Opposition Brief — Brian Kirk Malpasso, et al., Petitioners v. William M. Pallozzi, in His Official Capacity as Maryland Secretary of State Police

No. 19-423

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------BRIAN KIRK MALPASSO, et al.,

Petitioners,

v.

WILLIAM M. PALLOZZI, in his official

capacity as Maryland Secretary of State Police,

Respondent.

-----------------------------------------------------------------On Petition For a Writ of Certiorari

to The United States Court of Appeals

For The Fourth Circuit

-----------------------------------------------------------------BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------BRIAN E. FROSH

Attorney General of Maryland

JULIA DOYLE BERNHARDT*

Chief of Litigation

OFFICE OF THE ATTORNEY GENERAL

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

jbernhardt@oag.state.md.us

(410) 576-7291

Attorneys for Respondent

DECEMBER 2019

*Counsel of Record

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Maryland law does not ban the public carrying of

handguns. Instead, it allows a lawful owner of a handgun to wear, carry, or transport the handgun without a

permit in a public place in connection with a wide

range of activities and with a permit where the applicant has a good and substantial reason, including to

provide protection from apprehended danger. Historically, Maryland has granted the overwhelming majority of permit applications based on a claimed good and

substantial reason.

The question presented is as follows:

Is Maryland’s permitting scheme consistent

with the Second and Fourteenth Amendments?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI .....................................

1

STATEMENT..........................................................

3

Maryland’s Handgun Permit Law ......................

3

The 2013 Decision in Woollard ...........................

6

Factual and Procedural History .........................

9

REASONS FOR DENYING REVIEW ...................

11

I. Federal Appellate Courts Are Not Divided

on Whether a State May Reasonably Regulate the Public Wearing, Carrying, and

Transporting of Handguns .......................... 11

A. The Courts of Appeals Have Struck

Down Total Bans but Have Upheld Reasonable Regulatory Schemes Like That

of Maryland ........................................... 11

B. In Evaluating Permitting Schemes Imposing Reasonable Restrictions on Public Carrying, the Courts of Appeals Have

Applied Intermediate-Level Scrutiny ... 13

II. This Case Is a Poor Vehicle for Deciding the

Scope of the Second Amendment Right to

Bear Arms Outside the Home ..................... 15

A. This Case Is a Poor Vehicle Because the

Fourth Circuit Assumed That the Second Amendment Applies to Conduct

Outside the Home.................................. 15

iii

TABLE OF CONTENTS—Continued

Page

B. This Case Is a Poor Vehicle Because It

Contains No Evidentiary Record .......... 16

III.

The Decision Below Is Consistent with

this Court’s Decisions in Heller and

McDonald .................................................... 17

A. Heller Did Not Recognize a General, Absolute Right to Carry Arms in Public .... 17

B. The Public Carrying of Firearms Has

Long Been Subject to Regulation .......... 19

1. The Public Carrying of Firearms

Was Subject to Regulation from at

Least the Fourteenth Century

Through the Founding of the Republic ....................................................... 19

2. The Public Carrying of Firearms

Continued to Be Regulated After the

Second Amendment Was Ratified

and Through Adoption of the Fourteenth Amendment ........................... 22

C. The Maryland Statute Satisfies the Applicable Level of Scrutiny ...................... 26

CONCLUSION .......................................................

29

iv

TABLE OF AUTHORITIES

Page

CASES

Andrews v. State, 50 Tenn. 165 (1871) ................. 24, 25

Bonidy v. United States Postal Serv., 790 F.3d

1121 (10th Cir. 2015), cert. denied, 136 S. Ct.

1486 (2016) ................................................................6

Chatteaux v. State, 52 Ala. 388 (1875) .......................25

District of Columbia v. Heller, 554 U.S. 570

(2008) ............................................................... passim

Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), cert.

denied sub nom. Drake v. Jeregian, 572 U.S.

1100 (2014) .................................................... 7, 20, 26

English v. State, 35 Tex. 473 (1871) ...........................24

Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.

2011) ..........................................................................6

Fife v. State, 31 Ark. 455 (1876) .................................25

Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018),

petition for cert. filed (U.S. Apr. 1, 2019) (No.

18-1272) .....................................................................6

Heller v. District of Columbia, 670 F.3d 1244

(D.C. Cir. 2011) .............................................. 6, 15, 20

Jackson v. City of San Francisco, 746 F.3d 953

(9th Cir. 2014), cert. denied, 135 S. Ct. 2799

(2015) .........................................................................6

Kachalsky v. County of Westchester, 701 F.3d

81 (2d Cir. 2012), cert. denied, 569 U.S. 918

(2013) ................................................... 6, 7, 12, 14, 20

v

TABLE OF AUTHORITIES—Continued

Page

McDonald v. City of Chicago, 561 U.S. 742

(2010) ................................................................... passim

McGuirk v. State, 64 Miss. 209 (1886)........................25

Moore v. Madigan, 702 F.3d 933 (7th Cir.

2012) .................................................. 9, 11, 12, 13, 14

National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700

F.3d 185 (5th Cir. 2012), cert. denied, 571 U.S.

1196 (2014) ................................................................6

Nunn v. State, 1 Ga. 243 (1846) ..................................25

Piszczatoski v. Filko, 840 F. Supp. 2d 813 (D.N.J.

2012) ........................................................................26

Robertson v. Baldwin, 165 U.S. 275 (1897) ................18

Scherr v. Handgun Permit Review Bd., 163 Md.

App. 417 (2005) .........................................................5

Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013) ........ 15

State v. Duke, 42 Tex. 455 (1874)................................24

State v. Reid, 1 Ala. 612 (1840) ...................................25

State v. Workman, 14 S.E. 9 (W. Va. 1891)..................24

United States v. Booker, 644 F.3d 12 (1st Cir.

2011), cert. denied, 565 U.S. 1204 (2012) ..................7

United States v. Chester, 628 F.3d 673 (4th Cir.

2010) .................................................................... 6, 13

United States v. Marzzarella, 614 F.3d 85 (3d Cir.

2010), cert. denied, 562 U.S. 1158 (2011) .............. 6, 7

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Masciandaro, 638 F.3d 458 (4th

Cir. 2011), cert. denied, 565 U.S. 1058 (2011) ...........7

United States v. Reese, 627 F.3d 792 (10th Cir.

2010), cert. denied, 563 U.S. 990 (2011) ....................6

United States v. Skoien, 614 F.3d 638 (7th Cir.

2010) (en banc), cert. denied, 562 U.S. 1303

(2011) .........................................................................7

Woollard v. Gallagher, 712 F.3d 865 (4th Cir.),

cert. denied, 571 U.S. 952 (2013) ..................... passim

Wrenn v. District of Columbia, 864 F.3d 650

(D.C. Cir. 2017) .................................................. 11, 12

Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018) .... 12, 13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. II .......................................... passim

U.S. Const. amend. XIV ................................................9

STATUTES

2 Edw. 3, 258 ch. 3 (1328) (Eng.) ................................20

42 U.S.C. § 1983 ............................................................9

1794 Mass. Laws ch. 134, § 16....................................22

1794 Va. Laws ch. 21...................................................21

1838 Va. Laws 76, Act of Feb. 2, 1838 ch. 101 ............23

1813 Ky. Laws 100, Act of Feb. 3, 1813 ch. 59,

§ 1 ............................................................................23

vii

TABLE OF AUTHORITIES—Continued

Page

1813 La. Laws 172, Act of Mar. 25, 1813 ...................23

1820 Ind. Laws 39, Act of Jan. 14, 1820 ch. 23 ..........23

1837 Ark. Laws 280 ....................................................23

1839 Ala. Laws 67, Act of Feb. 1, 1839 no. 77 ............23

1882 W. Va. Laws ch. 135 ............................................23

1894 Md. Laws ch. 547 ...............................................25

Md. Code Ann., Crim. Law § 4-202 ..............................8

Md. Code Ann., Crim. Law § 4-203(a) ..........................3

Md. Code Ann., Crim. Law § 4-203(b)(2) ......................3

Md. Code Ann., Crim. Law §§ 4-203(b)(3) – (7) ...........3

Md. Code Ann., Crim. Law § 4-203(b)(4) ....................27

Md. Code Ann., Crim. Law § 4-203(b)(6) ................ 3, 18

Md. Code Ann., Crim. Law § 4-203(c)(1) ......................3

Md. Code Ann., Crim. Law § 4-203(c)(2) ......................3

Md. Code Ann., Crim. Law § 4-203(c)(3) ......................3

Md. Code Ann., Pub. Safety § 5-301 .............................5

Md. Code Ann., Pub. Safety § 5-306(a).........................4

Md. Code Ann., Pub. Safety § 5-311 .............................5

Md. Code Ann., Pub. Safety § 5-312 .............................5

Md. Code Ann., Pub. Safety § 5-312(e) .........................5

Tex. Act of Apr. 12, 1871 ch. 34, § 1 ............................24

viii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Maryland State Police, Annual Report (2012),

available at https://mdsp.maryland.gov/Document

%20Downloads/2012%20Annual%20Report%20

FINAL.pdf (last visited Nov. 21, 2019) .....................5

Maryland State Police, Annual Report (2014), https://

mdsp.maryland.gov/Document%20Downloads/

2014%20Annual%20Report.pdf (last visited

Nov. 21, 2019) ............................................................5

3 Edward Coke, Institutes of the Laws of England 160 (E. & R. Brooke 1797) ........................ 20, 21

1 Blackstone’s Commentaries 146 (St. George

Tucker ed. 1803) ......................................................21

Patrick Charles, Faces of the Second Amendment

Outside the Home: History Versus Ahistorical

Standards of Review, 60 Clev. St. L. Rev. 1

(2012) ......................................................................... 21

An Act against wearing Swords, &c., reprinted

in The Grants, Concessions & Original Constitutions of the Province of New Jersey 289 (Aaron

Leaming & Jacob Spicer eds., Lawbook Exch.

2002) ........................................................................21

Revised Statutes of the State of Maine 709 (Hallowell: Glazier, Masters & Smith 1847) .................22

Revised Code of the District of Columbia, 1857,

570 (A.O.P. Nicholson 1857) ....................................22

Revised Statutes of the State of Wisconsin 985

(W.B. Keen, Chicago 1858) ......................................22

ix

TABLE OF AUTHORITIES—Continued

Page

Digest of the Laws of Pennsylvania, 376 (Kay &

Brother 1873) ..........................................................22

General Statutes of the State of Minnesota 930

(West 1881) ..............................................................22

Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in

America (2006) .................................................. 22, 23

2 General Statutes of the State of Michigan

2282 (Callaghan & Co. 1883) ..................................22

4 William Blackstone, Commentaries on the

Laws of England (Clarendon Press 1769)..............21

1

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Petitioners mischaracterize Maryland law by portraying it as if it provides for a “total ban” on the public

carrying of a handgun by the typical handgun owner.

It does nothing of the kind. Maryland allows a lawful

owner of a handgun to wear, carry, or transport the

handgun without a permit in a public place in connection with a wide range of activities, including hunting,

trapping, target shooting, formal or informal target

practice, sport-shooting events, firearms- and huntersafety classes, and organized military activities. With

a permit, it allows the wearing, carrying, or transporting of a handgun in public places by a lawful owner

who has a good and substantial reason for doing so, including to provide protection from apprehended danger.

Although petitioners made no record in the district

court, publicly available data shows that, historically,

Maryland’s Department of State Police has granted

more than 90 percent of applications seeking a permit

to publicly wear, carry, or transport a handgun for protection against apprehended danger. What petitioners

really seek from this Court is a ruling that they have

an absolute right to carry a handgun in public. But that

result would be contrary to precedent, for this Court

has held that “the right [secured by the Second Amendment] [is] not a right to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever purpose,” District of Columbia v. Heller, 554 U.S.

570, 626 (2008), and the Court has further observed

2

that “the majority of the 19th century courts to consider the question held that prohibitions on carrying

concealed weapons were lawful under the Second

Amendment or state analogues,” id.

Not only does petitioners’ desired outcome run

counter to this Court’s precedent, the purported circuit

split they identify is illusory. Maryland’s law is unlike

the laws struck down by the Seventh and District of

Columbia Circuits because, unlike those laws, which

effectively banned the public carrying of handguns

by typical citizens, Maryland’s law permits those who

need to carry handguns for self-defense to obtain a permit allowing them to publicly wear, carry, and transport

a handgun. On the other hand, the legal analyses undertaken by the Seventh and District of Columbia Circuits in those cases did not differ from the way the

Fourth Circuit and other circuits have analyzed Second Amendment challenges. In analyzing Maryland’s

statutory and regulatory scheme, the Fourth Circuit

applied the same standard used by other circuits to

evaluate a state scheme regulating—rather than banning—public wearing, carrying, or transporting of handguns: an intermediate level of means-end scrutiny.

Woollard v. Gallagher, 712 F.3d 865 (4th Cir.), cert. denied, 571 U.S. 952 (2013).

------------------------------------------------------------------

3

STATEMENT

Maryland’s Handgun Permit Law

Marylanders who are otherwise qualified to own

a handgun may possess, wear, carry, and transport

handguns1 for any purpose in their homes, at their

businesses, and on any property that they own, all

without a special permit authorizing them to wear,

carry, or transport a handgun. Md. Code Ann., Crim.

Law § 4-203(b)(6) (LexisNexis Supp. 2019). Without a

permit, Marylanders may carry handguns in public for

a wide variety of activities, including hunting, trapping,

target shooting, formal or informal target practice, sportshooting events, certain firearms- and hunter-safety

classes, and organized military activities. Md. Code

Ann., Crim. Law §§ 4-203(b)(3) – (7) (LexisNexis Supp.

2019). Maryland law requires a permit to wear and

carry a handgun in public places for purposes unconnected to these specified activities. Crim. Law § 4-203(a),

(b)(2) (LexisNexis Supp. 2019). This special permit requirement applies only to handguns, not rifles, shotguns, or other “long guns.” Id.

Adults who have not been convicted of disqualifying offenses are eligible to obtain a wear, carry permit

if they meet certain requirements, including, as relevant here, a requirement that they have a “good and

1

A “handgun” is a “pistol, revolver, or other firearm capable

of being concealed on the person,” Md. Code Ann., Crim. Law

§ 4-203(c)(1) (LexisNexis Supp. 2019), which includes “a shortbarreled shotgun and a short-barreled rifle,” id., § 4-203(c)(2), but

not an antique firearm or long-barreled rifle or shotgun, id. § 4203(c)(3).

4

substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary

as a reasonable precaution against apprehended danger.” Md. Code Ann., Pub. Safety § 5-306(a) (LexisNexis

2018). The Maryland Department of State Police’s

Handgun Permit Unit, which processes permit applications, has identified four non-exclusive categories of

“good and substantial reason” (1) for certain business

activities; (2) for regulated occupations, such as security guards; (3) for “assumed-risk” professions, such as

judges, prosecutors, public defenders, police officers,

and correctional officers; and (4) for personal protection/self-defense against “apprehended danger.” Woollard, 712 F.3d at 869-70.

In accordance with guidance provided by Maryland’s appellate courts, the Department evaluates applications that identify “personal protection” as the

applicant’s good and substantial reason by applying an

objective standard to assess whether there is “apprehended danger” to the applicant. This requires more

than a “vague threat” or a “general fear of living in a

dangerous society.” Id. at 870. In determining whether

the applicant faces danger, the Department applies an

objective test that “takes the applicant’s entire situation into account.” Id. Among the non-exclusive factors

considered in evaluating a real or presumed threat are

(1) its recency or likelihood; (2) whether it can be verified; (3) whether it is particular to the applicant, as

opposed to the average citizen; (4) if presumed, the

basis for the presumption; and (5) the length of time

since the initial threat occurred. Id. (citing Scherr v.

5

Handgun Permit Review Bd., 163 Md. App. 417, 437-38

(2005)).

For years 2007 through 2011, the Department approved 93.7 percent of the 23,189 original and renewal

permit applications submitted. Maryland State Police,

Annual Report (2012), at 49, available at https://mdsp.

maryland.gov/Document%20Downloads/2012%20Annual

%20Report%20FINAL.pdf (last visited Nov. 21, 2019).

For years 2012 through 2014, the Department received

17,889 original and renewal permit applications and

approved 93.6 percent. Maryland State Police, Annual

Report (2014), at 78, https://mdsp.maryland.gov/Document

%20Downloads/2014%20Annual%20Report.pdf (last

visited Nov. 21, 2019).2

An applicant who is denied a permit may request

an informal review by the Secretary of State Police or

may immediately appeal the denial to the Handgun

Permit Review Board, an independent board appointed

by the Governor, Md. Code Ann., Pub. Safety §§ 5-301,

5-311, 5-312 (LexisNexis 2018 & Supp. 2019), which

from 1993 to 2013 reversed approximately 38 percent

of the denials appealed to it. Woollard Fourth Cir. J.A.

43. An applicant who loses an appeal before the Board

may seek further administrative review and then judicial review in the State’s courts. Md. Code Ann.,

Pub. Safety § 5-312(e) (LexisNexis Supp. 2019).

2

Plaintiffs have not alleged that there is any evidence that

the grant rate has diminished since Woollard.

6

The 2013 Decision in Woollard

In Woollard v. Gallagher, the Fourth Circuit reversed the 2012 decision of the United States District

Court for the District of Maryland, which struck down

Maryland’s statute as violative of the Second and Fourteenth Amendments. In reversing the district court,

the Fourth Circuit upheld Maryland’s permitting scheme

as consistent with this Court’s holdings in Heller and

McDonald v. City of Chicago, 561 U.S. 742 (2010), and

the Fourth Circuit’s own precedents applying those

decisions. Rejecting the Woollard plaintiffs’ Second Amendment challenge, the Fourth Circuit applied the twopronged inquiry adopted by most courts after Heller:

(1) does the challenged law impose a burden on conduct falling within the scope of the Second Amendment’s guarantee; and, if so (2) does it satisfy the

applicable level of means-end scrutiny.3 Woollard, 712

F.3d at 874-78. Determining that the case could be

3

See, e.g., Gould v. Morgan, 907 F.3d 659, 673 (1st Cir.

2018), petition for cert. filed (U.S. Apr. 1, 2019) (No. 18-1272);

Bonidy v. United States Postal Serv., 790 F.3d 1121, 1126 (10th

Cir. 2015), cert. denied, 136 S. Ct. 1486 (2016); Jackson v. City of

San Francisco, 746 F.3d 953, 961 (9th Cir. 2014), cert. denied, 135

S. Ct. 2799 (2015); Kachalsky v. County of Westchester, 701 F.3d

81, 88-93 (2d Cir. 2012), cert. denied, 569 U.S. 918 (2013); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012), cert. denied,

571 U.S. 1196 (2014); Heller v. District of Columbia, 670 F.3d

1244, 1252 (D.C. Cir. 2011) (“Heller II”); Ezell v. City of Chicago,

651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Reese, 627

F.3d 792, 800-01 (10th Cir. 2010), cert. denied, 563 U.S. 990

(2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010);

United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010), cert.

denied, 562 U.S. 1158 (2011).

7

resolved by addressing only the second question, the

Fourth Circuit assumed, without deciding, that the goodand-substantial-reason requirement burdens conduct

falling within the scope of the Second Amendment’s

protection. Id. at 874.

Consistent with Heller, the Fourth Circuit deemed

Maryland’s law to address conduct falling outside the

core right 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 874 (quoting Heller, 554 U.S. at 634-35).

Because Maryland’s good-and-substantial-reason requirement operates only outside one’s home—and, indeed,

outside one’s business and other property, and outside

and apart from hunting, sport shooting, target shooting, organized military activities, and many other activities for which permits are not required—the Fourth

Circuit applied intermediate scrutiny, as have other

courts addressing protected conduct that falls outside

the core Second Amendment right to defend hearth

and home.4 Id. Under this test, the State bears the burden of demonstrating that there is a “ ‘reasonable fit’

between the good-and-substantial-reason requirement

4

See, e.g., Kachalsky, 701 F.3d at 96-97; Drake v. Filko, 724

F.3d 426 (3d Cir. 2013), cert. denied sub nom. Drake v. Jeregian,

572 U.S. 1100 (2014); Heller II, 670 F.3d at 1257-58; United States

v. Booker, 644 F.3d 12, 25 (1st Cir. 2011), cert. denied, 565 U.S.

1204 (2012); United States v. Masciandaro, 638 F.3d 458, 470 (4th

Cir. 2011), cert. denied, 565 U.S. 1058 (2011); Marzzarella, 614

F.3d at 97; Reese, 627 F.3d at 802; United States v. Skoien, 614

F.3d 638, 641-42 (7th Cir. 2010) (en banc), cert. denied, 562 U.S.

1303 (2011).

8

and the government objectives of protecting public

safety and preventing crime.” Id. at 878.5

In applying this standard, the Fourth Circuit first

noted the narrow scope of Maryland’s permitting

scheme, which exempts not only the wearing, carrying,

and transporting of handguns within one’s home and

business but also in many public places and in connection with certain public activities. Id. at 879. With

that scope in mind, the court examined the record

evidence that the good-and-substantial-reason requirement protects citizens and inhibits crime in numerous ways, including by decreasing the availability

of handguns to criminals via theft; lessening the risk

that routine confrontations will turn deadly; and diminishing the opportunities for everyday police encounters with citizens to escalate into high-risk

situations. Id. at 879-81. The court emphasized that

the Maryland scheme accomplished these public safety

aims while ensuring that individuals who need handguns for self-protection “can arm themselves in public

places where Maryland’s various permit exceptions do

not apply.” Id. at 880.

5

Maryland’s public policy objectives appear in codified

legislative findings about the increase in handgun violence, the

inadequacy of existing laws to address that violence, and the

conclusion that “additional regulations on the wearing, carrying,

and transporting of handguns are necessary to preserve the peace

and tranquility of the State and to protect the rights and liberties

of the public.” Md. Code Ann., Crim. Law § 4-202 (LexisNexis

2012).

9

After reviewing the evidentiary record, the Fourth

Circuit concluded that the State had “demonstrated that

the good-and-substantial-reason requirement advances

the objectives of protecting public safety and preventing crime.” Id. at 879. Thus, the court concluded that

Maryland had carried its burden of demonstrating the

required fit between the good-and-substantial-reason

requirement and the State’s objectives of protecting

public safety and preventing crime. Id. at 881. The

court distinguished the law before it from the “flat ban”

on public carrying struck down by the Seventh Circuit

in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), without identifying any disagreement with the Seventh

Circuit’s decision. Woollard, 712 F.3d at 881 n.10.

Factual and Procedural History

On April 12, 2018, the plaintiffs brought this action in the United States District Court for the District

of Maryland against the Secretary of the Maryland Department of State Police. Their one-count complaint

alleged a claim under 42 U.S.C. § 1983 based on violations of the Second and Fourteenth Amendments. Malpasso Fourth Cir. J.A. 6. According to his complaint, Mr.

Malpasso applied for and was denied a permit on the

basis that he did not have a “good and substantial reason” to wear, carry, or transport a handgun, Malpasso

J.A. 12 ¶¶ 23, 24; the association plaintiff claimed at

least one member who was denied a permit for the

same reason, id. J.A. 13 ¶ 26.

10

Mischaracterizing Maryland’s permitting scheme

as amounting to a “flat ban” on wear, carry permits for

“typical law abiding citizens,” id. J.A. 14 ¶ 31, plaintiffs

sought (1) a declaration that Maryland’s good-andsubstantial-reason requirement violates the Second

and Fourteenth Amendments; (2) an injunction prohibiting the Department from denying wear, carry permits on the basis of that requirement; (3) an injunction

prohibiting the Department from enforcing the laws

establishing and defining that requirement; and (4) an

order directing the Department to issue a wear, carry

permit to Mr. Malpasso and members of the Maryland

State Rifle and Pistol Association, Inc.

Because controlling Fourth Circuit precedent foreclosed plaintiffs’ claims, the Department moved to dismiss the complaint for failure to state a claim, id. J.A.

4, and on October 15, 2018, the district court granted

the motion to dismiss, id. J.A. 4, 37-39. Relying entirely

on Woollard, the Fourth Circuit affirmed the judgment

in an unpublished decision. Pet. App. 2a.

------------------------------------------------------------------

11

REASONS FOR DENYING REVIEW

I.

Federal Appellate Courts Are Not Divided

on Whether a State May Reasonably Regulate the Public Wearing, Carrying, and Transporting of Handguns.

A. The Courts of Appeals Have Struck Down

Total Bans but Have Upheld Reasonable

Regulatory Schemes Like That of Maryland.

Although petitioners claim a conflict between the

decisions of Seventh and District of Columbia Circuits

on the one hand, and the First, Second, Third, and

Fourth Circuits on the other, the former decisions addressed effective total bans on public carrying while

the latter decisions addressed permitting schemes for

public carrying of concealed and concealable weapons,

like handguns.

Unlike Maryland’s scheme, which allows the public carrying of handguns, the schemes struck down by

the Seventh Circuit in Moore and the District of Columbia Circuit in Wrenn v. District of Columbia, 864

F.3d 650 (D.C. Cir. 2017), imposed absolute bans on the

public carrying of handguns for self-protection.

In Moore, the Seventh Circuit struck down an Illinois ban on public carrying of all firearms, not just

handguns; with a similar ban in Washington, D.C., the

Illinois law shared the distinction of being the most

restrictive such law in the country. 702 F.3d at 940. The

Illinois law did not allow for the issuance of any permits for self-defense. In striking it down, the Seventh

12

Circuit did not indicate any disagreement with the

Second Circuit’s prior decision in Kachalsky v. Westchester County, which had upheld New York’s open carry

permitting scheme. New York’s scheme required that

an applicant demonstrate “proper cause” to obtain a

permit to carry a concealed handgun in public. Indeed,

the Seventh Circuit emphasized how much stricter the

Illinois law was when compared to New York’s permitting scheme (itself stricter than Maryland’s). Moore,

702 F.3d at 940-41. The Seventh Circuit emphasized

that Illinois was “the only state that maintains a flat

ban on carrying ready-to-use guns outside the home”

and that its decision was based not on “degrees of

scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” Id. at 940-41.

See also Young v. Hawaii, 896 F.3d 1044, 1070 (9th Cir.

2018) (noting, in invalidating Hawaii permitting

scheme for concealed carry licenses, that “no concealed

carry license has ever been granted by the County”),

reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019).

Nor does the Fourth Circuit’s decision conflict with

the later decision of the District of Columbia Circuit

in Wrenn, because there, too, the court of appeals addressed a highly restrictive permitting scheme that

the court viewed as akin to a total ban on the issuance

of wear, carry permits for handguns to be used for the

purpose of self-defense. Wrenn, 864 F.3d at 664-65 (interpreting D.C. law to provide a “total ban on carrying

. . . by ordinarily situated individuals covered by the

Amendment”).

13

Unlike the schemes at issue in Moore and Wrenn,

under Maryland’s scheme, most applicants who apply

for a permit to carry a handgun for self-defense are

granted permits that allow them to publicly wear,

carry, or transport a handgun for self-protection. Because Maryland reasonably regulates, and does not

ban, the public carrying of handguns, the decision of

the Fourth Circuit in Woollard does not conflict in any

meaningful way with either the decision of the Seventh

Circuit in Moore or that of the District of Columbia

Circuit in Wrenn.

B. In Evaluating Permitting Schemes Imposing Reasonable Restrictions on Public Carrying, the Courts of Appeals Have

Applied Intermediate-Level Scrutiny.

In analyzing Maryland’s statutory and regulatory

scheme, the Fourth Circuit applied the same standard

used by other circuits to evaluate a state scheme regulating—rather than banning—public wearing, carrying, or transporting of handguns: intermediate-level

scrutiny. Woollard, 712 F.3d at 876; see cases above in

footnote 3. Under that test, the State bears the burden

of demonstrating that there is a “ ‘reasonable fit’ between the good-and-substantial-reason requirement

and the government objectives of protecting public

safety and preventing crime.” Id. at 880 (quoting

United States v. Chester, 628 F.3d 673, 683 (4th Cir.

2010)).

14

In Moore, the Seventh Circuit did not apply any

standard of scrutiny because the court found that Illinois had failed to justify its law imposing an absolute

ban on public carrying of handguns. 702 F.3d at 94042. But the court implied that it would be prepared to

apply a sliding-scale standard of scrutiny in Second

Amendment cases pegged to the level of burden on Second Amendment rights imposed by the law at issue. Id.

at 939-40. The court did not indicate any disagreement

with the Second Circuit’s decision in Kachalsky but

emphasized how much stricter the Illinois law banning

public carrying was than New York’s permitting scheme.

702 F.3d at 940-41. The Seventh Circuit stressed that

Illinois was “the only state that maintains a flat ban on

carrying ready-to-use guns outside the home” and that

its decision was based not on “degrees of scrutiny, but

on Illinois’s failure to justify the most restrictive gun

law of any of the 50 states.” Id.

Similarly, in Woollard, the Fourth Circuit noted

with approval the Seventh Circuit’s decision in Moore

and observed that the striking of Illinois’s “wholesale

ban on the public carrying of firearms . . . underscored”

the difference between Illinois’s approach and the moderate approaches of permitting schemes like those in

New York and Maryland. Woollard, 712 F.3d at 881

n.10.

Petitioners wrongly identify a conflict among these

decisions. Just as there is no suggestion in the Seventh

Circuit’s discussion of Kachalsky that it would have

reached a different outcome, there is no indication in

the Fourth Circuit’s discussion of Moore that the court

15

would have reached a different outcome in that case.

And in Heller II, the District of Columbia Circuit used

the two-step framework and intermediate-level scrutiny in upholding the District’s laws regarding assault

weapons and large-capacity magazines. 670 F.3d at

1252-55, 1260-64; see Schrader v. Holder, 704 F.3d 980,

988-91 (D.C. Cir. 2013) (applying intermediate scrutiny

to law banning certain convicted offenders from possessing a firearm).

II.

This Case Is a Poor Vehicle for Deciding the

Scope of the Second Amendment Right to

Bear Arms Outside the Home.

A. This Case Is a Poor Vehicle Because the

Fourth Circuit Assumed That the Second

Amendment Applies to Conduct Outside

the Home.

Most of the petition is devoted to argument that

the Second Amendment applies outside the home,

based on text, history, and tradition. Pet. 13-25. But in

Woollard, the Fourth Circuit did not hold to the contrary. Instead, the court assumed that Second Amendment rights were implicated by Maryland’s statutory

scheme and then proceeded to the second stage of the

analysis, where it applied intermediate-level meansend scrutiny.

Thus, the question addressed by the Fourth Circuit in Woollard, as relevant to the Maryland permitting statute under review, was not whether the Second

Amendment applies to conduct outside the home, or

even whether it applies to the wearing, carrying, or

16

transporting of handguns outside the home for selfdefense, but whether Second Amendment rights are

unconstitutionally burdened by a statute (1) that applies only outside one’s own property; only to handguns; and not in connection with enumerated activities

such as hunting, target shooting, and sport shooting;

(2) that allows wearing, carrying, or transporting of

handguns in public for self-defense as long as the applicant can provide a showing that it is needed for that

purpose; and (3) under which most applications for permits based on a need for self-protection are granted.

Because the Fourth Circuit assumed that the Second Amendment applies to conduct outside the home,

and that the Maryland statute therefore implicated

Second Amendment rights, this case provides a poor

vehicle for examining and deciding whether the Second Amendment applies outside the home. In evaluating Maryland’s law in Woollard, the Fourth Circuit

assumed that it does and then applied the appropriate

level of means-end scrutiny to uphold Maryland’s reasonable regulatory scheme.

B. This Case Is a Poor Vehicle Because It

Contains No Evidentiary Record.

The 2012 record in Woollard and publicly available information show that, as of 2014, Maryland

granted most applications—more than 93% of those

original and renewal permits submitted between 2007

and 2014. Petitioners here made no effort in the district

court below to show either that the application grant

17

rate has declined since 2014 or that Maryland’s scheme

no longer serves the compelling interests of public safety

and crime prevention established in Woollard.

III. The Decision Below Is Consistent with this

Court’s Decisions in Heller and McDonald.

There is no conflict between the decision of the

Fourth Circuit and this Court’s decisions in Heller and

McDonald, both of which concerned laws that banned

the possession of handguns, including in the home for

the purpose of self-defense.

A. Heller Did Not Recognize a General, Absolute Right to Carry Arms in Public.

In both Heller and McDonald, this Court identified

the home as a place where Second Amendment rights

require especially strong protection. Heller, 554 U.S. at

628; McDonald, 561 U.S. at 767-68 (plurality op.). Yet,

in both cases, this Court made clear that the Second

Amendment permits reasonable regulation of firearms

both inside and outside the home. Heller, 554 U.S. at

626-27; McDonald, 561 U.S. at 785 (plurality op.).

In Heller, the Court reviewed a District of Columbia law that imposed a “complete prohibition” on the

possession of handguns in the home, “where the need

for defense of self, family, and property is most acute.”

554 U.S. at 629. After engaging in a lengthy textual

and historical analysis of the Second Amendment, the

Court concluded that (1) the right established by the

18

amendment was a pre-existing right, id. at 592; (2) this

right is an individual right, not dependent on militia

service, id.; and (3) “whatever else [the Second Amendment] leaves to future evaluation, it 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. Maryland law expressly protects this

right by allowing individuals qualified to own a firearm to possess, carry, and transport handguns within,

among other places, their homes. Md. Code Ann., Crim.

Law § 4-203(b)(6) (LexisNexis Supp. 2019).

Although this Court declined to speculate about

other conduct that might fall within the protection of

the Second Amendment, Heller, 554 U.S. at 635, the

Court observed that, notwithstanding the amendment’s unconditional language, “the right was not a

right to keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose.” Id. at

626. Indeed, the Court provided examples of types of

laws that it presumed would fall outside the protection

of the amendment.

First, the Court observed that a majority of nineteenth-century courts had upheld the constitutionality

of complete prohibitions on the carry of concealed

weapons. See id.; see also Robertson v. Baldwin, 165

U.S. 275, 281-82 (1897) (“[T]he right of the people to

keep and bear arms (article 2) is not infringed by laws

prohibiting the carrying of concealed arms.”).

Second, the Court identified as “presumptively lawful regulatory measures”: (i) longstanding bans on “the

19

possession of firearms by felons and the mentally ill”;

(ii) bans on “the carrying of firearms in sensitive places

such as schools and government buildings”; and (iii) “laws

imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27 & n.26.

Third, the Court recognized that the right was limited to weapons “in common use at the time.” Id. at 627.

The Court’s list, which contained only “examples”

of presumptively lawful regulations, did “not purport

to be exhaustive.” Id. at 627 n.26. Two years later, in

McDonald, the Court promised that “ ‘state and local

experimentation with reasonable firearms regulation

will continue under the Second Amendment.’ ” 561 U.S.

at 785 (quoting Brief of State of Texas, et al. as Amici

Curiae at 23).

B. The Public Carrying of Firearms Has

Long Been Subject to Regulation.

1. The Public Carrying of Firearms Was

Subject to Regulation from at Least

the Fourteenth Century Through the

Founding of the Republic.

Maryland’s law has deep historical roots. It resembles laws regulating or prohibiting the carrying of concealed and concealable weapons in both the United

States and England. See Heller, 554 U.S. at 626-27, 635

(recognizing “longstanding” regulations on public possession and carrying of handguns as constitutional

under the Second Amendment); id. at 626 (noting that

“the majority of the 19th century courts to consider the

20

question held that prohibitions on carrying concealed

weapons were lawful under the Second Amendment or

state analogues”); Drake, 724 F.3d at 432-34 (describing New Jersey’s requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun

for self-defense “as a ‘presumptively lawful,’

‘longstanding’ regulation”); Kachalsky, 701 F.3d at 84

(“New York’s efforts in regulating the possession and

use of firearms predate the Constitution.”); id. at 91

(“New York’s [proper cause] restriction on firearm possession in public has a number of close and longstanding cousins.”); Heller II, 670 F.3d at 1253-54 (describing

handgun registration laws as “longstanding” and “presumptively lawful”).

The long history of significant restrictions on the

public carrying of firearms in the interest of public

safety, including limits and bans on easily concealable

firearms, demonstrates that the pre-existing right was

not generally understood to extend to the public carrying of easily concealable firearms. Restrictions on the

public carrying of arms in England date back to at

least 1328 and the Statute of Northampton, which provided that, except while on the king’s business, no man

was permitted to “go nor ride armed by night nor by

day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon

pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.” 2 Edw. 3, 258 ch.

3 (1328) (Eng.); see also 3 Edward Coke, Institutes of

the Laws of England 160 (E. & R. Brooke 1797).

21

The Statute of Northampton remained in place

through the time of the Framers. 4 William Blackstone,

Commentaries on the Laws of England 148-49 (Clarendon Press 1769). Edward Coke’s treatise recognized

the ongoing validity of the statute and discussed the

case of Sir Thomas Figett, who “went armed under his

garments, as well in the palace,” and was convicted and

imprisoned for violating the Statute of Northampton,

notwithstanding his defense that he had gone armed

for “[s]afeguard of his life.” 3 Coke, Institutes at 161-62.

Versions of the Statute of Northampton were also

incorporated into the laws of Massachusetts, North

Carolina, and Virginia. See 1 Blackstone’s Commentaries 146 n.5, 149 n.14 (St. George Tucker ed. 1803)

(referencing Virginia’s adoption of the statute at 1794

Va. Laws ch. 21); Patrick Charles, Faces of the Second

Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 32

n.166 (2012).

American colonies and, subsequently, states also

adopted other laws restricting the public carrying of

weapons, especially concealable weapons. For example,

in 1686, New Jersey passed a law providing that “no

person . . . shall presume privately to wear any pocket

pistol, skeines, stilladers, daggers or dirks, or other unusual or unlawful weapons within this Province,” and

that no planter other than a government officer, soldier, or foreign traveler passing peacefully through

“shall ride or go armed with sword, pistol, or dagger.”

An Act against wearing Swords, &c., reprinted in The

Grants, Concessions & Original Constitutions of the

22

Province of New Jersey 289-90 (Aaron Leaming & Jacob Spicer eds., Lawbook Exch. 2002). A 1794 Massachusetts law required any person who went “armed

with a dirk, dagger, sword, pistol, or other offensive and

dangerous weapon, without reasonable cause to fear

an assault or other injury, or violence to his person, or

to his family or property,” to find sureties for keeping

the peace upon complaint by any person having reasonable cause to fear an injury or breach of the peace.

1794 Mass. Laws ch. 134, § 16. Similar statutes were

enacted in Maine, the District of Columbia, Wisconsin,

Pennsylvania, Minnesota, and Michigan.6

2. The Public Carrying of Firearms Continued to Be Regulated After the Second Amendment Was Ratified and

Through Adoption of the Fourteenth

Amendment.

The early nineteenth century saw a proliferation

of easily concealable weapons, including handguns

that had become both more common, more dangerous,

and more of a threat to public safety. See Saul Cornell,

A Well-Regulated Militia: The Founding Fathers and

the Origins of Gun Control in America 138-41 (2006).

6

Revised Statutes of the State of Maine 709 (Hallowell: Glazier, Masters & Smith 1847) (citing 1821 Me. Laws ch. 76, § 1);

Revised Code of the District of Columbia, 1857, 570 (A.O.P. Nicholson 1857); Revised Statutes of the State of Wisconsin 985

(W.B. Keen, Chicago 1858); Digest of the Laws of Pennsylvania,

376 (Kay & Brother 1873); General Statutes of the State of Minnesota 930 (West 1881); 2 General Statutes of the State of Michigan 2282 (Callaghan & Co. 1883).

23

Beginning in 1813, state legislatures reacted, initially

with laws generally banning the concealed carrying of

such weapons. Id. at 141.7 As public safety concerns increased, states enacted statutes generally banning the

concealed and open carrying of such weapons.

For example, in 1882,8 West Virginia made it a

misdemeanor to carry, either openly or concealed, “any

revolver or other pistol, dirk, bowie-knife, razor, slung

shot, billy, metalic or other false knuckles, or any other

dangerous or deadly weapon of like kind or character.”

1882 W. Va. Laws ch. 135. Notably, the statute excepted

“keeping or carrying” such weapons in one’s home and

also provided an affirmative defense to prosecution

upon a showing that the individual was quiet, peaceable, of good character and standing, and that at the

time he was carrying “he had good cause to believe, and

did believe, that he was in danger of death or great

bodily harm at the hands of another person.” Id. West

Virginia’s highest court, upholding the constitutionality of that state’s statute, held that having been threatened with violence was not enough to invoke the “good

7

See, e.g., 1813 Ky. Laws 100, 100, Act of Feb. 3, 1813 ch. 59,

§ 1; 1813 La. Laws 172, Act of Mar. 25, 1813; 1820 Ind. Laws 39,

Act of Jan. 14, 1820 ch. 23; 1837 Ark. Laws 280; 1838 Va. Laws

76, Act of Feb. 2, 1838 ch. 101; 1839 Ala. Laws 67, Act of Feb. 1,

1839 no. 77.

8

See McDonald¸ 561 U.S. at 776-77 (plurality op.) (relying

on evidence and cases from the years surrounding ratification of

the Fourteenth Amendment to aid in interpreting the nature of

the Second Amendment right); Heller, 554 U.S. at 629 (relying on

cases from this period as bearing on the scope of the Second

Amendment).

24

cause” exception. State v. Workman, 14 S.E. 9, 12 (W.

Va. 1891).

Similarly, in 1871, Texas made it a misdemeanor

for any person to carry certain concealable weapons,

including “any pistol.” Tex. Act of Apr. 12, 1871 ch. 34,

§ 1. The Texas law also had exceptions for carrying

weapons in one’s home or business and provided an affirmative defense based on a showing that the defendant had “reasonable grounds for fearing an unlawful

attack on his person” that was “immediate and pressing.” Id.; see State v. Duke, 42 Tex. 455, 456 (1874)

(quoting text of statute). In rejecting a constitutional

challenge, the Supreme Court of Texas held that the

statute “undertakes to regulate the place where, and

the circumstances under which, a pistol may be carried; and in doing so, it appears to have respected

the right to carry a pistol openly when needed for selfdefense or in the public service, and the right to have

one at the home or place of business.” Id. at 459. The

same statute was upheld in English v. State, 35 Tex.

473 (1871), a case cited in Heller as supporting the

“historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ” 554 U.S. at 627.

Other nineteenth-century courts also upheld the

constitutionality of complete bans on the concealed

and open carrying of easily concealable weapons. For

example, in Andrews v. State, also cited in Heller, 554

U.S. at 629, the Supreme Court of Tennessee upheld a

complete ban on the carrying of a “belt or pocket pistol.” 50 Tenn. 165, 171, 186-87 (1871). The court invalidated a similar ban on the carrying of revolvers, not

25

because a restriction on public carrying would be impermissible but because the ban applied to an individual’s carrying of a weapon “about his own home, or on

his own premises,” or traveling to a repair shop, or

shooting a rabid dog in the street. Id. at 187; see also

Fife v. State, 31 Ark. 455, 461 (1876) (upholding constitutionality of a law criminalizing “carrying a pistol as

a weapon”); but see Nunn v. State, 1 Ga. 243, 251 (1846)

(upholding ban on concealed, but not open, carrying);

State v. Reid, 1 Ala. 612, 616-17, 619 (1840) (upholding

ban on concealed carrying where statute permitted

open carrying and suggesting ban on open carrying

would be unconstitutional).

Many states with nineteenth-century concealedcarry bans similarly recognized exceptions for an objectively reasonable need for personal protection. See,

e.g., McGuirk v. State, 64 Miss. 209, 212 (1886) (upholding conviction for concealed carrying of a pistol where

defendant could not demonstrate he was “threatened

in such manner as to afford good and sufficient reason

to apprehend an attack”); Chatteaux v. State, 52 Ala.

388, 390-91 (1875) (affirming conviction for carrying a

concealed pistol even though earlier the same day, in a

different location, the individual had “good reason to

apprehend an attack”). Likewise, Maryland’s 1894 ban

on the concealed carrying of certain easily concealable

weapons provided an exception for weapons carried as

a “reasonable precaution against apprehended danger.” 1894 Md. Laws ch. 547. That same language is included in the challenged statute as an example of a

good and substantial reason.

26

With the rise of regulatory schemes, states began

adopting statutes requiring individuals to obtain permits to carry easily concealable firearms in public.

Regulatory regimes that authorized permits to be issued to wear and carry handguns, and that required a

demonstration of “good cause,” date back nearly a century. See Drake, 724 F.3d at 432-34 (describing New

Jersey’s requirement that applicants demonstrate a

“justifiable need” to publicly carry a handgun for selfdefense “as a ‘presumptively lawful,’ ‘longstanding’

regulation”), aff ’g Piszczatoski v. Filko, 840 F. Supp. 2d

813, 830 (D.N.J. 2012) (tracing adoption of need requirement in New Jersey law back to at least 1924 and

“proper cause” requirement in New York law back to at

least 1919).

C. The Maryland Statute Satisfies the Applicable Level of Scrutiny.

Maryland’s permitting scheme for public carrying

of handguns differs from the laws at issue in Heller

and McDonald in at least five important respects.

Maryland’s permit law (1) does not regulate the possession, wearing, carrying, or transporting of any firearms within an individual’s home, business, or other

property; (2) does not regulate the possession, wearing,

carrying, or transporting in public of any firearms

other than easily concealable firearms; (3) does not apply to the possession, wearing, carrying, or transporting of handguns in many public places, including in

connection with hunting, trapping, a target shoot, formal or informal target practice, a sport shooting event,

27

certain firearms and hunter safety classes, or an organized military activity, Crim. Law § 4-203(b)(4)

(LexisNexis Supp. 2019); (4) allows individuals to

obtain a permit to wear, carry, and transport handguns

in other public spaces with a good and substantial

reason, including for personal protection; and (5) as

explained above, is akin to longstanding laws regulating or prohibiting the carrying of concealed and

concealable weapons.

Although petitioners argue, in effect, that no standard of scrutiny should apply to regulations that impose

any burden on Second Amendment rights because, in

their view, all such regulations are per se unconstitutional, Pet. 25, that argument is not supported by Heller and McDonald, where this Court made clear that

the Second Amendment does not protect “a right to

keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” 554 U.S. at 626;

561 U.S. at 786.

In those cases, this Court identified a non-exhaustive list of “presumptively lawful” regulatory measures

that included absolute bans on possession of all firearms by certain classes of individuals and in certain

places, as well as the concealed carrying of all firearms.

554 U.S. at 626; 561 U.S. at 786. Thus, Heller and

McDonald signaled that states may impose reasonable

regulations on possessing and publicly carrying handguns. Although Heller rejected the use of rational basis

scrutiny to evaluate those types of regulations, as well

as the interest-balancing approach suggested by the

dissent in that case, the Court did not foreclose

28

applying heightened levels of scrutiny to laws challenged as burdening the Second Amendment right to

bear arms. 554 U.S. at 628 n.27, 634-35.

Since Heller, most courts of appeals to have considered Second Amendment challenges have concluded

that the appropriate level of scrutiny will depend on

whether the regulation being analyzed burdens the

core right or an aspect of the right outside the core.

See generally cases cited above in footnote 2. These

courts have been guided in identifying the core Second

Amendment right by Heller’s description of the right

the Second Amendment “elevates above all other interests”: “the right of law-abiding, responsible citizens to

use arms in defense of hearth and home.” 554 U.S. at

635. Thus, where the burden falls outside that core

right, courts have applied intermediate-level scrutiny,

as the Fourth Circuit did in Woollard.

In that case, the Fourth Circuit appropriately

identified the burden as the government’s, considered

the evidence submitted, concluded that the State’s interest in public safety and reducing violence was compelling, and found that the State had carried its

burden of proving the required fit between the law and

its compelling state interests. Woollard, 712 F.3d at

879-81. The court made that decision based on a full

record, which it found “clearly demonstrated” that

Maryland’s good-and-substantial-reason requirement

advanced the State’s compelling objectives of “protecting public safety and preventing crime.” Id. at 879.

Compelling interests of public safety and prevention of crime have long led states to regulate the public

29

carrying of concealed and easily concealable weapons,

like handguns. Here, petitioners provided the lower

courts with no factual record or legal basis for overturning the Fourth Circuit’s 2013 conclusion in Woollard, which assumed that the regulated conduct falls

within the scope of the Second Amendment and then

concluded that Maryland law satisfies the appropriate

level of means-end scrutiny for laws regulating the carrying of concealable weapons outside the home. That

is, Maryland’s scheme is based on compelling interests

of public safety and crime prevention, does not ban

public carrying of handguns, and grants most applications for permits based on a need for self-protection.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

JULIA DOYLE BERNHARDT*

Chief of Litigation

OFFICE OF THE ATTORNEY GENERAL

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

jbernhardt@oag.state.md.us

(410) 576-7291

Attorneys for Respondent

*Counsel of Record