Academic journal article Harvard Law Review

Constitutional Law - Second Amendment - Fourth Circuit Upholds 'Good and sSubstantial Reason' Requirement for Concealed Carry Permits

Academic journal article Harvard Law Review

Constitutional Law - Second Amendment - Fourth Circuit Upholds 'Good and sSubstantial Reason' Requirement for Concealed Carry Permits

Article excerpt

Constitutional Law--Second Amendment--Fourth Cir-Cuit Upholds Good-and-Substantial-Reason Requirement for Concealed Carry Permits.--Woollard v. Gallagher, 712 F.3d 865 (4th Cir.), cert. denied, 134 S. Ct. 422 (2013).

In 2008, the Supreme Court held in District of Columbia v. Heller (1) that the Second Amendment guarantees individuals the right to possess and carry a firearm for self-defense in the home. (2) In 2010, the Court made clear in McDonald v. City of Chicago (3) that this right also applies against the states through the Fourteenth Amendment. (4) Because the Second Amendment "codified a pre-existing right" and "declare[d] only that it 'shall not be infringed,'" (5) these cases employed a lengthy and detailed inquiry into the historical understanding of the Second Amendment in order to define its scope. Recently, in Woollard v. Gallagher, (6) the Fourth Circuit held that Maryland's requirement that an applicant for a permit to carry a handgun in public demonstrate "good and substantial reason" to do so did not violate the Second Amendment. (7) Despite its recognition that historical inquiry is essential in delineating the Second Amendment's scope, the Fourth Circuit nonetheless eschewed historical analysis altogether in favor of a familiar intermediate scrutiny standard. Such an approach reflects the difficulties that judges face in attempting to parse inconclusive historical evidence for clear answers to contemporary problems.

Maryland prohibits the open or concealed carrying of a handgun outside the home without a permit. (8) The Secretary of the State Police must issue permits, but only to those who meet certain statutory conditions. (9) of relevance to this case, the Secretary must find that the applicant "has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger." (10)

In 2002, Raymond Woollard was at home with his family when his son-in-law, Kris Lee Abbott, broke into the house. (11) The resulting altercation ended only after Woollard's son pointed a gun at Abbott and Woollard's wife called the police. (12) Abbott was sentenced to probation for the incident but was later incarcerated for probation violations. (13) In 2003, Woollard applied for and was granted a handgun carry permit, and the state allowed him to renew this permit in 2006 after Abbott was released from prison. (14) However, when Woollard applied for a renewal in 2009, his application was denied due to his inability to produce evidence "to support apprehended fear (i.e.--copies of police reports for assaults, threats, harassments, stalking)." (15) Woollard appealed the decision to the Handgun Permit Review Board, which affirmed the denial, finding that Woollard "ha[d] not submitted any documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun." (16) Woollard then filed suit against the Secretary and members of the Board, challenging the constitutionality of the good-and-substantial-reason requirement. (17)

As the facts of the case were not disputed, both parties moved for summary judgment. (18) The court faced "two fundamental questions": whether the Second Amendment protections outlined in Heller "extend beyond the home," and if so, whether the good-and-substantial-reason requirement "passes constitutional muster." (19) Despite the Fourth Circuit's reluctance in its earlier case United States v. Masciandaro (20) to "venture into the unmapped reaches of Second Amendment jurisprudence," the district court concluded that "the instant suit does require the Court to determine whether Maryland's broad restriction on handgun possession outside the home burdens any Second Amendment right at all." (21) Relying upon "signposts" and historical evidence from Heller, the court found that "the right to bear arms is not limited to the home." (22)

To determine the appropriate level of scrutiny to apply, the court looked to Masciandaro for the proposition that assertions of Second Amendment rights outside the "core right of self-defense in the home" (23) are "properly viewed through the lens of intermediate scrutiny," placing the burden on the State to show "a reasonable fit between the statute and a substantial governmental interest. …

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