MD Judges Uphold State Anti-Handgun Law

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Maryland Judges Uphold State Anti-Handgun Law - Taking Liberties - CBS News

by Declan McCullagh
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 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, 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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(Like California, Maryland is one of those few states with a constitution that does not mention gun rights. A 1994 opinion 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.")

Sure, it makes perfect sense to me now. Let's let the state hold on to the guns and house them for us. That way if we need them to repel a oppresive government, we can just pick them up when we get there. How much more simple can it be?