The Supreme Court of the United States’ 6-3 ruling in New York State Rifle & Pistol Association v. Bruen officially made at least one of Maryland’s gun laws unconstitutional. The ruling, which extended the rights granted under District of Columbia v. Heller (2008), allows law-abiding citizens to carry a handgun outside of the home for any reason.
Mark W. Pennak, president of Maryland Shall Issue Inc., also told the Daily Record that he believes the “state’s handgun licensing requirement is also a ‘dead letter’ based on the Supreme Court’s statement in Bruen that gun regulations are valid only if in keeping with the constitutional text, history and tradition of state regulation of firearms.”
Since Maryland, like New York, required a “good and substantial reason” to carry a concealed weapon, and the Supreme Court has ruled that New York’s requirement is unconstitutional, Maryland’s law is now unconstitutional as well.
What does this ruling mean for Maryland?
Maryland – like New York, New Jersey, Delaware, and other states – will need to rewrite any legislation that restricts the ability of a law-abiding citizen to carry a handgun outside the home. Currently, the laws say that you need a “good and substantial reason” to carry a handgun outside the home. The Supreme Court ruling states essentially that no, you do not.
Note that “law-abiding” is part of the deal; you can still lose your right to carry a firearm if you are convicted of certain crimes, and there may still be places where carrying a gun is restricted (such as State buildings or private property). And thanks to the federal Bipartisan Safer Communities Act, passe don the same day as the Supreme Court decision, things like “red flag laws” are here to stay, too. (Maryland was one of the first states to enact Extreme Risk Protective Orders, which can prevent a person suspected of violence from purchasing or possessing a gun.)
However – and this is worth pointing out, we think – there is still a lot of room for interpretation. For example, the Washington Post reports that Justice Brett M. Kavanaugh and Chief Justice John G. Roberts Jr. both agreed that “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force” will still be constitutional, but Justice Clarence Thomas, who wrote the opinion, issued no such direction.
Bruen was not necessarily a Second Amendment case
There’s been a lot of discussion about that “constitutional text,” but most people focus on the Second Amendment, which says “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Advocates for more gun control tend to focus on the first half, regarding the “well-regulated militia.” Advocates for less gun control tend to focus on the second half – “the right of the people to keep and bear arms shall not be infringed.”
But the Bruen decision is as much about the Fourteenth Amendment as it is about the second, per Justice Clarence Thomas’ own opinion: “We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
The Fourteenth Amendment is broken up into five sections, but only the first section applies:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the Privileges or Immunities Clause, and it was originally intended to protect the legal rights of freed slaves. Over the years, however, it has been used as the basis for many rulings, including the now-overturned Roe vs. Wade, and – perhaps ironically – both Plessy vs. Ferguson and Loving vs. Virginia.
But how does this apply? You could argue that restricting the right to bear arms abridges the privileges or immunities of a citizen, but you could also argue that such restrictions are a violation of due process. What Heller did was establish that individuals have rights to possess firearms in their own home. McDonald v. City of Chicago established that the Second Amendment was applicable under the Privileges or Immunities Clause. As such, per Thomas, “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
What happens if I am facing charges for a now-unconstitutional law?
It depends. If you were charged with unlawfully carrying a concealed weapon before the Supreme Court decision was handed down, it is up to the prosecutor to decide whether he or she wants to continue with your case or vacate the charges. If you have an arrest record stemming from a gun charge, however, you may be able to petition to have it expunged, the way people across the country are now petition to have their records cleared from marijuana-related crimes.
One thing is for certain, though: whether you are facing charges, have been convicted, or are currently serving time for this type of gun charge, you want an experienced criminal defense lawyer by your side. Trying to navigate these waters alone is a mistake, in our opinion. The next few months are going to be a real challenge; you don’t want to go through them alone.
Carey Law Office has experience representing clients facing gun-related charges or enhancements, and we want to help you, too. Schedule a consultation by calling 301-464-2500 or filling out our contact form. We have offices in Bowie, Crofton, and Owings, and serve clients throughout Maryland.
My name is Joe Carey, and I am the founder and principal attorney of the Carey Law Office. I have lived in Maryland my entire life. I grew up in a small town in Prince George’s County and, with the help of my partner in life, Nancy, I raised my family here: three exceptional children (a son and two daughters), and two goofy, spoiled black Labrador Retrievers. Learn More