Second Letter to MD Attorney General Regarding Second Amendment
To: Attorney General Douglas F. Gansler
Office of the Attorney General
200 St. Paul Place
Baltimore, MD 21202
Regarding: Opinion of Law Request on Civil Rights
Dear Attorney General Gansler,
Thank you for your reply regarding the case of McDonald v City of Chicago and the Second Amendment to the U.S. Constitution. Given that my original request was somewhat generic in nature, I would like to take this time to be much more specific.
I request an opinion regarding a fundamental civil right – the right to keep and bear arms – within the state of Maryland. Specifically, I request your opinion on the likelihood that one or more provisions of Maryland annotated code may violate the civil rights of Maryland residents.
You are no doubt aware of the recent substantive incorporation of the full text of the Second Amendment to the United States Constitution as a Fundamental Civil Right via the Due Process Clause of the 14th Amendment, in McDonald v City of Chicago (“the Opinion”).
In summary, I submit the following facts from the Opinion:
- The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
- The States and their units of local government are bound to respect Second Amendment rights by operation of the Fourteenth Amendment. The Second Amendment was incorporated via Substantive Due Process as a Fundamental Right of the people of the United States.
- The Second Amendment guarantees individuals a fundamental right to carry functional handguns in non-sensitive public places for purposes of self-defense. The Opinion holds that “self defense was the central component of the right itself.” (emphasis exists in the Opinion)
- The Fundamental Right to bear arms recognized by the Opinion is not restricted to the home. The Opinion only notes that – much like the practice of religion or the exercise of free speech – the Fundamental Right to bear arms is “most acute” in the home. Several organizations that advocate the violation of civil rights are erroneously reporting that the incorporation of the Second Amendment was limited to the home. This is facially untrue: there is no text within the Opinion that suggests a limitation of this Fundamental Civil Right to the home.
- The States retain the ability to regulate the manner of carrying handguns (open or concealed), prohibit the carrying of handguns in specific, narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment protection, and disqualify specific, particularly dangerous individuals from carrying handguns. These “reasonable restrictions” strike a balance between safety and liberty, and in no way constitute an open door to excessive regulation that would restrict the free exercise of the right to bear arms by law-abiding individuals.
- The States may not completely ban the carrying of handguns for self-defense, deny individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.
- The Second Amendment is fully applicable to the states, in it entirety. The Supreme Court, both through longstanding tradition and specifically in this Opinion, rejected “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.” It is clear that the Second Amendment must be scrutinized as a Fundamental Right like that of other Fundamental Rights – such as the right to free speech, the free exercise of religion, and the like. There is no special “carve out” that exempts the States and their local units of government from recognizing – and indeed, protecting – the free exercise of this fundamental civil right.
- Individuals cannot be required to prove their “good cause” for the exercise of fundamental constitutional rights, including the right to keep and bear arms.
My Concerns Regarding Existing Maryland Regulation
I am concerned that existing Maryland regulation violates the fundamental civil rights of individuals within our great state to bear functional arms in defense of their person. Maryland provides a mechanism for the carry of handguns in public by individuals, but regulation requires a finding of heightened need for self-defense apart from the general public in order to qualify for a permit to do so. This regulation now appears in direct contravention of the core principle of the Second Amendment, which Maryland must now respect.
Self-defense is a legitimate cause for carry – indeed, according to the Supreme Court, self-defense is the central component protected by the Second Amendment.
The state’s interest in restricting defensive weapons from particularly dangerous or otherwise unqualified individuals is ably met through other tests already present in regulation. Restrictions on the exercise of a right deemed “Fundamental” require a strict, three-prong test: it must be justified by a compelling government interest; it must also be narrowly tailored to achieve that goal or interest; and it must also be the least restrictive means for achieving that interest.
Any “compelling interest” claimed by a State on the theory that “restrictions on the carry of arms by law-abiding individuals are required for the purposes of public safety” fails on the basis of more than two decades worth of data from the Federal and various States’ Departments of Justice, demonstrating beyond doubt that a liberalization of carry standards does not result in an increase in violent gun crime. Quite the contrary – in more than 40 “Shall Issue” States, violent crime has continued to drop despite a sizeable increase in the number individuals who carry arms on their person in public. The “compelling interest of public safety” theory is provably false when applied against law-abiding and otherwise qualified individuals using readily available, neutrally sourced, government data.
There does exist a compelling interest in restricting arms from those who are “particularly dangerous”, of unsound mental condition, habitual drunkards or abusive of controlled substances, or who have demonstrated a propensity for unprovoked violence. Existing Maryland regulation is not narrowly tailored to meet just this need. With regard to Title 5, Subtitle 3 of the Public Safety Article, § 5-306 (a)(5)(ii) (“Qualifications for permit”), the requirement to prove heightened need for self defense from “apprehended danger” results in an overly broad restriction, as an exceptionally small percentage of individuals within Maryland would be able to meet that condition. This regulation results in an exceptionally broad restriction on the right to bear arms by individuals within Maryland.
Other conditions within the Public Safety Article are adequate to answer the true compelling need of restricting arms from dangerous individuals and represent the least restrictive means for achieving this compelling interest, without unconstitutionally burdening law-abiding individuals within our state.
In light of the above, incontrovertible facts, I humbly request your evaluation and response to the following inquiries of law, legal theory and practice of the State of Maryland:
- Given the fact that self-defense is defined as the central component of the Second Amendment, does it remain the opinion of the Attorney General that Title 5, Subtitle 3 of the Public Safety Article, § 5-306(a) (5) (ii) (“Qualifications for permit”) is Constitutional, considering that it fails to recognize “self defense” as “good and substantial cause” except in cases of documented, “apprehended danger”?
- Is it the opinion of the Attorney General that law-abiding individuals must demonstrate a unique, heightened need for self-defense apart from the general public in order to exercise the fundamental right to keep and bear arms in non-sensitive, public places?
- If it is the opinion of the Attorney General that existing Maryland regulation regarding the denial of carry permits to otherwise law-abiding and qualified individuals who lack a heightened need for self-defense is Constitutional, would you explain the theory of law used in constructing this decision?
- Is it the opinion of the Attorney General that the Fundamental Right to Keep and Bear Arms must be afforded the same scrutiny as other Fundamental Rights, specifically the First Amendment Right to free speech and the free exercise of religion?
- Does the Attorney General recognize the supremacy of the Second Amendment of the US Constitution over Maryland regulation?
- Will the Attorney General support and defend the Fundamental Second Amendment Rights of individuals within Maryland to the fullest extent of his power, with the same scrutiny provided other Fundamental Rights previously recognized or incorporated in Maryland, such as the First Amendment?
I appreciate your timely consideration of these questions and look forward to your response.
Don H. Dwyer, Jr.
 An Electronic Copy of the Opinion of the Court for McDonald v City of Chicago is available from the US Supreme Court at http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
 McDonald v City of Chicago, Opinion of the Court, Page 19
 McDonald v City of Chicago, Opinion of the Court, pages 17, 39, 41
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