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The Maryland General Assembly voted to abolish a board that reviewed cases where state police made exceptions for people to own handguns. They must now decide rather to override a veto of the bill.
The Maryland General Assembly voted to abolish a board that reviewed cases where state police made exceptions for people to own handguns. They must now decide rather to override a veto of the bill. (Photo provided by Transportation Security Administration)

Maryland law generally prohibits civilians from carrying a handgun, concealed or otherwise. A narrow exception to this prohibition allows the state police to issue a permit to carry a handgun if an investigation determines that the applicant “has a good and substantial reason … such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” A Handgun Permit Review Board reviews police decisions to deny or limit permits.

The law has been challenged in court, and in 2013 a panel of three judges on the 4th Circuit Court of Appeals found that the Second Amendment right to keep and bear arms is not impermissibly burdened by Maryland’s “good and substantial reason” requirement. However, in 2017, the U.S. Court of Appeals for the D.C. Circuit found that a nearly identical “good reason” requirement in D.C. law was unconstitutional. In its Wrenn decision, the court concluded that “the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.”

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As a result, Washington, D.C., is now a “shall issue” jurisdiction in which any applicant who is not prohibited by criminal conviction, substance abuse or similar limitation will be issued a carry permit. Proponents of Second Amendment rights hope that the U.S. Supreme Court will resolve this circuit split by affirming an individual right to bear arms outside the home.

In the meantime, the policy presumption underlying current Maryland law is that reducing the number of handguns in circulation will reduce handgun violence. Sadly, after decades of testing this presumption, gun violence in places like Baltimore continues unabated. Indeed, it seems that the more the General Assembly imposes restrictions on law-abiding citizens the worse gun violence becomes. Why? The answer is simple. As many law enforcement officers will tell you, in most cases the mere “defensive display” of a handgun is sufficient to resolve a potentially dangerous situation without the need for violence. When only the aggressor is armed, more often than not the victim becomes another crime statistic.

Rather than acknowledge that the current approach has failed, legislators in Annapolis, who already passed legislation to abolish the Handgun Permit Review Board last session, are likely to double down on these misguided policies and override a veto that would have saved it. The board was established in 1972 to ensure civilian oversight of state police permitting decisions. Absent that relief valve, the Maryland gun control regime will become even more constitutionally suspect.

Importantly, what constitutes a “good and substantial reason” to carry a firearm under Maryland law is fleshed out not by statute or in duly promulgated regulations, but by changes to the State Police Standard Operating Procedure in consultation with Maryland’s attorney general. As an example, the statute provides that the state police “may” place restrictions on permits, but the operating procedure states that “it is the policy of the Licensing Division to … apply an appropriate restriction to issued permits.” In other words, state police policy has converted a clear statutory grant of discretion into a mandate.

This is not a criticism of the state police. In my experience, the troopers and staff in the licensing division do a highly professional and often underappreciated job in administering a problematic law. That said, because the state police procedures for the processing of handgun permit applications directly affect fundamental rights and have the force and effect of law, a court might easily find that these are de facto regulations. Moreover, the process for establishing these rules is opaque and involves no public notice or opportunity to comment in contravention of the Maryland Administrative Procedures Act. After several decades of such policy-making by regulatory fiat, the result is an Orwellian dystopia in which the elite, such as business owners and members of the political class, enjoy the protections of the Bill of Rights while the vast majority of Maryland citizens do not.

Finally, government has no greater duty than to protect its citizens. Global events continuously remind us that evil forces prey on the most vulnerable among us. Maryland law prohibits our military veterans and other qualified citizens from carrying a handgun, despite their ability to do so in contiguous jurisdictions. That makes our state a “soft target” to terrorists and others who wish to do us harm. The permitting process must be revised to empower responsible residents to defend themselves.

I urge the General Assembly to rethink its approach to combating gun violence. The public policy goals should be to reduce gun violence in a manner that respects our fundamental rights. Current Maryland gun laws accomplish neither objective, and abolishing the Handgun Permit Review Board is another step in the wrong direction.

Daniel F. C. Crowley (daniel.f.c.crowley@gmail.com) is a member of the Maryland Handgun Permit Review Board.

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