Maryland Judges Uphold State Anti-Handgun Law

cbsnews.com ^ | November 3, 2009 | Declan McCullagh

[neverdem]

I've written recently about how courts in New Jersey and Illinois have concluded that the Second Amendment poses no obstacle to local governments enacting stringent anti-gun laws.

Now a Maryland appeals court has followed suit. A three-judge panel ruled last Thursday that the Second Amendment does not interfere with a Maryland law that generally restricts state residents from carrying handguns.

That's not much of a surprise. What is remarkable is that Judge Albert Matricciani went out of his way to write that even if the Second Amendment applied to state laws, Maryland's statute would be perfectly constitutional in the wake of the U.S. Supreme Court D.C. v. Heller decision last year to invalidate the District of Columbia's handgun ban.

Matricciani wrote:

Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL Sec. 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the state." This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right.

Translation: Your right to keep and bear arms applies only to your own home.

The Maryland case started when an officer with the Prince George's County Police Department spotted a man named Charles Williams, Jr. rummaging through his backpack and then allegedly hiding something in the bushes. Williams allegedly told the police that he had concealed a handgun, and one was in fact recovered. Williams had purchased the gun legally, but carrying it without government permission -- which is virtually impossible to obtain -- is a crime.

(Like California, Maryland is one of those few states with a constitution that does not mention gun rights. A 1994 opinion(pdf) from the state attorney general says the Second Amendment does not apply to Maryland's laws because "in Maryland, the militia is 'well regulated' by Article 65 of the code" and "the needs of the militia can be met with state-owned firearms housed in secure locations.")

Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's Heller decision applied that prohibition only to the federal government and federal enclaves like Washington, D.C. Another case that the Supreme Court recently agreed to hear will decide whether that portion of the Bill of Rights applies to state and municipal governments (the concept is called "incorporation").

The problem for gun rights proponents is that, even if the Second Amendment is technically incorporated in the same way as the First Amendment has been, judges in more anti-gun states are sure to find creative ways to uphold even strict laws as constitutional.

Take the recent case in New Jersey, where a state appeals court upheld a state law saying that nobody may possess "any handgun" without obtaining law enforcement approval and permission in advance, saying it would be fine post-incorporation. Then there's the Ninth Circuit's decision(pdf), now effectively on hold, saying that while the Second Amendment applies to California municipalities, Alameda County's ordinance was acceptable.

This is all the more reason for the Supreme Court to guide lower courts considering whether or not an anti-gun law is permissible. We already know, thanks to Heller, that a flat ban on possessing handguns is out. But is mandatory gun registration permissible? Can a 17-year old be barred from buying a low-powered .22-caliber rifle? Can laws like California's one-handgun-a-month rule stand? Will what First Amendment lawyers call "strict scrutiny" be applied, or will a lower standard apply?

Another effort at clarification is a lawsuit that the Second Amendment foundation filed against the District of Columbia arguing that Americans generally have the right to carry firearms in public for self-defense. Both pro- and anti-gun types may be hoping for wildly different outcomes, but both should be able to agree that some legal clarity would be useful right about now.

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.

[Natural Law]

How do they establish that the blanket, all inclusive phrase in the 2nd Amendment “shall not be infringed” does not apply?

[opentalk]

I remember reading somewhere that the UN wanted a global gun ban. If true all the more reason to hold on to gun rights.

[randomhero97]

I remember reading somewhere that the UN wanted a global gun ban.

Bring on the shiney blue helmets.

[Dead Corpse]

Art 6 Para 2. "Judges of every State shall be bound thereby,..."

Amendment 2. "Shall not be infringed"...

Impeach them. Try them for violation of Title 18, Sections 241 and 242.

Do it NOW.

[Sans-Culotte]

"Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL Sec. 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the state."

So, even if that means you can only keep a gun at home, it is apparently illegal to drive it from the store to your house?

[Sgt_Schultze]

so if Maryland decided to ban a religion or to outlaw newspapers, that would be permissible?

[opentalk]

United Nations Still After Your Guns> sep 2009

The UN General Assembly has been in session, and if typical of the UN, some nasty things are probably in store for American gun owners as a result.

The Citizen's Committee For The Right To Keep and Bear Arms (CCKRBA), in a recent mailing, said that The UN is still actively pursuing the guns you own, and the ones you want to buy.... Rebecca Peters was largely responsible for the disarming of Australians and the associated increase in violent crimes there as a result of criminals retaining and using their firearms in assaultive crimes while the now defenseless law abiding general public turned theirs in for destruction.

I don't know much about this , but do not trust UN to care about our constitution or rights.

[GreyFriar]

I wonder if I can keep an armed bear in my home and also carry one around with me?

[imjimbo]

What we need is Ehrlich back as governor and to flush the Leftist maggots out of Annapolis-!!

[missycocopuffs]

My thought, too. Also, how would you practice with your home weapon at a range in order to be truly effective if the state says it’s illegal to transport it? I am finding this out first-hand as I am taking the NRA Personal Protection Class this month and having fired a weapon only once about 15 years ago. Making it illegal to transport a gun to a location where one can actually practice with the weapon effectively disarms an individual...but I guess that’s the point of these idiotic laws.

[Sgt_Schultze]

Good luck with that. Aren’t the folks who vote dem in your state the ones who cheer when somebody’s business is screwed? If so, they’ll probably stick with their favorite dem crook of choice.

[imjimbo]

Way too many brain-dead here. Baltimore and P.G. county are lousy with them.

[Waco]

And p-ss on the victim.

[Oldpuppymax]

Of course “important” people in Maryland will no doubt have the option of concealed carry. Chicago aldermen may carry concealed weapons, while average, “indispensable” citizens may not!

[Sans-Culotte]

I am taking the NRA Personal Protection Class this month and having fired a weapon only once about 15 years ago.

Luckily for me, I live in Texas. I have to go in and renew my concealed carry this month.

[Jacquerie]

Yeah, after 230 years, Congress has yet to acknowledge our 2A Rights in the law.

[BubbaBasher]

am finding this out first-hand as I am taking the NRA Personal Protection Class this month

Attending your class is clearly illegal because you will not be on your property. Even if the owner were to lend you a gun you would have possession of a handgun somewhere other than your home or property.

[the_devils_advocate_666]

It’s too bad the western panhandle of Maryland can’t become a part of West Virginia.

[Natural Law]

"Yeah, after 230 years, Congress has yet to acknowledge our 2A Rights in the law."

It would make an interesting House and Senate Resolution. Getting a role call vote on it before the 2010 elections would help to, as they say down south, south the fly sh*t from the pepper.