By: Warren Gray
Last month, the gun rights organization Maryland Shall Issue (MSI), based in Annapolis, Maryland, filed a 56-page appellate brief in the Maryland Court of Special Appeals challenging Maryland’s highly restrictive concealed carry gun laws. The lawsuit is against the Handgun Permit Review Board.
The brief, filed by counsel Mark Pennak on behalf of MSI member Edward Holmes Whalen, asserts that the state’s gun laws are overreaching and unconstitutional and have been superseded by other case precedents in District of Columbia v. Heller and McDonald v. City of Chicago. Mr. Whalen was arbitrarily denied a permit by the Maryland State Police, and that denial was sustained by both the Handgun Permit Review Board and the Baltimore City District Court.
A ‘Good and Substantial Reason
According to the MSI website, “Maryland Shall Issue (Inc.) is an all-volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners’ rights in Maryland. It seeks to educate the community about the right of self-protection, the safe handling of firearms, and the responsibility that goes with carrying a firearm in public. The (Whalen) appeal challenges the constitutionality of the ‘good and substantial reason’ standard the state uses to deny Maryland citizens the ability to protect themselves in public.”
Maryland residents must currently provide a “good and substantial reason” to be granted a concealed carry permit. Maryland is one of 10 states considered to be a “may-issue” state, meaning that it requires a permit to carry a concealed handgun, and granting that permit is entirely as the discretion of local authorities. As of April 2014, for example, out of a state population of six million people (6.06 million in 2019), there were 14,298 active carry permits, which amounts to less than one-fourth of one percent of all Maryland citizens possessing such a permit.
Most of the reasons for these numbers are the political demographics of the state, in which 55 percent of voters are Democrats, 31 percent are Republicans, and 14 percent are non-aligned. Although Maryland currently has a Republican governor, Larry Hogan, the Maryland Senate consists of 32 Democrats and 15 Republicans. Likewise, the Maryland House of Delegates is comprised of 99 Democrats and 42 Republicans. The Legislative Partisan Breakdown for the years of 1992 through 2013 shows that the state voted 100-percent Democrat on virtually every legislative issue.
State Senator Michael Hough, a Republican, told the Frederick News-Post (FNP) on July 27, 2019, that, “It’s a restrictive law that prevents most average citizens from being able to obtain a permit. It’s an undue burden on people. The vast majority of people that get this permit are armed security or private (investigators.) It’s very difficult for the average citizen to get one...A lot of the pro-gun Democrats (in the legislature) aren’t even around anymore...This is one of the top issues for my constituents. They enjoy shooting. They’re law-abiding citizens, who want to be able to carry for protection.”
The FNP adds that,
“Maryland’s Republican legislators, including Hough, have for years tried unsuccessfully to loosen some of the state’s gun laws...Hough sponsored a bill that aimed to add personal protection and self-defense to qualify as a ‘good and substantial’ reason. The bill received an unfavorable report in committee, and never made it to the Senate floor in a vote that Hough said was nearly along party lines.
“Hough acknowledged that since gun-rights supporters are an overwhelming minority in the state Senate, it’s going to be challenging to loosen the state’s gun laws through legislation, adding that the court system might be ‘our best hope.’”
What about Violent Crime?
What have these extraordinary restrictions done to actually curb violent crime in Maryland? Not much. As of 2019, Maryland is ranked #11 for violent crime among the 50 states, and is officially listed as the 32nd safest state in the nation, hardly an enviably position. This is particularly evident in the crime-ridden, Democrat-controlled city of Baltimore, which has recently been in the national headlines.
In fact, Kay Coles James, president of the highly-respected Heritage Foundation, wrote for Fox News on August 3, 2019, that:
“About the crime, poverty and despair in Baltimore...Liberal policies have failed the people of Baltimore and inner cities everywhere...For decades...(they) have delivered policies that actually increase crime, degrade educational standards, and make it harder to get work.
“Crime is allowed to fester. When police and prosecutors don’t pursue and punish smaller crimes, criminals remain on the streets and graduate to more serious crimes until things spiral out of control...Baltimore’s homicide rate outpaced all major cities in 2017.
“In 2018, it had the highest overall crime rate out of the 30 largest cities in America...The left has tried decades of its experiments with miserable results.”
Clearly, Maryland’s gun laws are totally ineffective when they propel Baltimore to become the murder and overall crime capital of the entire nation!
What is extremely telling is that the three safest states in the country: Maine, Vermont, and New Hampshire, all have “Constitutional Carry” in effect, meaning that ordinary citizens may carry concealed firearms without a permit. At least 13 states have now adopted Constitutional Carry, and for the most part, their crime rates are very low; criminals know that virtually anyone may be armed at any time.
Gun Buyers Presumed to Be Criminals
Until 2016, Maryland gun dealers were required to forward the manufacturer-included, shell casing provided with each new handgun, in its sealed container to the Department of State Police Crime Laboratory upon the sale of any handgun, for inclusion in their ballistic database, known as the Integrated Ballistics Identification System (IBIS.)
The entire premise of this system was that legal handgun purchasers were instantly expected to become gun-wielding criminals, who could then be identified by the expended shell casings they would inevitably leave behind at their crime scenes. The ill-fated IBIS program was shut down in 2015 due to its abject failure and ineffectiveness. Legal gun owners, it seems, were not committing crimes, after all.
’Approved’ Handgun List
Maryland has a registry of “approved” handguns that may be purchased in the state, and these are listed on the Maryland Handgun Roster. There is no logic behind it, however.
This author recently attempted to purchase a very simple, single-shot, .410-gauge/.45 Long Colt pistol for defense against snakes, but it was banned. Likewise, a small, .22 Magnum revolver was also banned. The laws are clearly written by someone with no understanding of firearms, banning selected handguns on a whim.
Fifteen semi-automatic models are also banned as “assault pistols.” What’s an “assault pistol?” This is a highly-discretionary definition, determined solely by the Maryland State Police. Presumably, it refers to magazine-fed, semiautomatic pistols based upon the design features of banned, “lookalike,” assault rifles.
Like Mr. Whalen in the case of this new lawsuit, this author was also arbitrarily and capriciously denied a concealed carry permit by the state of Maryland. I’m a retired, field-grade, military officer, who held a Top-Secret clearance for 21 years, had a distinguished career, committed no crimes, received recurring firearms qualification training at least annually, qualified as “Expert” with the M16A1 rifle (also, the M4A1 carbine) and 9mm pistol, and had similarly high scores with the Remington 870 shotgun and MP5A3 submachine gun, but no “Expert” categories existed for those weapons.
I’ve held concealed carry permits in North Dakota, South Dakota, and Louisiana, with no problems whatsoever, and rarely even felt the need to actually carry a weapon in any of those states. I currently hold another CCW permit that is honored in 37 states, but not in my own state of Maryland, which honors no one else’s permits. In addition, I’m an NRA member, and an experienced, deer and turkey hunter in the state, equally proficient with long guns.
I’m also a documented graduate of the prestigious, Mid-South Institute of Self-Defense Shooting, based in Lake Cormorant, Mississippi, a longtime, defense contractor who teaches professional shooting techniques to America’s very best counterterrorist and special operations forces (don’t ask), and selected law enforcement agencies, for 50 weeks of each year. Suffice it to say, I’m an honest, trustworthy, well-educated, law-abiding veteran, who is quite proficient and safe when handling all types of firearms.
Treated Like a Criminal
So, on December 8, 2001, I applied for a Maryland CCW permit, paid the hefty, $117 application fee, was fingerprinted like a common criminal, and waited for the state’s reply. The Maryland State Police readily accepted my substantial cash payment without even remotely advising me that they had no intention whatsoever of approving the permit. In this respect alone, the patently unjust process has all the earmarks of a total cash scam, and nothing about it has changed over the past 18 years since I applied.
On March 25, 2002, the Maryland State Police responded in writing, stating that, “You failed to meet a requirement and/or are prohibited by law...You do not have a good and substantial reason to wear, carry, or transport a handgun.”
Since my one and only reason was “self-defense,” by declaring in writing that I had no valid, legal reason for obtaining a CCW permit, the Maryland State Police was essentially saying that self-defense, at least with a handgun, is illegal in Maryland. It is noteworthy that the Constitution of Maryland contains no provision for protecting the rights of individuals to keep and bear arms.
On March 5, 2012, federal District Judge Benson Everett Legg officially ruled in Woollard v. Sheridan that Maryland’s “may-issue,” concealed-carry law was unconstitutional, writing that, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights.”
This should have been a huge victory for gun-rights advocates, but the state of Maryland had other ideas. The Maryland Attorney General’s office appealed the ruling, and on March 21, 2013, a three-judge panel of the Fourth (U.S. federal) Circuit Court of Appeals unanimously overturned the District Court ruling, holding that the “good and substantial reason” requirements imposed by the state are permissible without violating the Second Amendment of the U.S. Constitution.
As of October 1, 2013, even more significant firearms restrictions went into effect in Maryland. Potential handgun purchasers must now be fingerprinted (like criminals) and pass a training class in order to obtain a Handgun Qualification License (HQL) to simply purchase a handgun. The nebulous, “assault pistol” provision was added, and only specified handguns on the official roster may be purchased. There is also a background check and seven-day waiting period required.
Firearms advocates challenged the new 2013 law, with the District Court ruling that the law was unconstitutional based upon “intermediate scrutiny.” But the state of Maryland’s liberal judges in the U.S. Court of Appeals for the Fourth Circuit (currently with eight Democrat-appointed judges, and seven Republican-appointed judges in 2019, after three Trump appointees took office) overruled the District Court decision on February 1, 2016, in a two-to-one vote.
The U.S. Supreme Court refused to hear the case in 2017, so once again, Maryland got away with overturning a landmark, gun-rights decision on appeal.
The MSI website states that, “This case (Whalen v. Handgun Permit Review Board) may establish (an) important, new precedent in Maryland by making clear (that) the right of self-defense applies to all ‘the people’ protected by the Second Amendment, not merely the tiny, select few favored by the State Police. The state has 30 days to file a brief, after which we have 20 days to file a reply. The case is tentatively set for oral argument before the Court of Special Appeals in Annapolis in November.”
One Maryland resident, who shall remain anonymous, posted this chilling remark on Facebook: “I once saw a movie in which only the military and police had guns. It was called ‘Schindler’s List.’”
For anyone who missed this compelling 1993 film starring Liam Neeson as Oskar Schindler, it’s an epic, period, historical drama about a real-life, German businessman who helped an estimated twelve-hundred Jews escape the death camps of the Holocaust by employing them in his enamelware and munitions factories in occupied Poland. Perhaps the state of Maryland would do well to learn the bitter lessons of history.
Maryland’s Democratic legislators have a notorious history of running roughshod over the Second Amendment, and bringing in their own, liberal judges to overturn any firearms rulings that they don’t like. They were successful at least twice before, in 2013 and 2016, and will undoubtedly fight any possible, favorable ruling in Whalen v. Handgun Permit Review Board with guns blazing, figuratively speaking, this coming November. Short of direct intervention by the Supreme Court, the final outcome may be accurately predicted based upon past legal battles, and Maryland’s highly restrictive gun laws are likely to remain firmly in place for the foreseeable future.
There Is Hope
There is some hope, however, in the form of Malpasso et al v. Pallozzi, another recent lawsuit based upon the “good and substantial reason” argument. This case was initially dismissed based on the Woollard ruling, but has since been appealed to the U.S. Supreme Court.
As MSI states on their website, “It is well past time that the state of Maryland joins each of its immediate neighbors and an overwhelming majority of the country in observing that people have the natural and civil right to self-defense beyond their doorsteps.”
It remains to be seen whether the Supreme Court will actually hear this case, however. Until then, Maryland will strongly resist any changes to the status quo.
Warren Gray is a retired, U.S. Air Force intelligence officer with experience in joint special operations and counterterrorism, and is an NRA member. He served in Europe and the Middle East, earned Air Force and Navy parachutist wings, eight more military qualification badges, two command badges, 19 U.S. military medals, and three foreign medals. He also earned four college degrees, including a Master of Aeronautical Science degree, and was a distinguished graduate of the Air Force Intelligence Operations Specialist Course, and the USAF Combat Targeting School. He is currently a published author and historian. You may visit his web site at: warrengray54.webs.com.