Constitutional law - Fourth Circuit applies intermediate scrutiny to Second Amendment challenge - Woollard v. Gallagher.

• Author: Silvestri, Elizabeth

Constitutional Law--Fourth Circuit Applies Intermediate Scrutiny to Second Amendment Challenge--Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), cert. denied, 134 S. Ct. 422 (2013)

The Second Amendment to the U.S. Constitution protects the right of an individual to possess a firearm independent of service in a militia, and to use that firearm for traditionally lawful purposes like self-defense. (1) This right is not unlimited and does not obliterate certain prohibitions on individuals' possession of firearms. (2) Moreover, certain restrictions on the type of firearms individuals can possess have successfully withstood judicial scrutiny. (3) In Woollard v. Gallagher, (4) the Court of Appeals for the Fourth Circuit addressed whether Maryland's "good and substantial reason requirement" for the issuance of a handgun permit violated the Second Amendment. (5) The court held that intermediate scrutiny applied to laws burdening the right to keep and bear arms outside of the home. (6) Additionally, the court held that the good-and-substantial-reason requirement is reasonably adapted to Maryland's significant interests in protecting public safety and preventing crime, and does not, therefore, violate the Second Amendment. (7)

Outside of a few specified circumstances, if a person in Maryland wishes to carry, wear, or transport a handgun outside of their home, they must first obtain a permit. (8) The Secretary of the Maryland State Police issues handgun permits, but can only issue one after making enumerated findings. (9) These findings include whether the applicant's need for a permit meets the good-and-substantial-reason requirement. (10) The Secretary has designated the Handgun Permit Unit (HPU) to determine whether the applicant's need for the permit is good and substantial. (11) An applicant can satisfy the good-and-substantial-reason requirement in any one of four ways. (12)

Raymond Woollard obtained a handgun permit in Maryland following a home invasion on December 24, 2002. (13) During this invasion, Woollard grabbed a shotgun and pointed it at the intruder, but the intruder wrestled it away. (14) Woollard's son then pointed a gun at the intruder, preventing him from moving, while Woollard's wife called the police. (15) The police took two-and-a-half hours to arrive at the Woollard home and apprehend the intruder. (16) The intruder was sentenced to probation for this incident, and was later incarcerated following violations of his probation order. (17) Woollard's first permit renewal was approved in 2006 following the intruder's release from prison, but when he applied for a second renewal in 2009, the HPU and the Handgun Permit Review Board denied his application for failing to satisfy the good-and-substantial-reason requirement. (18)

Woollard joined the Second Amendment Foundation, Inc. to initiate a lawsuit in the United States District Court for the District of Maryland, asserting that Maryland's good-and-substantial-reason requirement violated his Second Amendment rights. (19) The district court awarded summary judgment to Woollard's constitutional claim after finding that the requirement failed to satisfy an intermediate scrutiny level of review. (20) The Court of Appeals for the Fourth Circuit granted the defendants' appeal and held that Maryland's requirement did pass intermediate scrutiny. (21) Contrary to the district court's finding, the Fourth Circuit held that there was a reasonable fit between the good-and-substantial-reason requirement and the enumerated state interests, sufficient to satisfy intermediate scrutiny review. (22)

Prior to the twenty-first century, most courts interpreted the Second Amendment as securing a collective right to bear arms in connection with service in militias rather than a private, individual right. (23) The Supreme Court, in 1939, confirmed that the Second Amendment's purpose was to protect a collective right of the states in United States v. Miller. (24) Following this decision, courts applied either rational basis review, or another similar standard, when assessing gun regulations, which resulted in the upholding of nearly all gun regulations. (25) In District of Columbia v. Heller, (26) the Supreme Court ended the collective right interpretation by holding that the Second Amendment gave individuals the right to keep and bear arms for self-defense purposes in their homes. (27) The Court did not, however, dictate what standard of review should be employed when determining whether gun regulations violate an individual's Second Amendment right. (28) In the later case of McDonald v. City of Chicago, (29) the Supreme Court further elaborated that an individual's right under the Second Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment, but again failed to clarify what standard of review should be used. (30)

While the Court in Heller deemed rational basis an insufficient standard of review for Second Amendment issues, substantial uncertainty remains in the lower courts as to which standard to apply. (31) Some courts will apply a heightened level of scrutiny only once it is determined that the regulation operates as a substantial burden on the ability of law-abiding citizens to possess and use firearms for self-defense. (32) Other courts insist on applying strict scrutiny to all regulations because of the fundamental-right classification of the right to bear arms. (33) Most courts, however, have determined that intermediate scrutiny is applicable for possible Second Amendment violations. (34) Intermediate scrutiny is the most commonly used standard of review, with several courts having noted it is used for other Amendment violations, provides guidelines for assessing whether or not the standard is met, and allows most gun regulations to remain intact. (35)

Circuit courts have acknowledged that post-Heller Second Amendment challenges can elicit more than one standard of review. (36) For example, while the Fourth Circuit has consistently applied intermediate scrutiny to Second Amendment claims, it has justified each use of intermediate scrutiny differently. (37) In United States v. Chester, the court rationalized its application of intermediate scrutiny by using the appellant's criminal record to distinguish him from the law-abiding, responsible citizen who receives protection of his core right existing under the Second Amendment. (38) The Fourth Circuit in United States v. Masciandaro again determined that intermediate scrutiny applied to the appellant's Second Amendment claim because the appellant's possession of his gun outside of his home made his possession no longer a fundamental core right. (39) As a result, Fourth Circuit precedent strongly indicates that intermediate scrutiny should apply to Second Amendment claims. (40)

In Woollard v. Gallagher, the Fourth Circuit addressed both the question of which standard of review to apply to Second Amendment challenges, and whether or not the State of Maryland met that standard. (41) The court began its analysis by reviewing the development of the Second Amendment right to bear arms and deemed it appropriate to apply a two-part approach to the claim. (42) Relying on precedent from the Fourth Circuit, the court decided that intermediate scrutiny should be applied to this Second Amendment claim. (43) Next, the court identified the government's substantial interest in protecting public safety. (44) Lastly, the court looked at whether Maryland's good-and-substantial-reason requirement was reasonably adapted to the State's substantial interests and decided affirmatively, holding that the requirement increased public safety and prevented crime by decreasing the number of handguns carried in public. (45) Although the Second Amendment does give an individual the right to bear arms for the purpose of self-defense, the court held that this right was subject to regulations and that Maryland's good-and-substantial-reason regulation only needed to pass intermediate scrutiny. (46)

Although the Fourth Circuit quickly dismissed strict scrutiny's applicability to this Second Amendment claim because it was following Fourth Circuit precedent, the court erred in its lack of analysis. (47) One common, albeit weak, argument for using strict scrutiny is that other Amendments in the Bill of Rights receive strict scrutiny analysis, and so the Second Amendment should too. (48) This argument is vulnerable to attack, however, because many Bill of Rights Amendments do not, in practice, receive strict scrutiny. (49) A stronger argument for strict scrutiny's application is that it is a fundamental right distinguishable from others because it deals directly with an individual's health and safety. (50) Without independently considering strict scrutiny arguments, the Fourth Circuit relied heavily on Masciandaro as precedent for applying intermediate scrutiny--a case that declined to apply strict scrutiny out of fear that its application would void a large amount of gun regulations. (51) This assumption is not necessarily correct, and the Fourth Circuit should not have relied so heavily on this precedent in its determination that intermediate scrutiny should apply. (52)

The other major source of precedent for the Fourth Circuit's application of intermediate, rather than strict, scrutiny came from Chester's ruling. (53) This was another inappropriate reliance void of any further analysis because the court in Chester dealt with a situation falling outside of the core right protected by the Second Amendment. (54) Instead, the Fourth Circuit should have analyzed which level of scrutiny should apply by determining to what degree the regulation burdened the individual's core right to bear arms for self-defense. (55) The Maryland requirement that an applicant must provide proof of a good-and-substantial reason for obtaining a permit does substantially burden Woollard's right to bear arms for the purpose...