Frosh defends Md. handgun licensing amid new high court ruling

Maryland’s attorney general Monday defended the constitutionality of the state’s challenged licensing requirements for would-be handgun buyers as in keeping with the nation’s early history of training militias to use guns, an argument prompted by a recent U.S. Supreme Court decision limiting restrictions on the right to keep and bear arms.

Brian E. Frosh’s defense came as the 4^th U.S. Circuit Court of Appeals considers a gun rights group’s Second Amendment challenge to Maryland’s required handgun qualification license, or HQL, that he championed as a state senator nine years ago.

Maryland Shall Issue‘s challenge had been held in abeyance at the 4^th Circuit pending the high court’s decision addressing whether the Second Amendment provides a right to carry handguns outside one’s home without the owner having to show a good and substantial reason for carrying.

In June, the Supreme Court ruled 6-3 that gun restrictions are valid only if in keeping with the constitutional text, history and tradition of state firearm regulations when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.

The justices struck down the state regulation in New York State Rifle & Pistol Association Inc. v. Bruen, saying New York could not show such a history or tradition of requiring gun permits.

In defense of Maryland’s licensing requirement, Frosh told the 4^th Circuit that the history and tradition of ensuring gun owners are trained in firearm use dates to 1792 – the year after the Second Amendment’s ratification — when Congress enacted the Uniform Militia Act. Several states passed similar statutes shortly after, Frosh added in papers filed with the 4^th Circuit.

“These laws did not just reflect common sense and a practical commitment to state security; they were contemplated by the Second Amendment’s text,” which refers to a “well-regulated militia,” Frosh wrote. “And these laws would have also had the complementary effect of ensuring that the men of the community, starting in their youth, would be provided with the training necessary to handle and use firearms safely in any context.”

Frosh’s filing was cosigned by Assistant Attorneys General Robert A. Scott and Ryan R. Dietrich.

The filing was in opposition to that of Maryland Shall Issue, which told the 4^th Circuit in August that U.S. history was devoid of licensing requirements on handgun ownership until the 1900s.

“It is indisputable both that violence involving handguns is a centuries-old societal problem and that there is no historical regulation distinctly similar to the HQL requirement,” MSI told the 4^th Circuit.

“At the time of the founding, no training was required to acquire a handgun or other firearm,” added MSI, which was joined in the challenge by gun seller Atlantic Guns Inc. and two Marylanders. “Unlike the HQL requirement, militia training was not a prerequisite to firearm ownership. Instead, these militia laws required gun ownership prior to militia training.”

The 4^th Circuit has not stated when it will rule on MSI’s challenge. The case is docketed at the appellate court as Maryland Shall Issue Inc. et al v. Lawrence Hogan et al., No. 21-2017.

Those challenging the licensing requirement are represented by MSI President Mark W. Pennak; Cary J. Hansel III, of Hansel Law PC in Baltimore; and John Parker Sweeney, of Bradley Arant Boult Cummings LLP in Washington.

The 2013 Maryland Firearm Safety Act‘s licensing requirement mandates that an applicant be at least 21 years old, be a Maryland resident, complete four hours of firearms safety training, and not be prohibited by federal or state law from buying or possessing a handgun. Licensed gun dealers, as well as current and retired law-enforcement and military officers, are exempt from the handgun licensing requirement.

A violation of the law is a misdemeanor punishable by up to five years in prison and a $10,000 fine.

U.S. District Judge Ellen L. Hollander upheld the license requirement’s constitutionality in August 2021, saying it was reasonably related to the state’s important interest in protecting public safety. MSI and its co-plaintiffs then sought review by the 4^th Circuit.

Frosh, then chair of the Senate Judicial Proceedings Committee, was chief sponsor of the Firearm Safety Act.