Taking Liberties
November 4, 2009 12:50 AM

Maryland Judges Uphold State Anti-Handgun Law

By
Declan McCullagh
Topics
Gun Rights
(AP Photo/Jacquelyn Martin)
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.
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.

  • Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

Add a Comment See all 23 Comments
by thndersrage July 11, 2011 9:48 AM EDT
The right of the people to keep and bear Arms, shall not be infringed

I would emphasize BEAR, which means "to carry". There is no way an honest Judge could say otherwise.
Reply to this comment
by memerider November 12, 2009 12:58 PM EST
"Today, we need a nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life."
--President John F. Kennedy
Reply to this comment
by CWBuffalo November 11, 2009 11:27 AM EST
All of the Constitutional Law debates aside, Baltimore still leads the nation in homicides. But for the fact that Baltimore is home to the infamous Johns Hopkins Hospital and the world class University of Maryland Trauma Center the city's murder rate would be significantly higher. These outstanding medical centers and professional staff members mastered the art of reviving the hopelessly injured.

Crazy is often defined as continuing to behave in the same manner and expecting a different outcome. Let's try something really crazy like giving law abiding citizens the right and ability to self-defense. It works in 40 other states, why not Maryland?
Reply to this comment
by memerider November 10, 2009 9:41 PM EST
Read "The Founders' Second Amendment" by Stephen Halbrook for a scholarly review of meanings of phrases (such as "well-regulated) at the time the U.S. Constitution was penned. The sad fact is, if government continues to abridge our rights, and people maintain their ignorance and allow it--or even encourage it--to happen, no good can come of it.
Reply to this comment
by army166 November 10, 2009 8:14 PM EST
'A well regulated militia..............." Note 'well regulated'. Funny how that seems to get blocked out by the extremist pro gun groups. The feds and states have the right to regulate and restrict, the 2nd Amendment has never removed that right.
Reply to this comment
by alliberty November 11, 2009 2:15 PM EST
" A well regulated Militia" as defined by Alexander Hamilton wrote on the Federalist Papers #29 " Concerning the Militia" is about " the character of a well regulated militia" is the ability only of being able to use a firearm as well a infantry soldier which can be achieved by practice at a local civilian shooting range. There is nothing about regulating the militia as rules imposed by the state in relation to the National Guard. Nor does it give the federal government under Heller the power to deny the weapon in common use at the time by the militia. It is not about limiting the guns to a musket which gun grabbers like to imagine the word regulate stands for.
by army166 November 10, 2009 8:09 PM EST
The Heller decision applied to the right to own and keep in one's home. It did not 'legalize' carrying of firearms. I think some gun owners read something into the Heller decision that the SC never implied or explicitly stated.

As far as 'watering the tree of liberty, that stupid statement should be kept silent. The little minority of nuts who own guns need to remember that the vast majority of gunowners will stand with the federal government in the time of crisis.
Reply to this comment
by tomhallett November 10, 2009 11:10 AM EST
Court decisions are just sophistry for lawyers and ninnies.
Keep your weapons well maintained, your powder dry, and your aim well practiced.
Soon enough we'll need to water the tree of liberty!
????? ????!
Reply to this comment
by vinnyb5 November 5, 2009 3:48 PM EST
So if i buy a handgun in maryland...how do i get it to my house?

The first shots of the American Revolution were fired when King George order the redcoats to confiscate the arms of the colonists. Gun opponents would have us belive that the same people who resisted those order, would then turn around and allow the same to happen. Dont believe it for one minute.

Militias were made up of "the people", not the government.
Reply to this comment
by ronpilot November 5, 2009 1:41 PM EST
Seems there are sonme people who do not know the meaning of the word "militia". Militia, as used by the founding fathers, means "the people". Specifically, able-bodied armed men who are not a member of the standing army. This means CIVILIANS. "Well regulated" has nothing to do with government regulation or control. "Well regulated" means competent in their purpose, i.e. defense of a "free State". Therefore, a "well regulated militia" is a well-armed citizenry who can shoot straight. Their right to keep and bear arms is guaranteed by the 2nd Amendment.
Reply to this comment
by native_warrior_USMC November 5, 2009 7:45 AM EST
And as soon as I get a Guardsman issued to me to be with me 24/7, I'll quit carrying a handgun. But until that time, I'm carrying.
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