Whalen MSI Brief of Appellant - Redacted

TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
TABLE OF AUTHORITIES ..............................................................................................iii
STATEMENT OF THE CASE ........................................................................................... 1
QUESTIONS PRESENTED ............................................................................................... 2
STATEMENT OF THE FACTS ......................................................................................... 2
A. Statutory Scheme ..................................................................................................... 2
B. Statement of Facts .................................................................................................... 4
1. The Application .................................................................................................... 4
2. The Board Decision .............................................................................................. 6
3. Decision of the Circuit Court below ................................................................... 7
STATEMENT OF THE STANDARD OF REVIEW ........................................................ 7
ARGUMENT....................................................................................................................... 9
I. THE GOOD AND SUBSTANTIAL REASON REQUIREMENT

IMPOSED BY MD CODE, PUBLIC SAFETY SECTION 5-306 IS
UNCONSTITUTIONAL UNDER THE SECOND AMENDMENT ..................... 9
A. Introduction ....................................................................................................... 9
B. The Second Amendment Applies Outside the Home ..................................... 10
C. The Proper Test For Assessing The Constitutionality Of A Statute

Under the Second Amendment Is Whether Statute’s Restrictions
Are Supported By “The Text, History and Tradition,” The Test
Actually Adopted in Heller ............................................................................ 16
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II. MARYLAND CASE LAWADDRESSING THE “GOOD
AND SUBSTANTIAL REASON” STANDARD HAS BEEN
SUPERSEDED BY HELLER AND McDONALD ................................................ 24
A. Snowden and Scherr Are No Longer Good Law ............................................ 24
B. The Fourth Circuit’s “Palpable Need” Test In Woollard Is

Now Controlling Precedent ............................................................................ 28
C. As Mr. Whalen Has Arguably Demonstrated A Palpable Need,

A Remand To The Board Is Required ............................................................ 31
CONCLUSION ................................................................................................................ 34
CERTIFICATE OF SERVICE
CERTIFICATION OF WORD COUNT AND COMPLIANCE

WITH RULE 8-112
APPENDIX
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TABLE OF AUTHORITIES
Cases Pages
Ak’s Daks Communications, Inc. v. Maryland Securities Div.,

138 Md.App. 314 (2001) .................................................................................................. 8
Bozeman v. Disability Review Board of the
Prince George's County Police Pension Plan, 126 Md.App. 1 (1999)...................... 8, 12
Brown v. Handgun Permit Review Bd., 188 Md. App. 455 (2009) ..................................... 8
Caetano v. Massachusetts, 136 S.Ct. 1027 (2016) ............................................................ 10
Caplin & Drysdale v. United States, 491 U.S. 617 (1989) ............................................... 19
Carstairs v. Cochran, 95 Md. 488 (1902) ......................................................................... 30
County Council of P.G. Co., v. Zimmer Dev. Co., 444 Md. 490 (2015) ........................ 9,31
District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................. passim
Drake v. Filko, 724 F.3d 426 (3d Cir. 2014) ..................................................................... 22
Employees’ Retirement System v. Dorsey, 203 Md. App. 304 (2012) ................................ 8
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ..................................................... 10
Gould v. Lipson, No. 18-1272 (docketed April 1, 2019)................................................... 22
Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018), petition for certiorari pending
No.18-1272, (filed U.S. April 1, 2019) ................................................................ 13,22,23
Gould v. O’Leary, 291 F.Supp.3d 155 (D. Mass. 2017), aff’d sub nom. Gould v. Morgan,
907 F.3d 659 (1st Cir. 2018), petition for certiorari docketed sub nom Gould v. Lipson,
No. 18-1272 (U.S. April 1, 2019) .................................................................................. 22
Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2016) ...................................... 20
Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)........................... 13,22,29
Langston v. Riffe, 359 Md. 396 (2000) ................................................................................ 4
Little v. United States, 989 A.2d 1096 (D.C. 2010) .......................................................... 15
Malpasso v. Pallozzi, 767 Fed.Appx. 525 (4th Cir. 2019) ................................................ 23
Malpasso v. Pallozzi, No. 18-1064 (D. Md., filed April 4, 2018) ..................................... 21
Mance v. Barr, No. 18-663, docketed Nov. 21, 2018 (U.S). ............................................ 23
McCullen v. Coakley, 134 S. Ct. 2518 (2014) ................................................................... 17
McDonald v. City of Chicago, 561 U.S. 742 (2010) .................................................. passim
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2013) ................................................. 11,13-188
Muscarello v. United States, 524 U.S. 125 (1998) ............................................................ 16
NYSRPA v. Beach, 354 F.Supp.3d 143 (N.D.N.Y. 2018) ................................................. 23
NYSRPA v. Beach, No. 18-134, filed March 26, 2018 (N.D. N.Y.) .................................. 22
NYSRPA v. Beach, No. 19-156 (2d Cir., docketed January 15, 2019). ............................. 23
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NYSRPA v. NYC, 883 F.3d 45 (2d Cir. 2018), cert. granted,
139 S.Ct. 939 (S.Ct. Jan. 22, 2019) ......................................................................... passim
O’Donnell v. Bassler, 289 Md. 509 (1981) ......................................................................... 8
Onderdonk v. Handgun Permit Review Board, 44 Md.App. 132 (1979). ......................... 26
Palmer v. Dist. of Columbia, 59 F.Supp.3d 173 (D.D.C. 2014) ....................................... 10
Pena v. Horan, No. 18-843, docketed January 3, 2019 (U.S.) .......................................... 23
People v. Aguilar, 2 N.E. 3d 321, 327 (Ill. 2013), ............................................................ 15
People v. Dawson, 403 Ill.App.3d 499, 934 N.E.2d 598 (2010),..................................... 15
Peruta v. California, 127 S.Ct. 1995, 1998 (2017) ........................................................... 10
Presser v. Illinois, 116 U.S. 252 (1886) ............................................................................ 25
Rogers v. Grewal, 2018 WL 2298359 (D. N.J. 2018) .................................................. 22,23
Rogers v. Grewal, No. 18-2366 (3d. Cir. July 19, 2018) .................................................. 22
Scherr v. Handgun Permit Review Board, 163 Md.App. 417,
cert. denied, 390 Md. 92 (2005) ........................................................................... 24-28,30
Schmidt v. Prince Georges Hospital, 366 Md. 535 (2001) ............................................... 29
Schwartz v. Md. Dep't of Natural Res., 385 Md. 534 (2005) .............................................. 8
Scott v. State, 454 Md. 146 (2017) .................................................................................... 27
Silvester v. Becerra, 138 S.Ct. 945, 947 (2018) ................................................................ 21
Snowden v. Handgun Permit Review Board, 45 Md.App. 464,
cert. denied, 288 Md. 742 (1980) ......................................................................... 24-25,27
Union Trust Co. v. Harrisons’ Nurseries, 181 Md. 291 (1943) ........................................ 31
United States v. Chester, 628 F.3d 680 (4th Cir. 2010) ............................................... 17,28
United States v. Plouffe, 445 F3d 1126 (9th Cir. 2006) .................................................... 27
Williams v. State, 417 Md. 479 (2011) ......................................................................... 13,14
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013)................................................ passim
Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017), ................................ passim
Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), rehearing en banc granted,
915 F.3d 681 (9th Cir. 2019), en banc consideration stayed,
Order of Feb. 14, 2019 (9th Cir.)............................................................................. passim
Other Authorities
Black’s Law Dictionary (6th ed. 1998) ........................................................................ 16,30

Treatises
1 The Works Of Thomas Jefferson 398 (letter of Aug. 19, 1785) (H. A. Washington ed.,
1884)............................................................................................................................... 19
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6 Masterpieces Of Eloquence 2569, 2578 (Hazeltine et al. eds., 1905)............................ 20
Nicholas J. Johnson et al., Firearms Law and the Second Amendment: Regulation,
Rights, and Policy (2d ed. 2003) .................................................................................... 16
William M. Darlington, Christopher Gist’s Journals 85–86 (1893) ................................ 19
Regulations
62 DCR 9781 (July 17, 2015)............................................................................................ 12

Constitutional Provisions
U.S. CONST. amend. II..................................................................................................... 18

U.S. CONST. amend. XIV .......................................................................................... 10, 26
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STATEMENT OF THE CASE
On March 9, 2017, Appellant, Edward Holmes Whalen, submitted an application
to the Maryland State Police fSnoor a permit to carry a handgun in public (herein “wear
and carry application” or “application”) pursuant to MD Code Public Safety § 5-306. On
July 5, 2017, The Maryland State Police denied Mr. Whalen’s application, citing a failure
to demonstrate he had a “good and substantial reason” to carry a firearm.
On July 27, 2017, an Informal Review of Mr. Whalen’s application was conducted
by the Maryland State Police Licensing Division’s Handgun Permit Unit. On August 9,
2017, the State Police sustained the denial of his application. On September 19, 2017,
the Handgun Permit Review Board (“Board”) voted to sustain the denial of Mr. Whalen’s
application, issuing its written decision on January 25, 2018.
Mr. Whalen appealed that decision to Circuit Court for the City of Baltimore. On
August 24, 2018, Judge Nugent issued a written Memorandum and Order which upheld
the decision of the Board to sustain the denial of Mr. Whalen’s application by the State
Police. On August 31, 2018, Mr. Whalen timely filed a Notice of Appeal of Judge
Nugent’s Memorandum and Order.
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QUESTIONS PRESENTED
1. Whether the statutory requirement for a “good and substantial reason” set
forth in MD Code Public Safety § 5-306(a)(6)(ii), for the issuance of a Maryland
handgun wear and carry permit facially violates the Second Amendment.
2. Independently of Question 1, whether the Maryland State Police and the
Handgun Permit Review Board used an erroneous legal standard by failing to apply the
Fourth Circuit’s decision in Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), in
denying Mr. Whalen’s application for a handgun wear and carry permit.
STATEMENT OF THE FACTS
A. Statutory Scheme
Under MD Code, Criminal Law, § 4-203(a), carrying a handgun on one’s person
or within one’s vehicle is strictly prohibited in Maryland, subject to limited and specified
examples. It is a serious criminal offense to carry a handgun in violation of Section 4-
203. Under Section 4-203(c), on a first offense “the person is subject to imprisonment for
not less than 30 days and not exceeding 3 years or a fine of not less than $250 and not
exceeding $2,500 or both.” See App.1-3. Because a violation of Section 4-203 is a
misdemeanor punishable by imprisonment for a term in excess of two years, any
conviction under Section 4-203 results in a lifetime federal firearms disability. See 18
U.S.C. § 922(g), and 18 U.S.C. § 921(a)(20). A similar disability is imposed under
Maryland law. See MD Code, Public Safety, § 5-101(g)(3), § 5-133(b)(1), § 5-205(b)(1).
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However, the prohibitions imposed by Section 4-203 do not apply to “the wearing,
carrying, or transporting of a handgun, in compliance with any limitations imposed under
§5-307 of the Public Safety Article, by a person to whom a permit to wear, carry, or
transport the handgun has been issued under Title 5, Subtitle 3 of the Public Safety
Article.” MD Code, Criminal Law, § 4-203(b)(2). MD Code Public Safety, §5-306
provides authority to the Maryland State Police to issue such “wear and carry” permits.
See App.507. Specifically, Section 5-306(a)(6) directs the State Police to issue a carry
permit to anyone who “(i) has not exhibited a propensity for violence or instability that
may reasonably render the person's possession of a handgun a danger to the person or to
another; and (ii) has good and substantial reason to wear, carry, or transport a handgun,
such as a finding that the permit is necessary as a reasonable precaution against
apprehended danger.” MD Code Public Safety §5-306(a)(6)(i),(ii). As of October 1,
2013, with the passage of Senate Bill 281, Acts 2013, c. 427, § 1, eff. Oct. 1, 2013, an
applicant for a wear and carry permit must (unless training exempt) have a minimum of
16 hours of instruction by a qualified handgun instructor prior to submission of the
application.
Under MD Code, Public Safety, § 5-311, an applicant whose application for a
wear and carry permit has been denied by the State Police may request an informal
review of the denial before the State Police by filing a written request within 10 days of
the denial. Under MD Code, Public Safety, § 5-312, such an applicant may also seek
review before the Handgun Permit Review Board, established under MD Code, Public
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Safety, § 5-302.1 See App.8-9. Under an earlier version of Section 5-312 applicable to
these proceedings,2 the Board was directed to review the record, conduct a hearing, and
receive and consider “additional evidence” submitted by any party and was empowered
“to sustain, reverse, or modify the decision of the Secretary.” MD Code, Public Safety, §
302(c),(d)(1)). Under that version of MD Code, Public Safety, § 5-312(e)(1), a Board
decision was subject to judicial review in accordance with “Title 10, Subtitle 2 of the
State Government Article.” See MD Code State Gov’t., § 10-222.
B. Statement of Facts
1. The Application
On March 9, 2017, Petitioner, Edward Holmes Whalen, submitted an application
to the Maryland State Police for a permit to carry a handgun in public. On May 24, 2017,
Mr. Whalen traveled to the Waterloo Police Barracks, in Jessup, Maryland, for an
interview with Ms. Sylia L. Wright, an Administrative Investigator for the Maryland
State Police. Unaware of the rigorous manner in which Administrative Investigators and
State Troopers evaluate an applicant’s “good and substantial reason,” Mr. Whalen’s

1
“The Board consists of five members appointed from the public by the Governor with
the advice and consent of the Senate.” MD Code, Public Safety, § 5-302(b).
2
With
enactment of Acts 2018, c. 253, § 1, eff. Oct. 1, 2018, Section 5-312 was amended
to provide that a decision of the Handgun Permit Review Board may be appealed for a de
novo hearing before the Office of Administrative Hearings (“OAH”). A decision of the
OAH is appealable to circuit court. However, the Board’s decision in this case was
entered on January 25, 2018, well prior to the October 1, 2018, effective date of these
amendments. This appeal is thus governed by the prior version of Section 5-312. See
Langston v. Riffe, 359 Md. 396, 406 (2000) (“there is a general presumption in the law
that a [statute] is intended to have purely prospective effect”). That prior version is set
forth in the attached Appendix.
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initial application noted that his desire for Wear and Carry Permit was for “personal
protection and all other lawful purposes.” Mr. Whalen elaborated on these reasons by
presenting the State Police investigator with a detailed written “Statement of ‘good and
substantial reason’” when he arrived for his interview. (E.1).
First, Mr. Whalen cited the fact that he was a local elected official – an “ANC
Commissioner” – in D.C., in a district directly adjacent to the Maryland state line on
Western Avenue, N.W. Second, Mr. Whalen cited the fact that his father was a federal
judge currently serving on the United States Tax Court. Third, Mr. Whalen detailed his
employment by the United States Congress, the Members for whom he worked in either
chamber, the issues in his portfolio, and consequential pieces of legislation on which he
worked. Fourth, Mr. Whalen cited his Secret level security clearance and the fact that his
sensitive personal information had been – and potentially was still being – bought and
sold by aliens after computer “hack” of the employment records of 22 million federal
employees maintained by the Office of Personnel Management. (E.1-3).
On July 5, 2017, the Maryland State Police denied Mr. Whalen’s application for
failure to demonstrate a “good and substantial reason” to carry a firearm. R.4. Shortly
thereafter, and within the 10-day time prescribed by statute, MD Code Public Safety § 5-
311, Mr. Whalen requested an “Informal Review” by the State Police, and a hearing
before the Handgun Permit Review Board. An Informal Review of Mr. Whalen’s
application was conducted by First Sergeant Kevin Moriarty of the Maryland State Police
Licensing Division’s Handgun Permit Unit. At this meeting, Mr. Whalen presented Mr.
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Moriarty with another written statement expanding upon the matters raised in the original
statement he had submitted to Investigator Wright. (E.7-8). In this second statement,
Mr. Whalen noted the fact that he had, in the past, experienced forceful encounters with
constituents, over the telephone, while serving as a Legislative Assistant on Capitol Hill.
Additionally, in this second statement, Mr. Whalen provided Mr. Moriarty a copy of his
biography and headshot that would be publicly posted on the website maintained by
ANC3D, on which Mr. Whalen served as a Commissioner. (E.9). The informal review
was unsuccessful (E.10) and Mr. Whalen pursued his appeal before the Handgun Permit
Review Board.
2. The Board Decision
Mr. Whalen’s appeal was considered by the Handgun Permit Review Board on
September 19, 2017. During a dialogue with Mr. Whalen, the Board members discussed,
at great length, whether Mr. Whalen had applied for his permit in Washington, D.C.,
noting that Mr. Whalen’s application would be “more palatable,” if he had a D.C. permit
already. (E.33). In addition, towards the end of the hearing, a third Board Member, Ms.
Shari Judah, noted that her feelings might change if Mr. Whalen had a D.C. permit,
placing his application “…in the maybe category...” (E.40).
The Maryland State Police’s denial of Mr. Whalen’s application was sustained by the
Board. (E.40). However, a written decision, as required by Section 5-312, did not issue
until January 25, 2018. (E.43). That decision found Mr. Whalen’s testimony to be
“compelling” and “appeared truthful.” (E.41). The decision likewise noted that Mr.
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Whalen lives on the District line adjacent to Maryland, but found significant hat Mr.
Whalen had not then applied for a concealed carry permit from the District of Columbia.
(E.44). The Board concluded that “[t]he Board does not see the need for a Maryland
permit when Mr. Whalen's activities, work and residence are all in the District of
Columbia.” Id.
3. Decision of the Circuit Court below
Mr. Whalen appealed the Board’s decision to the Circuit Court for Baltimore City.
The merits of Mr. Whalen’s appeal were heard on August 18, 2018, before Judge John S.
Nugent. (E.62). At the same hearing, Judge Nugent considered and denied Mr.
Whalen’s Motion For Leave To Offer Additional Evidence pertinent to his application.
(E.58). See MD Code, State Gov’t, § 10-222(f) (providing for submission of additional
evidence). Mr. Whalen’s Motion For Leave To Offer Additional Evidence was an effort
to submit for the Court’s consideration copies of both Mr. Whalen’s D.C. Concealed
Carry Pistol License, and his father’s, Judge Whalen, Maryland Wear & Carry Permit. Id.
On August 24, 2018, Judge Nugent issued a Memorandum (E.89) and Order (E.101)
denying the Motion, and affirming the decision of the Board. On August 31, 2018, Mr.
Whalen timely filed a Notice of Appeal of Judge Nugent’s Memorandum and Order.
(E.102).
STATEMENT OF THE STANDARD OF REVIEW
All the issues presented on this appeal are legal issues. The standard of review
applicable to administrative agency decisions applies to Board cases. See Brown v.
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Handgun Permit Review Bd., 188 Md. App. 455, 466-67 (2009). In reviewing
determinations of an administrative agency, legal questions are subject to the de novo
standard of review. Ak’s Daks Communications, Inc. v. Maryland Securities Div., 138
Md.App. 314, 326 (2001) (“We apply a de novo standard of review to legal
determinations made by an administrative agency” and “[i]n ascertaining the propriety of
an agency’s legal conclusions, we must consider whether the agency recognized and
applied the correct principles of law governing the case.”). See also Schwartz v. Md.
Dep't of Natural Res., 385 Md. 534, 554 (2005) (“With respect to an agency’s
conclusions of law, we have often stated that a court reviews de novo for correctness.”);
Bozeman v. Disability Review Board of the Prince George's County Police Pension Plan,
126 Md.App. 1, 5 (1999) (“When the question before the agency involves interpretation
of an ordinance or statute, our review is more expansive. We are not bound by the
agency’s interpretation.”).
In this respect, this Court reviews the decision of the administrative agency, not
the decision of the circuit court. See, e.g., Employees’ Retirement System v. Dorsey, 203
Md. App. 304, 312 (2012) (“We review the decision of the administrative agency itself,
… and not the findings of fact and conclusions of law made by the circuit court.”)
(citations omitted). An error of law committed by an administrative body generally
requires that the decision be vacated, and the matter remanded to the Board for further
proceedings under the correct legal standard, unless a remand would be futile. See, e.g.,
O’Donnell v. Bassler, 289 Md. 501, 509–11 (1981) (“if an administrative function
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remains to be performed after a reviewing court has determined that an administrative
agency has made an error of law, the court ordinarily may not modify the agency order.
Under such circumstances, the court should remand the matter to the administrative
agency without modification.”). See also County Council of P.G. Co., v. Zimmer Dev.
Co., 444 Md. 490, 581 (2015) (“When an administrative function remains to be exercised
at the end of the day, we hold generally that a court must remand the case to the
administrative agency.”).
ARGUMENT
I. THE GOOD AND SUBSTANTIAL REASON REQUIREMENT

IMPOSED BY MD CODE, PUBLIC SAFETY SECTION 5-306 IS
UNCONSTITUTIONAL UNDER THE SECOND AMENDMENT
A. Introduction

As detailed below, the “good and substantial reason” requirement is facially
unconstitutional under the Second Amendment. This Court should thus strike down the
good and substantial reason requirement and order the issuance of the permit, as it
undisputed that Mr. Whalen otherwise meets all the other requirements imposed by
statute. Alternatively and independently, the Court should hold that the Board applied an
erroneous legal standard in adjudicating Mr. Whalen’s appeal from the denial of his
application for a carry permit. The Court should establish the correct legal standard for
these types of administrative proceedings before the Board and remand the case to the
Board for further proceedings consistent with the Court’s ruling.
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B. The Second Amendment Applies Outside the Home
The Supreme Court has squarely addressed, and held, that the Second
Amendment, bestows an individual right to bear arms, including a handgun, inside the
home. See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of
Chicago, 561 U.S. 742 (2010) (holding that the Second Amendment is applicable to the
States via the Due Process Clause of the Fourteenth Amendment); See also Caetano v.
Massachusetts, 136 S.Ct. 1027 (2016) (summarily reversing a decision of the
Massachusetts Supreme Judicial Court under Heller on grounds that it “contradicts this
Court’s precedent”). These opinions of the Supreme Court establish “a framework for
how to proceed.” Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 178 (D.D.C. 2014),
citing Ezell v. City of Chicago, 651 F.3d 684, 700 (7th Cir. 2011).
The framework established in Heller makes clear that the Second Amendment
applies outside the home. The Court in Heller explained that “self-defense” is “the central
component of the right,” 554 U.S. at 599; that the “right of self-defense” is “central to the
Second Amendment right,” id. at 628; and that the Second Amendment guarantees a right
to use firearms “for the core lawful purpose of self-defense,” id. at 630. In McDonald,
the Court reaffirmed that “individual self-defense is ‘the central component’ of the
Second Amendment right” and that the “‘inherent right of self-defense [is] central to the
Second Amendment right.’” McDonald, 561 U.S. at 767 (citations omitted). See also
Peruta v. California, 127 S.Ct. 1995, 1998 (2017) (Thomas, J., Gorsuch, J., dissenting
from denial of certiorari) (“This Court has already suggested that the Second Amendment
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protects the right to carry firearms in public in some fashion.”). In neither case did the
Court suggest that the right was limited to the home.
In the wake of these rulings, the Seventh Circuit has squarely held that the Second
Amendment applies outside the home. See Moore v. Madigan, 702 F.3d 933 (7th Cir.
2013). In Moore, the court noted the fact that “the [Second] amendment confers a right
to bear arms for self-defense, which is as important outside the home as inside.” Id. at
942. Accordingly, “[t]o confine the right to be armed to the home is to divorce the
Second Amendment from the right of self-defense described in Heller and McDonald.”
Id. at 937. The Seventh Circuit thus held that the Illinois statute banning carriage outside
the home was facially unconstitutional. Moore, 702 F.3d at 942 (“The Supreme Court's
interpretation of the Second Amendment therefore compels us to reverse the decisions in
the two cases before us and remand them to their respective district courts for the entry of
declarations of unconstitutionality and permanent injunctions.”).
More recently, in Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017),
the D.C. Circuit likewise squarely held that the Second Amendment applied outside the
home, and further held unconstitutional, under the Second Amendment, D.C.’s
requirement that an applicant for a carry permit show “good reason to fear injury.”
Under that “good reason” requirement imposed by the D.C. statute, D.C. Code §7-
2509.11(1)(A), “applicants must show a ‘special need for self-protection distinguishable
from the general community as supported by evidence of specific threats or previous
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attacks that demonstrate a special danger to the applicant's life.’” Wrenn, 864 F.2d at 655
(quoting D.C. Code § 7-2509.11).
In striking this requirement down, the Wrenn court explained, “the legally decisive
fact” was that “the good-reason law is necessarily a total ban on most D.C. residents’
right to carry a gun in the face of ordinary self-defense needs, where these residents are
no more dangerous with a gun than the next law-abiding citizen.” That requirement at
issue in Wrenn is indistinguishable from the “good and substantial reason” requirement
imposed by MD Code Public Safety § 5-306(a)(6)(ii). Indeed, the D.C. government
modeled the “good reason to fear injury” threshold after Maryland’s “good and
substantial reason” standard. See D.C. Code § 24-2332; Metropolitan Police Dept.,
Notice of Third Emergency Rulemaking, 62 DCR 9781 (July 17, 2015).
In another case, Young v. Hawaii, a Ninth Circuit panel evaluated the “good
reason to fear injury to person or property” standard to be granted a permit in Hawaii. A
three judge panel concluded that “the right to bear arms must guarantee some right to
self-defense in public”—whether through carrying a handgun openly or concealed. See
Young v. Hawaii, 896 F.3d 1044, 1068 (9th Cir. 2018), rehearing en banc granted, 915
F.3d 681 (9th Cir. 2019), en banc consideration stayed, Order of Feb. 14, 2019 (9th Cir.)
(en banc). Because Hawaii’s law “entirely foreclosed” the “typical, law-abiding citizen”
from bearing arms outside the home, Young concluded that it “eviscerates a core Second
Amendment right—and must therefore be unconstitutional.” Id. at 1048, 1071.
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Moore, Wrenn, and Young do not stand alone on the question of whether the
Second Amendment applies outside the home. The Second, Third, and Fourth Circuits
have likewise assumed (without deciding) that the Second Amendment applies outside
the home in sustaining, against a facial attack, “good reason” state statutes (including the
“good and substantial reason” requirement in Maryland) that likewise limited carry
permits to persons who could show a “good reason” to carry outside the home. See
Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018), petition for certiorari pending No.18-
1272, (filed U.S. April 1, 2019); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir.
2012); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d
865, 876 (4th Cir. 2013) (assuming that “right exists outside the home” but upholding, on
a facial challenge, Maryland’s law requiring applicants show “good and substantial
reason” for obtaining handgun permit under intermediate scrutiny test). Indeed, most
recently in Gould, the First Circuit expressly read “Heller as implying that the right to
carry a firearm for self-defense guaranteed by the Second Amendment is not limited to
the home,” even though the court ultimately sustained the constitutionality of the
Massachusetts “good cause” statute. Gould, 907 F.3d at 670. In summary, seven federal
circuits have held or assumed that the Second Amendment applies outside the home. To
date, no federal court of appeals has held that the right is confined to the home.
Mr. Whalen acknowledges that the Maryland Court of Appeals stated in Williams
v. State, 417 Md. 479, 481 (2011), that “Section 4–203(a)(1)(i) of the Criminal Law
Article, which prohibits wearing, carrying, or transporting a handgun, without a permit
‐ 13 ‐

and outside of one’s home, is outside of the scope of the Second Amendment.” However,
that holding cannot be read as a general holding that the Second Amendment has no
application outside the home. As the statement of the Court’s holding makes clear, in
Williams, the defendant was convicted of unlawful possession of a handgun under MD
Code, Criminal Law, § 4-203, and the issue presented was whether that criminal statute
was unconstitutional in so far as it prohibited possession of a handgun outside the home
without a permit. Unlike Mr. Whalen in this case, in Williams, the criminal defendant
had not previously applied for a wear and carry permit under Section 5-306 of the Public
Safety Article. For that reason, the Williams Court expressly refused to consider the
constitutionality of the “good and substantial reason” requirement of Section 5-306 (the
issue presented here), holding that “because Williams failed to apply for a permit to wear,
carry, or transport a handgun, he lacks standing to challenge Section 5–301 et seq. of the
Public Safety Article, Maryland Code (2003), as well as COMAR 29.03.02.04.” Id. That
holding makes clear that the Court was not considering the constitutionality of Section 5-
306 of the Public Safety Article in the context of an application for a permit to carry a
handgun in public. For all these reasons, Williams has no application to a case, in which
the constitutionality of Section 5-306 is squarely presented.
Indeed, there are good reasons to limit the scope of Williams in this manner. For
the reasons ably set forth by the Seventh Circuit in Moore and, most recently, by the D.C.
Circuit in Wrenn, and by the Ninth Circuit panel in Young, any suggestion that the
Second Amendment simply has no application outside the home would be untenable.
‐ 14 ‐

Other decisions, post-dating Williams, confirms that conclusion. For example, in holding
that Section 4-203 of the Criminal Law Article was outside the Second Amendment,
Williams relied on an Illinois intermediate appellate court decision, People v. Dawson,
403 Ill.App.3d 499, 934 N.E.2d 598 (2010), and a D.C. Court of Appeals decision in
Little v. United States, 989 A.2d 1096 (D.C. 2010). Yet, Dawson was expressly
overruled by the Illinois Supreme Court in People v. Aguilar, 2 N.E. 3d 321, 327 (Ill.
2013), where the court followed Moore and concluded that the “that the Second
Amendment protects the right to possess and use a firearm for self-defense outside the
home….” Similarly, the D.C. Court of Appeals’ decision in Little was effectively
abrogated by the D.C. Circuit’s decision in Wrenn, where the D.C. Circuit held that “the
rights to keep and bear arms are on equal footing—that the law must leave responsible,
law-abiding citizens some reasonable means of exercising each.” Wrenn at 663.
These recent holdings make sense. Language in Heller and McDonald, and the
actual holdings in Wrenn, Moore, Young and Aguilar, demonstrate that the Second
Amendment does indeed apply outside the home, at least in some manner. Heller and
McDonald “say that ‘the need for defense of self, family, and property is most acute’ in
the home, but that doesn't mean it is not acute outside the home.” Moore, 702 F.3d at
935 (quoting Heller and McDonald). And, as Young explained, “McDonald similarly
described the right as ‘most notabl[e] within the home, implying the right exists, perhaps
less notably, outside the home.” Young, 896 F.3d at 1053, quoting McDonald, 561 U.S.
at 780. As both Moore and Young thus recognize, the phrase, “most acute,” demonstrates
‐ 15 ‐

the Court’s contemplation of other locations in which the need for “defense of self,
family, and property” exists (i.e. a public setting). By its logical extension, the
“acuteness” of this need continues when a law-abiding citizen walks out of her house and
enters public space. See Nicholas J. Johnson et al., Firearms Law and the Second
Amendment: Regulation, Rights, and Policy (2d ed. 2003) at 984.
Fundamentally, the right recognized in Heller was the right to be “armed [with a
firearm] and ready for offensive or defensive action in a case of conflict with another
person.” Heller at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998)
(dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). The Court in
Heller went further to specify “that the constitutional right to ‘bear arms’ was a right to
‘carry weapons in case of confrontation,’” language that points beyond the home.
“Confrontations” obviously occur both inside and outside the home. See Nicholas J.
Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy
(2d ed. 2003) at 983. For all these reasons, Williams must be narrowly construed. That
leaves the question open for decision by this Court.
C. The Proper Test For Assessing The Constitutionality Of A Statute

Under the Second Amendment Is Whether Statute’s Restrictions
Are Supported By “The Text, History and Tradition,” The Test
Actually Adopted in Heller
“Constitutional rights are enshrined with the scope they were understood to have
when the people adopted them.” Heller, 554 U.S. at 634–35. Under that test, deciding
whether a government restriction challenged on Second Amendment grounds is
constitutional requires a close “textual analysis” and “historical inquiry,” United States v.
‐ 16 ‐

Chester, 628 F.3d 680 (4th Cir. 2010). This lesson has been lost on those courts that
have upheld “good cause” statutes, including the Fourth Circuit’s decision in Woollard
sustaining Maryland’s “good and substantial reason” requirement. These courts have
sustained these statutes under “intermediate scrutiny” on the premise that the carrying of
handguns outside the home is outside the supposed “core” of the Second Amendment.
These courts have thus employed a balancing test under intermediate scrutiny to sustain
“good cause” requirements. Under that standard, the State has the burden to demonstrate
that its law does not “burden substantially more [protected conduct] than is necessary to
further the government’s legitimate interest.” McCullen v. Coakley, 134 S. Ct. 2518, 2535
(2014) (citation omitted).
However, these decisions have misconstrued the Second Amendment in holding
that the “core” of the Second Amendment is limited to possession within the home. First,
the “core” or “central component” of the Second Amendment right to keep and bear arms
protects “individual self-defense.” McDonald, 561 U.S. at 742, 767-78. Thus, “the core
lawful purpose” of the right is self-defense, not merely self-defense in the home. Heller,
554 U.S. at 630. As Wrenn, Moore, and Young hold, it would be nonsensical to hold that
this “core” right of self-defense is limited to the home. See Wrenn, 864 F.3d at 667 (“At
the Second Amendment’s core lies the right of responsible citizens to carry firearms for
personal self-defense beyond the home ....”); Young, 896 F.3d at 1052 (“The prospect of
confrontation is, of course, not limited to one's dwelling.”). And, as Wrenn reasoned,
levels of scrutiny cannot apply to any restriction that effectively and categorically denies
a right to the overwhelming majority of persons who are entitled to exercise the right. See
‐ 17 ‐

Young, 896 F.3d at 1071 (“An individual right that does not apply to the ordinary citizen
would be a contradiction in terms; its existence instead would wax and wane with the
whims of the ruling majority.”).
The text of the Second Amendment leaves little doubt that it applies outside the
home. The substance of the Second Amendment right reposes in the twin verbs of the
operative clause: “the right of the people to keep and bear Arms, shall not be infringed.”
U.S. CONST. amend. II (emphasis added). This turn-of-phrase is not, the Supreme Court
has held, “some sort of term of art” with a “unitary meaning,” but is rather a conjoining
of two related guarantees. Heller, 554 U.S. at 591. Limiting the Second Amendment to
the home would thus be flatly contrary to its text, for it would require either reading “the
right to keep and bear arms” as a single, unitary right in the way Heller expressly forbids,
or striking the word “bear” from the provision altogether. As stated in Young, “[t]o
‘bear,’ the Court explained, means to ‘wear’ or to ‘carry ... upon the person or in the
clothing or in a pocket, for the purpose ... of being armed and ready for offensive or
defensive action in a case of conflict with another person.’” Young, 896 F.3d at 1052,
quoting Heller, 554 U.S. at 584. See also Moore, 702 F.3d at 936 (“To speak of
“bearing” arms within one’s home would at all times have been an awkward usage.”).
The text also recognizes that the right is held by “the people.” That language
includes, as Heller states, all “law-abiding, responsible” people, Heller, 554 U.S. at 635,
not simply a subclass of the “people” who can persuade a law enforcement agency that
they possess a “good and substantial reason.” See Wrenn, 864 F.3d at 664 (“the Second
Amendment must enable armed self-defense by commonly situated citizens: those who
‐ 18 ‐

possess common levels of need and pose only common levels of risk.”). A right reserved
to the “people” cannot be logically limited to a mere subset of the “people.” This Court
would not tolerate a statute that limited the right to speak, or to have an abortion, or
exercise any other fundamental right to those who can demonstrate to the police that they
have a “good and substantial reason” for the exercise of the right. As Heller held, the
Second Amendment is not subject to any such “freestanding ‘interest-balancing’
approach.” Heller, 554 U.S. at 634. “[T]here is no such distinction between, or
hierarchy among, constitutional rights.” Caplin & Drysdale v. United States, 491 U.S.
617, 628 (1989).
Similarly, the historical and traditional understanding of the right to keep and bear
arms strongly supports what is obvious from the Second Amendment’s text. See Young,
896 F.3d at 1061-1068 (exhaustively discussing the history and tradition of the Second
Amendment, including a “good cause” requirement). As McDonald explains, “[s]elf-
defense is a basic right, recognized by many legal systems from ancient times to the
present day.” 561 U.S. at 767. The practices of the Founding generation confirm that the
right to carry arms was well-established. George Washington, for example, carried a
firearm on an expedition into the Ohio Country. William M. Darlington, Christopher
Gist’s Journals 85–86 (1893). Thomas Jefferson advised his nephew to “[l]et your gun . .
. be the constant companion of your walks,” 1 The Works Of Thomas Jefferson 398 (letter
of Aug. 19, 1785) (H. A. Washington ed., 1884), and Jefferson himself traveled with
pistols for self-protection and designed a holster to allow for their ready retrieval, see
Firearms, Monticello, available at https://goo.gl/W6FSpM (last viewed July 19, 2017).
‐ 19 ‐

Even in defending the British soldiers charged in the Boston Massacre, John
Adams conceded that, in this country, “every private person is authorized to arm himself;
and on the strength of this authority I do not deny the inhabitants had a right to arm
themselves at that time for their defence.” John Adams, First Day’s Speech in Defence of
the British Soldiers Accused of Murdering Attucks, Gray and Others, in the Boston Riot
of 1770, in 6 Masterpieces Of Eloquence 2569, 2578 (Hazeltine et al. eds., 1905). As an
attorney, Patrick Henry regularly carried a firearm while walking from his home to the
courthouse. Harlow Giles Unger, Lion Of Liberty 30 (2010). In sum, there is no basis for
any suggestion that the right can be limited to persons who possess a special reason for
being armed, either inside or outside the home.
These issues are now pending before the Supreme Court which has accepted
review in NYSRPA v. NYC, 883 F.3d 45 (2d Cir. 2018), cert. granted, 139 S.Ct. 939
(S.Ct. Jan. 22, 2019). There, the central question presented whether the Second
Amendment applies outside the home and, if so, the appropriate standard of review. In
deciding that case, the Supreme Court may well reject both immediate and strict scrutiny
tests and hold that the constitutionality of gun laws must be analyzed under the “text,
history and tradition” test that was actually used in Heller and McDonald. That is the
proper reading of Heller and McDonald. See, e.g., Heller v. District of Columbia, 670
F.3d 1244, 1269 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (“In my view, Heller and
McDonald leave little doubt that courts are to assess gun bans and regulations based on
text, history, and tradition, not by a balancing test such as strict or intermediate
scrutiny.”). That is the same “text, history, and tradition” standard of review used in
‐ 20 ‐

Wrenn and Young.3 See also Silvester v. Becerra, 138 S.Ct. 945, 947 (2018) (Thomas J.,
dissenting from the denial of certiorari) (noting that “[s]everal jurists” have suggested
that “courts should instead ask whether the challenged law complies with the text,
history, and tradition of the Second Amendment.”).
Because the Court in NYSRPA is likely to establish a proper standard of review for
assessing challenges under the Second Amendment, the Court’s decision will be far-
reaching. Indeed, a number of “good cause” statute cases are now pending before the
Supreme Court and are apparently being held by the Court pending a decision in
NYSPRA. Specifically, after the decision in Wrenn, separate suits were filed in federal
district court in New York, New Jersey and Maryland challenging “good cause” statutes.
The Maryland case is Malpasso v. Pallozzi, No. 18-1064 (D. Md., filed April 4, 2018)
(Complaint ¶6, stating that “[p]laintiffs acknowledge that the result they seek is contrary
to Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), but, for the reasons explained in
Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017), that case was wrongly
decided.).
The same type of suit was filed in in New York, NYSRPA v. Beach, No. 18-134,
filed March 26, 2018 (N.D. N.Y.) (challenging the ruling in Kachalsky v. County of
Westchester, 701 F.3d 81 (2d Cir. 2012), that the New York “good reason” statute was

3
Significantly, the Solicitor General of the United States has filed an amicus brief in
NYSRPA, arguing that “text, history and tradition” is the proper standard and that the
Second Amendment fully applies outside the home. Brief For The United States
Supporting Petitioners at 13, available at available at https://bit.ly/2Sl7pus (last viewed
July 19, 2019).
‐ 21 ‐

facially constitutional), and in New Jersey, Rogers v. Grewal, No. 18-1544 (D. N.J.)
(challenging the ruling in Drake v. Filko, 724 F.3d 426 (3d Cir. 2014), that the New
Jersey “good reason” statute was facially constitutional). A similar suit had already been
filed in Massachuetts, challenging that State’s “good cause” requirement. Gould v.
O’Leary, 291 F.Supp.3d 155 (D. Mass. 2017), aff’d sub nom. Gould v. Morgan, 907 F.3d
659 (1st Cir. 2018), petition for certiorari docketed sub nom Gould v. Lipson, No. 18-
1272 (U.S. April 1, 2019).
Of these cases, the New Jersey case, Rogers, has taken the lead. There, the district
court promptly granted a motion to dismiss on the basis of Drake, Rogers v. Grewal,
2018 WL 2298359 (D. N.J. 2018), and the Third Circuit summarily affirmed that
dismissal of complaint on the same basis on July 19, 2018. Rogers v. Grewal, No. 18-
2366 (July 19, 2018) (unreported) (see App.). A petition for certiorari was filed in
January. Rogers v. Grewal, No. 18-824 (filed January 2, 2019). The Supreme Court has
yet to act on that petition, even though it was distributed for conference on May 23, 2019.
In the meantime, the First Circuit sustained the Massachusetts “good cause” statute in
Gould. A petition for certiorari was filed in Gould on April 1, 2019, and the Supreme
Court has yet to act that petition even though it was distributed for conference on June 6,
2019. Gould v. Lipson, No. 18-1272 (docketed April 1, 2019).
The same pattern is emerging in the Maryland case, Malpasso. The district court
in that case dismissed the complaint on the basis of Woollard and that decision was
summarily affirmed by the Fourth Circuit on that basis on April 29, 2019. Malpasso v.
Pallozzi, 767 Fed.Appx. 525 (4th Cir. 2019) (Mem.). A petition for certiorari in
‐ 22 ‐

Malpasso is currently due September 26, 2019, as extended. See https://bit.ly/2XRF9pz
(last viewed July 19, 2019). The Malpasso petition, when filed, will likely also be held
pending a decision in NYSRPA, just as Rogers and Gould have been held.4 Other Second
Amendment cases pending before the Supreme Court have likewise been held.5
The Ninth Circuit has followed the Supreme Court’s lead. As noted, the Ninth
Circuit granted rehearing en banc from the panel decision in Young. Yet, a month before
en banc oral argument was scheduled, the en banc court, acting sua sponte, issued an
order (unreported) on February 14, 2019, stating: “En banc proceedings are stayed and
submission of this case for decision by the en banc court is deferred pending the issuance
of an opinion by the United States Supreme Court in New York State Rifle & Pistol
Association, Inc. v. City of New York, No. 18-280 and further order of this Court.” See
App. Appellant respectfully suggests that this Court follow suit and likewise hold this
case in abeyance pending the Supreme Court’s decision in NYSRPA. Doing so will
enable this Court to have the benefit of further guidance from the Supreme Court on the
issues presented.
II. MARYLAND CASE LAWADDRESSING THE “GOOD AND

SUBSTANTIAL REASON” STANDARD HAS BEEN SUPERSEDED BY
HELLER AND McDONALD

4
The New York case, Beach, is moving more slowly. There, the district court dismissed
the complaint on the basis of Kachalsky. NYSRPA v. Beach, 354 F.Supp.3d 143
(N.D.N.Y. 2018), and the plaintiffs’ appeal from that decision is now pending in the
Second Circuit, where it is scheduled for argument the week of October 21, 2019.
NYSRPA v. Beach, No. 19-156 (2d Cir., docketed January 15, 2019).
5
See Mance v. Barr, No. 18-663, docketed Nov. 21, 2018; Pena v. Horan, No. 18-843,
docketed January 3, 2019. Both of these cases were considered at the Friday conference
on April 12, 2019, but have since been held by the Supreme Court.
‐ 23 ‐

For all the foregoing reasons, this Court should hold that the Second
Amendment extends outside the home and extends as well to every “law-abiding,
responsible citizens” Heller, 554 U.S. at 635, without regard to any “special need” or
“good and substantial reason.” However, alternatively, the legal test employed by the
Board and State Police must still be overturned. As set forth below, in that case, the
Court should adopt the reasoning of the Fourth Circuit in Woollard and hold that
applicants demonstrating a “palpable need” meet the requirements of Section 5-
306(a)(6)(ii). The Court should therefore overrule its prior decisions that pre-date
Heller and McDonald, subject, of course, to any decision in NYSPRA or in any of the
other Second Amendment cases before the Court.
A. Snowden and Scherr Are No Longer Good Law
In considering carry permit applications under Section 5-306 of the Public
Safety Article, the State Police and the Board continue to rely on Scherr v. Handgun
Permit Review Board, 163 Md.App. 417, cert. denied, 390 Md. 92 (2005), and
Snowden v. Handgun Permit Review Board, 45 Md.App. 464, cert. denied, 288 Md.
742 (1980), as authoritative. Indeed, those decisions are prominently displayed on the
State Police website as setting for the standard that the State Police follow in applying
the “good and substantial reason” requirement of Section 5-306. See Maryland State
Police, Cases Referencing Good and Substantial Reason, available at
https://tinyurl.com/hj7a2k2 (last accessed June 25, 2019). Yet, as detailed below, these
decisions should no longer be considered controlling with respect to the meaning of

‐ 24 ‐

“good and substantial.” The Board’s (and the State Police’s) continued reliance on
these cases is thus an error of law that require reversal and a remand. In so holding,
this Court should make clear that, until the Supreme Court has clarified the law in
NYSRPA or in any other case, the Board and the State Police must follow the Fourth
Circuit’s construction of Section 5-306 in Woollard,
First, both Scherr and Snowden predate the Supreme Court's decisions in Heller
and McDonald, and were effectively abrogated by those decisions. Unsurprisingly
(given the state of the law at the time), the court in Scherr expressly rejected the
applicant’s Second Amendment-based arguments, including the argument that the
meaning of “good and substantial” must be construed by reference to, and in the
context of, the Second Amendment. For example, Scherr relied on Presser v. Illinois,
116 U.S. 252, 264 (1886), to hold that the Second Amendment did not embody an
individual right. Yet, that holding was abrogated by Heller, which expressly held that
Presser “does not refute the individual-rights interpretation of the Amendment.” See
Heller at 621.
Next, Scherr rejected the applicant’s argument that the Handgun Permit Review
Board was obligated to apply the Second Amendment in reviewing his application,
holding that the Second Amendment does not even apply to the States, relying on
Onderdonk v. Handgun Permit Review Board, 44 Md.App. 132, 134-35 (1979). See
Scherr at 442-43. That holding in Scherr and in Onderdonk was abrogated by the
Supreme Court in McDonald which held that “the Due Process Clause of the
‐ 25 ‐

Fourteenth Amendment incorporates the Second Amendment right recognized in
Heller.” See Heller at 791. The Second Amendment applies to the States no less than
it does to the federal government.
Finally, Scherr rejected the applicant’s argument that the good and substantial
reason requirement of Section 5-306 deprived him of due process under the 14th
Amendment. The Court reasoned that there was no violation of substantive due
process because that right “’protects only against government interference with certain
fundamental rights and liberty interests.’” Scherr, 880 A.2d at 1152 (citation omitted)
(emphasis the Court’s). That holding was abrogated in McDonald, where the Court
held that “[a] survey of the contemporaneous history also demonstrates clearly that the
Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms
among those fundamental rights necessary to the Nation's system of ordered liberty.
(561 U.S. at 778) (emphasis added). On that basis the McDonald Court incorporated
the Second Amendment into the Fourteenth Amendment’s Due Process Clause.
Snowden is even less pertinent after Heller and McDonald. There, this Court
simply applied the “substantial evidence” and “arbitrary and capricious” standards,
deferred to the Board, and held that the Board’s decision to deny a permit was
supported by the evidence and was not arbitrary and capricious. Snowden, 45 Md.App.
at 468-71. In so holding, the Court also stated that “good and substantial reason”
meant “something more” than the reasons submitted by the applicant in that case, id. at
469, but the Court did not purport to define the meaning of the term or even apply a
‐ 26 ‐

principled analysis of the term’s meaning. What that needs to be shown is, of course, a
question that can only be answered by reference to Heller and McDonald. In sum,
Scherr and Snowden have been superseded by Supreme Court authority. See, e.g.,
Scott v. State, 454 Md. 146, 181 (2017) (holding that prior Maryland precedent had
“been superseded by significant changes in the Supreme Court’s jurisprudence”);
United States v. Plouffe, 445 F3d 1126, 1128 (9th Cir. 2006) (“we are free to disregard
the now superseded precedents”).
Even apart from Heller and McDonald, both Scherr and Snowden merely
affirmed a prior administrative interpretation of “good and substantial” imposed by the
Board. In each case the Board acted in ad hoc quasi-judicial proceedings which turned
on particular facts. Neither case presented any authoritative interpretation of the phrase
“good and substantial reasons.” For example, the Board’s interpretation in Scherr, was
‘made up’ by the State Trooper reviewing Mr. Scherr's application for a permit. See
Scherr, 163 Md.App. at 428 (“Q: In other words, for lack of a better word, you made
that up? A: Yes.”). In this regard, the trooper’s “made up standard” had the effect of
further restricting the issuance of permits only to citizens that could establish anxiety or
fear greater than other citizens.
That “made up” standard has no basis in the statutory language of Section 5-
306. The statutory standard is whether there is a “good and substantial reason” for the
permit, including – but not limited to – whether “the permit is necessary as a
reasonable precaution against apprehended danger.” MD Code, Public Safety § 5-
‐ 27 ‐

306(a)(6)(ii). That language is quite different than the more restrictive “greater than
other citizens” standard at issue in Scherr. Read reasonably, the “apprehended danger”
merely needs to be a reasonable apprehension, an inquiry that is not governed by
whether that apprehension is shared with or measurably more than another person. As
explained below, the statutory language of the statute is consistent with the approach
actually taken in Woollard.
B. The Fourth Circuit’s “Palpable Need” Test In Woollard Is

Now Controlling Precedent.
In Woollard, the Fourth Circuit relied heavily on a two-part test, enumerated in
United States v. Chester, to justify its application of intermediate scrutiny to the
constitutionality of the “good and substantial reason” standard in Maryland. See
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); United States v. Chester, 628 F.3d
673 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
Following the Chester decision, the Woollard court absolved itself from making any
sort of historical inquiry, instead deeming it “prudent to instead resolve post-Heller
challenges to firearm prohibitions at the second step,” (i.e. an application of
intermediate scrutiny to the law). See Woollard at 875.
Applying intermediate scrutiny, the Woollard court stated that “the good-and-
substantial reason requirement ensures that those persons in palpable need of self-
protection can arm themselves in public places where Maryland's various permit
exceptions [under MD Code Criminal Law §4-203(b)] do not apply.” Woollard, 712
F.3d at 880 (emphasis added). In so holding, the court “specifically subscribe[d]” to

‐ 28 ‐

the Second Circuit’s statement in Kachalsky that a good cause requirement was “’a
more moderate approach’” than a total ban. Id. at 881, quoting Kachalsky, 701 F.3d at
98-99. The Woollard court then explained that, under this “more moderate approach,”
carry permits would be available “’to persons who have an articulable basis for
believing that they will need the weapon for self-defense.’” Id., quoting Kachalsky,
701 F.3d at 100 (emphasis added). Based on that interpretation, the court rejected the
facial challenge to the “good and substantial reason” requirement of Section 5-
306(a)(6)(ii).
The Woollard court’s reasoning cannot be dismissed as mere obiter dictum, as
the circuit court seemingly suggested. (E.99). Rather, the reasoning was essential to
the court’s holding that the “good and substantial reason” requirement was not contrary
to the Second Amendment under intermediate scrutiny. See, e.g., Schmidt v. Prince
Georges Hospital, 366 Md. 535, 550 (2001) (“When a question of law is raised
properly by the issues in a case and the Court supplies a deliberate expression of its
opinion upon that question, such opinion is not to be regarded as obiter dictum,
although the final judgment in the case may be rooted in another point also raised by
the record.”); Carstairs v. Cochran, 95 Md. 488 (1902) (“All that is necessary in
Maryland to render the decision of the Court of Appeals authoritative on any point
decided, is to show that there was an application of the judicial mind to the precise
question adjudged”) (citation omitted).
‐ 29 ‐

The “palpable need” test is not a particularly rigorous or difficult standard.
Rather, it merely means that the applicant's need is “easily perceptible by the mind.”
See Merriam-Webster.com. 2019 (last accessed July 19, 2019). The term “palpable” is
synonymous with the following: perceptible, appreciable, sensible, ostensible, and
plausible. See “palpable,” Thesaurus.com. 2018 (last accessed July 19, 2019). See also
Blacks Law Dictionary at 1265 (4th Ed. 1968) (“Easily perceptible, plain, obvious,
readily visible, noticeable, patent, distinct, manifest.”). Plainly, the “palpable need” or
“articulable basis” test does not require that a citizen show a particularized need greater
than his or her fellow citizens, the standard currently employed by the State Police and
the Board d accepted by Scherr.
Indeed, it would be odd in the extreme to hold that Woollard court somehow
endorsed Scherr’s test, where all of Scherr’s reasoning has been abrogated by the
Supreme Court’s decisions in Heller and McDonald. Intermediate scrutiny, as applied
in Woollard, is simply incompatible with the Scherr’s holding that the Second
Amendment does not embody an individual, fundamental right and that the core right of
self-defense right can be reserved to only to those individuals who can demonstrate a
need for self-defense greater than his neighbor’s. See Wrenn, 864 F.3d at 664 (“the
Amendment enables self-defense at least against the level of threat generally faced by
those covered by the Amendment: responsible and law-abiding citizens”). The terms
“palpable need” and “articulable basis” should be given their ordinary meaning. See,
‐ 30 ‐

e.g, Union Trust Co. v. Harrisons’ Nurseries, 181 Md. 291, 294 (1943) (“Words are to
be given their natural or ordinary meaning.”).
C. As Mr. Whalen Has Arguably Demonstrated A Palpable Need, A

Remand To The Board Is Required
As explained above, under the applicable standard of review, this Court must
correct any administrative error of law and remand to the agency for application of
correct legal standard, unless the remand would be futile. See, e.g., Zimmer, 444 Md. at
581 (“When an administrative function remains to be exercised at the end of the day, we
hold generally that a court must remand the case to the administrative agency.”). A
remand is unnecessary if there is “only one action” the agency take on remand. Id.
Here, it is perfectly possible for the Board to reach a different result under the “palpable
need” or “articulable basis” test employed in Woollard. Mr. Whalen is thus entitled to
have his evidence first considered by the Board under the proper legal standard.6
First, Mr. Whalen is a Republican Congressional staffer who quite reasonably
has an apprehension of immediate danger. For example, on June 14, 2017, a lone
gunman – who was said to be “distraught” over President Trump’s election – opened
fire on members of the Republican Congressional baseball team at a practice field in
Alexandria, Virginia. One current Hill staffer, one former Hill staffer, two Capitol
Police Officers, and House Republican Whip Steve Scalise (LA-01) were shot by the
gunman. Such threats of violence are getting worse. See Roll Call, “Threats against

6
Mr. Whalen is no longer an ANC Commissioner, so Mr. Whalen’s prior evidence of
such service would not be relevant on remand.
‐ 31 ‐

members increasing, Capitol Police chief says,” available at https://bit.ly/2YUYrXj
(last viewed July 19, 2019).
Similarly, on March 16, 2018, researchers at the University of Pennsylvania
published a study confirming that assaults more than doubled when hosting presidential
campaign rallies for Donald Trump. See Penn Medicine News Release, Assaults Spiked
on Trump Rally Days During 2016 Election, available at https://tinyurl.com/y7b56xz4
(last visited July 16, 2019). On July 4, 2018, a man was attacked in a restaurant for
simply wearing a red “MAGA” hat in a Texas restaurant. See Ben Tobin, San Antonio
Police Probe Alleged Assault of Teen Wearing a Make America Great Again Hat, USA
Today, available at https://tinyurl.com/y8kcwpyh (last accessed July 16, 2019). With
the 2020 general election campaigns already underway, these risks will only continue to
rise. Indeed, ignoring such threats would blink reality.
In addition, Mr. Whalen holds a national security clearance at the “Secret” level
at work and thus has access to information “may cause serious damage to national
security if disclosed without authorization.” See https://bit.ly/2Lu7nzT (last accessed
July 16, 2019). Access to such information makes Mr. Whalen a potential target for
terrorists, domestic and foreign, particularly in light of the reality that personal
information of federal employees was recently “hacked” from OPM databases by
unknown entities. See Flashpoint, CyberCrime, Office of Personnel Management Data
Allegedly Being Traded on Dark Web (2015), available at https://bit.ly/2XNvtMG (last
viewed July 16, 2019). According to recent credit reporting services, since May 2019,
‐ 32 ‐

Mr. Whalen’s sensitive personal information has indeed been compromised, and is now
available on the “Dark Web.” Mr. Whalen’s employment as a Congressional staffer
thus provides a reasonable basis for having an apprehension of danger, especially in the
context of seemingly endless reports of politically-motivated violence across the nation.
These circumstances easily satisfy the “palpable need” test of Woollard.
Moreover, the Board’s decision on Mr. Whalen’s need for a Maryland permit was
plainly influenced by the lack of a D.C. carry permit. On remand, Mr. Whalen will
present evidence, submitted to the circuit court below, that Mr. Whalen received a D.C.
carry permit soon after the Board’s hearing. See Motion to file additional evidence.
(E.58-61). That the Board considered the absence of a D.C. Permit to be material is
beyond reasonable dispute. See Transcript of Board Hearing at E.24, 31-36. The Board
will also have an opportunity on remand to reconsider the relevance of his relationship
with his father (a retired federal judge) who was issued an unrestricted carry permit by
the State Police on an “assumed risk” basis. After all, an attack on a retired federal judge
may well imperil his family as well. The remand is appropriate so as to allow the Board
to consider all this evidence under the Woollard “palpable need” standard.
‐ 33 ‐

CONCLUSION
For all the foregoing reasons, this Court should (1) hold that the “good and
substantial reason” requirement of Section 5-306 is facially unconstitutional under the
Second Amendment and order the issuance of the permit, as it undisputed that Mr.
Whalen otherwise meets all the other requirements imposed by statute, or (2)
alternatively, hold this appeal in abeyance pending a Supreme Court decision in NYSRPA,
or (3) alternatively, vacate the Board’s decision and remand the matter to the Board for
further consideration under the Woollard “palpable need” standard.
Respectfully submitted,
Mark W. Pennak.
Maryland Shall Issue, Inc.
1332 Cape St. Claire Road #342
Annapolis, MD 21409
mpennak@marylandshallissue.org
Counsel for Appellant
Edward Holmes Whalen

.
6
Appellant
‐ 34 ‐

CERTIFICATE OF SERVICE
I hereby certify that I served two copies of the Brief of Appellant and two copies
of the Record Extracts, via first class mail, postage prepaid, and via email at counsels’
email addresses, on July 22, 2019, to:
Mark H. Bowen
121 Reisterstown Road
Pikesville MD 21208
mark.bowen@maryland.gov
and
James Pasko
300 E. Joppa Road, Suite 1000
Towson, MD 21286
james.pasko@maryland.gov
Mark W. Pennak,
CERTIFICATION OF WORD COUNT AND COMPLIANCE
WITH RULE 8-112
1. This brief contains 9,086 words, excluding the parts of the brief exempted from
the word count by Rule 8-503.
2. This brief is written in Time New Roman font, 13-point size. The text is double
spaced, except in headings, and footnotes and indented quotations and otherwise
complies with the font, spacing, and type size requirements state in Rule 8-112.
____________________________________________
Mark W. Pennak,
APPENDIX
TABLE OF CONTENTS APPENDIX
Page
1. MD Code Criminal Law § 4-203 .................................................................................... 1
2. MD Code Public Safety § 5-306 .................................................................................... 5
3. MD Code Public Safety § 5-312 (2017) ......................................................................... 8
4. Order of February 14, 2019 in Young v. Hawaii, 896 F.3d 1044, 1068 (9th Cir.
2018), rehearing en banc granted, 915 F.3d 681 (9th Cir. 2019), staying en banc
consideration (unreported)................................................................................................. 10
5. Order of July 19, 2108 in Rogers v. Grewal, No. 18-2366 (3d Cir.), summarily
affirming district court decision (unreported) .................................................................. 11
§ 4-203. Wearing, carrying, or transporting handgun, MD CRIM LAW § 4-203
West's Annotated Code of Maryland

Criminal Law (Refs & Annos)
Title 4. Weapon Crimes
Subtitle 2. Handguns
MD Code, Criminal Law, § 4-203

Formerly cited as MD CODE Art. 27, § 36B
§ 4-203. Wearing, carrying, or transporting handgun
Effective: October 1, 2018

Currentness
Prohibited
(a)(1) Except as provided in subsection (b) of this section, a person may not:
(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person;
(ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking
lot generally used by the public, highway, waterway, or airway of the State;
(iii) violate item (i) or (ii) of this paragraph while on public school property in the State;
(iv) violate item (i) or (ii) of this paragraph with the deliberate purpose of injuring or killing another person; or
(v) violate item (i) or (ii) of this paragraph with a handgun loaded with ammunition.
(2) There is a rebuttable presumption that a person who transports a handgun under paragraph (1)(ii) of this subsection
transports the handgun knowingly.
Exceptions
(b) This section does not prohibit:
(1) the wearing, carrying, or transporting of a handgun by a person who is authorized at the time and under the circumstances
to wear, carry, or transport the handgun as part of the person's official equipment, and is:
(i) a law enforcement official of the United States, the State, or a county or city of the State;
(ii) a member of the armed forces of the United States or of the National Guard on duty or traveling to or from duty;
APPENDIX PAGE 0001

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
(iii) a law enforcement official of another state or subdivision of another state temporarily in this State on official business;
(iv) a correctional officer or warden of a correctional facility in the State;
(v) a sheriff or full-time assistant or deputy sheriff of the State; or
(vi) a temporary or part-time sheriff's deputy;
(2) the wearing, carrying, or transporting of a handgun, in compliance with any limitations imposed under § 5-307 of the
Public Safety Article, by a person to whom a permit to wear, carry, or transport the handgun has been issued under Title 5,
Subtitle 3 of the Public Safety Article;
(3) the carrying of a handgun on the person or in a vehicle while the person is transporting the handgun to or from the place
of legal purchase or sale, or to or from a bona fide repair shop, or between bona fide residences of the person, or between the
bona fide residence and place of business of the person, if the business is operated and owned substantially by the person if
each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(4) the wearing, carrying, or transporting by a person of a handgun used in connection with an organized military activity, a
target shoot, formal or informal target practice, sport shooting event, hunting, a Department of Natural Resources-sponsored
firearms and hunter safety class, trapping, or a dog obedience training class or show, while the person is engaged in, on the
way to, or returning from that activity if each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(5) the moving by a bona fide gun collector of part or all of the collector's gun collection from place to place for public or
private exhibition if each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(6) the wearing, carrying, or transporting of a handgun by a person on real estate that the person owns or leases or where the
person resides or within the confines of a business establishment that the person owns or leases;
(7) the wearing, carrying, or transporting of a handgun by a supervisory employee:
(i) in the course of employment;
(ii) within the confines of the business establishment in which the supervisory employee is employed; and
(iii) when so authorized by the owner or manager of the business establishment;
APPENDIX PAGE 0002

(8) the carrying or transporting of a signal pistol or other visual distress signal approved by the United States Coast Guard
in a vessel on the waterways of the State or, if the signal pistol or other visual distress signal is unloaded and carried in an
enclosed case, in a vehicle; or
(9) the wearing, carrying, or transporting of a handgun by a person who is carrying a court order requiring the surrender
of the handgun, if:
(i) the handgun is unloaded;
(ii) the person has notified the law enforcement unit, barracks, or station that the handgun is being transported in accordance
with the court order; and
(iii) the person transports the handgun directly to the law enforcement unit, barracks, or station.
Penalty
(c)(1) A person who violates this section is guilty of a misdemeanor and on conviction is subject to the penalties provided in
this subsection.
(2) If the person has not previously been convicted under this section, § 4-204 of this subtitle, or § 4-101 or § 4-102 of this title:
(i) except as provided in item (ii) of this paragraph, the person is subject to imprisonment for not less than 30 days and not
exceeding 3 years or a fine of not less than $250 and not exceeding $2,500 or both; or
(ii) if the person violates subsection (a)(1)(iii) of this section, the person shall be sentenced to imprisonment for not less
than 90 days.
(3)(i) If the person has previously been convicted once under this section, § 4-204 of this subtitle, or § 4-101 or § 4-102
of this title:
1. except as provided in item 2 of this subparagraph, the person is subject to imprisonment for not less than 1 year and
not exceeding 10 years; or
2. if the person violates subsection (a)(1)(iii) of this section, the person is subject to imprisonment for not less than 3
years and not exceeding 10 years.
(ii) 1. Except as provided in subsubparagraph 2 of this subparagraph, the court may not impose less than the applicable
minimum sentence provided under subparagraph (i) of this paragraph.
APPENDIX PAGE 0003

2. If the person violates subsection (a)(1)(v) of this section, the court may not suspend any part of or impose less than
the applicable mandatory minimum sentence provided under subparagraph (i) of this paragraph.
(iii) Except as provided in § 4-305 of the Correctional Services Article, if the person violates subsection (a)(1)(v) of this
section, the person is not eligible for parole during the mandatory minimum sentence.
(iv) A mandatory minimum sentence under subparagraph (ii)2 of this paragraph may not be imposed unless the State's
Attorney notifies the defendant in writing at least 30 days before trial of the State's intention to seek the mandatory minimum
sentence.
(4)(i) If the person has previously been convicted more than once under this section, § 4-204 of this subtitle, or § 4-101 or
§ 4-102 of this title, or of any combination of these crimes:
1. except as provided in item 2 of this subparagraph, the person is subject to imprisonment for not less than 3 years
and not exceeding 10 years; or
2. A. if the person violates subsection (a)(1)(iii) of this section, the person is subject to imprisonment for not less than
5 years and not exceeding 10 years; or
B. if the person violates subsection (a)(1)(iv) of this section, the person is subject to imprisonment for not less than
5 years and not exceeding 10 years.
(ii) 1. Except as provided in subsubparagraph 2 of this subparagraph, the court may not impose less than the applicable
minimum sentence provided under subparagraph (i) of this paragraph.
2. If the person violates subsection (a)(1)(v) of this section, the court may not suspend any part of or impose less than
the applicable mandatory minimum sentence provided under subparagraph (i) of this paragraph.
(iii) Except as provided in § 4-305 of the Correctional Services Article, if the person violates subsection (a)(1)(v) of this
section, the person is not eligible for parole during the mandatory minimum sentence.
(iv) A mandatory minimum sentence under subparagraph (ii)2 of this paragraph may not be imposed unless the State's
Attorney notifies the defendant in writing at least 30 days before trial of the State's intention to seek the mandatory minimum
sentence.
Credits
Added by Acts 2002, c. 26, § 2, eff. Oct. 1, 2002. Amended by Acts 2003, c. 17, § 1, eff. Oct. 1, 2003; Acts 2003, c. 21, § 1, eff.
April 8, 2003; Acts 2004, c. 25, § 1, eff. April 13, 2004; Acts 2005, c. 482, § 1, eff. Oct. 1, 2005; Acts 2010, c. 712, § 1, eff. Oct. 1,
2010; Acts 2011, c. 65, § 1, eff. April 12, 2011; Acts 2013, c. 427, § 1, eff. Oct. 1, 2013; Acts 2018, c. 146, § 1, eff. Oct. 1, 2018.
Formerly Art. 27, § 36B.
APPENDIX PAGE 0004

§ 5-306. Qualifications for permit, MD PUBLIC SAFETY § 5-306
KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedPrior Version Held Unconstitutional by Woollard v. Sheridan, D.Md., Mar. 02, 2012
KeyCite Yellow Flag - Negative TreatmentProposed Legislation

Public Safety (Refs & Annos)
Title 5. Firearms (Refs & Annos)
Subtitle 3. Handgun Permits (Refs & Annos)
MD Code, Public Safety, § 5-306

Formerly cited as MD CODE Art. 27, § 36E
§ 5-306. Qualifications for permit
Effective: October 1, 2013

Currentness
In general
(a) Subject to subsection (c) of this section, the Secretary shall issue a permit within a reasonable time to a person who the
Secretary finds:
(1) is an adult;
(2)(i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year
has been imposed; or
(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C.
§ 925(c);
(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;
(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the
controlled dangerous substance is under legitimate medical direction;
(5) except as provided in subsection (b) of this section, has successfully completed prior to application and each renewal, a
firearms training course approved by the Secretary that includes:
(i) 1. for an initial application, a minimum of 16 hours of instruction by a qualified handgun instructor; or
2. for a renewal application, 8 hours of instruction by a qualified handgun instructor;
APPENDIX PAGE 0005

(ii) classroom instruction on:
1. State firearm law;
2. home firearm safety; and
3. handgun mechanisms and operation; and
(iii) a firearms qualification component that demonstrates the applicant's proficiency and use of the firearm; and
(6) based on an investigation:
(i) has not exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun
a danger to the person or to another; and
(ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary
as a reasonable precaution against apprehended danger.
Exemption from completing certified firearms training course
(b) An applicant for a permit is not required to complete a certified firearms training course under subsection (a) of this section
if the applicant:
(1) is a law enforcement officer or a person who is retired in good standing from service with a law enforcement agency of
the United States, the State, or any local law enforcement agency in the State;
(2) is a member, retired member, or honorably discharged member of the armed forces of the United States or the National
Guard;
(3) is a qualified handgun instructor; or
(4) has completed a firearms training course approved by the Secretary.
Applicants under the age of 30
(c) An applicant under the age of 30 years is qualified only if the Secretary finds that the applicant has not been:
(1) committed to a detention, training, or correctional institution for juveniles for longer than 1 year after an adjudication
of delinquency by a juvenile court; or
APPENDIX PAGE 0006

(2) adjudicated delinquent by a juvenile court for:
(i) an act that would be a crime of violence if committed by an adult;
(ii) an act that would be a felony in this State if committed by an adult; or
(iii) an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed
by an adult.
Handgun qualification licenses
(d) The Secretary may issue a handgun qualification license, without an additional application or fee, to a person who:
(1) meets the requirements for issuance of a permit under this section; and
(2) does not have a handgun qualification license issued under § 5-117. 1 of this title.
Credits
Added by Acts 2003, c. 5, § 2, eff. Oct. 1, 2003. Amended by Acts 2013, c. 427, § 1, eff. Oct. 1, 2013.
Editors' Notes
VALIDITY
<See Woollard v. Sheridan, 2012, 863 F.Supp.2d. 462.>
LEGISLATIVE NOTES
Revisor's Note (Acts 2003, c. 5):
This section is new language derived without substantive change from former Art. 27, § 36E(a)(1) through (6) and
the first and third clauses of the introductory language of (a).
In subsection (a)(1) of this section, the reference to an “adult” is substituted for the former reference to a person
“eighteen years of age or older” for brevity in light of the definition of the term “adult” in Art. 1, § 24.
In the introductory language of subsection (a)(5) of this section, the former reference to the “results” of an
investigation is deleted as implicit in the reference to an “investigation”.
In subsection (a)(5)(i) of this section, the former reference to a “law-abiding” person is deleted as unnecessarily
narrowing the field of persons to whom an applicant for a permit may not exhibit a propensity or instability that
may reasonably render handgun possession a danger.
APPENDIX PAGE 0007

§ 5-312. Action by Board, MD PUBLIC SAFETY § 5-312
KeyC te Ye ow F ag Negat ve Treatment

Proposed Leg s at on
Public Safety (Refs & Annos)
Title 5. Firearms (Refs & Annos)
Subtitle 3. Handgun Permits (Refs & Annos)
MD Code, Public Safety, § 5-312

Formerly cited as MD CODE Art. 27, § 36E
§ 5-312. Action by Board
Currentness
Request for review authorized
(a)(1) A person who is denied a permit or renewal of a permit or whose permit is revoked or limited may request the
Board to review the decision of the Secretary by filing a written request with the Board within 10 days after receipt of
written notice of the Secretary's final action.
(2) A person whose application for a permit or renewal of a permit is not acted on by the Secretary within 90 days
after submitting the application to the Secretary may request a hearing before the Board by filing a written request
with the Board.
Form of review
(b) Within 90 days after receiving a request to review a decision of the Secretary, the Board shall:
(1) review the record developed by the Secretary; or
(2) conduct a hearing.
Evidence
(c) The Board may receive and consider additional evidence submitted by a party in conducting a review of the decision
of the Secretary.
Decision by Board
(d)(1) Based on the Board's consideration of the record and any additional evidence, the Board shall sustain, reverse,
or modify the decision of the Secretary.
APPENDIX PAGE 0008

§ 5-312. Action by Board, MD PUBLIC SAFETY § 5-312
(2) If the action by the Board results in the denial of a permit or renewal of a permit or the revocation or limitation
of a permit, the Board shall submit in writing to the applicant or the holder of the permit the reasons for the action
taken by the Board.
Administrative procedures
(e)(1) Any hearing and any subsequent proceedings of judicial review shall be conducted in accordance with Title 10,
Subtitle 2 of the State Government Article.
(2) Notwithstanding paragraph (1) of this subsection, a court may not order the issuance or renewal of a permit or
alter a limitation on a permit pending a final determination of the proceeding.
Credits
Added by Acts 2003, c. 5, § 2, eff. Oct. 1, 2003.
Editors' Notes
LEGISLATIVE NOTES
Revisor's Note (Acts 2003, c. 5):
This section is new language derived without substantive change from former Art. 27, § 36E(i)(2), (3), and (4).
In subsection (d)(2) of this section, the reference to an “applicant or the holder of the permit” is substituted
for the former reference to “that person” for clarity.
In subsection (e)(2) of this section, the former reference to a court “of this State” is deleted as implicit.
The Public Safety Article Review Committee notes, for the consideration of the General Assembly, that in
subsection (a)(2) of this section there is no time period stated within which a written request for a hearing
before the Board must be made if the Secretary has not acted on an application for a permit or renewal of
a permit.
Defined terms: “Board” § 5-301
“Permit” § 5-301
“Person” § 1-101
“Secretary” § 5-301
MD Code, Public Safety, § 5-312, MD PUBLIC SAFETY § 5-312

Current through legislation effective July 1, 2018, from the 2018 Regular Session of the General Assembly
End of Document © 20 8 Thomson Reuters. No c a m to or g na U.S. Government Works.
APPENDIX PAGE 0009

Case: 12-17808, 02/14/2019, ID: 11190165, DktEntry: 209, Page 1 of 1
FILED
FOR PUBLICATION FEB 14 2019
MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE K. YOUNG, Jr., No. 12-17808
Plaintiff-Appellant, D.C. No.

1:12-cv-00336-HG-BMK
v.
STATE OF HAWAII, et. al.; ORDER
Defendants-Appellees.
Before: THOMAS, Chief Judge
En banc proceedings are stayed and submission of this case for decision by
the en banc court is deferred pending the issuance of an opinion by the United
States Supreme Court in New York State Rifle & Pistol Association, Inc. v. City of
New York, No. 18-280 and further order of this Court.
APPENDIX PAGE 0010

Case: 18-2366 Document: 003113041020 Page: 1 Date Filed: 09/21/2018
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

July 19, 2018
ACO-097
No. 18-2366
Thomas Rogers; Association of New Jersey

Rifle and Pistol Clubs, Inc.;
Appellants
v.
Attorney General New Jersey; Patrick J. Callahan,

in his official capacity as Acting Superintendent of the
New Jersey Division of State Police; Kenneth J. Brown,
in his official capacity as Chief of the Wall Township
Police Department; Joseph W. Oxley, in his official
capacity as Judge of the Superior court of New Jersey, Law Division,
Monmouth County; N. Peter Conforti, in his official capacity as
Judge of the Superior Court of New Jersey; Law Division, Sussex County
(D.N.J. No. 3-18-cv-01544)
Present: MCKEE, VANASKIE and SCIRICA, Circuit Judges
1. Unopposed Motion by Appellants for Summary Action.
Respectfully,
Clerk/clw
_________________________________ORDER________________________________
The foregoing motion for summary action is granted.
By the Court,
s/Anthony J. Scirica
Circuit Judge
Dated: September 21, 2018

CLW/cc: John D. Ohlendorf, Esq.
Peter A. Patterson, Esq.
Daniel L. Schmutter, Esq.
David H. Thompson, Esq.
APPENDIX PAGE 0011

Case: 18-2366 Document: 003113041020 Page: 2 Date Filed: 09/21/2018
Bryan E. Lucas, Esq.

Mitchell B. Jacobs, Esq.
APPENDIX PAGE 0012

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TABLE OF CONTENTS ..................................................................................................... i

TABLE OF AUTHORITIES ..............................................................................................iii

STATEMENT OF THE CASE ........................................................................................... 1

QUESTIONS PRESENTED ............................................................................................... 2

STATEMENT OF THE FACTS ......................................................................................... 2

A. Statutory Scheme ..................................................................................................... 2

B. Statement of Facts .................................................................................................... 4

1. The Application .................................................................................................... 4

2. The Board Decision .............................................................................................. 6

3. Decision of the Circuit Court below ................................................................... 7

STATEMENT OF THE STANDARD OF REVIEW ........................................................ 7

I. THE GOOD AND SUBSTANTIAL REASON REQUIREMENT

B. The Second Amendment Applies Outside the Home ..................................... 10

C. The Proper Test For Assessing The Constitutionality Of A Statute

A. Snowden and Scherr Are No Longer Good Law ............................................ 24

B. The Fourth Circuit’s “Palpable Need” Test In Woollard Is

C. As Mr. Whalen Has Arguably Demonstrated A Palpable Need,

CERTIFICATION OF WORD COUNT AND COMPLIANCE

Ak’s Daks Communications, Inc. v. Maryland Securities Div.,

Black’s Law Dictionary (6th ed. 1998) ........................................................................ 16,30

62 DCR 9781 (July 17, 2015)............................................................................................ 12

U.S. CONST. amend. II..................................................................................................... 18

On March 9, 2017, Appellant, Edward Holmes Whalen, submitted an application

and carry application” or “application”) pursuant to MD Code Public Safety § 5-306. On

to demonstrate he had a “good and substantial reason” to carry a firearm.

application, issuing its written decision on January 25, 2018.

Nugent’s Memorandum and Order.

forth in MD Code Public Safety § 5-306(a)(6)(ii), for the issuance of a Maryland

2. Independently of Question 1, whether the Maryland State Police and the

STATEMENT OF THE FACTS

Under MD Code, Criminal Law, § 4-203(a), carrying a handgun on one’s person

examples. It is a serious criminal offense to carry a handgun in violation of Section 4-

exceeding $2,500 or both.” See App.1-3. Because a violation of Section 4-203 is a

misdemeanor punishable by imprisonment for a term in excess of two years, any

U.S.C. § 922(g), and 18 U.S.C. § 921(a)(20). A similar disability is imposed under

Maryland law. See MD Code, Public Safety, § 5-101(g)(3), § 5-133(b)(1), § 5-205(b)(1).

carrying, or transporting of a handgun, in compliance with any limitations imposed under

Article.” MD Code, Criminal Law, § 4-203(b)(2). MD Code Public Safety, §5-306

such as a finding that the permit is necessary as a reasonable precaution against

apprehended danger.” MD Code Public Safety §5-306(a)(6)(i),(ii). As of October 1,

16 hours of instruction by a qualified handgun instructor prior to submission of the

Under MD Code, Public Safety, § 5-311, an applicant whose application for a

302(c),(d)(1)). Under that version of MD Code, Public Safety, § 5-312(e)(1), a Board

State Government Article.” See MD Code State Gov’t., § 10-222.

On March 9, 2017, Petitioner, Edward Holmes Whalen, submitted an application

substantial reason’” when he arrived for his interview. (E.1).

Commissioner” – in D.C., in a district directly adjacent to the Maryland state line on

employees maintained by the Office of Personnel Management. (E.1-3).

statement he had submitted to Investigator Wright. (E.7-8). In this second statement,

2. The Board Decision

placing his application “…in the maybe category...” (E.40).

3. Decision of the Circuit Court below

STATEMENT OF THE STANDARD OF REVIEW

applicable to administrative agency decisions applies to Board cases. See Brown v.

determinations of an administrative agency, legal questions are subject to the de novo

determinations made by an administrative agency” and “[i]n ascertaining the propriety of

(citations omitted). An error of law committed by an administrative body generally

I. THE GOOD AND SUBSTANTIAL REASON REQUIREMENT

Board for further proceedings consistent with the Court’s ruling.