The Volokh Conspiracy
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Today Joseph Greenlee and I filed an amicus brief in the Fourth Circuit case Maryland Shall Issue v. Hogan. Our brief is on behalf of the Firearms Policy Coalition Action Foundation (where he works) and Independence Institute (the Denver think tank where I work).
The case had previously appeared in the Fourth Circuit in 2020, when a panel ruled that a licensed firearms dealer had standing to challenge Maryland's 2013 handgun licensing law, and that the dealer also had third party standing on behalf of customers. 971 F.3d 199 (4th Cir. 2020). Now, the case has returned on the merits. The Maryland Attorney General denied consent for filing of the amicus brief, so we will wait to see whether the Fourth Circuit accepts it.
Under a 2013 Maryland statute, a state-issued Handgun Qualification License (HQL), which requires range training, is necessary to purchase, rent, or receive a handgun. This is on top of the pre-existing system requiring a "Maryland State Police Application and Affidavit to Purchase a Regulated Firearm" (MSP 77R). And of course on top of the background check required by federal law for all firearms purchases in gun stores. According to the complaint, applying for a HQL takes a month, and necessitates "hundreds of dollars in fees, costs and travel, not counting time off of work."
The amicus brief straightforwardly applies the Supreme Court's test for Second Amendment cases, as recently stated in New York State Rifle & Pistol Association v. Bruen
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command.
Here, the case involves keeping a handgun in the home, which is certainly protected by the Second Amendment. The government bears the burden of proving that the HQL "is consistent with the Nation's historical tradition of firearm regulation."
In Bruen, the Court stated that history from the original periods (1791 for the Second Amendment, 1868 for the Fourteenth, which made the Second Amendment enforceable against the states) are most important. Colonial history is relevant, as is English history to the extent that it reflected an unbroken tradition that was adopted by the colonists and in force during the Founding Era. The nineteenth century is also relevant, with the first part of the century being most important, and the latter part of considerably less (but not zero) significance. Anything after 1900 is far too late to establish a tradition contrary to the constitutional text.
In the Maryland Shall Issue amicus brief, we describe in chronological order all pre-1900 licensing laws for gun possession. Such laws did exist, but only for people who were considered not to have civil rights: slaves (who were either blacks or Indians) or free people of color (again, blacks or Indians). Antebellum courts that upheld these laws expressly stated that they would be unconstitutional if applied to the white population. Aldridge v. Commonwealth, 4 Va. 447, 449 (1824); State v. Newsom, 27 N.C. 250, 252 (1844).
The Fourteenth Amendment and the Civil Rights Act got rid of all the gun possession licensing laws. No such law was enacted thereafter in the United States in the nineteenth century, except for an 1893 Florida statute. That statute made it unlawful to "own a Winchester or other repeating rifle" without a license from the County Commissioners; the license required an exorbitant bond.
As Florida Supreme Court Justice Rivers H. Buford later explained, the licensing law "was passed . . . for the purpose of disarming the negro laborers" in the state and "was never intended to be applied to the white population." Watson v. Stone, 148 Fla. 516, 524 (1941) (Buford, J., concurring). Justice Buford noted that "there had never been any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested." Id.
So the number of valid pre-1900 precedents for licensing home possession of a firearm is zero. While Bruen allows analogical reasoning (rather than simply copying valid gun control laws from pre-1900), here there is nothing on which to base an analogy.
The precedent for a training requirement for home possession is also non-existent. There is no question that a state government can train the militia. U.S. Constitution, Art. I, sect. 8, cl. 16 ("reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress"); Md. Const. art. IX, § 1 ("The General Assembly shall make, from time to time, such provisions for organizing, equipping and disciplining the Militia, as the exigency may require, and pass such Laws to promote Volunteer Militia organizations as may afford them effectual encouragement.").
The HQL, however, applies to everyone in Maryland, not solely militia members. And the training requirements do not involve militia skills, such as perimeter defense by a group. Historically, training was not a precondition to possession of an arm for militia duty. Rather, the statutes required militiamen to possess certain arms (typically, a long gun and an edged weapon), and to bring those arms to training whenever the government scheduled militia training.
Notably, in many colonies and states, the government also required ownership of the same arms by people who were not in the militia. These included men with occupational exemptions (e.g., physicians), men who were too old for the militia, and females who were heads of households.
Additionally, many statutes required arms carrying by everyone engaging in certain activities, such as traveling, going to public meetings, going to church, going to court, or working in the fields. These requirements applied regardless of sex or household status.
Notably, there were no training requirements at all for non-militia who were legally required to possess the same arms as the militia. No state or colony before 1900 imposed any rule making training a prerequisite to keeping a firearm at home.
Therefore, the amicus brief suggests that the training requirement of Maryland's Handgun Qualification License is unconstitutional.