At the end of 2010, Judge J. Frederick Motz partially denied the State of Maryland’s motion to dismiss the Second Amendment Foundation’s challenge to Maryland’s concealed carry law requirement of “apprehended danger”. He did, however, dismiss that portion of the case claiming violation of the Equal Protection Clause of the Fourteenth Amendment because it did not make a claim upon which relief could be granted. Fortunately, he gave the plaintiffs until the January 21st to file an amended complaint correcting this defect.
Maryland Public Safety Code § 5-306(a)(5)(ii)’s requirement that handgun carry permit applicants demonstrate cause for the issuance of a permit impermissibly classifies individuals with respect to the exercise of a fundamental constitutional right. The provision creates two classification of individuals. Applicants who have demonstrated to Defendants’ satisfaction that a handgun carry permit is “necessary as a reasonable precaution against apprehended danger,” or that they face a greater than average level of danger, are given permits; applicants who cannot satisfy that burden are not given permits. The classification system is inherently arbitrary, irrational, and deprives individuals of their fundamental right to bear arms based on criteria that cannot be justified under any means-ends level of scrutiny for the security of a fundamental constitutional right. The provision thus violates Plaintiffs’ Fourteenth Amendment right to equal protection of the law, damaging them in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision.
Bold text represents the addition to the complaint.
The most significant part of this restating of the claim is that it argues that under any level of scrutiny the Maryland requirements are unconstitutional. A “means-end level of scrutiny” refers to the rational basis level of scrutiny which is the lowest used in consideration of constitutional rights. The Fourth Circuit Court of Appeals’ recent decision in Chester calls for intermediate scrutiny – or a level higher – as the minimum in Second Amendment cases.