In The United States Court of Appeals For The Fourth Circuit

USCA4 Appeal: 21-2017 Doc: 24-1 Filed: 08/03/2022 Pg: 1 of 65 Total Pages:(1 of 67)
No. 21-2017 (L)
In the
United States Court of Appeals
for the Fourth Circuit
──────────────────────────
MARYLAND SHALL ISSUE, et al.,
Plaintiffs-Appellants
v.
LAWRENCE HOGAN, et al.,
Defendants-Appellees
──────────────────────────
On Appeal from the United States District Court
for the District of Maryland
No. 1:16-cv-03311-ELH (Hon. Ellen L. Hollander)
──────────────────────────
BRIEF OF APPELLANTS
──────────────────────────
Cary J. Hansel, III John Parker Sweeney
2514 N. Charles Street James W. Porter, III
Baltimore, MD 21218 Marc A. Nardone
Phone: 301-461-1040 Connor M. Blair
Facsimile: 443-451-8606 Bradley Arant Boult Cummings LLP
[email protected] 1615 L Street N.W., Suite 1350
Washington, D.C. 20036
Mark W. Pennak Phone: 202-393-7150
Maryland Shall Issue, Inc. Facsimile: 202-347-1684
9613 Harford Rd. [email protected]
Ste. C #1015
Baltimore, MD 21234 Counsel for Appellant Atlantic Guns, Inc.
Phone: 301-873-3671
[email protected]
Counsel for Appellants

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE STATEMENT
• In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all
parties, with the following exceptions: (1) the United States is not required to file a disclosure
statement; (2) an indigent party is not required to file a disclosure statement; and (3) a state
or local government is not required to file a disclosure statement in pro se cases. (All parties
to the action in the district court are considered parties to a mandamus case.)
• In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.
• In criminal cases, the United States must file a disclosure statement if there was an
organizational victim of the alleged criminal activity. (See question 7.)
• Any corporate amicus curiae must file a disclosure statement.
• Counsel has a continuing duty to update the disclosure statement.
21-2017
No. __________ Caption: Maryland
__________________________________________________
Shall Issue, Inc., et al. v. Lawrence Hogan, et al.
Pursuant to FRAP 26.1 and Local Rule 26.1,
______________________________________________________________________________
Deborah Kay Miller
(name of party/amicus)
______________________________________________________________________________
who is _______________________,
Appellant makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)
1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO
2. Does party/amicus have any parent corporations? YES ✔ NO

If yes, identify all parent corporations, including all generations of parent corporations:
3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity? YES ✔ NO
If yes, identify all such owners:
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4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation? YES ✔ NO
If yes, identify entity and nature of interest:
5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:
6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO

If yes, the debtor, the trustee, or the appellant (if neither the debtor nor the trustee is a
party) must list (1) the members of any creditors’ committee, (2) each debtor (if not in the
caption), and (3) if a debtor is a corporation, the parent corporation and any publicly held
corporation that owns 10% or more of the stock of the debtor.
7. Is this a criminal case in which there was an organizational victim? YES ✔ NO

If yes, the United States, absent good cause shown, must list (1) each organizational
victim of the criminal activity and (2) if an organizational victim is a corporation, the
parent corporation and any publicly held corporation that owns 10% or more of the stock
of victim, to the extent that information can be obtained through due diligence.
/s/ Cary Hansel

Signature: ____________________________________ Date: ___________________
09/20/2021
Appeallants
Counsel for: __________________________________
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• In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all
• In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.
• In criminal cases, the United States must file a disclosure statement if there was an
• Any corporate amicus curiae must file a disclosure statement.
• Counsel has a continuing duty to update the disclosure statement.
21-2017
No. __________ Caption: Maryland
__________________________________________________
Shall Issue, Inc., et al. v. Lawrence Hogan, et al.
______________________________________________________________________________
Susan Brancato Vizas
______________________________________________________________________________
who is _______________________,
Appellant makes the following disclosure:
1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO
2. Does party/amicus have any parent corporations? YES ✔ NO


other publicly held entity? YES ✔ NO
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financial interest in the outcome of the litigation? YES ✔ NO
5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO
6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO

7. Is this a criminal case in which there was an organizational victim? YES ✔ NO

/s/ Cary Hansel

Signature: ____________________________________ Date: ___________________
09/20/2021
Appeallants
Counsel for: __________________________________
-2-
24-1 Filed:
Filed:
09/28/2021
08/03/2022 Pg:Pg:
In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all
In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.
In criminal cases, the United States must file a disclosure statement if there was an
Any corporate amicus curiae must file a disclosure statement.
Counsel has a continuing duty to update the disclosure statement.
No. __________ Caption: __________________________________________________
______________________________________________________________________________
______________________________________________________________________________
who is _______________________, makes the following disclosure:

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO
2. Does party/amicus have any parent corporations? YES NO


other publicly held entity? YES NO
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financial interest in the outcome of the litigation? YES NO
5. Is party a trade association? (amici curiae do not complete this question) YES NO
6. Does this case arise out of a bankruptcy proceeding? YES NO

7. Is this a criminal case in which there was an organizational victim? YES NO

Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
-2-
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES. .................................................................................. iv
JURISDICTIONAL STATEMENT ......................................................................... 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................ 2
STATEMENT OF THE CASE ................................................................................. 3
I. Procedural history and ruling presented for review ............................. 3
II. Statement of the facts ........................................................................... 5
A. The Plaintiffs .............................................................................. 5
1. The Individual Plaintiffs do not possess a handgun because

the HQL Requirement burdens their ability to acquire a
handgun. ................................................................................ 5
2. Some Members of Maryland Shall Issue do not possess

a handgun because the HQL Requirement burdens their
ability to acquire a handgun. ................................................. 5
3. Atlantic Guns sells fewer handguns to a smaller pool of

ordinary, law-abiding Maryland citizens because the HQL
Requirement burdens individuals’ ability to acquire a
handgun. ................................................................................ 6
B. Maryland’s historical laws regulating handgun possession

in the home ................................................................................. 6
1. The 77R Handgun Registration Requirement ...................... 7
2. The Gun Violence Act of 1996 ............................................. 7
3. The Responsible Gun Safety Act of 2000 ............................ 7
C. The HQL Requirement .............................................................. 8
SUMMARY OF ARGUMENT .............................................................................. 10
i
STANDARD OF REVIEW .................................................................................... 11
ARGUMENT .......................................................................................................... 11
I. The District Court committed reversible error by upholding the

HQL Requirement under means-end scrutiny, an incorrect legal
standard. ............................................................................................. 12
A. Using an incorrect legal standard is reversible error. .............. 12
B. The District Court committed reversible error by using an

incorrect legal standard to uphold the HQL Requirement. ...... 13
1. The Supreme Court has confirmed the text and history

standard for analyzing Second Amendment challenges
and rejected using means-end scrutiny. .............................. 13
2. The District Court upheld the HQL Requirement under

means-end scrutiny. ............................................................ 14
C. This Court should decide the merits of this case and not
remand to the District Court. ................................................... 15
II. The HQL Requirement violates the Second Amendment.................. 17
A. The HQL Requirement burdens conduct protected by the

Second Amendment’s plain text. ............................................. 17
B. The State cannot demonstrate that the HQL Requirement

is consistent with this Nation’s historical tradition of
firearm regulation..................................................................... 23
1. The HQL Requirement is a novel attempt at solving a

centuries-old general societal problem. .............................. 23
2. Even if the HQL Requirement were meant to address an

unprecedented societal problem or dramatic technological
change, it lacks a relevantly similar historical analogue. ... 31
CONCLUSION ....................................................................................................... 33
REQUEST FOR ORAL ARGUMENT .................................................................. 34
CERTIFICATE OF COMPLIANCE ...................................................................... 35

ii
CERTIFICATE OF SERVICE ............................................................................... 36
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Altizer v. Deeds,
191 F.3d 540 (4th Cir. 1999) .............................................................................. 12
Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ............................................................................................ 11
Andrews v. State,
50 Tenn. 165 (1871)............................................................................................ 17
Billioni v. Bryant,
759 F. App’x 144 (4th Cir. 2019) ....................................................................... 12
Boyes v. Shell Oil Prods. Co.,

199 F.3d 1260 (11th Cir. 2000) .......................................................................... 16
Caetano v. Massachusetts,
577 U.S. 411 (2016) ............................................................................................ 13
Clatterbuck v. City of Charlottesville,

708 F.3d 549 (4th Cir. 2013) .............................................................................. 16
Cnty. Bd. of Arlington Cnty., Virginia v. Express Scripts Pharmacy,

Inc.,
996 F.3d 243 (4th Cir. 2021) .............................................................................. 15
D.B. v. Cardall,
826 F.3d 721 (4th Cir. 2016) .............................................................................. 12
District of Columbia v. Heller,

554 U.S. 570 (2008) .....................................................................................passim
Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) .................................................................... 22, 28
Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives,

5 F.4th 407 (4th Cir. 2021) ...........................................................................20, 21
Johnson v. VanderKooi,
No. 160958, 2022 WL 2903868 (Mich. July 22, 2022). .................................... 30
iv
Kennedy v. Louisiana,
554 U.S. 407 (2008) ............................................................................................ 26
Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) .............................................................................. 11
Maryland Shall Issue, Inc. v. Hogan,

971 F.3d 199 (4th Cir. 2020) .......................................................................passim
Maryland v. King,
569 U.S. 435 (2013) ............................................................................................ 30
McDonald v. Chicago,
561 U.S. 742 (2010) ......................................................................................13, 17
Morel v. Sabine Towing & Transp. Co., Inc.,

669 F.2d 345 (5th Cir. 1982) .............................................................................. 16
New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) .................................................................................passim
Simmons v. United States,

390 U.S. 377 (1968) ............................................................................................ 30
Teixeira v. City of Alameda,

873 F.3d 670 (9th Cir. 2017) .............................................................................. 17
U.S. v. Kin-Hong,
110 F.3d 103 (1st Cir. 1997) ............................................................................... 15
United States v. Foster,

526 F. App’x 268 (4th Cir. 2013) ....................................................................... 18
United States v. Gavegnano,

305 F. App’x 954 (4th Cir. 2009) ....................................................................... 16
United States v. Hosford,

843 F.3d 161 (4th Cir. 2016) ..................................................................20, 21, 22
Statutes
18 U.S.C. § 922(a)(1)(A) ......................................................................................... 21
18 U.S.C. § 922(b)(1)............................................................................................... 21
v
18 U.S.C. § 922(c)(1) ............................................................................................... 21
28 U.S.C. § 1291 ........................................................................................................ 1
28 U.S.C. § 1331 ........................................................................................................ 1
28 U.S.C. § 1343 ........................................................................................................ 1
1778 N.J. Sess. Laws ............................................................................................... 28
1782 Del. Sess. Laws ............................................................................................... 28
1786 N.C. Sess. Laws .............................................................................................. 28
1791 S.C. Sess. Laws ............................................................................................... 28
1913 Or. Laws 497 ................................................................................................... 28
1925 Or. Laws 468 ................................................................................................... 28
1941 Maryland Laws, Chapter 622............................................................................ 6
Act of May 8, 1792, Second Congress, Sess. 1, ch. 33, § 1, 1 Stat. 271 ................. 28
Md. Code. Ann., Art. 27, § 442 ................................................................................. 7
Md. Code. Ann., Art. 27, § 445 ................................................................................. 7
Md. Code Ann., Art. 27, § 531(D)–(E)...................................................................... 6
Md. Code Ann., Pub Safety § 5-114(b)(2) ................................................................ 9
Md. Code Ann., Pub. Safety § 5-117.1 ...................................................................... 1
Md. Code Ann., Pub. Safety § 5-117.1(a)(2) ............................................................. 8
Md. Code Ann., Pub. Safety § 5-117.1(a)(3) ............................................................. 8
Md. Code Ann., Pub. Safety, § 5-117.1(b) ..........................................................8, 19
Md. Code Ann., Pub. Safety, § 5-117.1(c) ..........................................................8, 19
vi
Md. Code Ann., Pub. Safety § 5-117.1(f)–(g) ........................................................... 9
Md. Code Ann., Pub. Safety § 5-118 .................................................................6, 7, 8
Md. Code Ann., Pub. Safety §§ 5-120 ....................................................................... 7
Md. Code Ann., Pub. Safety §§ 5-121 ....................................................................... 7
Md. Code Ann., Pub. Safety § 5-123 ..................................................................... 7, 9
Md. Code Ann., Pub. Safety § 5-124 ...................................................................7, 19
Md. Code Ann., Pub. Safety § 5-144 ......................................................................... 9
Other Authorities
COMAR 12.15.05 ...................................................................................................... 1
COMAR 29.03.01 ...................................................................................................... 1
D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13

Charleston L. Rev. 205 (2018) ........................................................................... 25
David Kopel, Background Checks for Firearms Sales and Loans:

Law, History, and Policy, 53 Harv. J. on Legis. 303 (2016) ..................25, 27, 29
Mark Gius, Effects of Permit-to-Purchase Laws on State-Level

Firearm Murder Rates, 45 Int’l Econ. J. 73 (2017) ........................................... 30
Owner Responsibilities – Licensing, Giffords Law Center,

https://giffords.org/lawcenter/gun-laws/policy-areas/owner-
responsibilities/licensing/#footnote_12_5608 (last visited Aug. 1,
2022). .................................................................................................................. 29
U.S. Const. amend. II ........................................................................................passim
U.S. Const. amend. XIV ......................................................................................1, 17
vii
JURISDICTIONAL STATEMENT
Susan Vizas and Deborah Miller (collectively, “Individual Plaintiffs”),
Maryland Shall Issue, Inc. (“MSI”), and Atlantic Guns, Inc. (“Atlantic Guns”)
(collectively, “Plaintiffs”) challenge Section 5-117.1 of the Maryland Code, Public
Safety and the Maryland State Police’s implementing regulations, COMAR
12.15.05 and 29.03.01 (collectively, the “HQL Requirement”), under the Second and
Fourteenth Amendments to the United States Constitution. The United States
District Court for the District of Maryland had subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The District Court’s final judgment was
entered on the docket on August 12, 2021. Joint Appendix (“JA”) JA1810. Plaintiffs
timely noticed their appeal on September 10, 2021. JA1811. This appeal is from a
final judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
Whether Maryland’s HQL Requirement violates the Second Amendment
because it burdens conduct protected by the Second Amendment’s text and is
inconsistent with the Nation’s historical tradition of firearm regulation and not
supported by any relevantly similar historical analogue.
2
STATEMENT OF THE CASE
I. Procedural history and ruling presented for review
Plaintiffs’ Amended Complaint alleges that the HQL Requirement violates
the Second Amendment because it burdens, without a historical analogue, law-
abiding, responsible Maryland citizens’ right to acquire a handgun for lawful
purposes such as self-defense in the home. JA0031–0033.
The District Court initially held that Plaintiffs lack standing. See Maryland
Shall Issue, Inc. v. Hogan, 971 F.3d 199, 205 (4th Cir. 2020). This Court reversed
in part and remanded, holding that Atlantic Guns has standing to assert a Second
Amendment claim independently and on behalf of its customers. Id. at 214, 216
(noting that the remaining Plaintiffs have standing because Atlantic Guns has
standing). On remand, the District Court upheld the HQL Requirement under
intermediate scrutiny, granting the State’s motion for summary judgment and
denying Plaintiffs’ cross-motion for summary judgment. JA1869–1871. This appeal
by Plaintiffs is from the Order granting summary judgment to the State and denying
summary judgment to Plaintiffs.
Every court to examine whether the HQL Requirement burdens conduct
protected by the Second Amendment has held that it does. First, the District Court
noted that “Defendants do not deny that the HQL Provision and implementing
regulations burden conduct within the scope of the Second Amendment, namely, the
3
ability of a law-abiding citizen to attain a handgun for use in the home for self
defense.” See JA0055. Then, this Court, in a unanimous panel opinion and after a
“careful review” of the “uncontroverted evidence,” held that the HQL Requirement
burdens conduct protected by the Second Amendment because “[o]n its face, the
HQL requirement undoubtedly constrains Atlantic Guns’ ability to sell handguns
and limits its potential customer base” by restricting its customers from purchasing
handguns. Maryland Shall Issue, 971 F.3d. at 211–16 (citing Maryland State Police
records, Atlantic Guns’ sales records, and deposition testimony). Most recently, the
District Court held on remand that the HQL Requirement burdens conduct protected
by the Second Amendment:
The Supreme Court has already determined that the type of firearm at
issue under the HQL law—the handgun—unquestionably falls within
the scope of the Second Amendment. Indeed, the Supreme Court has
characterized the handgun as the quintessential self-defense weapon
and observed that handguns are the most popular weapon chosen by
Americans for self-defense in the home.
The requirements for the purchase of a handgun, as set out in the HQL
law, undoubtedly burden this core Second Amendment right because
they make it considerably more difficult for a person lawfully to acquire
and keep a firearm for the purpose of self-defense in the home.
JA1841 (collecting authority).
4
II. Statement of the facts
A. The Plaintiffs
1. The Individual Plaintiffs do not possess a handgun because the

HQL Requirement burdens their ability to acquire a handgun.
Susan Brancato Vizas desires to purchase a handgun for self-defense, target
practice, and other lawful purposes. JA0022. But the HQL Requirement’s costs and
time commitments have dissuaded her from acquiring an HQL, preventing her from
acquiring a handgun. JA0023.
Deborah Kay Miller desires to purchase a handgun for self-defense in her
home. JA0022. But her physical disability makes it very difficult for her to sit for
extended periods of time, which precludes her completion of the HQL
Requirement’s mandatory half day of classroom training, preventing her from
obtaining an HQL and thus barring her from acquiring a handgun. JA0022–0023.
2. Some Members of Maryland Shall Issue do not possess

a handgun because the HQL Requirement burdens their ability
to acquire a handgun.
Maryland Shall Issue is a non-profit membership organization that promotes
and defends the exercise of the right to keep and bear arms in and outside the home.
MSI’s membership includes each of the Individual Plaintiffs as well as numerous
other Maryland residents who do not possess an HQL because of the HQL
Requirement’s burdens and therefore cannot purchase a handgun. JA0022, JA0024.
5
3. Atlantic Guns sells fewer handguns to a smaller pool of

ordinary, law-abiding Maryland citizens because the HQL
Requirement burdens individuals’ ability to acquire a handgun.
Atlantic Guns is a family-owned Maryland and federally licensed firearms
dealer. JA1872. The HQL Requirement burdens Atlantic Guns’ customers’ right to
acquire handguns, which burdens Atlantic Guns’ right to sell handguns. See
Maryland Shall Issue, 971 F.3d at 211 (collecting record citations). The HQL
Requirement “constrict[s] . . . [Atlantic Guns’] pool of potential customers.” Id. at
212. Atlantic Guns has turned away hundreds of law-abiding, responsible handgun
customers because they lack an HQL. JA1873.
B. Maryland’s Historical Laws Regulating Handgun Possession In

The Home
In 1941, Maryland enacted a “Pistols” Subtitle to the Maryland Code to
regulate the “sale, identification marks and possession of pistols.” See 1941
Maryland Laws, Chapter 622. This statute prohibits selling or transferring a handgun
to persons convicted of a crime of violence or to fugitives from justice. See Md.
Code Ann., Art. 27, § 531(D)–(E), currently codified at Md. Code Ann., Pub. Safety
§ 5-118. Prior to 1941, Maryland had no regulations on the possession or acquisition
of handguns. Maryland has since enacted four sets of laws intended to regulate the
acquisition of handguns: the 77R Handgun Registration Requirement (1966), the
Gun Violence Act of 1996, the Responsible Gun Safety Act of 2000, and the
Firearms Safety Act of 2013. The 2013 legislation enacted the HQL Requirement.
6
1. The 77R Handgun Registration Requirement
In 1966, Maryland enacted what is known as the 77R Handgun Registration
Requirement. See 1966 Maryland Laws, Chapter 502. This law prohibits firearms
dealers from transferring a handgun to a prospective purchaser “until after seven
days shall have elapsed from the time an application to purchase or transfer shall
have been executed by the prospective purchaser or transferee, . . . and forwarded
by the prospective seller . . . to the Superintendent of the Maryland State Police.”
Md. Code. Ann., Art. 27, § 442, currently codified at Md. Code Ann., Pub. Safety
§§ 5-118, 5-120 & 5-123. The 77R application requires the prospective purchaser’s
identifying information, which the Maryland State Police uses to conduct a
background check. Id. § 442, currently codified at Md. Code Ann., Pub. Safety §§
5-118, 5-121.
2. The Gun Violence Act of 1996
The Gun Violence Act of 1996 made the 77R Handgun Registration
Requirement process applicable to all handgun transfers, including gifts and private
sales. Md. Code. Ann., Art. 27, § 445, currently codified at Md. Code Ann., Pub.
Safety § 5-124.
3. The Responsible Gun Safety Act of 2000
The Responsible Gun Safety Act of 2000 expanded the 77R Handgun
Registration Requirement process to require all prospective firearms purchasers to
complete an hour-long, online firearm safety training course on Maryland firearm

7
law, home firearm safety, and handgun mechanisms and operation. Md. Code Ann.,
Pub. Safety § 5-118; JA0757.
C. The HQL Requirement
The HQL Requirement was enacted as part of the Firearms Safety Act of 2013
(the “FSA”). See 2013 Maryland Laws, Chapter 427. It added additional, redundant
requirements to Maryland’s pre-existing laws regulating handgun acquisition and
possession in the home. The FSA is meant “to ‘protect its citizens and law
enforcement officers,’ by regulating the sale, transfer, and possession of certain
firearms within Maryland,” Maryland Shall Issue, 971 F.3d at 206 (quoting Kolbe
v. Hogan, 849 F.3d 114, 120, 129 (4th Cir. 2017) (en banc)), especially violence
involving handguns in urban areas like Baltimore, see JA0083–0088, JA0112–0120.
The HQL Requirement prohibits law-abiding, responsible Maryland citizens
from acquiring a handgun without first applying for and obtaining an HQL (a permit-
to-purchase).1 Md. Code Ann., Pub. Safety, § 5-117.1(c). It also prohibits anyone
from transferring a handgun to anyone who does not have an HQL. Id. § 5-117.1(b).
To apply for an HQL, a Maryland citizen must submit: (1) an online application; (2)
1
The HQL Requirement does not apply to “a law enforcement officer or person who
is retired in good standing from service with a law enforcement agency of the United
States, the State, or a local law enforcement agency of the State” or to “a member or
retired member of the armed forces of the United States or the National Guard.” Md.
Code Ann., Pub. Safety § 5-117.1(a) (2), (3). That exemption is not available to out-
of-state law enforcement personnel who may live in Maryland.
8
proof of completion of a qualifying firearms safety course with a live-fire
requirement; (3) a complete set of fingerprints; and (4) “a statement made by the
applicant under the penalty of perjury that the applicant is not prohibited under
federal or State law from possessing a handgun.” Id. § 5-117.1(f)–(g). The HQL
Requirement replaced the online training mandated by the Responsible Gun Safety
Act of 2000 with an in-class, half-day firearms safety course covering the same
subject areas. JA0757. Once the prospective purchaser obtains an HQL, he may
begin the process required by the pre-existing firearms laws for an actual purchase,
including undergoing another background check. JA0671–0672; Md. Code Ann.,
Pub. Safety § 5-123.
Violating the HQL Requirement is a misdemeanor punishable by up to five
years in jail and a $10,000 fine. Md. Code Ann., Pub. Safety § 5-144. Firearms
dealers also face mandatory revocation of their dealer’s license. Id. § 5-114(b)(2).
The HQL Requirement’s burdens have deterred tens of thousands of law-
abiding, responsible Maryland citizens, including the Individual Plaintiffs, many of
MSI’s members, and hundreds of Atlantic Guns’ customers, from acquiring a
handgun. Compare JA0927 with JA0934, JA0938 & JA0940; JA1872. Fewer
handgun sales is the intended result of Maryland’s long term effort to “restrict legal
gun ownership” through “licensing and registration” so as to “constrain the supply
of guns.” JA1706; JA0810 (then-Attorney General published a report with the stated
9
“goal” of “ridding our homes and communities of handguns through restrictive
handgun licensing”).
SUMMARY OF ARGUMENT
The HQL Requirement burdens conduct indisputably protected by the Second
Amendment by prohibiting law-abiding, responsible Maryland citizens without an
HQL from exercising their right to acquire a handgun for self-defense in their homes.
It is a novel restriction without support in our Nation’s historical tradition of firearm
regulation.
Obtaining an HQL is burdensome. It requires much more than a background
check and a positive identification of the prospective purchaser. To apply for an
HQL, Marylanders must submit their fingerprints to the Maryland State Police and
complete a half day of classroom instruction as well as a live-fire exercise.
Marylanders must then wait up to 30 days (and oftentimes longer) for the Maryland
State Police to conduct a background check and approve or deny the HQL
application. During this waiting period, Maryland bans its law-abiding, responsible
citizens from purchasing, renting, or receiving a handgun. The HQL Requirement
application process has deterred tens of thousands of law-abiding, responsible
Marylanders from obtaining an HQL. Only after obtaining an HQL may
Marylanders then apply to purchase a handgun by undergoing Maryland’s pre-
existing and still continuing 77R Handgun Registration Requirement process, which
10
requires purchasers to register their firearm, undergo another, redundant background
check, and then wait another seven business days before finally acquiring their
handgun.
Because the HQL Requirement burdens the right to acquire a handgun for
self-defense in the home without a historical antecedent, the State cannot meet its
burden of demonstrating that the HQL Requirement is consistent with this Nation’s
tradition of the right to keep and bear arms.
The District Court nevertheless upheld the constitutionality of the HQL
Requirement under intermediate scrutiny. The District Court applied the incorrect
legal analysis, which caused it to reach the incorrect conclusion. This Court should
reverse the District Court’s judgment, hold that the HQL Requirement violates the
Second Amendment, and enter judgment for Plaintiffs.
STANDARD OF REVIEW
The District Court’s summary judgment ruling is reviewed de novo. Kolbe,
849 F.3d at 130. On summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [the non-movant’s] favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
ARGUMENT
Historically, this Court reviewed a claim made under the Second Amendment
using the “two-part approach.” Kolbe, 849 F.3d at 133. The Supreme Court, in New
11
York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), abrogated that
approach. The correct legal standard for reviewing a claim made under the Second
Amendment is:
When the Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.
Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.
Id. at 2129–30 (citation and internal quotation marks omitted).
I. The District Court committed reversible error by upholding the

HQL Requirement under means-end scrutiny, an incorrect legal
standard.
A. Using an incorrect legal standard is reversible error.
It is reversible error for a district court to predicate its judgment on the
application of an incorrect legal standard. See, e.g., D.B. v. Cardall, 826 F.3d 721,
743 (4th Cir. 2016) (district court erred by not applying Mathews factors in due
process case); see also Billioni v. Bryant, 759 F. App’x 144, 152 (4th Cir. 2019)
(district court erred by applying incorrect legal standard for determining whether
speech was protected under the First Amendment). In Altizer v. Deeds, 191 F.3d 540
(4th Cir. 1999), for instance, the district court granted summary judgment to a
prisoner in his suit against a prison warden by misapplying Supreme Court precedent
that in fact allowed the warden’s behavior. Id. at 548. This Court reversed the district
12
court’s decision because its judgment was predicated upon its application of an
incorrect legal standard. Id. at 549–50.
B. The District Court committed reversible error by using an

incorrect legal standard to uphold the HQL Requirement.
1. The Supreme Court has confirmed the text and history standard
for analyzing Second Amendment challenges and rejected using
means-end scrutiny.
As noted above, the Supreme Court requires that when the text of the Second
Amendment protects certain conduct, the “government must then justify its
regulation by demonstrating that [the regulation] is consistent with the Nation’s
historical tradition of firearm regulation. Only then may a court conclude that the
individual’s conduct falls outside the Second Amendment’s unqualified command.”
Bruen, 142 S. Ct. at 2129–30; see also District of Columbia v. Heller, 554 U.S. 570,
576–625 (2008); McDonald v. Chicago, 561 U.S. 742, 790–91 (2010); Caetano v.
Massachusetts, 577 U.S. 411, 412 (2016) (per curiam) (vacating and remanding
where state supreme court failed to apply Heller’s and McDonald’s reasoning and
analysis to a stun gun ban). “‘Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them.’” Bruen, 142 S. Ct. at 2136
(quoting Heller, 554 U.S. at 634–635).The required standard “beg[ins] with a textual
analysis focused on the normal and ordinary meaning of the Second Amendment’s
language.” Bruen, 142 S. Ct. at 2127 (internal quotation omitted). If the conduct at
issue is presumptively protected by the Second Amendment’s text, the State has the
13
burden to “affirmatively prove that its firearms regulation is part of the historical
tradition that delimits the outer bounds of the right to keep and bear arms.” Id. The
State must “identify a well-established and representative historical analogue to its
regulation.” Id. at 2133.
The Supreme Court expressly rejected applying means-end scrutiny generally,
and intermediate scrutiny specifically: “Today, we decline to adopt that two-part
approach. . . . Despite the popularity of this two-step approach, it is one step too
many.” Bruen, 142 S. Ct. at 2126–27. Means-end scrutiny is inappropriate because
it allows courts to “defer to the determinations of legislatures.” Id. at 2131. “[W]hile
that judicial deference to legislative interest balancing is understandable—and,
elsewhere, appropriate—it is not deference that the Constitution demands here.” Id.
Bruen reiterated Heller’s refusal “to engage in means-end scrutiny generally” and
expressly rejected “the intermediate-scrutiny test that respondents and the United
States now urge us to adopt.” Id. at 2129.
2. The District Court upheld the HQL Requirement under means-

end scrutiny.
The District Court upheld the HQL Requirement under intermediate scrutiny,
applying an incorrect legal standard to grant of summary judgment to the State.
JA1845, JA1870 (“I shall apply intermediate scrutiny . . . The State has shown all
that is required: a reasonable, if not perfect, fit between the [HQL Requirement] and
Maryland’s interest in protecting public safety.”). Bruen leaves no doubt that courts
14
may not use intermediate scrutiny to analyze a law burdening conduct protected by
the Second Amendment. Bruen, 142 S. Ct. at 2126, 29–30. The District Court
committed reversible error by doing just that.
C. This Court should decide the merits of this case and not remand to
the District Court.
Prolonging this case with a remand is neither necessary nor appropriate
because “the matter of what questions may be taken up and resolved for the first time
on appeal is one left primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.” Cnty. Bd. of Arlington Cnty., Virginia v.
Express Scripts Pharmacy, Inc., 996 F.3d 243, 254 (4th Cir. 2021) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)); see also U.S. v. Kin-Hong, 110 F.3d
103, 116 (1st Cir. 1997) (recognizing an appellate court’s “discretion to address
issues not reached by the district court when the question is essentially legal and the
record is complete” (citation omitted)). This Court disfavors remand when “[t]he
issues have been fully briefed” and when deciding the issues may avoid “the
possibility of another appeal.” See id.
The analysis required by the Supreme Court is a legal inquiry that examines
legal history, which is appropriately presented in the briefs. See Bruen, 142 S. Ct. at
2130 n.6 (noting that the historical inquiry presents “legal questions” that judges are
capable of addressing) (emphasis in original); see also id. at 2135 n.8 (rejecting the
dissent’s suggestion that further fact-finding was needed and holding that its ruling
15
did not “depend on any of the factual issues raised by the dissent”). This Court may
enter judgment for Plaintiffs because the relevant evidence (or the absence thereof)
consists of legislative facts that are subject to judicial notice in this appeal and may
be submitted in the State’s brief. See Clatterbuck v. City of Charlottesville, 708 F.3d
549, 558 (4th Cir. 2013) (“[O]rdinance[s] [themselves] and [their] legislative history
[a]re legislative facts.”) (citation omitted); United States v. Gavegnano, 305 F.
App’x 954, 956 (4th Cir. 2009) (courts “may take judicial notice of legislative
facts”).
A remand will lead only to another appeal that will be reviewed de novo on
the same evidence the parties will have presented in this appeal, further counseling
against remand. See, e.g., Morel v. Sabine Towing & Transp. Co., Inc., 669 F.2d
345, 346 (5th Cir. 1982) (“The question presented is a matter of law and a remand
solely for its consideration is neither in the interest of justice nor judicial
economy.”); see also Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1266 n.13 (11th
Cir. 2000) (choosing not to remand because issue would be decided de novo on
appeal and stating that a remand would only delay resolution of the case).
This Court ultimately must determine as a matter of law whether the HQL
Requirement is consistent with the Second Amendment’s text and history. It should
do so now.
16
II. The HQL Requirement violates the Second Amendment.
A. The HQL Requirement burdens conduct protected by the Second

Amendment’s plain text.
There is no dispute that the Second Amendment protects the right to acquire
a handgun for self-defense in the home. Heller and McDonald “recognized that the
Second and Fourteenth Amendments protect the right of an ordinary, law-abiding
citizen to possess a handgun in the home for self-defense.” Bruen, 142 S. Ct. at 2122;
see also Teixeira v. City of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (en banc)
(“the core Second Amendment right to keep and bear arms for self-defense
‘wouldn’t mean much’ without the ability to acquire arms”) (quoting Ezell v. City of
Chicago, 651 F.3d 684, 708 (7th Cir. 2011)); Andrews v. State, 50 Tenn. 165, 178
(1871) (“The right to keep arms, necessarily involves the right to purchase them …
and to purchase and provide ammunition suitable for such arms.”). Plaintiffs come
within this right because they are or represent ordinary, law-abiding citizens who
wish to acquire a handgun to possess in the home for self-defense. JA0022–0024.
Atlantic Guns also comes within this right because it wishes to sell handguns to
ordinary, law-abiding Maryland citizens and has standing to represent their rights as
well as its own. JA1872–1873.
This Court has already held that the HQL Requirement burdens the right to
acquire a handgun for self-defense in the home: “[T]he HQL requirement . . . limits
[Atlantic Guns’] potential customer base,” which includes individuals who “have
17
confirmed that they have been deterred from purchasing a handgun because of the
HQL law.” Id. at 208, 214 (internal quotations omitted); see also id. at 213 (noting
that the State does not dispute that the HQL Requirement is a “burden[] on
purchasing the plaintiff’s goods”). Under the law of the case doctrine, this Court
should again hold that the HQL Requirement burdens conduct protected by the
Second Amendment. United States v. Foster, 526 F. App’x 268, 270 (4th Cir. 2013)
(“As a practical matter, once the decision of an appellate court establishes the law of
the case, it must be followed in all subsequent proceedings in the same case in the
trial court or on a later appeal.”).
The District Court reached the same holding: “The HQL [Requirement]
undoubtedly burden[s] th[e] core Second Amendment right because [it] make[s] it
considerably more difficult for a person lawfully to acquire and keep a firearm for
the purpose of self-defense in the home.” JA1841 (internal quotations and citations
omitted). And “Defendants do not deny that the HQL [Requirement] burden[s]
conduct within the scope of the Second Amendment, namely the ability of a law-
abiding citizen to attain a handgun for use in the home for self-defense.” JA0055.
By its terms, the HQL Requirement prohibits those without an HQL from
acquiring a handgun, mandating that “[a] person may purchase, rent, or receive a
handgun only if the person . . . possesses a valid handgun qualification license issued
to the person by the Secretary in accordance with this section.” Md. Code Ann., Pub.
18
Safety, § 5-117.1(c). The HQL Requirement applies to commercial sales and private
sales alike. Id. § 5-124. It sweeps broadly to include not merely a “purchase,” but
also the mere “receipt” of a handgun, including a gift to a family member. See
JA0216.
The HQL Requirement also directly prohibits sales, rentals and transfers
(including Plaintiff Atlantic Guns) to those without an HQL, mandating that “[a]
dealer or any other person may not sell, rent, or transfer a handgun to a purchaser,
lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer
or other person a valid handgun qualification license issued to the purchaser, lessee,
or transferee by the Secretary under this section.” Md. Code Ann., Pub. Safety, § 5-
117.1(b). This Court has already held that these sales, transfers, and rentals are
protected by the Second Amendment. See Maryland Shall Issue, 971 F.3d at 214.
The effects of the HQL Requirement demonstrate its burden. Compare
JA0927 with JA0934, JA0938 & JA0940; JA1872. The HQL Requirement has
prevented tens of thousands of law-abiding, responsible Maryland citizens from
acquiring a handgun. Id.
The HQL Requirement burdens conduct protected by the Second
Amendment’s plain text, and it is not a longstanding condition on the commercial
sale of arms. Under Heller, “longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive
19
places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms” may be “presumptively lawful.” 554
U.S. at 626–27 & n.26. Bruen clarified that the presumptively lawful “conditions
and qualifications on the commercial sale of arms” must also be longstanding by
noting that some “longstanding laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings” may be presumptively lawful. 142
S. Ct. at 2133 (internal quotations omitted).
The HQL Requirement is not a condition or qualification on the commercial
sale of arms. “A condition or qualification on the sale of arms is a hoop someone
must jump through to sell a gun, such as obtaining a license [to sell arms],
establishing a lawful premise, or maintaining transfer records.” Hirschfeld v. Bureau
of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 416 (4th Cir.) (emphasis
in original), vacated as moot, 14 F.4th 322 (4th Cir. 2021) (citing United States v.
Deeb, 175 F.3d 1163, 1167–68 & n.8 (9th Cir. 1999) (“It is clear to us that the word
‘sale’ contained in all of these statutes and regulations refers only to sellers, not
buyers.”)). Regulations on firearm purchasers (or recipients) are not “conditions and
qualifications to sell arms.” Id.
This Court’s holding in United States v. Hosford, 843 F.3d 161 (4th Cir.
2016), is also instructive. There, this Court analyzed a regulation that required
firearms dealers to obtain a license, holding that laws requiring sellers to meet some
20
qualification (or obtain some license) may be a condition or qualification on the sale
of arms. 843 F.3d at 166–67 (analyzing 18 U.S.C. § 922(a)(1)(A)). That law placed
no restrictions on those seeking to buy firearms. Id. Because the law imposed a hoop
someone must jump through to sell a gun, it was a condition on the sale of firearms.
Id.
In Hirschfeld, on the other hand, this Court held that laws requiring buyers to
meet some qualification (or obtain some license) are not conditions or qualifications
on the sale of arms. In Hirschfeld, this Court analyzed a law that prohibited firearms
dealers “from selling handguns and handgun ammunition to 18-, 19-, and 20-year-
olds.” 5 F.4th at 417 (analyzing 18 U.S.C. § 922(b)(1), (c)(1)). That law was “a
functional prohibition on buyers, not a mere condition or qualification on sellers.”
Id. Accordingly, it was not a condition on the sale of firearms and therefore not
presumptively lawful. Id.
Like the law at issue in Hirschfeld, the HQL Requirement functions to burden
purchasers—not only sellers.2 Just as the law at issue in Hirschfeld burdened a group
of purchasers (young adults) from acquiring handguns by prohibiting firearms
dealers from selling them handguns, the HQL Requirement burdens a group of
purchasers (those without an HQL) from acquiring handguns by prohibiting firearms
2
This is true even though firearms dealers like Atlantic Guns have suffered
economic injury as a result of the HQL Requirement.
21
dealers from selling them handguns. Maryland Shall Issue, 971 F.3d at 212 (“the
HQL requirement undoubtedly constrains Atlantic Guns’ ability to sell handguns
and limits its potential customer base”). Unlike the law at issue in Hosford, the HQL
Requirement does not require firearms dealers to obtain a license or jump through
some other hoop to sell handguns.
Nor, for the reasons discussed supra at III.B., is the HQL Requirement
longstanding. See also Heller v. District of Columbia, 670 F.3d 1244, 1255 (D.C.
Cir. 2011) (“Heller II”) (holding that “law[s] that are more akin to licensing the gun
owner than to registering the gun are also novel,” including requirements “that an
applicant demonstrate knowledge about firearms, be fingerprinted and
photographed, [and] take a firearms training or safety course”). The State cannot
meet its burden to demonstrate that the HQL Requirement is both a condition on the
sale of handguns and longstanding. The HQL Requirement is therefore
presumptively unconstitutional.
Because the HQL Requirement burdens conduct protected by the Second
Amendment, the State has the burden to “justify [Maryland’s] regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.” Bruen, 142 S. Ct. at 2126 (quotation omitted); see also id. at 2150 (“Of
course, we are not obliged to sift the historical materials for evidence to sustain New
22
York’s statute. That is respondents’ burden.”). The State has not met this burden and
cannot do so.
B. The State cannot demonstrate that the HQL Requirement is

consistent with this Nation’s historical tradition of firearm
regulation.
1. The HQL Requirement is a novel attempt at solving a centuries-

old general societal problem.
The historical analysis required by the Supreme Court often proves “fairly
straightforward” and “simple.” Bruen, 142 S. Ct. at 2131–32. The historical analysis
is straightforward when, for instance, “a challenged regulation addresses a general
societal problem that has persisted since the 18th century, the lack of a distinctly
similar historical regulation addressing that problem is relevant evidence that the
challenged regulation is inconsistent with the Second Amendment.” Id. at 2131. The
historical analysis is also straightforward when “the Founders themselves could have
adopted [a ‘distinctly similar’ historical regulation to the challenged law] to confront
that problem” but did not. Id. “Likewise, if earlier generations addressed the societal
problem, but did so through materially different means, that also could be evidence
that a modern regulation is unconstitutional.” Id.
Heller and Bruen “exemplifie[d] this kind of straightforward historical
inquiry.” Bruen, 142 S. Ct. at 2131. Both examined laws enacted to remedy
centuries-old problems. Both found that those laws lacked a historical analogue.
Both, accordingly, struck those laws as unconstitutional.
23
In Heller, the District of Columbia law at issue “addressed a perceived societal
problem—firearm violence in densely populated communities” by banning handgun
possession in the home. Bruen, 142 S. Ct. at 2131. Although “the Founders
themselves could have adopted [a similar law] to confront that problem,” they did
not. Id. In striking down the District of Columbia’s ban, the Supreme Court found it
dispositive that no “Founding-era historical precedent” banned handgun possession
in the home. Id.
Bruen examined New York’s proper cause requirement for obtaining a carry
permit, which “concern[ed] the same alleged societal problem addressed in Heller:
handgun violence, primarily in urban area[s].” Bruen, 142 S. Ct. at 2131. (quotation
omitted). In striking down New York’s proper cause requirement, the Supreme
Court deemed it controlling that the law lacked an analogue from “before, during,
and even after the Founding.” Id. at 2131–32.
The constitutionality of the HQL Requirement presents a similarly
straightforward historical analysis. It concerns the same alleged centuries-old
societal problem at issue in both Heller and Bruen: violence involving the use of a
handgun, primarily in urban areas. See JA0083–0089, JA0112–0120. It also has the
same amount of historical support as the laws struck down in both Heller and Bruen:
none.
24
It is indisputable both that violence involving handguns is a centuries-old
societal problem and that there is no historical regulation distinctly similar to the
HQL Requirement. At the time of the Founding, the preferred means of addressing
the threat of violence was to require law-abiding individuals to be armed. States
“typically required that arms be brought to churches or to all public meetings,” and
“statutes required arms carrying when traveling or away from home.” See D. Kopel
& J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 232
(2018) (cited with approval in Bruen, 142 S. Ct. at 2133). Yet, “[u]ntil the early
twentieth century, there were no laws that required that individuals receive
government permission before purchasing or borrowing a firearm.” David Kopel,
Background Checks for Firearms Sales and Loans: Law, History, and Policy
(“Kopel”), 53 Harv. J. on Legis. 303, 336 (2016).3
The State may argue, incorrectly, that the few, basic permit-to-purchase laws
enacted in the early- to mid-20th century provide the necessary historical support for
the HQL Requirement. That would be wrong for two reasons. First, laws from the
early 20th century are outside of the Nation’s historical tradition and, second, these
permit-to-purchase laws enacted in the early- to mid-20th century are not “distinctly
similar” to the HQL Requirement. See Bruen, 142 S. Ct. at 2131.
3
The only exceptions were the limits placed on possession by slaves and freemen
by some southern States (including Maryland), as well as in the “Black Codes” that
were enacted after the Civil War. See Kopel, at 336–39.
25
On the first point, Bruen made clear that laws first appearing in the 20th
century are “late-in-time” and are not part of the relevant historical record. 142 S.
Ct. at 2154, n.28 (“We will not address any of the 20th-century historical evidence
brought to bear by respondents or their amici.”). These laws provide even less insight
than laws enacted “75 years after the ratification of the Second Amendment,” which
themselves “do not provide as much insight into its original meaning as earlier
sources.” Id. at 2137 (quoting Heller, 554 U.S. at 614 (citing Sprint Commc’ns Co.,
L.P. v. APCC Servs., Inc., 554 U.S. 269, 312 (Roberts, C. J., dissenting) (“The
belated innovations of the mid- to late-19th-century courts come too late to provide
insight into the meaning of [the Constitution in 1787]”)). This is especially true
where these late-in-time laws “contradict[] earlier evidence.” Bruen, 142 S. Ct. at
2154 n.28. And even if modern laws alone could demonstrate a broad tradition of a
regulation, there must at least be a strong showing that such laws are common in the
states, i.e., many more than six states. See Kennedy v. Louisiana, 554 U.S. 407, 423–
26 (2008) (only six states permitting death penalty for child rapists shows national
consensus against it).
The State’s amicus support below confirms the lack of a historical analogue
for the HQL Requirement. In support of the State’s motion for summary judgment,
Everytown for Gun Safety submitted an amicus brief that canvassed the historical
record to “provide historical context, social science, and doctrinal analysis that might
26
otherwise be overlooked.” Brief for Everytown for Gun Safety as Amicus Curiae
Supporting Defendants, Maryland Shall Issue v. Hogan (No. 1:16-cv-03311), ECF
129 (“Everytown’s Amicus Brief”), at 2. Everytown’s admission that “[t]he relevant
history here dates back to at least the early twentieth century, when state legislatures
began requiring permits to purchase guns,” id. at 6, demonstrates the absence of
meaningful historical support for the HQL Requirement. By the early- to mid-20th
century, nine states had enacted some form of a permit-to-purchase law. Kopel, at
343–61 (collecting statutes). Two were repealed and one was declared void, leaving
six still-standing permit-to-purchase laws. Id.
Further, “[p]ost-ratification adoption or acceptance of laws that are
inconsistent with the original meaning of the constitutional text obviously cannot
overcome or alter that text.” Bruen, 142 S. Ct. at 2137 (quotation omitted). The HQL
Requirement does precisely this by contradicting the Founding-era laws that
required young men eligible for militia service to undergo routine militia training,
some of which was focused on firearms. At the time of the Founding, no training
was required to acquire a handgun or other firearm. Unlike the HQL Requirement,
militia training was not a prerequisite to firearm ownership. Instead, these militia
laws required firearm ownership prior to militia training. For instance, the Militia
Act of 1792 (enacted one year after the Bill of Rights was adopted) required a
militiaman to “provide himself with a good musket or firelock” and that he “shall
27
appear so armed, accoutered, and provided when called out to exercise.” Act of May
8, 1792, Second Congress, Sess. 1, ch. 33, § 1, 1 Stat. 271 (emphases added). The
states’ requirements were no different. New Jersey, for instance, required its
militiamen to “assemble, properly armed and accoutered.” 1778 N.J. Sess. Laws 21,
at 42, 46 §§ 14-15. Delaware, too, required its militiamen to “at his own expense,
provide himself . . . with a Musket or Firelock with a bayonet” before showing up
for militia training. 1782 Del. Sess. Laws, at 3 § 6; see also 1786 N.C. Sess. Laws,
at § VI, at 409 (same); 1791 S.C. Sess. Laws, at 17 (same). No state required militia
training before it permitted its citizens to acquire a firearm. See Heller II, 670 F.3d
at 1253, 1255 & n.* (firearms training—as well as classroom orientations and
fingerprinting—“are . . . novel,” not “deeply . . . rooted in our history,” and “not
longstanding”).
Second, these permit-to-purchase laws from the early- to mid-20th century are
not distinctly similar to the HQL Requirement. Only two states required fingerprints
(Michigan, 1927; New York, 1931). Everytown’s Amicus Brief, at 8. Prior to these
fingerprinting requirements, only Oregon required prospective purchasers to verify
their identity to the State—through two affidavits from landowners who could attest
to the purchaser’s “good moral character.” 1913 Or. Laws 497, ch. 256 § 1. Oregon’s
law was repealed 12 years later. 1925 Or. Laws 468, ch. 260. No state required a
28
classroom orientation or live-fire requirement or allowed a State to take 30 days to
grant permission to purchase. See Kopel, at 343–61 (collecting statutes).
There is no national standard remotely akin to the HQL Requirement. A small
minority of states have a permit-to-purchase law, and the HQL Requirement is
uniquely burdensome even among this minority. Currently, only 13 states require a
permit-to-purchase.4 See Exhibit 1 (collecting and describing each of these laws). Of
those 13 states, four (Michigan, Nebraska, Illinois, and North Carolina) require only
a background check of the purchaser. Id. Rhode Island requires only a short
classroom orientation. Id. New York and New Jersey require only fingerprints. Id.
Connecticut and California require only firearms orientation and training. Id.
Only Maryland and Hawaii impose a live-fire requirement for a permit-to-
purchase. See Exhibit 1. Maryland’s live-fire requirement is especially burdensome
in the urban areas of Maryland where counties have, by ordinance, banned discharge
of firearms except at established firing ranges, which in turn are privately owned and
few in number, to say nothing of lack of access by public transportation. See
JA0602–0607. Maryland’s fingerprinting requirement is also uniquely burdensome
because it mandates that fingerprints be taken only at State-approved, private “live-
scan” vendors, which are not found in rural areas of the State. See JA1725.
4
Owner Responsibilities – Licensing, Giffords Law Center,
https://giffords.org/lawcenter/gun-laws/policy-areas/owner-
responsibilities/licensing/#footnote_12_5608 (last visited Aug. 1, 2022).
29
The fingerprint requirement is particularly insidious because it requires an
applicant to be permanently registered within the State’s criminal database.
Maryland thus requires its citizens who wish to exercise their Second Amendment
right to acquire a handgun to give up their Fourth Amendment right to be free from
warrantless searches and seizures. See, e.g., Johnson v. VanderKooi, No. 160958,
2022 WL 2903868, at *10 (Mich. July 22, 2022) (practice of fingerprinting
individuals without probable cause or a warrant is unconstitutional); cf Maryland v.
King, 569 U.S. 435, 463 (2013) (cheek swab did not violate Fourth Amendment only
because individual was already detained with probable cause for commission of a
serious crime). The exercise of the Second Amendment right to acquire a handgun
cannot be conditioned on the surrender of Fourth Amendment rights. See, e.g.,
Simmons v. United States, 390 U.S. 377, 393–394 (1968) (it is “intolerable that one
constitutional right should have to be surrendered in order to assert another”).
Of the states with more than a nominal permit-to-purchase law, Connecticut’s
was enacted the earliest, in 1995—more than 200 years after the Founding. Mark
Gius, Effects of Permit-to-Purchase Laws on State-Level Firearm Murder Rates, 45
Int’l Econ. J. 73, 76 (2017). This is well past the time frame for firearms regulations
rejected by the Supreme Court in Bruen; these restrictions are therefore not historical
analogues to the HQL Requirement.
30
A straightforward historical analysis demonstrates that the HQL Requirement
is inconsistent with the historical tradition of the Second Amendment. The State
cannot prove the contrary.
2. Even if the HQL Requirement were meant to address an

unprecedented societal problem or dramatic technological
change, it lacks a relevantly similar historical analogue.
Bruen noted that when a challenged law addresses an “unprecedented societal
concern[]” or involves “dramatic technological changes,” the historical analysis may
be less straightforward. 142 S. Ct. at 2132. In these instances, “th[e] historical
inquiry that courts must conduct will often involve reasoning by analogy.” Id. at
2132. “[D]etermining whether a historical regulation is a proper analogue for a
distinctly modern firearm regulation requires a determination of whether the two
regulations are ‘relevantly similar.’” Id. (quoting C. Sunstein, On Analogical
Reasoning, 106 Harv. L. Rev. 741, 773 (1993)). The controlling “metric” remains
“whether modern and historical regulations impose a comparable burden on the right
of armed self-defense, and second, whether that regulatory burden is comparably
justified.” Id. at 2133. This inquiry “does not mean that courts may engage in
independent means-end scrutiny under the guise of an analogical inquiry.” Id. at
2133 n.7.
Neither handguns nor their acquisition by responsible, law-biding citizens
present an unprecedented societal concern or dramatic technological change.
31
“[H]andguns were introduced in England during the Tudor and early Stuart eras”
and have been in commerce ever since. Bruen, 142 S. Ct. at 2140 (noting that “Henry
VIII issued several proclamations decrying the proliferation of handguns” because
they “threatened Englishmen's proficiency with the longbow”). Nor does the HQL
Requirement regulate some new technological change in handgun transfers, if such
a thing even exists; it instead comprehensively regulates all handgun sales, receipts,
rentals and transfers—online or otherwise.
But even if the acquisition of handguns did present some unprecedented
societal concern or dramatic technological change, the State cannot meet its burden
to demonstrate a historical regulation that is a proper analogue to the HQL
Requirement. The 20th century permit-to-purchase requirements are not part of the
historical tradition of firearm regulations, nor are they relevantly similar to the HQL
Requirement. The Founding Era militia training requirements are undoubtedly part
of the historical tradition of firearm regulations, and they demonstrate that no
classroom orientation or firearm training was required to first acquire a firearm,
confirming the ahistorical nature of the HQL Requirement.
The HQL Requirement burdens conduct that is protected by the Second
Amendment. It has no support in the historical tradition of the Second Amendment.
Indeed, it contradicts that historical tradition. It is therefore unconstitutional.
32
CONCLUSION
For the reasons stated above, Plaintiffs respectfully request that this Court
reverse the judgment of the District Court and remand the case with instructions to
enter judgment for Plaintiffs.
Respectfully submitted,
/s/ Cary J. Hansel, III /s/ John Parker Sweeney

Cary J. Hansel, III John Parker Sweeney
2514 N. Charles Street James W. Porter, III
Baltimore, MD 21218 Marc A. Nardone
Phone: 301-461-1040 Connor M. Blair
Facsimile: 443-451-8606 Bradley Arant Boult Cummings LLP
[email protected] 1615 L Street N.W., Suite 1350
Washington, D.C. 20036
Mark W. Pennak Phone: 202-393-7150
Maryland Shall Issue, Inc. Facsimile: 202-347-1684
9613 Harford Rd. [email protected]
Ste. C #1015
Baltimore, MD 21234 Counsel for Appellant Atlantic Guns,
Phone: 301-873-3671 Inc.
[email protected]
Counsel for Appellants
33
REQUEST FOR ORAL ARGUMENT
Appellants hereby request oral argument before this Court.
34
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Fed. R. App. P.
28(e)(2)(a) because this brief contains fewer than 13,000 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(viii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14-point Times New Roman font.
Dated: August 3, 2022.
/s/ John Parker Sweeney

John Parker Sweeney
Counsel for Appellant Atlantic Guns Inc.
35
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of August, Appellants’ brief was
served, via electronic delivery, to all parties’ counsel via the Court’s appellate
CM/ECF system which will forward copies to Counsel of Record.
/s/ John Parker Sweeney

John Parker Sweeney
36
ADDENDUM

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Background Classroom Firearms/Shooting Live Fire

State Fingerprint?
Check? Training? Training? Requirement
Maryland Yes Yes Yes Yes Yes
[Md. Code Ann.,
Pub. Safety § 5-
117.1]
California Yes No Yes Yes No
[Cal. Penal Code
§§ 16370, 16670,
26840-26859,
31610-31700]
Connecticut Yes No Yes Yes No

[Conn. Gen. Stat.
Ann. § 29-36f]
District of Yes Yes Yes Yes No
Columbia
[D.C. Code Ann. §
7-2502.03–04]
Hawaii Yes Yes Yes Yes Yes
[Haw. Rev. Stat.
Ann. § 134-2(g)]
Illinois Yes No No No No
[430 Ill. Comp.
Stat. Ann. 65/4]
Massachusetts Yes Yes Yes Yes No
[Mass. Gen. Laws
ch. 140, §§ 129B,
131P]
Background Classroom Firearms/Shooting Live Fire

State Fingerprint?
Check? Training? Training? Requirement
Michigan Yes No No No No
[Mich. Comp.
Laws § 28.422]
Nebraska Yes No No No No
[Neb. Rev. Stat.
Ann. § 69-2404]
New Jersey Yes Yes No No No
[N.J. Stat. Ann. §
2C:58-3]
New York Yes Yes No No No
[N.Y. Penal Law §
400.00]
North Carolina Yes No No No No
[N.C. Gen. Stat. §
14- 402(a); id. at §
14-404(e1).]
Rhode Island No No Yes No No
[RI Gen. Stat. 11-
47-35]

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USCA4 Appeal: 21-2017 Doc: 24-1 Filed: 08/03/2022 Pg: 1 of 65 Total Pages:(1 of 67)

No. 21-2017 (L)

Counsel for Appellants

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Pursuant to FRAP 26.1 and Local Rule 26.1,

1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO

2. Does party/amicus have any parent corporations? YES ✔ NO

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

12/01/2019 SCC -1-

6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO

7. Is this a criminal case in which there was an organizational victim? YES ✔ NO

/s/ Cary Hansel

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Pursuant to FRAP 26.1 and Local Rule 26.1,

1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO

2. Does party/amicus have any parent corporations? YES ✔ NO

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

12/01/2019 SCC -1-

6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO

7. Is this a criminal case in which there was an organizational victim? YES ✔ NO

/s/ Cary Hansel

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. __________ Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

who is _______________________, makes the following disclosure:

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations? YES NO

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

12/01/2019 SCC -1-

6. Does this case arise out of a bankruptcy proceeding? YES NO

7. Is this a criminal case in which there was an organizational victim? YES NO

Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________

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

TABLE OF AUTHORITIES. .................................................................................. iv

JURISDICTIONAL STATEMENT ......................................................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................ 2

STATEMENT OF THE CASE ................................................................................. 3

I. Procedural history and ruling presented for review ............................. 3

II. Statement of the facts ........................................................................... 5

A. The Plaintiffs .............................................................................. 5

1. The Individual Plaintiffs do not possess a handgun because

2. Some Members of Maryland Shall Issue do not possess

3. Atlantic Guns sells fewer handguns to a smaller pool of

B. Maryland’s historical laws regulating handgun possession

1. The 77R Handgun Registration Requirement ...................... 7

2. The Gun Violence Act of 1996 ............................................. 7

3. The Responsible Gun Safety Act of 2000 ............................ 7

C. The HQL Requirement .............................................................. 8

SUMMARY OF ARGUMENT .............................................................................. 10

STANDARD OF REVIEW .................................................................................... 11

I. The District Court committed reversible error by upholding the

A. Using an incorrect legal standard is reversible error. .............. 12

B. The District Court committed reversible error by using an

1. The Supreme Court has confirmed the text and history

2. The District Court upheld the HQL Requirement under

II. The HQL Requirement violates the Second Amendment.................. 17

A. The HQL Requirement burdens conduct protected by the

No. Caption: ________________________________________

Signature: __________________ Date: _