Back in 2013, as part of its Firearms Safety Act, the Maryland legislature created a Handgun Qualification License, which does not actually permit you to possess a handgun. Instead, it’s a permission slip to undergo a background check and go through the process of purchasing a firearm at retail. Not only does the law impose an additional and extraneous burden on would-be gun buyers, it adds to the cost of exercising your right to keep and bear arms by mandating a four-hour training class at a live-fire range as well as paying for your fingerprints to be taken and submitted to the state police.
The law is the subject of litigation filed by Maryland Shall Issue, and on Friday majority of a three-judge panel in Richmond seemed skeptical of Maryland’s argument that the law should be upheld despite the fact that the Attorney General’s office could find no analogue to the HQL in the historical record.
“The historical tradition is the substantive limitations that are furthered by the HQL law,” Assistant Attorney General Ryan Dietrich said. “Those are ensuring that dangerous, subversive, non-virtuous folks do not get deadly firearms.”
Dietrich argued that firearm competency is a tradition that was alive and well during the founding era. Dietrich cited a law from that time requiring citizens to pledge their loyalty to the United States or be disarmed as an example of the long tradition of limitations on the Second Amendment.
U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, disagreed with the example, stating that the loyalty test has to do with taking away firearms while the Maryland law relates to preclearance.
Richardson used numerous hypothetical situations to try to get Dietrich to concede that the HQL requirement infringes on Second Amendment rights.
“Is your argument that that time period where he cannot buy a firearm to protect his family and his home is not an infringement?” the judge asked.
Dietrich responded that although the law affects law-abiding citizens’ Second Amendment rights, it does not infringe upon them.
Richardson had fun with Dietrich’s bizarre claims, asking if anyone’s Fourth Amendment rights would be infringed upon if they and every other resident in their city were confined to jail for a month while police determined if any of them were bad actors. As Richardson pointed out, the Fourth Amendment protects against “unreasonable” searches and seizures, but the Second Amendment doesn’t talk about any “reasonable infringements.” Any and all infringements are unconstitutional under the Second Amendment’s language, and that would presumably include needless delays or extraneous licensing procedures.
Dietrich was also dinged by the three-judge panel for trying to play fast and loose with crime statistics in the state.
. . .
You can listen to the oral arguments for yourself here, and if you’re a Second Amendment legal nerd like me I think you’ll get a kick out of most of the back-and-forth. After listening to the entirety of the arguments, I’m pretty confident that a majority of the three-judge panel sees the inherent issues with Maryland’s Handgun Qualification License, and I hope that they decide this case themselves rather than kicking it back down to a U.S. District Court for a re-hearing.
Hoping for the best, but fearing the worst. It is Maryland, after all.
The Wombat has Late Night With Rule 5 Sunday: Olga Kurylenko on time and under budget at The Other McCain.
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