Gun Stores Have Standing to Raise Their Customers' Second Amendment Rights

in challenge to Maryland's handgun license requirement.

|The Volokh Conspiracy |

So the Fourth Circuit held today in Maryland Shall Issue v. Hogan, in an opinion written by Judge Steven Agee and joined by Judges Barbara Keenan and Julius Richardson. The court cited Supreme Court cases that allowed alcohol stores to assert their prospective customers' Equal Protection Clause rights in challenging sex-discriminatory drinking ages, and contraceptive sellers to assert their prospective customers' substantive due process rights. The district court will now need to consider whether the Maryland law is consistent with the Second Amendment.

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  1. The decision that the individual plaintiffs don’t have standing to bring their vagueness challenge is troubling.

    I don’t have a strong opinion when it comes to whether the panel is right on the law on that issue. But it sure would be nice to have the question definitively settled by the courts. This is a point of general concern among some of the shooters that I know. They don’t know whether they’re violating the law by, e.g., letting a friend use their firearm at a range (or at a range at their home). Despite what the panel says about the MD State Police’s FAQ, I’ve had someone I know tell me that they’ve been lead to believe otherwise by individual state police.

    Maybe the concern is unfounded, but the terminology in the law is vague and would – I think – allow law enforcement to pursue the prosecution of someone for firing – or even just handling – someone else’s firearm. I think people have a right to know for sure whether they are allowed to do such things.

    1. Despite what the panel says about the MD State Police’s FAQ, I’ve had someone I know tell me that they’ve been lead to believe otherwise by individual state police.

      As SCOTUS has previously ruled, the police are allowed to lie. Additionally, the Police do not interpret the law, the courts do. What the police say has no bearing on what a Prosecutor will try to charge nor how a court will rule. So yes, the courts need to step in on this one to explain exactly what the law means.

    2. The Maryland State Police are a disaster, especially when it comes to firearms regulations. Source: used to live in Maryland, had to deal with MD SP whenever engaging in a private firearm sale.

    3. My thoughts are standing and mootness are more about getting courts out of doing their proper job and less about stopping frivolous lawsuits.

      They should be greatly curtailed.

  2. I am ok with this, as I am ok with abortion clinics having standing to challenge restrictions on behalf of their customers.

    1. Right. If your business depends on some constitutionally protected, or even arguably constitutionally protected, activity, you are clearly injured when the right is infringed. That should give you Article III standing.

  3. I’m troubled by the concept of needing a state license to exercise a constitutional right. The courts wouldn’t countence requiring a license to have a blog, or get an abortion, or for traveling outside the state. Claiming requiring a license and 4 hours of training doesn’t impermissably burden those rights wouldn’t fly in court, even though they aren’t explicitly guaranteed not to be infringed, and you could certainly make the argument that 4 hours of training on the dangers of an abortion and post op care and how to travel safely out of state by highway or air would be the minimum needed to safely exercise those rights.

    1. If thousands of people were killed every year by blogs, then requiring some sort of licensing and training might not be so far fetched.

    2. Actually let me elaborate on my previous comment.

      The lion’s share of practicing law consists of speech. Advocating in court, advising clients, writing wills, that’s all speech. So what about someone who has never been to law school claiming that requiring that he have a law degree and pass the bar violates his free speech rights? Pretty silly argument, right? Well, so is the argument that because there is a constitutional right to bear arms, that there can be no reasonable state regulations.

      There are time, place and manner restrictions on speech. There are restrictions on some people engaging in certain types of speech at all, such as the unauthorized practice of law. What Chelsea Manning did was speech, but she went to prison for it (and according to some here, not for nearly long enough, and so will Edward Snowden if the feds ever get their hands on him).

      I’m sorry, but the idea that there can be no reasonable regulation of constitutional rights is nonsense on stilts.

      1. The law permits some forms of licenses on constitutional rights and does not permit others. Broadcasters hold licenses. So do abortion clinics. So do pharmacists who dispense contraceptives. So do lawyers, as you note.

        I think a lot of Second Amendment advocates don’t really think through this issue. They just see the prior restraint rule in the speech context and say “you see, we shouldn’t have to have a license either!”. Different rights, in different circumstances, have different scopes.

        1. This would work, if states would honor those licenses.

        2. There are different justifications for all those different forms of licensing, though. Broadcasters are required to get licenses because they are using the public airways; newspapers, on the other hand are not required to be licensed. Too many licensing schemes for guns and gun-owners involve way to much discretion on the part of the issuing authorities, more discretion than would be considered proper in other contexts. And no one is asked to prove any kind of “necessity” to get a license to practice law, provide abortions or contraceptives, or operate a broadcast operation.

    3. How about 4 hours of “training’ by a DNC approved trainer before you could vote? Or getting the “permission” of the sheriff or county executives only if you “promise” to vote for them? Or having to pay the “sergeant” who issues the permissions $5,000 for that permission, like has been documented in NYC? Any of that sound unconstitutional?

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