MD Supreme Court upholds law barring guns after felony-level convictions

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The Maryland Supreme Court upheld the constitutionality of a state law prohibiting individuals with felony-level criminal convictions, including convictions for certain nonviolent crimes, from possessing firearms.

In a 6-1 ruling with Chief Justice Matthew Fader writing for the majority, the Maryland Supreme Court cited a number of U.S. Supreme Court decisions in finding § 5-133(b)(2) — which prohibits an individual from possessing regulated firearms if the person has been convicted of a common law crime and received a sentence of more than two years in prison — is facially constitutional.

The high court’s Friday ruling that the state law also does not violate Robert Fooks’ Second Amendment right comes after the nation’s highest court decided United States v. Rahimi, which upheld a federal gun control law that banned firearms for people under restraining orders to stay away from their spouses or partners. The Maryland Supreme Court ordered a stay in Fooks’ case in August 2023 pending a decision in Rahimi.

Fooks was convicted of constructive criminal contempt in 2016 for failure to pay child support, from which the trial court sentenced him to four years and six months in prison. In 2021, the Wicomico County Circuit Court convicted Fooks of violating § 5-133(b)(2) after police determined Fooks to be in possession of two stolen handguns that he later pawned.

“Because § 5-133(b)(2) precludes firearm possession only by people who have demonstrated a willingness to break the law by committing a criminal offense for which they received a sentence of at least two years’ imprisonment, it falls comfortably within our Nation’s historical tradition of firearm regulation,” Fader wrote.

Peter Rose, assistant public defender and counsel for Fooks, said he respectfully disagrees with the majority’s decision and is consulting with Fooks about options for further review.

“The decision is inconsistent with the United States Supreme Court case law on the Second Amendment,” Rose said in an email Monday. “As the dissenting opinion makes clear, the State may not permanently bar a citizen who committed the non-violent offense of failing to pay child support from exercising his constitutional right to bear arms.”

In his lone dissent, Justice Jonathan Biran wrote that Fooks’ prosecution under § 5-133(b)(2) is unconstitutional, finding the state has failed to show that any jurisdiction, at the time of the Second Amendment’s ratification, permanently disarmed individuals who had served a sentence for a nonviolent offense and had been released back into society.

“The logical conclusion of the Majority’s historical analysis is that the General Assembly may make infractions such as jaywalking or exceeding the posted speed limit the basis for permanent firearms disqualification by increasing the maximum penalty for those offenses to imprisonment for more than one year,” Biran wrote, adding he would hold the state must show the predicate conviction was for an offense violent in nature.

Maryland Attorney General Anthony Brown praised the high court’s decision.

“The decision by Maryland’s highest court keeps our communities safe,” Brown said in a statement. “It makes clear that Maryland can continue to keep firearms out of the hands of individuals with serious criminal records – a policy consistent with common sense, our Constitution, and our commitment to reducing gun violence.”

On appeal, Fooks argued § 5-133(b)(2) is overly broad because it disqualifies individuals based on criminal conduct that is not suggestive of dangerousness.

In writing for the majority, Fader added that Fooks’ “egregious refusal” to comply with a child support court order shows “a disrespect for the law” that amounted to a prison sentence of more than four years.

“[A]lthough Mr. Fooks attempts to trivialize his misconduct, the crime of which he was convicted reflects a particularly egregious flouting of legal requirements,” Fader wrote.

Mark Pennak, president of Maryland Shall Issue, said the Maryland Supreme Court incorrectly interpreted controlling U.S. Supreme Court precedent.

“The dissent has the far better of the argument,” Pennak said Monday, agreeing with Biran that the majority’s deference to the legislature’s judgment on what constitutes a felony could extend to minor offenses such as jaywalking or speeding. “There is no good excuse for failing to pay child support but failing to do so hardly poses a physical danger.”

Pennak said the high court’s ruling, which is in conflict with the 3rd Circuit’s decision in Range v. Attorney General, is “a classic situation” that calls for review by the nation’s highest court, adding he thinks there is “a good chance” the U.S. Supreme Court would grant review.

The Maryland Supreme Court’s ruling also included two concurrences, with Justice Shirley Watts and Justice Steven Gould writing separately.

Watts wrote that Fooks’ possession and pawning of stolen firearms falls outside Second Amendment protections, where Fooks was neither a “law-abiding citizen” nor engaged in “lawful conduct” under four U.S. Supreme Court cases. Watts added that Fooks’ case may also serve as a cautionary tale to trial courts to be watchful for conditional plea agreements “that may obscure the unlawful or criminal nature of the possession of firearms and reserve the right to appeal where a defendant enters a plea to a firearms offense.”

Gould wrote that the high court must also consider in its analysis the allocation of power between the federal government and the states, and because Fooks did not claim that § 5-133(b)(2) is not a proper exercise of the state’s police power, he would affirm the appellate court’s finding that the law is constitutional.

Karen Herren, executive director of Marylanders to Prevent Gun Violence, described the high court’s decision as “sound.”

“Maryland’s law reflects the reality that firearm ownership is a profound responsibility, not a right granted without limits,” Herren said in an email. “A person’s criminal history speaks not only to potential violence but also to whether they can be trusted with something as inherently dangerous as a gun.”

This story has been updated.