

home. On account of the similarities between those bans and

the District of Columbia prohibition struck down in Heller,

the McDonald defendants were left to "argue that their laws

are constitutional because the Second Amendment has no

application to the States." See McDonald, 130 S. Ct. at 3026.

The Court recognized, however, that "the Second Amendment

right is fully applicable to the States," and reiterated Heller’s

holding "that the Second Amendment protects the right to

possess a handgun in the home for the purpose of self-

defense." Id. at 3026, 3050. Accordingly, "a considerable

degree of uncertainty remains as to the scope of [the Heller]

right beyond the home and the standards for determining

whether and how the right can be burdened by governmental

regulation." United States v. Masciandaro, 638 F.3d 458, 467

(4th Cir. 2011); see also Kachalsky v. County of Westchester,

701 F.3d 81, 89 (2d Cir. 2012) ("What we know from [Heller

and McDonald] is that Second Amendment guarantees are at

their zenith within the home. What we do not know is the

scope of that right beyond the home and the standards for

determining when and how the right can be regulated by a

government." (citation omitted)).

Like several of our sister circuits, we have found that "a

two-part approach to Second Amendment claims seems

appropriate under Heller." See United States v. Chester, 628

18 WOOLLARD v. GALLAGHER

F.3d 673, 680 (4th Cir. 2010) (citing United States v. Marzza-

rella, 614 F.3d 85, 89 (3d Cir. 2010)); see also Nat’l Rifle

Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms,

& Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United

States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller

v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir.

2011); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th

Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01

(10th Cir. 2010). Pursuant to our two-part Chester inquiry,

[t]he first question is whether the challenged law

imposes a burden on conduct falling within the scope

of the Second Amendment’s guarantee. This histori-

cal inquiry seeks to determine whether the conduct

at issue was understood to be within the scope of the

right at the time of ratification. If it was not, then the

challenged law is valid. If the challenged regulation

burdens conduct that was within the scope of the

Second Amendment as historically understood, then

we move to the second step of applying an appropri-

ate form of means-end scrutiny.

628 F.3d at 680 (citations and internal quotation marks omit-

ted).

As we have recognized, however, we are not obliged to

impart a definitive ruling at the first step of the Chester

inquiry. And indeed, we and other courts of appeals have

sometimes deemed it prudent to instead resolve post-Heller

challenges to firearm prohibitions at the second step —

including where the challenge focuses on an outside-the-home

prohibition. Masciandaro is just one example of such an inci-

dence. See also, e.g., Nat’l Rifle Ass’n of Am., 700 F.3d at 204

("Although we are inclined to uphold the challenged federal

laws [banning the sale of firearms to persons under the age of

twenty-one] at step one of our analytical framework, in an

abundance of caution, we proceed to step two. We ultimately

conclude that the challenged federal laws pass constitutional

WOOLLARD v. GALLAGHER 19

muster even if they implicate the Second Amendment guaran-

tee."); United States v. Mahin, 668 F.3d 119, 123-24 (4th Cir.

2012) (declining Mahin’s invitation to "recognize that Second

Amendment protections apply outside the home and extend to

persons subject to domestic protective orders," because we

could assume Mahin "engaged in activity which implicates

the Second Amendment" and yet "uphold [his] conviction").

But cf. Kachalsky, 701 F.3d at 89 ("Although the Supreme

Court’s cases applying the Second Amendment have arisen

only in connection with prohibitions on the possession of fire-

arms in the home, the Court’s analysis suggests[ ] . . . that the

Amendment must have some application in the very different

context of the public possession of firearms. Our analysis pro-

ceeds on this assumption." (footnote omitted)).5

5

As the Appellees would have it, our Court recently confirmed in

United States v. Black that the Second Amendment guarantees the right to

carry firearms in public for self-protection. See No. 11-5084, slip op. at 13

(4th Cir. Feb. 25, 2013). There, we ruled that North Carolina police offi-

cers’ investigatory detention of Black, along with five other men (includ-

ing Troupe), was not justified by Troupe’s lawful display of a firearm in

public. The thrust of Black is that "where a state permits individuals to

openly carry firearms, the exercise of this right, without more, cannot jus-

tify an investigatory detention." Id. Additionally, Black advises — but

only in passing — that "even if the officers were justified in detaining

Troupe for exercising his constitutional right to bear arms, reasonable sus-

picion as to Troupe does not amount to, and is not particularized as to

Black." Id. That dicta is the basis for the Appellees’ contention that Black

proclaims the Second Amendment to have force outside the home. Black,

however, can hardly be said to make such a momentous pronouncement.

Of course, in addition to the district court herein, a handful of courts —

most prominently the Seventh Circuit — have declared outright that the

Heller right extends beyond the home. See Moore v. Madigan, 702 F.3d

933, 942 (7th Cir. 2012) ("The Supreme Court has decided that the

amendment confers a right to bear arms for self-defense, which is as

important outside the home as inside."); see also, e.g., Bateman v. Perdue,

881 F. Supp. 2d 709, 714 (E.D.N.C. 2012) ("Although considerable uncer-

tainty exists regarding the scope of the Second Amendment right to keep

and bear arms, it undoubtedly is not limited to the confines of the home.");

United States v. Weaver, No. 2:09-cr-00222, 2012 WL 727488, at *4 (S.D.

W. Va. Mar. 6, 2012) ("While it is true that the Fourth Circuit has so far

20 WOOLLARD v. GALLAGHER

We hew to a judicious course today, refraining from any

assessment of whether Maryland’s good-and-substantial-

reason requirement for obtaining a handgun permit implicates

Second Amendment protections. That is, we merely assume

that the Heller right exists outside the home and that such

right of Appellee Woollard has been infringed. We are free to

make that assumption because the good-and-substantial-

reason requirement passes constitutional muster under what

we have deemed to be the applicable standard — intermediate

scrutiny.

B.

In Masciandaro, we announced that intermediate scrutiny

applies "to laws that burden [any] right to keep and bear arms

outside of the home." See 638 F.3d at 470-71 (explaining that

"we assume that any law that would burden the ‘fundamen-

tal,’ core right of self-defense in the home by a law-abiding

citizen would be subject to strict scrutiny. But, as we move

outside the home, firearm rights have always been more lim-

ited, because public safety interests often outweigh individual

interests in self-defense"); accord Kachalsky, 701 F.3d at 96

("Because our tradition so clearly indicates a substantial role

for state regulation of the carrying of firearms in public, we

stopped short of expressly recognizing a Second Amendment right to keep

and bear arms outside the home, this Court has no such hesitation." (foot-

note omitted)).

Other courts have ruled to the contrary, concluding that the Heller right

is confined to the home. Notably, Maryland’s highest court falls within the

latter category. See Williams v. State, 10 A.3d 1167, 1169 (Md. 2011)

("hold[ing] that Section 4-203(a)(1)(i) of the Criminal Law Article [of the

Maryland Code], which prohibits wearing, carrying, or transporting a

handgun, without a permit and outside of one’s home, is outside the scope

of the Second Amendment"). On a related note, the Tenth Circuit recently

held "that the carrying of concealed firearms is not protected by the Sec-

ond Amendment." Peterson v. Martinez, No. 11-1149, slip op. at 4 (10th

Cir. Feb. 22, 2013).

WOOLLARD v. GALLAGHER 21

conclude that intermediate scrutiny is appropriate in this

case."). As explained herein, the State has satisfied the inter-

mediate scrutiny standard, in that it has demonstrated that the

good-and-substantial-reason requirement for obtaining a

Maryland handgun permit, as applied to Appellee Woollard,

"is reasonably adapted to a substantial governmental interest."

See Masciandaro, 638 F.3d at 471.

1.

We begin with the issue of whether the governmental inter-

est asserted by the State constitutes a "substantial" one. The

State explains that, by enacting the handgun permitting

scheme, including the good-and-substantial-reason require-

ment, the General Assembly endeavored to serve Maryland’s

concomitant interests in protecting public safety and prevent-

ing crime — particularly violent crime committed with hand-

guns. Such purpose is reflected in codified legislative findings

that

(1) the number of violent crimes committed in the

State has increased alarmingly in recent years;

(2) a high percentage of violent crimes committed in

the State involves the use of handguns;

(3) the result is a substantial increase in the number

of deaths and injuries largely traceable to the carry-

ing of handguns in public places by criminals;

(4) current law has not been effective in curbing the

more frequent use of handguns in committing crime;

and

(5) additional regulations on the wearing, carrying,

and transporting of handguns are necessary to pre-

serve the peace and tranquility of the State and to

protect the rights and liberties of the public.

22 WOOLLARD v. GALLAGHER

Md. Code Ann., Crim. Law § 4-202. The language of those

findings, adopted in 2002, was derived without substantive

change from former article 27, section 36B(a) of the Mary-

land Code, which dates back to 1972.

The General Assembly’s findings are buttressed by more

recent evidence proffered by the State in these proceedings.6

The State’s evidence reflects that, although there has been "a

significant improvement over past violent crime, homicide,

and robbery totals," Maryland had the "eighth highest violent

crime rate," "the third highest homicide rate," and "the second

highest robbery rate of any state in 2009." J.A. 116. Over the

course of that year, "97.4% of all homicides by firearm were

committed with handguns," and handguns were "the weapon

of choice" for robberies and carjackings. Id. at 116-17; see

also id. at 110 (explaining that "[h]andguns are the weapon of

choice for criminal activity in Baltimore because they are

small, relatively lightweight, easy to carry and conceal, easy

to load and fire, deadly at short range, and ideal for surprise

attacks"). Furthermore, handguns have persisted as "the larg-

est threat to the lives of Maryland’s law enforcement offi-

cers." Id. at 117 (recounting that, "of the 158 Maryland law

enforcement officers who have died in the line of duty from

non-vehicular, non-natural causes, 132 — or 83.5% — died

as the result of intentional gunfire, usually from a handgun").

In these circumstances, we can easily appreciate Mary-

land’s impetus to enact measures aimed at protecting public

safety and preventing crime, and we readily conclude that

such objectives are substantial governmental interests. See,

6

In relevant part, the State’s evidence consists of the March 18, 2011

declaration of Frederick H. Bealefeld III, then-Commissioner of the Balti-

more Police Department, see J.A. 108-14; the March 17, 2011 declaration

of Terrence Sheridan, then-Secretary and Superintendent of the Maryland

State Police, see id. at 115-25; and the March 18, 2011 declaration of

James W. Johnson, Chief of the Baltimore County Police Department, see

id. at 126-34. Between them, Bealefeld, Sheridan, and Johnson have

amassed more than 100 years of law enforcement experience in Maryland.

WOOLLARD v. GALLAGHER 23

e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.

357, 376 (1997) (referring to "the significant governmental

interest in public safety"); United States v. Salerno, 481 U.S.

739, 750 (1987) (characterizing "the Government’s general

interest in preventing crime" as "compelling"); United States

v. Chapman, 666 F.3d 220, 227 (4th Cir. 2012) (relying on

Schenck and Salerno in holding "that reducing domestic gun

violence is a substantial governmental objective"); Mascian-

daro, 638 F.3d at 473 (same in concluding that "the govern-

ment has a substantial interest in providing for the safety of

individuals who visit and make use of the national parks").

The district court itself recognized that, "[b]eyond peradven-

ture, public safety and the prevention of crime are substantial,

indeed compelling, government interests." Woollard, 863 F.

Supp. 2d at 473.

For their part, the Appellees concede that "a compelling

government interest in public safety" generally exists, but

they maintain "that no legitimate government interest is at

stake" here, because the State "cannot have an interest in sup-

pressing a fundamental right" — including what the Appel-

lees assert, and we assume, is the Second Amendment right

of law-abiding, responsible citizens to carry handguns in pub-

lic for the purpose of self-defense. See Br. of Appellees 61-

62; see also McDonald, 130 S. Ct. at 3042 (declaring "that the

Framers and ratifiers of the Fourteenth Amendment counted

the right to keep and bear arms among those fundamental

rights necessary to our system of ordered liberty").7 The

7

To be clear, the Appellees contest solely the restriction on the public

carrying of handguns wrought by the good-and-substantial-reason require-

ment, without challenging any "other aspect of Maryland’s regulatory

scheme governing the right to carry handguns." Br. of Appellees 1. They

also acknowledge that, included in the Heller Court’s examples of "pre-

sumptively lawful regulatory measures," are "laws forbidding the carrying

of firearms in sensitive places such as schools and government buildings."

Heller, 554 U.S. at 626-27 & n.26; see Br. of Appellees 35. Accordingly,

the crux of Appellees’ argument is that, once an applicant satisfies the

criteria other than the good-and-substantial-reason requirement, he has a

right to obtain a Maryland handgun permit with all of the privileges that

permit entails, subject to lawful restrictions on carrying firearms in certain

public locations.

24 WOOLLARD v. GALLAGHER

Appellees would have us place the right to arm oneself in

public on equal footing with the right to arm oneself at home,

necessitating that we apply strict scrutiny in our review of the

good-and-substantial-reason requirement.

Unfortunately for the Appellees, their argument is fore-

closed by our precedent. First, in Chester, we rejected the

proposition that we must "apply strict scrutiny whenever a

law impinges upon a [fundamental] right." 628 F.3d at 682

(employing intermediate, rather than strict, scrutiny in Ches-

ter’s Second Amendment challenge to ban on firearm posses-

sion by domestic violence misdemeanants). Then, ruling in

Masciandaro that intermediate scrutiny applies to laws bur-

dening the assumed right to carry firearms in public, we

recognized a "longstanding out-of-the-home/in-the-home dis-

tinction bear[ing] directly on the level of scrutiny applicable."

638 F.3d at 470. The Appellees therefore do not dissuade us

from applying intermediate scrutiny, or from concluding that

Maryland’s interests in protecting public safety and prevent-

ing crime satisfy the "significant governmental interest"

aspect of the intermediate scrutiny standard.8

2.

We thus turn to the question of whether the good-and-

substantial-reason requirement, as applied to Appellee Wool-

lard, is "reasonably adapted" to Maryland’s significant inter-

ests. That is, we must decide if the State has demonstrated

that there is a "reasonable fit" between the good-and-

8

While the Appellees suggest that Masciandaro wrongly decided that

intermediate scrutiny applies to restrictions on the carrying of firearms

outside the home, see Br. of Appellees 59-61, the State contrarily asserts,

for purposes of preserving the issue for further appeal, that a "reasonable

regulation" standard would be more appropriate, see Br. of Appellants 39

n.8. We are bound, however, to follow Masciandaro. See McMellon v.

United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc) (recognizing

"the basic principle that one panel cannot overrule a decision issued by

another panel").

WOOLLARD v. GALLAGHER 25

substantial-reason requirement and the governmental objec-

tives of protecting public safety and preventing crime. See

Chester, 628 F.3d at 683. Importantly, the State must show a

fit that is "‘reasonable, not perfect.’" United States v. Carter,

669 F.3d 411, 417 (4th Cir. 2012) (quoting Marzzarella, 614

F.3d at 98). That test is satisfied if Maryland’s interests are

"substantially served by enforcement of the" good-and-

substantial-reason requirement. See id. There is no necessity

either that the good-and-substantial-reason requirement "be

the least intrusive means of achieving the relevant govern-

ment objective[s], or that there be no burden whatsoever on"

Woollard’s Second Amendment right. See Masciandaro, 638

F.3d at 474.

a.

At the outset of our reasonable fit inquiry, we must con-

sider the precise contours of Maryland’s handgun permitting

scheme. See Chapman, 666 F.3d at 227 (citing United States

v. Staten, 666 F.3d 154, 162 (4th Cir. 2011)). Under that

scheme, even without a permit, Woollard may wear, carry,

and transport handguns not only in his own home and on his

personal and business properties, but also in many public

places. See Md. Code Ann., Crim. Law § 4-203(b). For exam-

ple, Woollard may move handguns to and from bona fide

repair shops and places of legal purchase and sale. Id. § 4-

203(b)(3). Woollard may also wear, carry, and transport hand-

guns if he engages in target shoots and practices, sport shoot-

ing events, hunting and trapping, specified firearms and

hunter safety classes, and gun exhibitions. Id. § 4-203(b)(4)-

(5).

Nevertheless, absent "good and substantial reason" to do

so, Woollard cannot carry handguns in other public places

where a permit is mandated. See Md. Code Ann., Pub. Safety

§ 5-306(a)(5)(ii). Woollard could satisfy the good-and-

substantial-reason requirement by showing that he needs a

permit for business activities, or because he is engaged in a

26 WOOLLARD v. GALLAGHER

regulated profession such as security guard or an assumed-

risk profession such as correctional officer. See J.A. 57-58.

Otherwise, Woollard could prove what he failed to substanti-

ate in 2009: that a "permit is necessary as a reasonable pre-

caution against apprehended danger." Md. Code Ann., Pub.

Safety § 5-306(a)(5)(ii).

The State has clearly demonstrated that the good-and-

substantial-reason requirement advances the objectives of pro-

tecting public safety and preventing crime because it reduces

the number of handguns carried in public. That is, limiting the

public carrying of handguns protects citizens and inhibits

crime by, inter alia:

• Decreasing the availability of handguns to crimi-

nals via theft, see J.A. 111 (explaining that crimi-

nals often target victims "precisely because they

possess handguns," and that Baltimore police

have "frequently investigated homicides and rob-

beries where it appears that one, if not the pri-

mary, goal of the attacker was to deprive the

victim of his handgun or other weapons"); see

also id. at 119-20 ("[C]riminals in Maryland are

constantly looking for ways to arm themselves

with handguns, including by stealing them from

others. It is not uncommon for criminals to obtain

these guns during street altercations.");

• Lessening "the likelihood that basic confronta-

tions between individuals would turn deadly," id.

at 112 ("The presence of a handgun in an alterca-

tion, however petty, greatly increases the likeli-

hood that it will escalate into potentially lethal

violence."); see also id. at 132 ("Incidents such as

bar fights and road rage that now often end with

people upset, but not lethally wounded, take on

deadly implications when handguns are

involved.");

WOOLLARD v. GALLAGHER 27

• Averting the confusion, along with the "poten-

tially tragic consequences" thereof, that can result

from the presence of a third person with a hand-

gun during a confrontation between a police offi-

cer and a criminal suspect, id. at 113 ("In [such]

a confrontation . . . , an additional person bearing

a gun might cause confusion as to which side of

the confrontation the person is on, which could

lead to hesitation by the police officer and the

potential for innocent victims, including the per-

mit holder, innocent bystanders, and police offi-

cers."); see also id. at 128 ("[C]ivilians without

sufficient training to use and maintain control of

their weapons, particularly under tense circum-

stances, pose a danger to officers and other civil-

ians.");

• Curtailing the presence of handguns during rou-

tine police-citizen encounters, id. at 131 ("If the

number of legal handguns on the streets increased

significantly, [police] officers would have no

choice but to take extra precautions before engag-

ing citizens, effectively treating encounters

between police and the community that now are

routine, friendly, and trusting, as high-risk stops,

which demand a much more rigid protocol and a

strategic approach.");

• Reducing the number of "handgun sightings" that

must be investigated, id. ("Increasing the number

of people legally carrying handguns in the streets

will also force [police] officers to spend more

resources responding to reports about handgun

sightings and engaging handgun carriers to

ensure they are doing so lawfully."); and

• Facilitating the identification of those persons

carrying handguns who pose a menace, id. at 113

28 WOOLLARD v. GALLAGHER

("Police officers would also have a harder time

identifying potential security risks if more people

without good and substantial reason to carry a

handgun were able to do so, making it more diffi-

cult to respond when necessary.").

At the same time that it reduces the number of handguns

carried in public, however, the good-and-substantial-reason

requirement ensures that those persons in palpable need of

self-protection can arm themselves in public places where

Maryland’s various permit exceptions do not apply. Conse-

quently, according to the State, the good-and-substantial-

reason requirement "strikes a proper balance between ensur-

ing access to handgun permits for those who need them while

preventing a greater-than-necessary proliferation of handguns

in public places that . . . increases risks to public safety." J.A.

113.9

b.

We are convinced by the State’s evidence that there is a

9

The Appellees take issue with the State’s contention that allowing

fewer handguns on the streets facilitates the identification of those persons

carrying handguns who pose a security risk. The Appellees characterize

the State’s position as being that the good-and-substantial-reason require-

ment’s curtailment of the public carrying of handguns affords the police

"pretext" to detain handgun carriers on the streets. See Br. of Appellees

66. Having so characterized the State’s position, the Appellees then accuse

the State of having "low regard not only for the Second Amendment, but

the Fourth as well, which condemns pretextual searches and seizures." Id.;

see also United States v. Black, No. 11-5084, slip op. at 13 (4th Cir. Feb.

25, 2013) (recognizing that "where a state permits individuals to openly

carry firearms, the exercise of this right, without more, cannot justify an

investigatory detention"), discussed supra note 5. The State simply has not

professed, however, that the police may detain handgun carriers without

regard for their Fourth Amendment rights. Accordingly, there is no genu-

ine dispute as to any material fact that would render it inappropriate to dis-

pose of this matter on the parties’ cross-motions for summary judgment.

See Fed. R. Civ. P. 56(a).

WOOLLARD v. GALLAGHER 29

reasonable fit between the good-and-substantial-reason

requirement and Maryland’s objectives of protecting public

safety and preventing crime. In this regard, we find ourselves

in agreement with much of the Second Circuit’s recent deci-

sion in Kachalsky, rejecting the theory that New York’s hand-

gun licensing scheme violates the Second Amendment by

requiring an applicant to demonstrate "proper cause" — i.e.,

a special need for self-protection — as a prerequisite for a

license to carry a concealed handgun in public. See 701 F.3d

at 83-84. We specifically subscribe to the Kachalsky court’s

analysis that New York’s proper-cause requirement "is ori-

ented to the Second Amendment’s protections," and consti-

tutes "a more moderate approach" to protecting public safety

and preventing crime than a wholesale ban on the public car-

rying of handguns. See id. at 98-99. The same must be said

of Maryland’s comparable good-and-substantial-reason

requirement.10

The good-and-substantial-reason requirement was inappro-

priately condemned by the district court for being a "rationing

system," that "does no more to combat [threats to public

10

The contrast between New York’s (and Maryland’s) "moderate

approach" and a wholesale ban on the public carrying of firearms is under-

scored by the Seventh Circuit’s recent decision in Moore v. Madigan. See

702 F.3d 933, 940, 942 (7th Cir. 2012) (declaring unconstitutional Illi-

nois’s "flat ban on carrying ready-to-use guns outside the home," but stay-

ing the mandate "to allow the Illinois legislature to craft a new gun law

that will impose reasonable limitations"), discussed supra note 5. Writing

for Moore’s panel majority, Judge Posner distinguished the Illinois prohi-

bition from "[t]he [less-restrictive] New York gun law upheld in Kachal-

sky." 702 F.3d at 941. Thereafter, when rehearing en banc was denied on

a 5-4 vote, the four non-prevailing judges joined in a dissent alerting the

Illinois legislature that the panel majority left "a good deal of constitu-

tional room for reasonable public safety measures concerning public car-

rying of firearms," including a measure along the lines of "New York’s

state law requiring ‘proper cause’ for issuance of a permit to carry a gun."

Moore v. Madigan, No. 12-1269(L), slip op. at 6 (7th Cir. Feb. 22, 2013)

(Hamilton, J., dissenting from the denial of rehearing en banc) (citing

Kachalsky).

30 WOOLLARD v. GALLAGHER

safety] than would a law indiscriminately limiting the issu-

ance of a permit to every tenth applicant." See Woollard, 863

F. Supp. 2d at 474. The court pointed out, inter alia, that the

good-and-substantial-reason requirement "will not prevent

those who meet it from having their guns taken from them."

Id. The Appellees have added that, because "[c]rime is largely

random and unpredictable," the State is "plainly incapable of

predicting who might be victimized and thus have more prac-

tical use for firearms." Br. of Appellees 68. Additionally, the

Appellees have suggested that a "shall-issue" regime, increas-

ing the number of law-abiding handgun carriers, would more

effectively protect public safety and prevent crime than does

Maryland’s current permitting scheme. See id. at 63. But we

cannot substitute those views for the considered judgment of

the General Assembly that the good-and-substantial-reason

requirement strikes an appropriate balance between granting

handgun permits to those persons known to be in need of self-

protection and precluding a dangerous proliferation of hand-

guns on the streets of Maryland. See Kachalsky, 701 F.3d at

100 ("New York determined that limiting handgun possession

to persons who have an articulable basis for believing they

will need the weapon for self-defense is in the best interest of

public safety and outweighs the need to have a handgun for

an unexpected confrontation.").

As the Second Circuit recognized in Kachalsky, "[i]t is the

legislature’s job, not ours, to weigh conflicting evidence and

make policy judgments." 701 F.3d at 99. The duty of the

courts is to ensure that the legislature’s policy choice substan-

tially serves a significant governmental interest. That is, the

courts must be satisfied that there is a reasonable fit between

the legislative policy choice and the governmental objective.

See Staten, 666 F.3d at 167 (reiterating that "[i]ntermediate

scrutiny does not require a perfect fit; rather only a reasonable

one").

Thus, the district court was also wrong to denounce the

good-and-substantial-reason requirement’s failure to single-

WOOLLARD v. GALLAGHER 31

handedly safeguard the public from every handgun-related

hazard. The court expressly faulted the good-and-substantial-

reason requirement for not "ensuring that guns are kept out of

the hands of those adjudged most likely to misuse them, such

as criminals[,] the mentally ill," or "anyone whose conduct

indicates that he or she is potentially a danger to the public if

entrusted with a handgun"; for not "ban[ning] handguns from

places where the possibility of mayhem is most acute, such as

schools, churches, government buildings, protest gatherings,

or establishments that serve alcohol"; and for not "attempt[-

ing] to reduce accidents, as would a requirement that all per-

mit applicants complete a safety course." See Woollard, 863

F. Supp. 2d at 474 (internal quotation marks omitted). Aside

from disregarding the existence of other laws with many of

those very aims — including separate provisions of Mary-

land’s handgun permitting scheme — the court improperly

conducted a review more reminiscent of strict scrutiny than

intermediate scrutiny.

The district court’s misapplication of the intermediate scru-

tiny standard is illustrated by its pronouncement that "[a] citi-

zen may not be required to offer a ‘good and substantial

reason’ why he should be permitted to exercise his rights," in

that "[t]he right’s existence is all the reason he needs." Wool-

lard, 863 F. Supp. 2d at 475. There simply is no way to har-

monize the district court’s declaration with our recognition in

Masciandaro that intermediate scrutiny applies to laws bur-

dening any right to carry firearms outside the home, where

"firearm rights have always been more limited, because public

safety interests often outweigh individual interests in self-

defense." See 638 F.3d at 470; see also Kachalsky, 701 F.3d

at 99 n.23 (rejecting the notion that "handgun possession in

public has the ring of an absolute constitutional right," and

deeming it "quite obvious" that "possession of a weapon in

the home has far different implications than carrying a con-

cealed weapon in public"); Br. of Appellants 43 ("The same

factors that make handguns the weapon of choice for defense

of the home also make them the weapon of choice for crimi-

32 WOOLLARD v. GALLAGHER

nals outside the home . . . . Similarly, an individual’s posses-

sion of a handgun in his own home obviously does not present

the same risks to public safety as does his carry of the same

handgun in public.").

In summary, although we assume that Appellee Woollard’s

Second Amendment right is burdened by the good-and-

substantial-reason requirement, we further conclude that such

burden is constitutionally permissible. That is, under the

applicable intermediate scrutiny standard, the State has dem-

onstrated that the good-and-substantial-reason requirement is

reasonably adapted to Maryland’s significant interests in pro-

tecting public safety and preventing crime.

C.

Because we conclude that the good-and-substantial-reason

requirement is constitutional under the Second Amendment as

applied to Appellee Woollard, we also must reject the Appel-

lees’ facial challenge. See Masciandaro, 638 F.3d at 474. As

the Supreme Court has explained, "a person to whom a statute

may constitutionally be applied will not be heard to challenge

that statute on the ground that it may conceivably be applied

unconstitutionally to others, in other situations not before the

Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973);

see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) ("It

is neither our obligation nor within our traditional institutional

role to resolve questions of constitutionality with respect to

each potential situation that might develop.").11

11

Finally, as did the district court, we reject the Appellees’ contentions

that the good-and-substantial-reason requirement amounts to an unconsti-

tutional prior restraint on the exercise of Second Amendment rights, and

that such requirement contravenes the Equal Protection Clause of the

Fourteenth Amendment. See Woollard, 863 F. Supp. 2d at 472, 475-76,

discussed supra note 4. Like the Second Circuit — echoing the district

court’s discussion of the prior restraint theory herein — "[w]e are hesitant

to import substantive First Amendment principles wholesale into Second

WOOLLARD v. GALLAGHER 33

IV.

Pursuant to the foregoing, we reverse the judgment of the

district court.

REVERSED

Amendment jurisprudence." See Kachalsky, 701 F.3d at 91-92 (emphasis

omitted) (citing Woollard, 863 F. Supp. 2d at 472). We also conclude that

the Appellees’ prior restraint theory would fail in that it is premised on an

uncorroborated assertion that the good-and-substantial-reason requirement

vests the State "with virtually unbridled and absolute power to deny per-

mits." Br. of Appellees 58 (internal quotation marks omitted); cf. Kachal-

sky, 701 F.3d at 92 ("Plaintiffs’ complaint is not that the proper cause

requirement is standardless; rather, they simply do not like the standard —

that licenses are limited to those with a special need for self-protection."

(emphasis omitted)). As for the Appellees’ equal protection claim, they

now have essentially acknowledged that it is co-extensive with their Sec-

ond Amendment claim. See Br. of Appellees 58 & n.14.