OFF THE WIRE
For anyone who has watched The Wire, it’s no surprise
that Maryland (Baltimore, in particular) has one of the highest rates of
violent crime in the country. In an alleged effort to address this
persistent problem, the state requires an applicant for a license to
carry a handgun to demonstrate “a good and substantial reason to wear,
carry, or transport a handgun as a reasonable precaution against
apprehended danger.”
Under this prove-it-to-use-it standard, Baltimore County resident
Raymond Woollard, who had had a license to carry for six years (after a
violent home invasion), was denied a license renewal because he could
not document that he had been threatened recently. The fact that he had
been attacked by his son-in-law seven years earlier, an event to which
it took law enforcement two-and-a-half hours to respond, was
insufficient to meet Maryland’s special-need requirement.
Woollard, along with the Second Amendment Foundation, thus brought
suit challenging the law under the Supreme Court’s recent decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).
Although the district court ruled for Woollard, finding that Maryland’s
restriction violated the Second Amendment, the U.S. Court of Appeals
for the Fourth Circuit overturned the lower court and reinstated the
law. The court purported to apply “intermediate scrutiny,” which allows a
challenged statute to survive only if it is “substantially related to
the achievement of an important governmental interest,” but in fact,
hardly applied any scrutiny at all. The court’s analysis was both
circular and contemptuous of Heller, finding that a regulation
is “substantially related” to the valid government interest of
curtailing criminal gun violence if it merely reduces the number of
citizens lawfully carrying handguns, thus accepting the state’s implicit
argument that the right to bear arms was itself the problem, one that
should not be overcome without “a good and substantial” reason.
Cato has filed a brief
supporting the plaintiffs’ request that the Supreme Court review the
case and clarify that the Second Amendment protects more than the right
to keep a gun in one’s home. The deferential approach that the Fourth
Circuit took here mirrors the weakened scrutiny applied in the Second
Circuit’s decision in Kachalsky v. Cacace, in which Cato also filed a brief. In Kachalsky,
the court upheld a New York law requiring applicants for a carry
license to show “proper cause.” Instead of requiring the state to
demonstrate a concrete connection between the restriction and crime
prevention, the court deferred to the political branches’ “discretionary
judgment” on the issue.
However, other courts have expounded different doctrines since the Supreme Court ruled in Heller that
the Second Amendment protects an individual right. For example, the
Chicago-based Seventh Circuit demands that a restriction on Second
Amendment rights satisfy a heightened level of scrutiny that requires
“an extremely strong public-interest justification and a close fit
between the government’s means and its end.” This confusion between
lower courts lies at the very heart of the definition of Second
Amendment rights outside of the home, and is in dire need of
clarification.
As with all other constitutional rights, the political branches
cannot limit the exercise of Second Amendment rights to those who can
demonstrate some “special need.” Whatever standard may ultimately
govern, this case provides an ideal opportunity for the Supreme Court to
reaffirm what the district court said in this case about Woollard’s
exercise of the constitutional right to armed self-defense: “The right’s
existence is all the right he needs.”