Maryland Shall Issue v. Moore and Firearm Purchaser Licensing

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Kelly Roskam (she/her/hers): Nobody wants to. But let's rewind to 2016, when Maryland shall issue a gun rights organization, Atlantic guns, a gun retailer and some individual members of Maryland shall issue collectively called “the plaintiffs” filed suit challenging the Hql law long before Bruen came along. 
  

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Kelly Roskam (she/her/hers): So in this first challenge the Maryland District Court found that none of these plaintiffs had standing to challenge the law and dismiss the suit. 
 

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Tim Carey: And “standing” is a bit of legal jargon that refers to the capacity for someone to bring a case kind of like saying she doesn't have a leg to stand on when someone doesn't have a justifiable argument. 
  

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Tim Carey: Generally, courts can only decide cases where there is actual rather than a hypothetical controversy to grant that standing. 
  

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Kelly Roskam (she/her/hers): And in August of 2020, its first trip up to the fourth circuit panel 
  

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Kelly Roskam (she/her/hers): they determined that actually one challenger Atlantic guns 
 

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Kelly Roskam (she/her/hers): did have standing because it asserted attendance sales had suffered since the lowest past, and they remanded or sent the case back down to the District Court for reevaluation. 
 
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Kelly Roskam (she/her/hers): On, recommended the District Court. In October of 2021, they proceeded to the merits of the case, and applied the then existing 2-part test for evaluating second Amendment cases which first asked if the second amendment was implicated at all, and if so, then the court would apply some kind of means and scrutiny, asking how closely the law was fit to achieve an important government purpose. 
  

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Saul: Right. Well. Judge Richardson's claim that government could not prevent dangerous or citizens who were, perceived to be dangerous or non-law abiding is just historically inaccurate.
 
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Tim Carey: Saul. What was it like to get a gun in the eighteenth century?  
 
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Saul: What does it really mean to be able to go out and get a gun in the eighteenth century? It's not like it is today...  
 
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Saul: I’m always struck by the fantasy world that that many, many people in our legal system live in when it comes to thinking about the founding era. I mean, they literally seem to think that, like, you know, you go down to the ATM, get your cash, go to GUNS-R-US, and load up on guns, but it could take, if you were unlucky, and a shipment of guns or or parts had not come in. It could take quite a while for you to actually gain possession of a firearm. 

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Kelly: More than 30 days, perhaps? 

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Cass Crifasi: Yeah, thanks for having me 
 

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Kelly Roskam (she/her/hers): Then, when you actually go to purchase your gun. 
  

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Kelly Roskam (she/her/hers): before we get started. Cass, is there anything else you want to share about your expertise or about yourself? 
 

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Tim Carey: But Judge Richardson seems to disagree any. Wait time. According to the majority, opinion seems to be too long. 
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Saul: Does Judge Richardson really think that the guy has to walk up to my front door and hand me a pile of cash then, now, or he has. 

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Kelly Roskam (she/her/hers): you undergo a second background check. And there's another 7 day waiting period. This process is called 77 R. And so. 
 
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Tim Carey: Yeah, there is this essential confusion over what were the purpose of these 2 processes like, you have, Hql, you need a background check, firearm, safety training, fingerprints, etc. Then you have this other background check that happens at a later date. Essentially, Judge Neymar is asking 
  

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Cass Crifasi: So I've been studying gun policy, gun violence, prevention for more than 10 years at this point, and really focusing on what kinds of solutions are both effective and broadly supported by both evidence and public opinion. I'm so happy to talk about this particular case, which is near and dear to my heart. 
 

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Tim: so, in being near and dear to your heart. Tell us a little more about what is at stake in Maryland shall issue versus Moore especially from a public health perspective. 
Response 
 

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Cass Crifasi: So when we think about the law that's at stake. In this case, which is Maryland's handgun qualification license from a research perspective, this really is one of the most effective policies that we have to reduce the burden of multiple forms of gun violence. This law, the handgun qualification license addresses several gaps that we see in Federal law that make all of our other laws work a little bit better. 
 
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Cass Crifasi: So one of the things that the handgun qualification license does is address these gaps. So for example ... 
 
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Cass Crifasi: Rather than just being required to undergo a background check, if you buy a gun from a licensed dealer, you have to do so from private sellers. But that background check is accompanied by a license. 
And just to draw a quick analogy, think about separating the determination of whether you can legally drive a car from the process of buying a car. So if you want to buy a car from a dealer and drive it off a lot. You have to have a license. But the dealer, the car dealer, is not the person determining whether you can safely drive. That happens through the Department of Licensing or Department of Motor Vehicles and that happens before you ever walk into a car dealership.  
So, same kind of perspective here with purchasing, you are separating the incentive to sell firearms from the verification that you can legally do so. And so you apply first to obtain your license to state or local law enforcement. In this case, in Maryland, it's state law enforcement.  
 

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Timothy Carey: Cass, why are point-of-sale background checks not enough on their own? Why does there need to be this additional aspect of licensing? 

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Tim Carey: Plaintiff's counsel wanted it real bad. 
  

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Kari Still: I don't know that he was ever given an opportunity to really make arguments related to historical analogies other than his intro, because the judges were not focused on Step 2.  
 
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Kari Still: They really wanted and pressed the plaintiff's counsel to address all the questions related to step one 
  
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Kari Still: But there was one particular person at oral argument that seemed adamant, that he wanted to address historical laws. 
  

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Kelly Roskam (she/her/hers): And that judge is none other than the author of the 3 Judge Panel Opinion. Judge Richardson, who asks in an exchange with the Attorney General's counsel. You know, for him to identify historical analogies that prevent the purchase. So he wants to know historically where there were pre-purchase barriers. He seems to totally understand that. You know we can prohibit dangerous people. 
  

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Timothy Carey: firearm purchaser licensing sometimes also referred to as a permit or certificate. It's like a driver's license in several ways. You have requirements that vary from state to state, generally requiring some proof of identity and tests that show you know how to operate a vehicle. And you are who you say you are. 
  

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Timothy Carey: The same is true for firearm purchaser licensing. 
  

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Kelly Roskam (she/her/hers): but seems to think that we can only enforce it after the fact, like we've gotta let them get the guns and then prosecute them. 
  

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Kari Still: But I'll note here that most States differ in their approach to some degree, but overall these laws typically require some form of application process for applicants to apply for a license, either through local or State law enforcement, and they usually require applicants to complete a firearm safety training course, provide some background information, often including fingerprints, and pass a comprehensive background check. And then, once these criteria are satisfied, an applicant can then go purchase a firearm. 
  
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Kelly Roskam (she/her/hers): So I also wanted to clarify. As we're talking about different kinds of licenses. 
  

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Kelly Roskam (she/her/hers): But I I don't think historically, I mean, just based on our conversation with all that's quite true. Right. 
  
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Tim Carey: I think I mean, it really comes down to the fact that this case was a step One 
  

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Tim Carey: question, like historical analogy, is, tend to be a a favoring point for people challenging these laws because the historical analogy process is just so messy. It's very unclear. There's a lot of ambiguity, a lot of opportunity for people to really make what they want out of these historical facts, as we kind of heard Saul talking about earlier. And so the fact that this was focused more on step one, I feel, was a was a 
  

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Tim Carey: great blow to what plaintiff counsel was really hoping to argue. 
  
  

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Kelly Roskam (she/her/hers): That firearm purchase or licensing is sort of different from licenses to carry or licenses to own firearms. And as of today, just as an aside several States have sort of abandoned licensing, for you know 
 

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Kelly Roskam (she/her/hers): public, carry at all. 
  

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Timothy Carey: One of the many delightful nuances of this field. 
  

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Timothy Carey: Well, let's see how this plays out in Maryland, so originating over 10 years ago as a component of Maryland's Firearm Safety Act at 2,013, Maryland's Hql prevents the sale, rental, or transfer of handguns to anyone without one of these licenses 
  

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Tim Carey: why. 
 

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Kelly Roskam (she/her/hers): Judge Keenan really comes in and summarizes the value of that second 77 R. Process really? Well, which is. 
  

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Timothy Carey: to obtain one, there are 5 requirements that an applicant must satisfy. They must first be over the age of 21 they must be a resident of Maryland. They must complete a firearm safety training course. They must submit fingerprints to State police, and they must pass a background check. 
 

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Timothy Carey: If you do these 5 things and pay an application fee. The Secretary State of Police of Maryland shall issue an Hql. To you within 30 days. 
  

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Kelly Roskam (she/her/hers): you know, the handgun qualification license lasts for years. So in theory, I could get my Hql. 
  

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Timothy Carey: It's also worth noting that this licensing process is only required for handguns in Maryland. Not for long guns. 
  

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Kelly Roskam (she/her/hers): Years later I could go to actually purchase my handgun, and in the intervening time I could do anything I could do, anything to become prohibited from having a handgun and. 
  

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Kari Still: And again, Maryland is not alone in having a firearm purchaser licensing system. 9 states in the District of Columbia have very similar laws. These laws were rarely, if ever, litigated before the Supreme Court, decided Heller in 2008, and they still were not seriously challenged in the years following Heller either, and the court's most recent decision in Bruen only focus on the discretionary component of New York's public carry licensing law. 
  

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Tim Carey: now. Fortunately, the courts weren't really focused on how close 
  

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Tim Carey: Exactly, and that's where the value of 77 R. Comes in. It's the stopgap where, if at some point between you getting the Hql. Which I believe is like 10 years, 10 year length of validity 
 
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Kari Still: The court didn't really seem to focus on the historical analysis. Step. 2 of Bruen I think the plaintiff's counsel wanted to focus on that step. 
  

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Tim Carey: this regulation was, perchance to historical ones. They're more focused on another pressing question. 
  

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Kelly Roskam (she/her/hers): Yeah, I would say that the vast majority of the oral argument really focused on this really discrete question, and you may recall 
  

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Kelly Roskam (she/her/hers): from our previous discussion of footnote 9, that that question relates to 
  

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Kelly Roskam (she/her/hers): And this lack of success of challenging these kinds of licensing laws carries over in a post Bruen era. Since Bruen, these Firearm purchaser licensing laws have been generally upheld by the courts. 
 
Cass Interview  
 
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Tim: To tell us more about firearm purchaser licensing, is an issue area expert who has published several papers on the topic. We're pleased to have Doctor Cass Crifasi joining us today. She is an esteemed researcher of Gun Violence Associate Professor in the Johns Hopkins, Bloomberg School, Public Health and Co. Director for the Johns Hopkins Center for gun violence solutions. Cass. Thanks for joining us today. 
 

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Kelly Roskam (she/her/hers): how lengthy is too lengthy to wait for the issuance of a license. 
  

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Tim Carey: And the court really wanted to know. 
  
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6:31-6:35 
“How long of a delay is constitutional?”  
7:02-7:07 
“Excuse me, so if it’s not instant, it’s not constitutional?” 
7:14-7:18 
“How long is a sufficient delay in your view? No delay it sounds like.” 
10:52 –10:54 

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“You’re making time arguments.” 

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11:21-11:27 

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“Is the time necessary to carry out the Maryland statute too long.” 

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11:31-11:33 

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“Your whole argument is time [something]” 

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Kelly Roskam (she/her/hers): so I had gone down to Richmond. I was there in the courtroom for oral argument, and you can really feel 
  

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Kelly Roskam (she/her/hers): the frustration of every single one of these judges who are saying, you know, ultimately, somebody is gonna have to write an opinion that says, you know a certain length of time is too long, or that this 30 day period is not too long, and they're gonna have to explain why. And Plaintiffs Council is really 
  

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Kelly Roskam (she/her/hers): dancing around this issue. I mean, maybe he should have had like tap shoes on, or something, because, you know, at 1 point kind of seems to say, well, 7 days is okay. 
  

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Saul: Well. How do I describe my reaction? I used to think that things couldn't get much worse. But the great thing about second amendment. Jurisprudence is. It's kind of the gift that keeps on giving. Like just when you think judges could not be more misguided in how they read basic legal texts, and where they could not be less well informed about some basic facts about American history. Along comes a decision like Judge Richardson. who really doesn't seem to have a grasp of some pretty basic facts about the life in early America.  
 
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Saul: You know, we're we're sort of left with this bizarre world where we're supposed to be historical, even though people don't know how to do history, even though there are a lot of problems with the historical record. And even though the history we're comparing are totally incomparable in many ways. What a great system. 
 

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Kelly Roskam (she/her/hers): But then he's asked, well, so are you okay with the 77 R 7 day requirement? He says, well, well, no, I'm just not challenging it today. 
  

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Tim Carey: It was wild because the judges were just straight up, asking like, Is there a world where I can strike down the Hql 
  

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Tim Carey: like time limited 
 

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Tim Carey: process and uphold 
  

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Tim Carey: 77 R. With its time bound, holding 
  

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Tim Carey: in a way, without knowing exactly like what time gap is permissible. And it seemed the answer seemed to be, Yes, but no. 
  

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Kari Still: And Plaintiffs Council would not concede the constitutionality of 7 7 r. Which I think really frustrated some of the judges here, because plaintiffs didn't challenge 7 7 r. They only challenge the Hql process.
  

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Timothy Carey: And I think that's congruent with most people's expectations of any time you have to do something that is inherently has some aspect of dangerousness to it, like driving however many-pound vehicle across the road at high speeds, that we know that there's some certification that you'd know what you're doing before we let you do it. And the same goes to handling deadly weapons, such as firearms. 
 

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Kari Still: But though they get the benefit of Bruen’s, more harsh texts and history centered test here. They can't, from a legal standpoint, now decide to challenge 7 7 r. 
  

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Cass Crifasi: Absolutely we, it's necessary that people are undergoing training to understand how to safely use firearms, handle them, store them, make sure they're not falling into the hands of people who shouldn't have them. 
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Timothy Carey: But could you imagine? What would it be if no one had to have a license first? 
 

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But I really appreciated the judges not buying in and not letting him 
  
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Kari Still: make arguments in relation to the Hql without... 
 
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Kari Still: the realization that any decision that the judges make may have implications on the 7 7 Rrequirement as well. 
Tim Carey: Exactly, and 
it's it's wild to fathom that you just can't. 
  

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Cass Crifasi: It would be terrifying. 
 
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Timothy Carey: Cass, you've told us a little bit about yourself outside of your professional space. As a doctor, researcher working in this field, you also have a handgun qualification, license of your own. Right?  
 
Cass Crifasi: I do. 
  
Timothy Carey: Can you tell us a little bit about the experience of what getting one is like and how onerous and destructive it's been to your civil rights. 
 
Cass Crifasi: Absolutely. So it was really easy. I would chalk it up honestly to at most a minor inconvenience. There are really smart gun shops that offer a package deal to get this done. So, in Maryland, if you don't already own a handgun, you have to undergo safety training. So, there are shops that offer the safety training. They will bring in a Maryland certified live scan finger printer and they will do the fingerprinting for you right there. 

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They will, you know, sign off on your certificates, you can upload it and you fill out your paperwork before you leave the shop. They also have a range for you to do your live fire training that's required as part of the course. So there are shops that have really made it a one stop shop for lack of a better term. So all in. It probably took me including the four-hour safety training, It probably took me five hours, maybe including travel. So it was a really simple, easy process, very quick to get all the paperwork done after the course was done and it took a couple of weeks to get my license. For me, again, not much more of an inconvenience. 

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Cass Crifasi: ... And they're often the process is not all that different from a concealed carry license application, which many, many gun owners are familiar with. And so drawing some of those parallels, demystifying the process, I think is a really important piece to making sure one people understand what these laws are, two, understand why they're important and how they're effective. And three making sure that they then are supporting these policies when discussing whatever they might discuss with their elected officials. 

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Kari Still: So you've mentioned a lot of different types of benefits from firearm licensing regimes generally. But can you elaborate a little bit more on what types of evidence have been collected through research that demonstrate that firearm purchaser licensing actually reduces gun violence? 

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Tim Carey: You can come here. Try attempting to make an argument based off. This is a lengthy wait time. 
  

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Tim Carey: but not denote the boundaries, because that's all like one. Things judges have to do is to make things like administrable, make things actionable. Where are the lines? We will help draw them, and they were given no such lines. 
  
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Kari Still: and Judge Hytens attempted to draw one such line in a great hypothetical. He posed a plaintiff's counsel during oral argument, and we will play that audio clip for you here. 
 
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“So, can I give you this hypo about time? Imagine the government had a law that said no gun sales after 9 PM. One can imagine lots of public health reasons why someone might say no gun sales after 9 PM. Now if a person wants to buy a gun and then of course the gun store can’t open until 9 AM. So that means that a person who wants to buy a gun at 9:01 PM has to wait you know, 11 hours and 59 minutes. Do you that’s a constitutional... does that trigger high scrutiny under the 2nd amendment? No gun sales after 9 PM.  
I don’t know.  
Doesn’t it seem kind of important to know the answer to that?” 
  

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Start audio 00:11:07.430 --> 00:11:18.200 

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Kelly Roskam (she/her/hers): But the time argument really also implicated Judge Keenan's original point that we've been talking about earlier is is there a difference between infringement and burden. 

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Kari Still: Sure thing. The first step of Bruen’s test is commonly referred to as the plain text step. 
  

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Cass Crifasi: Over the course of all the studies that we have conducted and studies by some of our colleagues, we find that requiring people to get a license before buying a gun is associated with reductions in diversions of guns for use in crime, homicide, including mass shootings, suicides, shootings by police and police being shot by civilians so overall at pretty much every outcome we have looked at, we see really broad public safety impacts. 
 
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Kari Still: Are there any particular components of the licensing regime that actually proven to be more beneficial or the most impactful? 
 

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Saul: Well, I mean it. It sort of really depends. I mean, if you're in one of the major urban centers where there are multiple gunsmiths, and where, there are pretty good trade connections with Europe. Perhaps not. But if you're living out in Hagerstown or somewhere in Western Maryland or in Kentucky. If you're not in the right town with a gunsmith and there's no one traveling through town who happens to have firearms in their list of items that they can sell. You're not gonna walk in and walk out with a gun in every situation.   
 
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Kari: Gun stores weren't just around the corner back then, either.  
 

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Kari Still: And here's how the court laid this step out 
 

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Kari Still: when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. 
  

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Kari Still: So the question here is, does the plain text cover an individual's conduct, and to conceptualize this a bit better. Here's what the Second Amendment's plain text actually says. 
  

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Kelly Roskam (she/her/hers): especially as it relates to time. And so my my personal favorite at this oral argument Judge Heytens also draws comparisons between the wait time in the licensing law to permits under the first amendment, but also the takings clause. So under the takings clause, the government cannot take private property without just compensation. 
  

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Kari Still: a well-regulated militia being necessary to the security of a free State. The right of the people to keep and bear arms shall not be infringed. 
Timothy Carey: Then the second step, the burden, shifts away from the parties that brought the case otherwise known as the plaintiffs. 
  

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Cass Crifasi: So we think there are two core components that leads to some of these reductions in crime and violence and improvements in public safety. So the first being that fingerprint based background check. It is really important to make sure at the point of sale, we have properly identified and screened out people who can't lawfully purchase firearms. 
The other really important piece is the act of being required to get a license is a built in waiting period. It delays impulsive acquisition of firearms that could be used to harm oneself or others. Firearms are the most lethal means of suicide attempt. About 90% of suicide attempts with a firearm result in a fatality compared to about 10% for all other mechanisms combined. 
So if you can separate someone in time and space, that sort of core principle of injury prevention, from the harm that they are trying to use in a self directed manner, you can save lives.
 
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Tim Carey: Can you tell us how the benefits of licensing play out with Maryland's Hql? 
 
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Cass Crifasi: There are some other important things that we do know about the effects of either Maryland's law specifically or these types of laws broadly. As I mentioned, they, these laws are important in reducing the diversion of guns for use in crime. So I'll give you some very specific information. There were just over 11,000 guns recovered in crime in Maryland. Just over 3,000 of them were originally sold in Maryland. So about 27% of crime guns used in Maryland were originally sold in Maryland, meaning three quarters of guns recovered in crime in Maryland came from other states. When you look at a place like Alabama, which has a significantly higher rate of gun death than Maryland, they had around 7,500 guns recovered in crime that originated in Alabama, out of about the 10,000 total that were recovered. So, 70% of Alabama's crime guns were originally sold in Alabama. And this is really consistent across states with these policies because these laws constrain the local sources of guns that are available for use in crime. 
 

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Kelly Roskam (she/her/hers): But 
  

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Resume audio 00:17:44.940 --> 00:17:55.879  

00:11:44.520 --> 00:11:44.790
Kelly Roskam (she/her/hers): case law tells us that not all government uses of private property are takings particularly dependent on, like the length of time that they're using it. So he mentions that government use of  private property, can at some point become so long 
 

00:11:44.790 --> 00:11:45.790
Kelly Roskam (she/her/hers): You mentioned that 3 quarters of the crime guns recovered in Maryland came from States outside of Maryland. Were those States that did not have firearm purchaser licensing laws? 

00:11:45.790 --> 00:12:00.810
 

00:12:00.810 --> 00:12:02.800
Kelly Roskam (she/her/hers): that it becomes a taking. 
  

00:12:03.320 --> 00:12:07.609
stop audio 
Kelly Roskam (she/her/hers): and that really seems to track so well on this licensing argument. 
 
Resume audio 00:13:10.440 --> 00:13:13.800 
Tim Carey: okay. But in addition to all of this emphasis on 
  

00:13:15.150 --> 00:13:17.450
Tim Carey: the the time focus. 
  

00:13:18.650 --> 00:13:31.180
Tim Carey: There was another point that came repeatedly in our argument that this case wasn't even being argued in the right context. So, the plaintiff's counsel brought this case as what's called a facial challenge. 
 

00:13:31.310 --> 00:13:36.670
Tim Carey: which a facial challenge is essentially stating that every imaginable scenario 
  

00:13:36.940 --> 00:13:43.849
Tim Carey: this law is unconstitutional. It is unconstitutional on its face. There is no feasible world 
  

00:13:43.990 --> 00:13:45.920
Tim Carey: where this can be applied in a constitutional way. 
  

00:13:45.920 --> 00:13:46.690
Kelly Roskam (she/her/hers): it upheld the HQL requirement. After determining that it satisfied intermediate scrutiny. Finding that it was substantially related to achieving the important government interest of public safety 
  

00:13:46.690 --> 00:13:58.789
Tim Carey: whereas an as applied challenge is stating that yes, this law could potentially be constitutional in certain contexts. But in this specific case, as applied to my client. 
  

00:13:59.050 --> 00:14:04.570
Tim Carey: it's unconstitutional. And so the court was really focusing in on. Well, if 
  

00:14:04.630 --> 00:14:07.039
Tim Carey: this says that there's a 30 day 
  

00:14:07.050 --> 00:14:09.930
Tim Carey: ceiling for the Hql. Process. 
  

00:14:10.340 --> 00:14:16.250
Tim Carey: none of the plaintiffs in this case even applied for Hql. They can't show that they suffered 
 

00:14:16.270 --> 00:14:18.770
Tim Carey: a lengthy wait times. And so arguably. 
  

00:14:18.770 --> 00:14:20.380
Tim Carey: But now we flash forward to a different point in time. It's November 2023, and we are living in a post Bruen world. 
 

00:14:20.380 --> 00:14:21.130
Tim Carey: this 
  

00:14:21.320 --> 00:14:26.029
Tim Carey: case isn't a facial challenge at all, but it should be an as applied challenge. 
  

00:14:26.570 --> 00:14:28.230
stop audio  
Kelly Roskam (she/her/hers): And no one was more upset about this being a facial challenge versus an as applied challenge than Judge Wilkinson. And so let's play you that audio. Now. 
  
Start audio 39:28 –39:47 stop audio 
“What we’re asked to do is strike the whole damn darn thing down at this early stage without proof of its operation and that seems to me to be a precipitous step to take at the outset of this whole controversy. You see what I’m saying?” 
 
Start audio 00:14:38.370 --> 00:14:59.630 
Tim Carey: Yeah, he was livid and understandably so. I mean, they're asking to remove this entire law off the basis that hypothetically, there exists a potential scenario, where it may be unconstitutional. But they haven't shown that it actually is that way. I mean, like Kelly. How many days does it take to go through this process in Maryland. 
  

00:14:28.230 --> 00:14:35.670
Tim Carey: So the appeal comes back to the fourth circuit, and the same 3 judge panels here in the case, but for a second time under a new test. 
  

00:14:35.970 --> 00:14:38.270
Kari Still: Same panel different problems. 
  

00:14:38.680 --> 00:14:53.560
Tim Carey: But this time they reach a split decision. There's 2 judges in the majority who apply Bruen’s new test and reverse the District Court’s decision now, holding that Maryland's Hql. Requirement violates the Second Amendment. 
  

00:14:54.740 --> 00:14:59.740
Kelly Roskam (she/her/hers): Evaluating the law. At the first step of the new Bruen framework, the court concluded that the Hql. Law regulated conduct covered by the plain text of the Second Amendment. 
  

00:14:59.740 --> 00:15:00.750
Tim Carey: typically. 
  

00:15:01.190 --> 00:15:05.330
Kelly Roskam (she/her/hers): So I mean, the statute allows for up to 30 days. But at oral argument the Attorney General's Council mentioned that you know the record shows that these applications are being processed 
 

00:15:05.330 --> 00:15:14.489
Kelly Roskam (she/her/hers): In reaching this conclusion the court accepted this true plaintiff's claim that they are both law-abiding citizens who want handguns for lawful purposes. 
 

00:15:14.510 --> 00:15:15.170
Kelly Roskam (she/her/hers): And so the court says, it's obvious that they fall within the meaning of the people. 
  

00:15:15.170 --> 00:15:16.400
Kelly Roskam (she/her/hers): no longer than 15 days. So like it's not that the average is 15 days. It's that no application took longer than 15 days. 
  

00:15:16.400 --> 00:15:21.040
Kari: Yeah, and that kind of brings up the point. How did the historical context and the evolution of interpersonal violence in the nineteenth century evolve to such a point that the State began regulating the ability for one to obtain a weapon if they were deemed to be dangerous? 
 

00:15:21.040 --> 00:15:25.820
Kelly Roskam (she/her/hers): additionally, because the Supreme Court has already identified handguns as arms protected under the second amendment. 
  

00:15:25.820 --> 00:15:27.860
Kelly Roskam (she/her/hers): which ultimately doesn't seem that long. 
  

00:15:27.860 --> 00:15:28.640
Kelly Roskam (she/her/hers): This 
  

00:15:28.900 --> 00:15:29.320
Kelly Roskam (she/her/hers): wasn't a point of contention, either. 
  

00:15:29.320 --> 00:15:30.810
Tim Carey: But again, we don't know 
  

00:15:31.050 --> 00:15:31.506
stop audio  
Tim Carey: how long is long enough. It's one of the enduring questions. 
 
Resume audio 00:19:02.350 --> 00:19:10.830 
Tim Carey: Now, the natural next step is to focus on what comes next. Predictions. What do you all thinking will come from an opinion from this panel. 
  

00:15:31.506 --> 00:15:32.940
Kelly Roskam (she/her/hers): But they did identify a couple of wrinkles in their plain text analysis. 
  

00:15:32.940 --> 00:15:33.940
.___ stop audio 
Saul: So there are 2 important moments ... 
 
Resume audio 00:15:42.760 -->  00:15:53.___stop audio 
Saul: So in the eighteenth century, we start with relative gun scarcity and low levels of interpersonal violence. In the Jacksonian period, or or the period of the market revolution...  
 
Resume audio 00:16:23.___ --> 00:16:36.___ stop audio 
Saul: ...we see a real ramping up of the range and the reliability and the number of firearms. And that's when we see the first sort of gun violence epidemic if you will. 
 
Resume audio 00:19:06.___ --> 00:19:51.___ stop audio 
Saul: The second big moment, where things change quite significantly is because the Civil War floods the market you with with weapons which are much more lethal and much more reliable, and also more readily available, so that in the period after the Civil War we see the first modern style gun control laws. Because the mechanism, because now you've created this more expansive government. You know, you begin to see the the start of the modern regulatory administrative state. And so, things like permitting schemes are now possible for the first time. I mean, there was nobody to hand out permits in the era of the founding when the Second Amendment was written. 

00:15:33.940 --> 00:15:34.940
 

00:15:34.940 --> 00:15:35.940
Resume audio 00:20:19: ___ --> 00:20:28.___stop audio 

00:15:35.940 --> 00:15:36.790
Saul: So we need to remember... the difference in terms of scale and capacity to govern. It was just a very, very different time. 

00:15:36.790 --> 00:15:36.940
Tim Carey: Generous, wording. 
  

00:15:36.940 --> 00:15:37.940
 

00:15:37.940 --> 00:15:38.550
Resume audio 00:56:08.820 --> 00:56:33.909 

00:15:38.550 --> 00:15:38.940
Kelly Roskam (she/her/hers): Yeah, I think wrinkles is doing a lot of heavy lifting here. 
  

00:15:38.940 --> 00:15:39.940
Kelly: But one of the things I also wanna ask about is the technology. So like, take handgun qualification, licensing. Can the founders implement a handgun qualification license the way we understand it today? 

00:15:39.940 --> 00:15:43.550
 

00:15:43.550 --> 00:15:50.369
Kelly Roskam (she/her/hers): So, the court acknowledges that the second amendment protects the right to keep and to bear arms. 
  

00:15:50.500 --> 00:15:59.370
stop audio  
Kelly Roskam (she/her/hers): but the handgun qualification license deals with purchase of handguns a word that doesn't appear in the plain text of the second amendment. 
 
Resume audio 00:16:10.370 --> 00:16:24.259 
Tim Carey: But in striking down the constitutionality of the HQL requirement in Maryland, the panel majority did acknowledge that the requirement did not serve to permanently prevent someone from buying or acquiring a gun. 
  

00:16:24.400 --> 00:16:25.400
Tim Carey: However they said, the crux of this case was largely that the law prevents individuals from gaining access to firearms immediately, to go to a store and get a gun right now. 
  

00:16:37.880 --> 00:16:54.620
Kari Still: And we have to discuss this absurdity of the idea that the second amendment somehow protects the instantaneous transfer of firearms such that any law that apparently doesn't allow someone to get a gun immediately or right away is somehow presumptively unconstitutional. 
  

00:16:55.580 --> 00:16:56.940
Kelly Roskam (she/her/hers): It's pretty extreme. 
    

00:17:56.060 --> 00:17:58.529
stop audio 
Cass Crifasi: Correct. They come from States like Pennsylvania, West Virginia, Tennessee, Virginia still, to a certain extent, even though they have strengthened their laws, it is pretty rare, although not totally unlikely, but it is pretty rare for States that have strong gun laws to have their guns recovered elsewhere like it recovered in other States.
Resume audio 00:18:53.520 --> 00:19:02.320  
Kelly Roskam (she/her/hers): Does the public like fire and purchaser licensing? 
 

00:18:00.420 --> 00:18:10.470
Tim Carey: And we also know that this, the Second Amendment space, is not anomalous when it comes to having to wait to exercise aspects of the right. 
  

00:18:10.540 --> 00:18:22.250
Tim Carey: When we look at the first amendment, most notably, if you want to host a large protest or demonstration and public space, you have to file for a permit, wait for it to be approved, and that's not 
  

00:18:22.270 --> 00:18:22.520
Tim Carey: to stifle the right, but largely to ensure that it's exercised in a waffle way. 
  

00:18:22.520 --> 00:18:23.870
Timothy Carey: And I'm Tim Kerry. 
 

00:18:24.250 --> 00:18:25.720
Kari Still: And I'm kerry still. 
 

00:18:26.420 --> 00:18:29.620
Kelly Roskam (she/her/hers): We're all attorneys at the Johns Hopkins Center for gun violence solutions, and to hear more about what personally motivates us to work on this area of law? And why we find second amendment cases so interesting. If you haven't already, you please listen to episode 0. 
 

00:18:29.620 --> 00:18:43.100
Kari Still: In in Panel's application of Bruen’s, second historical step, the court rejected the historical laws that Maryland proffered, and the panel said that those laws were not sufficiently analogous to Maryland's Hql. 
  

00:18:43.100 --> 00:18:43.470
Kari Still: And in today's episode we'll be discussing the implications of the Supreme Court's most recent Second Amendment decision and the New Test, the Court announced in that case, as it applies to the constitutionality of firearm purchaser licensing. 
 

00:18:43.470 --> 00:18:55.070
Kari Still: The panel there looks at 2 different categories of laws, the first being a category of law laws that disarmed dangerous people historically, and the panel distinguish those laws by saying, Well, those historical laws penalize people that were already deemed to be dangerous, whereas Maryland's Hql. Prevents all people from acquiring guns until they prove they are not dangerous. 
  

00:18:55.070 --> 00:19:02.959
Kari Still: we're going to be specifically discussing a case called Maryland Shall issue versus more, which was a challenge to Maryland's handgun qualification, license. 
 

00:19:03.010 --> 00:19:03.330
stop audio 
Cass Crifasi: For the most part, yes actually. There's pretty broad support for firearm purchaser licensing, not as high as what we see for comprehensive background checks, but still really high support. So let me give you some numbers. overall, in 2023 72% of U.S. adults said they are in support of people being required to get a license before buying a gun. That includes about 64% of gun owners. If you look among gun owners who live in states where these laws are already in place. So, they understand the system, they, you know, ostensibly have had some experience with it. Support is 75%. So, there's much higher support when you can maybe demystify the process a little bit.  
 
Resume audio 00:20:10___--> 00:20:11.___ stop audio 
Cass Crifasi: So, for example,   
 
Resume audio 00:20:44:____ --> 00:20:52.739  
Cass Crifasi: 83% of US Adults, including 79% of gun owners support requiring first time purchasers to undergo safety training.  
 

00:19:03.330 --> 00:19:05.710
Timothy Carey: And for our sakes and the 6 of you back home we'll be referring to that as Hql. From here on out. 
 

00:19:05.710 --> 00:19:09.900
.___ stop audio 
Kari Still: and the second category, the panel considered, were these early founding era militia requirements...   
 
Resume audio 00:19:17.640 --> 00:19:31.119 
Kari Still: and the court said those laws weren't sufficiently analogous to Maryland's Hql. Because those training requirements didn't prevent the acquisition of a firearm, but rather required militia members to carry their guns by training and participating. 
 

00:19:09.900 --> 00:19:14.580
Kari Still: Thanks, Tim, and that requirement was recently struck down last fall by a 3 judge panel of the 4 circuit. 
 

00:19:14.580 --> 00:19:17.240
Kelly Roskam (she/her/hers): You know, I've got to say. Just as a general matter. 
  

00:19:17.340 --> 00:19:17.700
Kelly Roskam (she/her/hers): Most of the judges seemed hostile to the idea that 
  

00:19:17.700 --> 00:19:22.840
Timothy Carey: And as a little background. Typically in Federal cases, when a case is appealed to the Circuit Court level, that case is assigned to a 3 judge panel of the Appellate Court 
 

00:19:22.840 --> 00:19:27.670
Kelly Roskam (she/her/hers): we can't run background checks, and we can't require safety training before somebody purchases a handgun. One of the judges repeatedly refers to. It's like minimal train minimal, you know, like not onerous. And so if I had to guess, I would say, you know, the court is probably gonna uphold the licensing law facially. 
 

00:19:27.670 --> 00:19:31.150
Timothy Carey: that 3 Judge Panel issues a decision on the case. But in rare instances, such as the one we find ourselves in today. The court may grant a party's request for the case to be heard by the entire court, by all of the judges 
 

00:19:31.150 --> 00:19:33.290
Kari Still: in those requirements.   
 

00:19:35.060 --> 00:19:39.009
Tim Carey: Not a very charitable or generalized reading of those laws. 
 

00:19:39.570 --> 00:19:39.593
Timothy Carey: of that circuit in a process called as a rehearing en Banc. 
  

00:19:39.593 --> 00:19:44.990
Tim Carey: and the lone dissenting Judge took the majority to task on their plain text analysis on their step, one noting that 
  

00:19:44.990 --> 00:19:47.900
Kelly Roskam (she/her/hers): And once again, that's where Maryland shall issue versus more is now. 
  

00:19:47.900 --> 00:19:49.642
Tim Carey: it asks whether the law or regulated conduct covered by the plain text of the second Amendment at all. 
  

00:19:49.642 --> 00:19:50.230
Kelly Roskam (she/her/hers): The fourth circuit agreed to rear here that case en Banc and held oral argument. In March. 
  

00:19:50.230 --> 00:19:53.400
Tim Carey: Yeah, and I'm right there with you, Kelly. I think they found ample scenarios where this law could be constitutionally applied, because Plaintiffs Council could not even show an instance where it was unconstitutionally applied. 
   

00:19:53.400 --> 00:20:00.799
Tim Carey: because, as we know, like the Second Amendment, as we discussed earlier, implicates regulations that infringe upon the Second Amendment. 
  

00:20:01.080 --> 00:20:01.830
Tim Carey: but 
  

00:20:02.030 --> 00:20:03.260
stop audio 
Tim Carey: is infringement the same as regulating, because all laws regarding guns regulate conduct related to them in some extent. 
 
Resume audio 00:20:22.070 --> 00:20:34.389 
Tim Carey: Do the permits in this context, infringe upon the exercise of the second Amendment, right as opposed to merely regulating it, to ensure that it's lawfully and practically administered. And it's an open question. 
  

00:20:03.260 --> 00:20:06.580
Kari Still: And today we'll be joined by 2 distinguished guests, Cass Crifasi an Associate professor at the Johns Hopkins, Bloomberg, School of Public Health, and co-director of the Johns Hopkins Center for Gun Violence Solutions, as well as Professor Saul Cornell, the Paul and Diane Gunther, Chair in American History at Fordham University, and the author of many published works on the Second Amendment in early America. 
  

00:20:06.580 --> 00:20:22.000
.___ stop audio 
Kari Still: Oh, and I was just Gonna say, I think, in upholding the constitutionality of the Hql. I do believe The majority of the judges are gonna try to reach consensus about how to decide the case at Step One. I think that, given the line of questioning, and  
  
Resume audio 00:20:25.970 --> 00:20:37.169 
Kari Still: the areas in which the judges were focusing on Bruen, and how it applies to this case. I do believe that most of the judges, except for Richardson and Ag Really seem to be 
  

00:20:26.790 --> 00:20:35.420
Kelly Roskam (she/her/hers): Now as a reminder, there are 3 really Major Supreme Court cases on the Second Amendment District of Columbia versus Heller, McDonald versus Chicago and New York State Rifle and Pistol Association versus Bruen 
  

00:20:35.420 --> 00:20:37.320
Kelly Roskam (she/her/hers): And that same judge really duked it out with the majority over the meaning of this really important footnote from Bruen. 
  

00:20:37.320 --> 00:20:39.910
Kari Still: focused on Step one. I think the Court’s going to try to reach a consensus here, and not have to go down the historical route. 

00:20:39.910 --> 00:20:43.890
Kelly Roskam (she/her/hers): for additional in-depth background. On those 3 cases, please refer back to episode 0. 
  

00:20:43.890 --> 00:20:44.570
Kelly Roskam (she/her/hers): so as a reminder, in addition to changing the way courts are required to analyze second amendment cases. 
  

00:20:44.570 --> 00:20:45.600
Tim Carey: Yeah, which ultimately doesn't mean that it's all over. I I could very well see as applied challenge being brought. Ultimately, I feel that's what the majority of the En Banc panel thought plaintiff should have brought was an as applied challenge. After showing that a plaintiff, or had attempted 
  

00:20:45.600 --> 00:20:51.030
Kelly Roskam (she/her/hers): for the purpose of today's episode, we're going to provide a brief recap of the new Bruen framework to set up our discussion about today's case. 
  

00:20:51.030 --> 00:20:53.070
Kelly Roskam (she/her/hers): Bruen also struck down this provision of New York's public Carry Licensing law, and it distinguished between New York's law, which it referred to as a May issue licensing scheme, because it allowed some kind of discretion to deny licenses from what it also called, shall issue licensing regimes which require the issue and some of license. If the applicant meets the objective criteria. 
  

00:20:53.070 --> 00:20:53.380
.___ stop audio 
Timothy Carey: And that's huge, when do 83% of people like anything?  
 
Resume audio 00:21:14.____ --> 00:21:29.629  
Cass Crifasi: And it just makes sense. If you're going to bring someone something into your home or have something out with you in public that has the potential to cause so much harm, whether it's a car or a firearm. It makes sense that you would need to do some safety training. 
 

00:20:53.380 --> 00:21:02.840
Timothy Carey: Exactly, Kelly cause. That's really the the groundwork we're operating on today. And so, as a very general overview in the Bruen decision, the Supreme Court dramatically shifted all Second Amendment law by changing the way that courts are allowed to evaluate second amendment cases. 
  

00:21:02.840 --> 00:21:11.940
Tim Carey: to go through this process, and then were harmed by a lengthy wait time, which again, we just haven't seen yet and don't have evidence of. So, if those facts arose in the future. This case could perhaps come back in that context, but as for now, on a facial level, think the law is fine. 
 

00:21:11.940 --> 00:21:15.530
Timothy Carey: taking the emphasis away from modern day governmental interests like public health and public safety, and trying to ground the focus in a more historically tinted lens, focusing on what the founders thought or what the original drafters of the Second Amendment conceive when they first created the constitutional protection. 
  

00:21:15.530 --> 00:21:21.320
Tim Carey: So, footnote 9 is from the New York STate Rifle Pistol Association versus Bruen case is really what comes to Center stage here. 
  

00:21:21.320 --> 00:21:23.980
end audio  
Kelly Roskam (she/her/hers): Well, thanks for listening and tune in to the next episode of sufficiently analogous. 
 
 
ADD:  
 
Kelly Roskam: Sufficiently Analogous is a podcast from the Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health. Produced by Tim Carey, Joe McHugh, Kelly Roskam, and Kari Still. Audio production from Matthew Martin, Philip Porter, and Holly Cardinell. 
Distribution and social media by Shakun Kashal. 
 

00:21:23.980 --> 00:21:28.610
Tim Carey: where the the court. I mean, Kelly, how did you contextualize this? Footnote, when you first read it? 
 

00:21:29.380 --> 00:21:31.300
Kelly Roskam (she/her/hers): I like to call this the Don't panic. Footnote. 
  

00:21:31.300 --> 00:21:33.100
Kelly Roskam (she/her/hers): So, we've discussed the move from, you know, evaluating second amendment cases based on how closely the law is fit to achieving the important government interest in public safety. To, you know, how like is it to the laws at the time of the founding or reconstruction. So, from your perspective, Cass, what is the ongoing importance of this type of public health, research and public opinion polling?  
 

00:21:33.100 --> 00:21:33.930
Kelly Roskam (she/her/hers): it's the court's way of saying, Hey, I know this seems pretty wild, but don't worry. We're not striking down all the gun laws. We kinda like this one. 
 

00:21:33.930 --> 00:21:38.500
stop audio  
Timothy Carey: So as a general overview this this test has been broken down to 2 steps. 
 
Start audio 00:10:54.480 --> 00:10:57.040 
Timothy Carey: Kari why don’t you tell us a little bit about the first one. 
 

00:21:46.200 --> 00:21:50.910
Tim Carey: Like allegedly. And thus we find ourselves looking at this text, which says. 
 

00:21:51.110 --> 00:22:00.460
 
Tim Carey: that shall issue licensing regimes that employ what they consider narrow, objective, definite standards. So, moving away from the discretion of my issue 
  

00:22:00.460 --> 00:22:01.660
.___ stop audio 
Cass Crifasi: So, it's really important to understand what impact laws are having now. Partly because things have changed over time, technology innovations, the way people move through space, how concentrated people are in physical spaces.   
So, our society has advanced immensely far beyond what I think the founders were able to even dream about at the time. And so, it's important that our gun laws stay up to date.  
 
Resume audio 00:43:58.340 --> 00:44:06.689 
Timothy Carey: Well, Cass, thank you so much for joining us. It was deeply informative. You're always a pleasure to work with talk with. Happy to have you with us today.  
 

00:22:01.660 --> 00:22:03.950
Tim Carey: are generally okay. 
  

00:22:04.970 --> 00:22:13.770
Tim Carey: It's fine. If these laws require applicants undergo background checks to require them to undergo firearm safety training courses, because those 
  

00:22:13.910 --> 00:22:25.970
Tim Carey: measures are designed to ensure that only those bearing arms in public are, in fact, the law-abiding, responsible citizens of the second amendment plain Text applies to. 
  

00:22:26.560 --> 00:22:41.200
Tim Carey: However, they don't rule out constitutional challenges to shout, issue regimes, put towards what the majority calls abusive ends, and these abusive ends are what they say are lengthy. Wait times, or exorbitant fees. 
  

00:22:41.220 --> 00:22:46.029
Tim Carey: where exactly the line is drawn is for the courts to argue indefinitely. 
  

00:22:47.540 --> 00:22:59.809
Kari Still: So Maryland's Hql. Is pretty obviously a shall issue regime, but the majority simply dismissed the applicability of that footnote taking the position that Bruen’s, footnote 9, did not bless these shall issue licensing laws. 
  

00:23:00.120 --> 00:23:00.660
Timothy Carey: to prove that plain text step, and then shifts towards the government 
  

00:23:00.660 --> 00:23:01.660
stop audio 
Kelly Roskam (she/her/hers): Just like a really inconvenient footnote for them. 
 
Saul Interview 
 
Start audio 00:01:05.570 --> 00:01:35.559 stop audio 
Kari Still: So now we're going to delve a bit more into the types of historical laws. The fourth circuit considered. Why the panel rejected those laws, and what types of historical laws support the constitutionality of Maryland's law under Bruen. And for this discussion we are so delighted to be joined by Professor Saul Cornell, whose expertise not only includes the history of gun regulation and the right to keep them bear arms, but also extends to American legal and constitutional history more broadly so, Saul, welcome to sufficiently analogous. 
 
Start audio 00:08:22.880 --> 00:08:25.140 stop audio 
Saul: Thank you very much for having me. It's a pleasure to be here.  
 

00:23:01.660 --> 00:23:02.660
Resume audio 00:08:27.370 --> 00:08:31.399  

00:23:02.660 --> 00:23:03.660
Kari: What was your reaction when reading the panel's decision in this case? 

00:23:03.660 --> 00:23:04.910
 

00:23:04.910 --> 00:23:27.959
Timothy Carey: to show whether or not the law at issue is consistent with what the Supreme Court calls our nation's historical tradition of firearm regulation. Essentially how closely related is a modern day law to the sort of laws that the drafters of the Second Amendment found acceptable in the way they understood the right several 100 years ago. 
 
and it's also open the door for some extreme judges to rule against gun violence prevention laws that have been on the books for a long time that have been considered common sense previously been ruled constitutional. So just for a couple of examples, there's been different outcomes 
  

00:25:18.710 --> 00:25:35.109
Kelly Roskam (she/her/hers): the same types of laws, evaluating the same types of history in cases related to age restrictions, laws prohibiting people who've been convicted of felonies from possessing firearms. And also people subject to domestic violence. Protective orders. 
  

00:25:35.650 --> 00:26:02.779
Kelly Roskam (she/her/hers): In fact, one case about protective orders is currently being evaluated by the Supreme Court. It's called United States versus Rahimi, and we'll be talking about that in a future episode. But for today we're drawing special attention to another case, and that, again, is Maryland Shall issue versus Moore, a challenge to Maryland's Hql. Which requires would-be handgun purchasers to apply for and receive a license? 
  

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Kelly Roskam (she/her/hers): So before we get started into the facts of the case and the oral argument, let's talk about what exactly is firearm purchaser licensing. 
 
What is Firearm Purchaser Licensing 
 
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Timothy Carey: Excellent question, kelly. 
 

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Cass Crifasi: It was a lot of fun. Thank you so much. 
 
History of Maryland Shall Issue v. Moore  
 
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Kelly Roskam (she/her/hers): All right. Well, let's dig in a little bit on the case history of Maryland shall issue versus Moore. 
  

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Cass Crifasi: So there are a few weaknesses in Federal law that are sort of inherent in the point of sale background check system so really quickly. One you're only using. Often Federal records. Sometimes there are delays of state or local records being reported up into the Federal system.  Two, only required for federally licensed firearm dealers. So private sellers in most States are not required to conduct a background check. And Three, Federal law only allows 3 business days to conduct a background check. So after 3 days, the default is that the seller can sell that firearm, regardless of whether the background check has been completed.  
 
If later on the background check comes back as denied, then law enforcement has to go take guns away from those people, and that happens between 5 and 6,000 times a year. People who were legally prohibited from purchasing firearms get guns through this default, proceed loophole. 
 
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Cass Crifasi: Another important component of these policies is safety training. So in Maryland, very specifically, if you've never owned a handgun before, you have to go through safety training which makes a lot of sense. If you've never driven a car before, we would like you to get some training before you get a driver's license and are on the road, potentially causing harm. 
And so same is true for firearms. You know there is a long, rich hunting tradition in the US. But if you want to hunt, you have to get a hunting license in order to get a hunting license. You have to take a hunter safety course I grew up, got a hunter safety course. Got a got a license right? It's just a traditional thing that you would do which included safety training on handling storage and use. In the absence of a large proportion of our population, hunting, people are not by default getting that training anymore. And so it's an important component of Maryland's handgun qualification license, that that safety training requirement. 
 

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Tim: And thus we govern society. 
 
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Kelly: There is a really interesting exchange in 3 judge Panel opinion between Judge Richardson and Judge Keenan that I wanted to ask you about, which is sort of this disagreement about how to frame the burden on the conduct. So Judge Richardson talks about the fact that this prevents people from purchasing firearms to defend themselves, and is therefore covered by the plain text of the Second Amendment. And Judge Kiman says, well there's daylight between infringing and regulating conduct. Can you talk more about that? 
 

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Saul: Right. 
 

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Kelly: And the people is law abiding, responsible, adult citizens. And so, somebody who wants to purchase a gun needs to affirmatively show that they are a member of that group. And I just want to ask, like historically, what do you think about that assertion that somebody needs to show that they're part of that group to exercise the right.? 
 

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Saul: Well, the first thing we need to recognize is that we live in a society where it's very easy to sort of move anonymously through society. They live in a society of small face to face communities where there was no such thing as anonymity. So everyone knew everyone's business, and everyone was surveilled in a way through countless informal means.
And you know, people wonder why we have more gun violence. Well. if you live in a large industrial, society where there's a lot of anonymity, you're going to have more problems with violence than you are in small face-to-face community where there is all kinds of informal forms of surveillance.  
 
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Saul: And then, secondly, so take the case of minors, you know. So a minor could be forced to be in the militia, they could be forced to participate in the positometis or the you and cry, but they're expressly excluded from being constables, cause they're compared to idiots and mad men. 
 
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Tim : We've all been teenagers, saul, we can verify that. 
 

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Saul: Yeah, exactly. Yes, boy, can we ever? ... 
 
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Saul: But the idea that the people is everyone in the political community. That's not even true. I mean, there's a great little article by Amanda Tyler of UC Berkeley. That points out that the disarmament of Loyalists is pretty interesting, because again, we tend to think that if you're a citizen you have all the rights of citizenship. But that was clearly not the case. That doesn't really happen until much later. I mean, you can sort of be a citizen and not be fully empowered. I mean, for one thing, the vast majority of people didn't have the right to vote. and the vast majority of people didn't sit on juries because they were property requirements, at least in some instances. So again, we're approaching society with a very democratic vision of the polity which is great, but that's not the vision that was at the foundation of the Second Amendment and its state analogs. 
 
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Kelly: So there's there's a great bit from Judge Richardson, who basically says, Well, no, there's there's no history of putting barriers before purchase. It's up to the State to enforce after the fact, like, for example, a felon gets possession of a gun, and then you prosecute them for being a felon in possession, rather than prohibiting them from getting it on the front end.  
 

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Saul: So a couple of things to bear in mind.  
 
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Saul: We don't have an administrative state in the eighteenth century.  
 
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Saul: You live in a small face-to-face community where everyone knows anyone. What would the purpose of a background check be?  
 
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Saul: There is no such thing as anonymity. So what are you checking? 

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Saul: And the other thing is ... 

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Saul: Handguns were very rare in the eighteenth century. 

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Saul: Handguns constituted about 10% of the firearms stock at the time of the second amendment. So turning that around 90% of the guns were long guns. We also know that the big problem in terms of firearms policy was not interpersonal violence, because firearms were not well suited for impulsive acts of violence because keeping them loaded wasn't a good idea, because the black powder is corrosive. It also attracts moisture which makes it hard for them to be reliable. 

00:56:44.740 --> 00:57:25.190
 

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Saul: so that if somebody broke into your house it's not like today where you grab your Glock, and it's good to go. If you left it loaded, it might not fire. If you have to take the time to pour the powder down the muzzle ram in the bullet, pour the powder into the pan, light it, pull the trigger, you know. I mean, it's it's just not the same world in terms of guns and violence, I mean. 
 

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Kelly: Excuse me, sir, could you pause your burglary while I load my firearms? 
 

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Saul: Yes, Exactly. 
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Saul: The main function of guns has changed. So not having access to guns today poses a very different kind of issue than it did in the eighteenth century, and I don't get a sense that that Judge Richardson, among others, really understands that.  

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Saul: That's right, I mean, you know. So one thing to keep in mind is, you know, guns were needed a lot of repair because they're much less sturdy than they are today. So your gun could be in the shop. You know, you might not have a gunsmith in your town, so if your gun was in need of repair, you might have to travel. The fire lock mechanisms in particular, were largely imported. So even if somebody could make you a make you the barrel, you might have to wait for the next shipment of fire locks to have that gun assembled... 
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If you were unlucky it might take you a couple of weeks to get your gun without a waiting period, because that was the nature of supply and demand depending on where you lived. 
 
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Tim: But Saul, how long? Was too long. 
 

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Saul: Well, exactly. But the question is, how long was too long, particularly if you weren't living on the frontier or you weren't living in the midst of one of the, you know, crisis moments like the American Revolution of the War of 1812. Not having that gun is not really, you know the great inconvenience that some people seem to think it was. 
 
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Saul: And then all of this, really, I think is bracketed by the fact that there wasn't an interpersonal gun violence problem in the eighteenth century. I mean, everyone seems to assume that everyone is armed to the hill, because everyone's coming to kill them. But you know, if you take out the sort of internecine warfare with the indigenous population who were not particularly happy about ceding additional land homicide rates in the eighteenth century are incredibly low by modern standards. Because eighteenth century black powder weapons that are muzzle loading are not good for impulsive acts of violence. And I think you, at the Johns Hopkins Center of all people, realize that the vast majority of gun violence is somehow connected to impulsive behaviors, right? 
 

01:01:59.160 --> 01:02:02.080
Tim: Well good thing the founders were timeless in their vision.  

01:02:03.350 --> 01:02:07.010
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Saul: Yeah, it’s a good thing the founders were able to think about problems they couldn't have envisioned.  
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Saul: So we just live in a such a very different world that, you know efforts to apply the past to the present. if done naively, are just disastrous. 
 
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Tim Carey: Yet applying the past to the present is what the Supreme Court asks of us. What is the historical basis for licensing? 
 
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Saul: Essentially, the correct historical answer is, as long as there's been a gun violence problem, and there's been the capacity to have a permit scheme, permit schemes have existed. So it's hard to imagine a longer tradition than, as long as it's been possible, they've done it. 
 

01:02:44.150 --> 01:03:28.000
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Saul: It seems like Judge Richardson doesn't understand the difference between abridgement and infringement. So, if you look at language of the First Amendment, it talks about, you know, Congress shall not abridge this right, which means to diminish. The Second Amendment's language about infringement, the word infringe really means to destroy or transgress. So, there's a certain sense in which diminishing the right is inconsistent with the founding generation's understanding of speech and the press. But as long as you don't negate the right, there's a pretty capacious space for regulating it. 
 

01:22:27.000 --> 01:22:33.000
“We need you to tell us when does delay become per se unconstitutional.” stop audio 
 
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Kelly Roskam (she/her/hers): And I think I mean 
  

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Saul: And again, if we're talking about longstanding tradition. I don't see how you can have a longer standing tradition than a tradition in which, as long as there's been a problem, and as long as there's been the possibility of implementing a solution, that solution has been implemented. What else would the courts want us to do to show that they were doing this before the problem existed? Or before there were a mechanism to implement it? I mean, the the position that Judge Richardson takes in this case boarders on the absurd.  
 
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Tim: Well, thanks so much for coming on, Saul. I really appreciated your insights, analect, and sharp New York wit. We hope to have you on again sometime. 
 

01:28:57.840 --> 01:28:58.750
Kelly Roskam: Immediately. 

01:28:58.750 --> 01:29:00.400
Saul: Immediately. Now 

01:29:00.440 --> 01:29:03.240
Saul: I want my gun. Now I'm angry now. 

01:29:04.010 --> 01:29:07.920
Saul: I mean it's crazy, right? I mean, there's almost nothing 

01:29:08.540 --> 01:29:18.000
Saul: in our legal world that.  There's almost nothing that happens immediately in our constitutional universe.  
 
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Kelly: Well, interestingly, the oral argument in Maryland Shall Issue really didn't speak very much about the historical analogies or historical laws, but I do want to ask you about this really fascinating exchange between the plaintiff's council and Judge Niemeyer. So plaintiff's counsel is saying. this is not a case about the people. It's not a step one case, and judge Neimeyer kind of says, Well, Whoa! Hold on here, Bruen and Heller Mcdonald. They all say that the Second Amendment is the right of quote “the people.” 
 

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Saul: Well, thanks for having me. I'm sure I will take you up on that at some point. 
  
En Banc Discussion  
 
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Tim Carey: So now that we've had a chance to look at the background of this case and the issue underlying it and speak to a few experts. It's time for us to turn to the oral arguments itself, held by the en banc panel at the fourth circuit. 
  
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Kari Still: So at the outset of oral argument, as plaintiff's counsel is beginning to make his big arguments about the case. There was a big distinction here between the law he actually challenged versus another law that actually applies when you're trying to acquire handgun in Maryland. So the way it works is in Maryland. Before you can purchase the handgun you have to get your Hql.