Cert. Petition in Right to Carry Case

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625-26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.