The Volokh Conspiracy
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Maryland AG (and Maryland Appellate Court) Acknowledges that Maryland Must Go Shall-Issue After Bruen
From a letter (though not an official opinion) sent today by the Maryland Attorney General to Captain Andrew Rossignol, Commander of the Maryland State Police Licensing Division; you can also read the cited July 1 Maryland appellate court case, In re Rounds:
As explained in more detail below, Maryland's "good and substantial reason" requirement is now clearly unconstitutional, based on controlling Supreme Court precedent that is directly on point. Indeed, the Court of Special Appeals concluded as much just a few days ago in an unreported decision. In re Rounds, No. 1533, Sept. Term, 2021 (Md. Ct. Spec. App. July 1, 2022) (unreported). Thus, the Department is not required to continue enforcing—and, in fact, may not continue to enforce—the "good and substantial reason" requirement in processing public-carry permit applications.
But that conclusion applies only to the "good and substantial reason" requirement. That is, with limited exceptions specifically authorized by law, it remains illegal for an individual to carry, wear, or transport a handgun in public in Maryland without a permit from the Department of State Police. The Department also must continue to enforce all other statutory prerequisites for the issuance of public-carry permits. For example, among other statutory prerequisites, the Department still is prohibited from issuing a permit to an applicant who has been convicted of "a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed," PS § 5-306(a)(2)(i), or who has "exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another," PS § 5-306(a)(6)(i). In addition, Maryland's laws and regulations prohibiting the carrying of handguns in certain sensitive places—like schools—remain in effect….
Ordinarily, a State agency must comply with the enactments of the General Assembly that govern its conduct…. And only a court, not the Office of the Attorney General, can "invalidate an act of the General Assembly." [But h]ere, the Court of Special Appeals has found that Maryland's "good and substantial reason" requirement is unconstitutional. Although it did so in an unreported decision—which lacks precedential effect—the Department is no longer obligated to enforce the requirement because, as the Court of Special Appeals recognized, the requirement is clearly unconstitutional under controlling Supreme Court precedent. Indeed, when a statutory provision is clearly unconstitutional under controlling Supreme Court case law that is directly on point, the Office of the Attorney General has generally advised that the statutory provision is "unenforceable." Continued enforcement of a clearly unconstitutional statute would also expose State officials to the risk of litigation and individual liability under federal law.
Of course, given that the General Assembly's enactments are presumed to be constitutional, this Office will conclude only in rare cases that a Maryland law is unconstitutional and that it does not need to be enforced. But this is one of those rare cases: the Bruen Court all but explicitly stated that Maryland's "good and substantial reason" requirement is invalid for the same reasons as New York's "proper cause" requirement….
[But] the Department must continue to apply all other requirements governing the qualifications to obtain public-carry permits. For example, among other qualifications, the Department must still deny a permit to an applicant who has "been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed," PS § 5-306(a)(2)(i); who has "been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance," PS § 5-306(a)(3); or who is "an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction," PS § 5-306(a)(4). Similarly, with certain limited exceptions, the Department must still deny a permit to an applicant who has not completed a "firearms training course approved by the Secretary." PS § 5-306(a)(5). And, as another example, the Department must still deny a permit to an individual if, "based on an investigation," the Department finds that the individual has "exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another." PS § 5-306(a)(6)(i).
It is also worth noting that the Supreme Court's decision does not require the State of Maryland to allow for the public carry of firearms in every type of location in the State, without any limits. Rather, the Court in Bruen explicitly reaffirmed that states may still prohibit carrying firearms in "sensitive places such as schools and government buildings," though it did not "comprehensively define" every location that would (or would not) qualify as a "sensitive place[]."That means that even those individuals with a public-carry permit remain prohibited from carrying firearms in certain sensitive places, such as schools, where doing so is prohibited by law. See, e.g., CL § 4-102(b) ("A person may not carry or possess a firearm … on public school property."); Md. Code Ann., State Gov't § 2-1702(e) (generally prohibiting firearms in State legislative buildings); COMAR 04.05.01.03B (generally prohibiting firearms in State buildings). {To be clear, this is not intended to be a comprehensive list of sensitive-place restrictions under Maryland law.}
Thanks to Ed Shell for the pointer.
