Raymond Woollard v. Denis Gallagher , 712 F.3d 865 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RAYMOND WOOLLARD; SECOND 
AMENDMENT FOUNDATION, INC.,
Plaintiffs-Appellees,
v.
DENIS GALLAGHER; SEYMOUR
GOLDSTEIN; CHARLES M. THOMAS,
JR.; MARCUS L. BROWN,
Defendants-Appellants,
and  No. 12-1437
TERRENCE SHERIDAN,
Defendant.
AMERICAN PUBLIC HEALTH
ASSOCIATION; AMERICAN COLLEGE OF
PREVENTIVE MEDICINE; LEGAL
COMMUNITY AGAINST VIOLENCE;
LEGAL HISTORIANS;

2 WOOLLARD v. GALLAGHER
BRADY CENTER TO PREVENT GUN 
VIOLENCE; MARYLAND CHIEFS OF
POLICE ASSOCIATION; INTERNATIONAL
BROTHERHOOD OF POLICE OFFICERS;
MAJOR CITIES CHIEFS ASSOCIATION,
Amici Supporting Appellants,
NRA CIVIL RIGHTS DEFENSE FUND;
BUCKEYE FIREARMS FOUNDATION,
INC.; INTERNATIONAL LAW
ENFORCEMENT EDUCATORS &
TRAINERS ASSOCIATION;
INTERNATIONAL ASSOCIATION OF LAW
ENFORCEMENT FIREARMS 
INSTRUCTORS, INC.; PROFESSOR
CLAYTON CRAMER; INDEPENDENCE
INSTITUTE; COMMONWEALTH OF
VIRGINIA; STATE OF ALABAMA;
STATE OF ARKANSAS; STATE OF
FLORIDA; STATE OF KANSAS;
COMMONWEALTH OF KENTUCKY;
STATE OF MAINE; STATE OF
MICHIGAN; STATE OF NEBRASKA;
STATE OF NEW MEXICO; STATE OF
OKLAHOMA; STATE OF SOUTH
CAROLINA; STATE OF SOUTH
DAKOTA;

WOOLLARD v. GALLAGHER 3
STATE OF WEST VIRGINIA; 
PROFESSORS OF LAW, HISTORY,
POLITICS, AND GOVERNMENT;
CALIFORNIA RIFLE AND PISTOL
ASSOCIATION FOUNDATION; VIRGINIA
SHOOTING SPORTS ASSOCIATION;
CENTER FOR CONSTITUTIONAL
JURISPRUDENCE; GUN OWNERS
FOUNDATION; GUN OWNERS OF
AMERICA, INCORPORATED; VIRGINIA
GUN OWNERS COALITION; VIRGINIA
CITIZENS DEFENSE LEAGUE, INC.;

UNITED STATES JUSTICE
FOUNDATION; CONSERVATIVE LEGAL
DEFENSE AND EDUCATION FUND; THE
ASSOCIATED GUN CLUBS OF
BALTIMORE, INC.; THE MONUMENTAL
RIFLE & PISTOL CLUB; THE ILLINOIS
STATE RIFLE ASSOCIATION; THE
NEW YORK RIFLE AND PISTOL
ASSOCIATION; THE ASSOCIATION OF
NEW JERSEY RIFLE & PISTOL CLUBS,
INC.; THE HAWAII RIFLE
ASSOCIATION; NATIONAL RIFLE
ASSOCIATION OF AMERICA, INC.,
Amici Supporting Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, District Judge.
(1:10-cv-02068-BEL)
Argued: October 24, 2012
Decided: March 21, 2013
4 WOOLLARD v. GALLAGHER
Before KING, DAVIS, and DIAZ, Circuit Judges.
Reversed by published opinion. Judge King wrote the opin-
ion, in which Judge Davis and Judge Diaz joined.
COUNSEL
ARGUED: Matthew John Fader, OFFICE OF THE ATTOR-
NEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellants. Alan Gura, GURA & POSSESSKY, PLLC,
Alexandria, Virginia, for Appellees. ON BRIEF: Douglas F.
Gansler, Attorney General of Maryland, Baltimore, Maryland,
Dan Friedman, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Annapolis,
Maryland, Stephen M. Ruckman, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MARY-
LAND, Baltimore, Maryland, for Appellants. Cary Hansel,
JOSEPH, GREENWALD & LAAKE, Greenbelt, Maryland,
for Appellees. Jason M. St. John, Jennifer A. DeRose, SAUL
EWING LLP, Baltimore, Maryland, for American Public
Health Association and American College of Preventive Med-
icine, Amici Supporting Appellants. Mitchell F. Dolin, Peter
Saharko, Jonathan Cohen, COVINGTON & BURLING, LLP,
Washington, D.C., for Legal Community Against Violence,
Amicus Supporting Appellants. Andrew C. White, Erin Mur-
phy, SILVERMAN, THOMPSON, SLUTKIN & WHITE,
LLC, Baltimore, Maryland; Dwight W. Stone, II, WHITE-
FORD, TAYLOR & PRESTON, LLP, Baltimore, Maryland,
for Legal Historians, Amici Supporting Appellants. Jonathan
E. Lowy, Daniel R. Vice, BRADY CENTER TO PREVENT
GUN VIOLENCE, Washington, D.C.; Jonathan L. Diesen-
haus, S. Chartey Quarcoo, Matthew C. Sullivan, HOGAN
LOVELLS US LLP, Washington, D.C., for Brady Center to
Prevent Gun Violence, Maryland Chiefs of Police Associa-
WOOLLARD v. GALLAGHER 5
tion, International Brotherhood of Police Officers, and Major
Cities Chiefs Association, Amici Supporting Appellants. Mat-
thew D. Fender, Robert W. Loftin, MCGUIREWOODS LLP,
Richmond, Virginia, for NRA Civil Rights Defense Fund,
Amicus Supporting Appellees. L. Kenneth Hanson III, FIRE-
STONE, BREHM, HANSON AND WOLF LLP, Delaware,
Ohio, for Buckeye Firearms Foundation, Inc., Amicus Sup-
porting Appellees. David B. Kopel, INDEPENDENCE
INSTITUTE, Denver, Colorado, for International Law
Enforcement Educators & Trainers Association, International
Association Of Law Enforcement Firearms Instructors, Inc.,
Professor Clayton Cramer, and Independence Institute, Amici
Supporting Appellees. Kenneth T. Cuccinelli, II, Attorney
General of Virginia, E. Duncan Getchell, Jr., Solicitor Gen-
eral of Virginia, Michael H. Brady, Assistant Attorney Gen-
eral, Charles E. James, Jr., Chief Deputy Attorney General,
Wesley G. Russell, Jr., Deputy Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Commonwealth of Virginia; State of Alabama; State of
Arkansas; State of Florida; State of Kansas; Commonwealth
of Kentucky; State of Maine; State of Michigan; State of
Nebraska; State of New Mexico; State of Oklahoma; State of
South Carolina; State of South Dakota; State of West Vir-
ginia, Amici Supporting Appellees. David T. Hardy, Tucson,
Arizona, for Professors of Law, History, Politics, and Govern-
ment, Amici Supporting Appellees. Dan M. Peterson, DAN
M. PETERSON PLLC, Fairfax, Virginia; Stephen P. Hal-
brook, Fairfax, Virginia; John C. Eastman, Anthony T. Caso,
CENTER FOR CONSTITUTIONAL JURISPRUDENCE,
Orange, California; C. D. Michel, MICHEL & ASSO-
CIATES, P.C., Long Beach, California, for California Rifle
and Pistol Association Foundation, Virginia Shooting Sports
Association, and Center for Constitutional Jurisprudence,
Amici Supporting Appellees. Gary G. Kreep, U. S. JUSTICE
FOUNDATION, Ramona, California, for U. S. Justice Foun-
dation; William J. Olson, Herbert W. Titus, John S. Miles,
Jeremiah L. Morgan, Robert J. Olson, WILLIAM J. OLSON,
6 WOOLLARD v. GALLAGHER
P.C., Vienna, Virginia, for Gun Owners Foundation, Gun
Owners of America, Incorporated, Virginia Gun Owners
Coalition, Virginia Citizens Defense League, Inc., United
States Justice Foundation, and Conservative Legal Defense
and Education Fund, Amici Supporting Appellees. Brian Stu-
art Koukoutchos, Mandeville, Louisiana, for The Associated
Gun Clubs of Baltimore, Inc., The Monumental Rifle & Pistol
Club, The Illinois State Rifle Association, The New York
Rifle and Pistol Association, The Association of New Jersey
Rifle & Pistol Clubs, Inc., and The Hawaii Rifle Association,
Amici Supporting Appellees. Charles J. Cooper, David H.
Thompson, Peter A. Patterson, COOPER AND KIRK, PLLC,
Washington, D.C., for National Rifle Association of America
Inc., Amicus Supporting Appellees.
OPINION
KING, Circuit Judge:
The district court permanently enjoined enforcement of
section 5-306(a)(5)(ii) of the Public Safety Article of the
Maryland Code, to the extent that it conditions eligibility for
a permit to carry, wear, or transport a handgun in public on
having "good and substantial reason" to do so. Necessary to
the entry of the court’s injunction was its trailblazing pro-
nouncement that the Second Amendment right to keep and
bear arms for the purpose of self-defense extends outside the
home, as well as its determination that such right is imper-
missibly burdened by Maryland’s good-and-substantial-
reason requirement. See Woollard v. Sheridan, 863 F. Supp.
2d 462 (D. Md. 2012). Because we disagree with the court’s
conclusion that the good-and-substantial-reason requirement
cannot pass constitutional muster, we reverse the judgment
without needlessly demarcating the reach of the Second
Amendment.
WOOLLARD v. GALLAGHER 7
I.
A.
Under its permitting scheme, Maryland obliges "[a] person
[to] have a permit issued . . . before the person carries, wears,
or transports a handgun." Md. Code Ann., Pub. Safety § 5-
303. Such permits are not needed, however, by persons in
numerous specified situations, including those who are wear-
ing, carrying, and transporting handguns in their own homes
and businesses or on other real estate that they own or lease.
See Md. Code Ann., Crim. Law § 4-203(b)(6). Maryland’s
statutory permit exceptions also extend to the following:
• Members of law enforcement and the military on
active assignment;
• Persons moving handguns to and from places of
legal purchase and sale, to and from bona fide
repair shops, and between personal residences
and businesses;
• Persons engaged in target shoots and practices,
sport shooting events, hunting and trapping, fire-
arms and hunter safety classes sponsored by the
Department of Natural Resources, and dog obedi-
ence training classes and shows;
• Gun collectors participating in public and private
exhibitions;
• Supervisory employees armed with handguns in
the course of their employment and within the
confines of the business establishment, when so
authorized by the establishment’s owner or man-
ager;
8 WOOLLARD v. GALLAGHER
• Boaters equipped with signal pistols and other
visual distress signals approved by the United
States Coast Guard; and
• Persons effecting court-ordered surrenders of
their handguns.
See id. § 4-203(b)(1), (3)-(5), (7)-(9). Where a permit is man-
dated, a permitless person risks criminal penalties by "wear-
[ing], carry[ing], or transport[ing] a handgun, whether
concealed or open, on or about the person" or "in a vehicle."
Id. § 4-203(a)(1)(i)-(ii). Those penalties begin with imprison-
ment for a term of thirty days to three years, or a fine of $250
to $2500, or both. Id. § 4-203(c)(2)(i).
Handgun permits are issued by the Secretary of the Mary-
land State Police or the Secretary’s designee. See Md. Code
Ann., Pub. Safety § 5-301(d)-(e). The Secretary must issue a
permit upon making enumerated findings, including that the
applicant is an adult without a disqualifying criminal record,
alcohol or drug addiction, or propensity for violence. Id. § 5-
306(a)(1)-(5)(i). Pursuant to the good-and-substantial-reason
requirement, permit eligibility also necessitates the Secre-
tary’s finding, following an investigation, that the applicant
has good and substantial reason to wear, carry, or
transport a handgun, such as a finding that the permit
is necessary as a reasonable precaution against
apprehended danger.
Id. § 5-306(a)(5)(ii). The Secretary has assigned permitting
responsibility to the Handgun Permit Unit, which determines,
inter alia, whether the applicant’s reasons for seeking a permit
"are good and substantial," whether "the applicant has any
alternative available to him for protection other than a hand-
gun permit," and whether "the permit is necessary as a reason-
able precaution for the applicant against apprehended
danger." See Md. Code Regs. 29.03.02.04(G), (L), (O).
WOOLLARD v. GALLAGHER 9
The Handgun Permit Unit has identified "four primary cat-
egories" under which an applicant may demonstrate "good
and substantial reason" to obtain a handgun permit:
(1) for business activities, either at the business
owner’s request or on behalf of an employee; (2) for
regulated professions (security guard, private detec-
tive, armored car driver, and special police officer);
(3) for "assumed risk" professions (e.g., judge,
police officer, public defender, prosecutor, or correc-
tional officer); and (4) for personal protection.
J.A. 57-58.1 Regarding the first three of those categories, "the
‘good and substantial reason’ is usually apparent from the
business activity or profession itself." Id. at 58. As for the
fourth category — personal protection — the Permit Unit
considers whether the applicant needs a handgun permit as a
safeguard against "apprehended danger." Id. at 59-60.
The Handgun Permit Unit is guided by precedent of the
Court of Special Appeals of Maryland, recognizing that
"‘whether there is "apprehended danger" to the applicant’" is
an objective inquiry, and that apprehended danger cannot be
established by, inter alia, a "‘vague threat’" or a general fear
of "liv[ing] in a dangerous society." Scherr v. Handgun Per-
mit Review Bd., 880 A.2d 1137, 1148 (Md. Ct. Spec. App.
2005) (quoting Snowden v. Handgun Permit Review Bd., 413
A.2d 295, 298 (Md. Ct. Spec. App. 1980)). That same prece-
dent, as the Permit Unit interprets it, "caution[s] the Unit
against relying exclusively on apprehended threats." J.A. 60
(explaining that "failure to meet [the apprehended threat] cri-
terion is not dispositive"). So, the Permit Unit examines such
factors as
1
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
10 WOOLLARD v. GALLAGHER
(1) the "nearness" or likelihood of a threat or pre-
sumed threat; (2) whether the threat can be verified;
(3) whether the threat is particular to the applicant,
as opposed to the average citizen; (4) if the threat
can be presumed to exist, what is the basis for the
presumption; and (5) the length of time since the ini-
tial threat occurred.
Id. The Permit Unit treats those factors as nonexhaustive,
however, and "takes the applicant’s entire situation into
account when considering whether a ‘good and substantial
reason’ exists." Id.An initial handgun permit "expires on the last day of the
holder’s birth month following 2 years after the date the per-
mit is issued," and "may be renewed for successive periods of
3 years each if, at the time of an application for renewal, the
applicant possesses the qualifications for the issuance of a
permit." Md. Code Ann., Pub. Safety § 5-309(a)-(b). An
applicant denied a permit may request informal review by the
Secretary or immediately appeal to the Handgun Permit
Review Board appointed by the Governor. Id. §§ 5-301(b), 5-
302(b), 5-311, 5-312. In the event the appeal is denied by the
Permit Review Board, an applicant may seek further review
in the Maryland state courts. Id. § 5-312(e).
B.
On July 29, 2010, Raymond Woollard and the Second
Amendment Foundation, Inc. (together, the "Appellees"), ini-
tiated this action in the District of Maryland pursuant to 42
U.S.C. § 1983, asserting, inter alia, that Maryland’s good-and-
substantial-reason requirement for obtaining a handgun permit
contravenes the Second Amendment. The Appellees’ Com-
plaint, as well as their subsequent Amended Complaint of
January 19, 2011, named the Secretary as a defendant,
WOOLLARD v. GALLAGHER 11
together with three members of the Handgun Permit Review
Board (collectively, the "State").2
Adjudicating the parties’ cross-motions for summary judg-
ment, the district court explained that this action was
prompted by the State’s denial in 2009 of Appellee Wool-
lard’s request for a second renewal of a handgun permit origi-
nally granted in 2003 and renewed in 2006. See Woollard,
863 F. Supp. 2d at 465-66. Woollard, who resides on a farm
in a remote part of Baltimore County, had obtained the permit
after a harrowing home invasion:
On Christmas Eve, 2002, Woollard was at home
with his wife, children, and grandchildren when an
intruder shattered a window and broke into the
house. The intruder was Kris Lee Abbott, Wool-
lard’s son-in-law. Abbott, who was high on drugs
and intent on driving into Baltimore city to buy
more, was looking for his wife’s car keys. Woollard
grabbed a shotgun and trained it on Abbott, but
Abbott wrested the shotgun away. Woollard’s son
restored order by pointing a second gun at Abbott.
Woollard’s wife called the police, who took two-
and-a-half hours to arrive.
Id. at 465. Abbott, the son-in-law, received a sentence of pro-
bation for the Christmas Eve 2002 incident, but was subse-
quently incarcerated for probation violations. Id. Woollard’s
2006 permit renewal came shortly after Abbott was released
from prison. Id. In 2009, however, the Secretary (via the
Handgun Permit Unit) and the Handgun Permit Review Board
refused Woollard a second renewal because he failed to sat-
isfy the good-and-substantial-reason requirement. Id. at 465-
66.
2
The then-Secretary and Superintendent of the Maryland State Police,
Terrence Sheridan, has since been replaced by Marcus L. Brown. The
defendant members of the Handgun Permit Review Board are Denis Gal-
lagher, Seymour Goldstein, and Charles M. Thomas, Jr.
12 WOOLLARD v. GALLAGHER
The Handgun Permit Review Board’s decision of Novem-
ber 12, 2009, reflected that Woollard proffered solely the
Christmas Eve 2002 incident in support of his request for a
second renewal — i.e., as evidence that such a renewal was
necessary as a reasonable precaution against apprehended
danger — though he acknowledged that he had "not had any
contact with his son-in-law [in the seven years since the 2002
incident]." J.A. 15. The decision also observed that, despite
being advised that such proof was required in the circum-
stances of his renewal application, Woollard did not "submit
documented threats or incidents that had occurred in the last
three years," nor did he provide "documentation to verify
threats occurring beyond his residence, where he can already
legally carry a handgun." Id. Accordingly, the Permit Review
Board concluded that Woollard had "not demonstrated a good
and substantial reason to wear, carry, or transport a handgun
as a reasonable precaution against apprehended danger," and
upheld the Permit Unit’s denial of a second permit renewal.
Id. at 16. Instead of employing the state court appeal process
provided by Maryland law, Woollard elected to join with
Appellee Second Amendment Foundation in this federal
action, challenging the constitutionality of the good-and-
substantial-reason requirement and asserting jurisdiction
under 28 U.S.C. §§ 1331 and 1343.3
3
Before it disposed of the parties’ cross-motions for summary judgment,
the district court denied the State’s motion to dismiss the Second Amend-
ment Foundation for lack of standing and to dismiss the Appellees’ consti-
tutional claims under the abstention doctrine articulated in Younger v.
Harris, 401 U.S. 37 (1971), and its progeny. See Woollard v. Sheridan,
No. 1:10-cv-02068, slip op. at 1 n.1 (D. Md. Dec. 29, 2010), ECF No. 16
(explaining that, because Woollard had standing to bring a facial challenge
and only injunctive and declaratory relief was sought, there was no need
to "‘consider whether [the Second Amendment Foundation also had]
standing to maintain the suit’" (quoting Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264 n.9 (1977))); id. at 9 (summa-
rizing that "there is no ongoing state proceeding that warrants abstention
under the Younger doctrine"). On appeal, the State does not contest, and
we do not disturb, the court’s rulings on the standing and Younger absten-
tion issues.
WOOLLARD v. GALLAGHER 13
The district court credited the Appellees’ claim that the
good-and-substantial-reason requirement is facially violative
of the Second Amendment, and thus that Woollard, "separate
and apart from any concern he may have regarding Abbott,"
is entitled "to wear and carry a handgun for general self-
defense." See Woollard, 863 F. Supp. 2d at 466. In so ruling,
the district court "br[oke] ground that our superiors have not
tread," proclaiming that the Second Amendment right recog-
nized by the Supreme Court in District of Columbia v. Heller,
554 U.S. 570 (2008) — the right of individuals to possess and
carry firearms in case of confrontation — is a right that
extends beyond the home. See United States v. Masciandaro,
638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., writing for
the Court as to Part III.B) (recognizing that the Supreme
Court left open "the question of Heller’s applicability outside
the home environment").
Notably, the district court gave considerable attention to
our Masciandaro decision. There, Masciandaro challenged his
conviction of carrying or possessing a loaded handgun in a
motor vehicle within a national park area, in contravention of
since-superseded 36 C.F.R. § 2.4(b), on the ground that the
Second Amendment, as construed in Heller, "guaranteed to
him the right to possess and carry weapons in case of confron-
tation and thus protected him from prosecution under § 2.4(b)
for exercising that right in a national park area." Mascian-
daro, 638 F.3d at 465. Judge Niemeyer, writing only for him-
self, posited that "there is a plausible reading of Heller that
the Second Amendment provides [a right to possess a loaded
handgun for self-defense outside the home], at least in some
form." Id. at 467 (Niemeyer, J., writing separately on this Part
III.B). Judge Wilkinson wrote for the majority of the three-
judge panel, however, that it was "unnecessary to explore in
[Masciandaro’s] case the question of whether and to what
extent the Second Amendment right recognized in Heller
applies outside the home" — rendering it the prudent and
respectful course "to await direction from the [Supreme]
Court itself." Id. at 474, 475 (Wilkinson, J., writing for the
14 WOOLLARD v. GALLAGHER
Court as to Part III.B). That was so because the panel mem-
bers unanimously agreed, by Judge Niemeyer’s opinion for
the Court, that even assuming the Heller right extended
beyond the home, § 2.4(b) "pass[ed] constitutional muster
under the [applicable] standard": intermediate scrutiny. Id. at
473.
In the present case, although the district court acknowl-
edged "Judge Wilkinson’s admonition that one should venture
into the unmapped reaches of Second Amendment jurispru-
dence ‘only upon necessity and only then by small degree,’"
the court deemed itself obliged "to determine whether Mary-
land’s broad restriction on handgun possession outside the
home burdens any Second Amendment right at all." Wool-
lard, 863 F. Supp. 2d at 469 (quoting Masciandaro, 638 F.3d
at 475 (Wilkinson, J., writing for the Court as to Part III.B)).
Guided by Judge Niemeyer’s separate opinion in Mascian-
daro, as well as so-called "signposts" left by Heller and other
recent precedent, the district court concluded that the individ-
ual right to possess and carry weapons for self-defense is not
limited to the home. See id. at 469-71. Purporting to apply
intermediate scrutiny, the court then recognized that the good-
and-substantial-reason requirement is undergirded by a sub-
stantial governmental interest in protecting public safety and
preventing crime, but determined that "[t]he Maryland stat-
ute’s failure lies in the overly broad means by which it seeks
to advance this undoubtedly legitimate end." Id. at 474; see
also id. at 476 ("find[ing] that Maryland’s requirement of a
‘good and substantial reason’ for issuance of a handgun per-
mit is insufficiently tailored to the State’s interest in public
safety and crime prevention," and "impermissibly infringes
the right to keep and bear arms").4
4
In its opinion, the district court did not embrace every theory advanced
by the Appellees in their attack on Maryland’s good-and-substantial-
reason requirement. The court rejected the Appellees’ contention that the
good-and-substantial-reason requirement amounts to an unconstitutional
prior restraint on the exercise of Second Amendment rights. See Woollard,
WOOLLARD v. GALLAGHER 15
The district court thus awarded summary judgment to the
Appellees, see Woollard v. Sheridan, No. 1:10-cv-02068 (D.
Md. Mar. 2, 2012), ECF No. 53, and permanently enjoined
enforcement of the good-and-substantial-reason requirement,
see Woollard v. Brown, No. 1:10-cv-02068 (D. Md. Mar. 30,
2012), ECF No. 63. After the State noted this appeal, the dis-
trict court dissolved a preliminary stay of its judgment and
denied the State’s request for a stay pending appeal. See
Woollard v. Brown, No. 1:10-cv-02068 (D. Md. July 23,
2012), ECF No. 72. Nevertheless, on August 1, 2012, we
entered our own stay pending appeal and expedited the appel-
late proceedings, over which we possess jurisdiction pursuant
to 28 U.S.C. § 1291.
II.
We review de novo a district court’s award of summary
judgment, viewing the facts and inferences reasonably drawn
therefrom in the light most favorable to the nonmoving party.
863 F. Supp. 2d at 472 (expressing doubt that First Amendment prior
restraint analysis applies to Second Amendment claim, and, in any event,
"reject[ing] Woollard’s assertion that Maryland’s permitting scheme vests
officials with unbridled discretion as regards its application"). Addition-
ally, the court would not allow the Appellees to rely on the Equal Protec-
tion Clause of the Fourteenth Amendment as a separate means of attack
on the good-and-substantial-reason requirement. In that regard, the court
reasoned that, having awarded the Appellees relief under the Second
Amendment, there was "no need to venture further into unmapped terri-
tory by determining whether or not Maryland’s permitting scheme would
also be unconstitutional [under the Fourteenth Amendment]." Id. at 475.
The court further recognized that it need not entertain the Appellees’ equal
protection claim because it was essentially a restatement of their Second
Amendment claim, and had been asserted "to obtain review under a more
stringent standard than [intermediate scrutiny]." Id. at 475-76. As the court
explained, "to accept [the Appellees’ equal protection] theory would be to
erase, in one broad stroke, the careful and sensible distinctions that the
Fourth Circuit and other courts have drawn between core and non-core
Second Amendment protections and to ignore the principle that differing
levels of scrutiny are appropriate to each." Id. at 476.
16 WOOLLARD v. GALLAGHER
See FOP Lodge No. 89 v. Prince George’s Cnty., 608 F.3d
183, 188 (4th Cir. 2010). Summary judgment is appropriate
only if the record shows "that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a).
Consistently with the summary judgment standard, our
review of a decision granting an injunction is de novo where
the contested issue is a question of law. See Bacon v. City of
Richmond, 475 F.3d 633, 638 (4th Cir. 2007). That is,
although "decisions pertaining to injunctive relief normally
are reviewed solely for abuse of discretion in applying the
injunction standard, we review such a decision de novo where
it rests solely on a premise as to the applicable rule of law,
and the facts are established or of no controlling relevance."
Va. Carolina Tools, Inc. v. Int’l Tool Supply, Inc., 984 F.2d
113, 116 (4th Cir. 1993) (citations and internal quotation
marks omitted).
III.
A.
In the familiar words of the Second Amendment, "[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." U.S. Const. amend. II. We now know, in the
wake of the Supreme Court’s decision in District of Columbia
v. Heller, that the Second Amendment guarantees the right of
individuals to keep and bear arms for the purpose of self-
defense. See 554 U.S. 570, 592 (2008). Heller, however, was
principally concerned with the "core protection" of the Sec-
ond Amendment: "the right of law-abiding, responsible citi-
zens to use arms in defense of hearth and home." Id. at 634-
35. The Heller Court concluded that the District of Colum-
bia’s outright ban on the possession of an operable handgun
in the home — proscribing "the most preferred firearm in the
nation to keep and use for protection of one’s home and fam-
WOOLLARD v. GALLAGHER 17
ily" — would fail to pass muster "[u]nder any of the standards
of scrutiny that we have applied to enumerated constitutional
rights." Id. at 628-29 (internal quotation marks omitted). Oth-
erwise, the Court recognized that "the right secured by the
Second Amendment is not unlimited" and listed examples of
"presumptively lawful regulatory measures," but declined to
"clarify the entire field" of Second Amendment jurisprudence.
See id. at 626-27 & n.26, 635.
Two years after issuing its Heller decision, in McDonald v.
City of Chicago, 130 S. Ct. 3020 (2010), the Supreme Court
considered the constitutionality of municipal bans in Chicago
and one of its suburbs on the possession of handguns in the
home. On account of the similarities between those bans and
the District of Columbia prohibition struck down in Heller,
the McDonald defendants were left to "argue that their laws
are constitutional because the Second Amendment has no
application to the States." See McDonald, 130 S. Ct. at 3026.
The Court recognized, however, that "the Second Amendment
right is fully applicable to the States," and reiterated Heller’s
holding "that the Second Amendment protects the right to
possess a handgun in the home for the purpose of self-
defense." Id. at 3026, 3050. Accordingly, "a considerable
degree of uncertainty remains as to the scope of [the Heller]
right beyond the home and the standards for determining
whether and how the right can be burdened by governmental
regulation." United States v. Masciandaro, 638 F.3d 458, 467
(4th Cir. 2011); see also Kachalsky v. County of Westchester,
701 F.3d 81, 89 (2d Cir. 2012) ("What we know from [Heller
and McDonald] is that Second Amendment guarantees are at
their zenith within the home. What we do not know is the
scope of that right beyond the home and the standards for
determining when and how the right can be regulated by a
government." (citation omitted)).
Like several of our sister circuits, we have found that "a
two-part approach to Second Amendment claims seems
appropriate under Heller." See United States v. Chester, 628
18 WOOLLARD v. GALLAGHER
F.3d 673, 680 (4th Cir. 2010) (citing United States v. Marzza-
rella, 614 F.3d 85, 89 (3d Cir. 2010)); see also Nat’l Rifle
Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United
States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller
v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir.
2011); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th
Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01
(10th Cir. 2010). Pursuant to our two-part Chester inquiry,
[t]he first question is whether the challenged law
imposes a burden on conduct falling within the scope
of the Second Amendment’s guarantee. This histori-
cal inquiry seeks to determine whether the conduct
at issue was understood to be within the scope of the
right at the time of ratification. If it was not, then the
challenged law is valid. If the challenged regulation
burdens conduct that was within the scope of the
Second Amendment as historically understood, then
we move to the second step of applying an appropri-
ate form of means-end scrutiny.
628 F.3d at 680 (citations and internal quotation marks omit-
ted).
As we have recognized, however, we are not obliged to
impart a definitive ruling at the first step of the Chester
inquiry. And indeed, we and other courts of appeals have
sometimes deemed it prudent to instead resolve post-Heller
challenges to firearm prohibitions at the second step —
including where the challenge focuses on an outside-the-home
prohibition. Masciandaro is just one example of such an inci-
dence. See also, e.g., Nat’l Rifle Ass’n of Am., 700 F.3d at 204
("Although we are inclined to uphold the challenged federal
laws [banning the sale of firearms to persons under the age of
twenty-one] at step one of our analytical framework, in an
abundance of caution, we proceed to step two. We ultimately
conclude that the challenged federal laws pass constitutional
WOOLLARD v. GALLAGHER 19
muster even if they implicate the Second Amendment guaran-
tee."); United States v. Mahin, 668 F.3d 119, 123-24 (4th Cir.
2012) (declining Mahin’s invitation to "recognize that Second
Amendment protections apply outside the home and extend to
persons subject to domestic protective orders," because we
could assume Mahin "engaged in activity which implicates
the Second Amendment" and yet "uphold [his] conviction").
But cf. Kachalsky, 701 F.3d at 89 ("Although the Supreme
Court’s cases applying the Second Amendment have arisen
only in connection with prohibitions on the possession of fire-
arms in the home, the Court’s analysis suggests[ ] . . . that the
Amendment must have some application in the very different
context of the public possession of firearms. Our analysis pro-
ceeds on this assumption." (footnote omitted)).5
5
As the Appellees would have it, our Court recently confirmed in
United States v. Black that the Second Amendment guarantees the right to
carry firearms in public for self-protection. See No. 11-5084, slip op. at 13
(4th Cir. Feb. 25, 2013). There, we ruled that North Carolina police offi-
cers’ investigatory detention of Black, along with five other men (includ-
ing Troupe), was not justified by Troupe’s lawful display of a firearm in
public. The thrust of Black is that "where a state permits individuals to
openly carry firearms, the exercise of this right, without more, cannot jus-
tify an investigatory detention." Id. Additionally, Black advises — but
only in passing — that "even if the officers were justified in detaining
Troupe for exercising his constitutional right to bear arms, reasonable sus-
picion as to Troupe does not amount to, and is not particularized as to
Black." Id. That dicta is the basis for the Appellees’ contention that Black
proclaims the Second Amendment to have force outside the home. Black,
however, can hardly be said to make such a momentous pronouncement.
Of course, in addition to the district court herein, a handful of courts —
most prominently the Seventh Circuit — have declared outright that the
Heller right extends beyond the home. See Moore v. Madigan, 702 F.3d
933, 942 (7th Cir. 2012) ("The Supreme Court has decided that the
amendment confers a right to bear arms for self-defense, which is as
important outside the home as inside."); see also, e.g., Bateman v. Perdue,
881 F. Supp. 2d 709, 714 (E.D.N.C. 2012) ("Although considerable uncer-
tainty exists regarding the scope of the Second Amendment right to keep
and bear arms, it undoubtedly is not limited to the confines of the home.");
United States v. Weaver, No. 2:09-cr-00222, 2012 WL 727488, at *4 (S.D.
W. Va. Mar. 6, 2012) ("While it is true that the Fourth Circuit has so far
20 WOOLLARD v. GALLAGHER
We hew to a judicious course today, refraining from any
assessment of whether Maryland’s good-and-substantial-
reason requirement for obtaining a handgun permit implicates
Second Amendment protections. That is, we merely assume
that the Heller right exists outside the home and that such
right of Appellee Woollard has been infringed. We are free to
make that assumption because the good-and-substantial-
reason requirement passes constitutional muster under what
we have deemed to be the applicable standard — intermediate
scrutiny.
B.
In Masciandaro, we announced that intermediate scrutiny
applies "to laws that burden [any] right to keep and bear arms
outside of the home." See 638 F.3d at 470-71 (explaining that
"we assume that any law that would burden the ‘fundamen-
tal,’ core right of self-defense in the home by a law-abiding
citizen would be subject to strict scrutiny. But, as we move
outside the home, firearm rights have always been more lim-
ited, because public safety interests often outweigh individual
interests in self-defense"); accord Kachalsky, 701 F.3d at 96
("Because our tradition so clearly indicates a substantial role
for state regulation of the carrying of firearms in public, we
stopped short of expressly recognizing a Second Amendment right to keep
and bear arms outside the home, this Court has no such hesitation." (foot-
note omitted)).
Other courts have ruled to the contrary, concluding that the Heller right
is confined to the home. Notably, Maryland’s highest court falls within the
latter category. See Williams v. State, 10 A.3d 1167, 1169 (Md. 2011)
("hold[ing] that Section 4-203(a)(1)(i) of the Criminal Law Article [of the
Maryland Code], which prohibits wearing, carrying, or transporting a
handgun, without a permit and outside of one’s home, is outside the scope
of the Second Amendment"). On a related note, the Tenth Circuit recently
held "that the carrying of concealed firearms is not protected by the Sec-
ond Amendment." Peterson v. Martinez, No. 11-1149, slip op. at 4 (10th
Cir. Feb. 22, 2013).
WOOLLARD v. GALLAGHER 21
conclude that intermediate scrutiny is appropriate in this
case."). As explained herein, the State has satisfied the inter-
mediate scrutiny standard, in that it has demonstrated that the
good-and-substantial-reason requirement for obtaining a
Maryland handgun permit, as applied to Appellee Woollard,
"is reasonably adapted to a substantial governmental interest."
See Masciandaro, 638 F.3d at 471.
1.
We begin with the issue of whether the governmental inter-
est asserted by the State constitutes a "substantial" one. The
State explains that, by enacting the handgun permitting
scheme, including the good-and-substantial-reason require-
ment, the General Assembly endeavored to serve Maryland’s
concomitant interests in protecting public safety and prevent-
ing crime — particularly violent crime committed with hand-
guns. Such purpose is reflected in codified legislative findings
that
(1) the number of violent crimes committed in the
State has increased alarmingly in recent years;
(2) a high percentage of violent crimes committed in
the State involves the use of handguns;
(3) the result is a substantial increase in the number
of deaths and injuries largely traceable to the carry-
ing of handguns in public places by criminals;
(4) current law has not been effective in curbing the
more frequent use of handguns in committing crime;
and
(5) additional regulations on the wearing, carrying,
and transporting of handguns are necessary to pre-
serve the peace and tranquility of the State and to
protect the rights and liberties of the public.
22 WOOLLARD v. GALLAGHER
Md. Code Ann., Crim. Law § 4-202. The language of those
findings, adopted in 2002, was derived without substantive
change from former article 27, section 36B(a) of the Mary-
land Code, which dates back to 1972.
The General Assembly’s findings are buttressed by more
recent evidence proffered by the State in these proceedings.6
The State’s evidence reflects that, although there has been "a
significant improvement over past violent crime, homicide,
and robbery totals," Maryland had the "eighth highest violent
crime rate," "the third highest homicide rate," and "the second
highest robbery rate of any state in 2009." J.A. 116. Over the
course of that year, "97.4% of all homicides by firearm were
committed with handguns," and handguns were "the weapon
of choice" for robberies and carjackings. Id. at 116-17; see
also id. at 110 (explaining that "[h]andguns are the weapon of
choice for criminal activity in Baltimore because they are
small, relatively lightweight, easy to carry and conceal, easy
to load and fire, deadly at short range, and ideal for surprise
attacks"). Furthermore, handguns have persisted as "the larg-
est threat to the lives of Maryland’s law enforcement offi-
cers." Id. at 117 (recounting that, "of the 158 Maryland law
enforcement officers who have died in the line of duty from
non-vehicular, non-natural causes, 132 — or 83.5% — died
as the result of intentional gunfire, usually from a handgun").
In these circumstances, we can easily appreciate Mary-
land’s impetus to enact measures aimed at protecting public
safety and preventing crime, and we readily conclude that
such objectives are substantial governmental interests. See,
6
In relevant part, the State’s evidence consists of the March 18, 2011
declaration of Frederick H. Bealefeld III, then-Commissioner of the Balti-
more Police Department, see J.A. 108-14; the March 17, 2011 declaration
of Terrence Sheridan, then-Secretary and Superintendent of the Maryland
State Police, see id. at 115-25; and the March 18, 2011 declaration of
James W. Johnson, Chief of the Baltimore County Police Department, see
id. at 126-34. Between them, Bealefeld, Sheridan, and Johnson have
amassed more than 100 years of law enforcement experience in Maryland.
WOOLLARD v. GALLAGHER 23
e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.
357, 376 (1997) (referring to "the significant governmental
interest in public safety"); United States v. Salerno, 481 U.S.
739, 750 (1987) (characterizing "the Government’s general
interest in preventing crime" as "compelling"); United States
v. Chapman, 666 F.3d 220, 227 (4th Cir. 2012) (relying on
Schenck and Salerno in holding "that reducing domestic gun
violence is a substantial governmental objective"); Mascian-
daro, 638 F.3d at 473 (same in concluding that "the govern-
ment has a substantial interest in providing for the safety of
individuals who visit and make use of the national parks").
The district court itself recognized that, "[b]eyond peradven-
ture, public safety and the prevention of crime are substantial,
indeed compelling, government interests." Woollard, 863 F.
Supp. 2d at 473.
For their part, the Appellees concede that "a compelling
government interest in public safety" generally exists, but
they maintain "that no legitimate government interest is at
stake" here, because the State "cannot have an interest in sup-
pressing a fundamental right" — including what the Appel-
lees assert, and we assume, is the Second Amendment right
of law-abiding, responsible citizens to carry handguns in pub-
lic for the purpose of self-defense. See Br. of Appellees 61-
62; see also McDonald, 130 S. Ct. at 3042 (declaring "that the
Framers and ratifiers of the Fourteenth Amendment counted
the right to keep and bear arms among those fundamental
rights necessary to our system of ordered liberty").7 The
7
To be clear, the Appellees contest solely the restriction on the public
carrying of handguns wrought by the good-and-substantial-reason require-
ment, without challenging any "other aspect of Maryland’s regulatory
scheme governing the right to carry handguns." Br. of Appellees 1. They
also acknowledge that, included in the Heller Court’s examples of "pre-
sumptively lawful regulatory measures," are "laws forbidding the carrying
of firearms in sensitive places such as schools and government buildings."
Heller, 554 U.S. at 626-27 & n.26; see Br. of Appellees 35. Accordingly,
the crux of Appellees’ argument is that, once an applicant satisfies the
criteria other than the good-and-substantial-reason requirement, he has a
right to obtain a Maryland handgun permit with all of the privileges that
permit entails, subject to lawful restrictions on carrying firearms in certain
public locations.
24 WOOLLARD v. GALLAGHER
Appellees would have us place the right to arm oneself in
public on equal footing with the right to arm oneself at home,
necessitating that we apply strict scrutiny in our review of the
good-and-substantial-reason requirement.
Unfortunately for the Appellees, their argument is fore-
closed by our precedent. First, in Chester, we rejected the
proposition that we must "apply strict scrutiny whenever a
law impinges upon a [fundamental] right." 628 F.3d at 682
(employing intermediate, rather than strict, scrutiny in Ches-
ter’s Second Amendment challenge to ban on firearm posses-
sion by domestic violence misdemeanants). Then, ruling in
Masciandaro that intermediate scrutiny applies to laws bur-
dening the assumed right to carry firearms in public, we
recognized a "longstanding out-of-the-home/in-the-home dis-
tinction bear[ing] directly on the level of scrutiny applicable."
638 F.3d at 470. The Appellees therefore do not dissuade us
from applying intermediate scrutiny, or from concluding that
Maryland’s interests in protecting public safety and prevent-
ing crime satisfy the "significant governmental interest"
aspect of the intermediate scrutiny standard.8
2.
We thus turn to the question of whether the good-and-
substantial-reason requirement, as applied to Appellee Wool-
lard, is "reasonably adapted" to Maryland’s significant inter-
ests. That is, we must decide if the State has demonstrated
that there is a "reasonable fit" between the good-and-
8
While the Appellees suggest that Masciandaro wrongly decided that
intermediate scrutiny applies to restrictions on the carrying of firearms
outside the home, see Br. of Appellees 59-61, the State contrarily asserts,
for purposes of preserving the issue for further appeal, that a "reasonable
regulation" standard would be more appropriate, see Br. of Appellants 39
n.8. We are bound, however, to follow Masciandaro. See McMellon v.
United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc) (recognizing
"the basic principle that one panel cannot overrule a decision issued by
another panel").
WOOLLARD v. GALLAGHER 25
substantial-reason requirement and the governmental objec-
tives of protecting public safety and preventing crime. See
Chester, 628 F.3d at 683. Importantly, the State must show a
fit that is "‘reasonable, not perfect.’" United States v. Carter,
669 F.3d 411, 417 (4th Cir. 2012) (quoting Marzzarella, 614
F.3d at 98). That test is satisfied if Maryland’s interests are
"substantially served by enforcement of the" good-and-
substantial-reason requirement. See id. There is no necessity
either that the good-and-substantial-reason requirement "be
the least intrusive means of achieving the relevant govern-
ment objective[s], or that there be no burden whatsoever on"
Woollard’s Second Amendment right. See Masciandaro, 638
F.3d at 474.
a.
At the outset of our reasonable fit inquiry, we must con-
sider the precise contours of Maryland’s handgun permitting
scheme. See Chapman, 666 F.3d at 227 (citing United States
v. Staten, 666 F.3d 154, 162 (4th Cir. 2011)). Under that
scheme, even without a permit, Woollard may wear, carry,
and transport handguns not only in his own home and on his
personal and business properties, but also in many public
places. See Md. Code Ann., Crim. Law § 4-203(b). For exam-
ple, Woollard may move handguns to and from bona fide
repair shops and places of legal purchase and sale. Id. § 4-
203(b)(3). Woollard may also wear, carry, and transport hand-
guns if he engages in target shoots and practices, sport shoot-
ing events, hunting and trapping, specified firearms and
hunter safety classes, and gun exhibitions. Id. § 4-203(b)(4)-
(5).
Nevertheless, absent "good and substantial reason" to do
so, Woollard cannot carry handguns in other public places
where a permit is mandated. See Md. Code Ann., Pub. Safety
§ 5-306(a)(5)(ii). Woollard could satisfy the good-and-
substantial-reason requirement by showing that he needs a
permit for business activities, or because he is engaged in a
26 WOOLLARD v. GALLAGHER
regulated profession such as security guard or an assumed-
risk profession such as correctional officer. See J.A. 57-58.
Otherwise, Woollard could prove what he failed to substanti-
ate in 2009: that a "permit is necessary as a reasonable pre-
caution against apprehended danger." Md. Code Ann., Pub.
Safety § 5-306(a)(5)(ii).
The State has clearly demonstrated that the good-and-
substantial-reason requirement advances the objectives of pro-
tecting public safety and preventing crime because it reduces
the number of handguns carried in public. That is, limiting the
public carrying of handguns protects citizens and inhibits
crime by, inter alia:
• Decreasing the availability of handguns to crimi-
nals via theft, see J.A. 111 (explaining that crimi-
nals often target victims "precisely because they
possess handguns," and that Baltimore police
have "frequently investigated homicides and rob-
beries where it appears that one, if not the pri-
mary, goal of the attacker was to deprive the
victim of his handgun or other weapons"); see
also id. at 119-20 ("[C]riminals in Maryland are
constantly looking for ways to arm themselves
with handguns, including by stealing them from
others. It is not uncommon for criminals to obtain
these guns during street altercations.");
• Lessening "the likelihood that basic confronta-
tions between individuals would turn deadly," id.
at 112 ("The presence of a handgun in an alterca-
tion, however petty, greatly increases the likeli-
hood that it will escalate into potentially lethal
violence."); see also id. at 132 ("Incidents such as
bar fights and road rage that now often end with
people upset, but not lethally wounded, take on
deadly implications when handguns are
involved.");
WOOLLARD v. GALLAGHER 27
• Averting the confusion, along with the "poten-
tially tragic consequences" thereof, that can result
from the presence of a third person with a hand-
gun during a confrontation between a police offi-
cer and a criminal suspect, id. at 113 ("In [such]
a confrontation . . . , an additional person bearing
a gun might cause confusion as to which side of
the confrontation the person is on, which could
lead to hesitation by the police officer and the
potential for innocent victims, including the per-
mit holder, innocent bystanders, and police offi-
cers."); see also id. at 128 ("[C]ivilians without
sufficient training to use and maintain control of
their weapons, particularly under tense circum-
stances, pose a danger to officers and other civil-
ians.");
• Curtailing the presence of handguns during rou-
tine police-citizen encounters, id. at 131 ("If the
number of legal handguns on the streets increased
significantly, [police] officers would have no
choice but to take extra precautions before engag-
ing citizens, effectively treating encounters
between police and the community that now are
routine, friendly, and trusting, as high-risk stops,
which demand a much more rigid protocol and a
strategic approach.");
• Reducing the number of "handgun sightings" that
must be investigated, id. ("Increasing the number
of people legally carrying handguns in the streets
will also force [police] officers to spend more
resources responding to reports about handgun
sightings and engaging handgun carriers to
ensure they are doing so lawfully."); and
• Facilitating the identification of those persons
carrying handguns who pose a menace, id. at 113
28 WOOLLARD v. GALLAGHER
("Police officers would also have a harder time
identifying potential security risks if more people
without good and substantial reason to carry a
handgun were able to do so, making it more diffi-
cult to respond when necessary.").
At the same time that it reduces the number of handguns
carried in public, however, the good-and-substantial-reason
requirement ensures that those persons in palpable need of
self-protection can arm themselves in public places where
Maryland’s various permit exceptions do not apply. Conse-
quently, according to the State, the good-and-substantial-
reason requirement "strikes a proper balance between ensur-
ing access to handgun permits for those who need them while
preventing a greater-than-necessary proliferation of handguns
in public places that . . . increases risks to public safety." J.A.
113.9
b.
We are convinced by the State’s evidence that there is a
9
The Appellees take issue with the State’s contention that allowing
fewer handguns on the streets facilitates the identification of those persons
carrying handguns who pose a security risk. The Appellees characterize
the State’s position as being that the good-and-substantial-reason require-
ment’s curtailment of the public carrying of handguns affords the police
"pretext" to detain handgun carriers on the streets. See Br. of Appellees
66. Having so characterized the State’s position, the Appellees then accuse
the State of having "low regard not only for the Second Amendment, but
the Fourth as well, which condemns pretextual searches and seizures." Id.;
see also United States v. Black, No. 11-5084, slip op. at 13 (4th Cir. Feb.
25, 2013) (recognizing that "where a state permits individuals to openly
carry firearms, the exercise of this right, without more, cannot justify an
investigatory detention"), discussed supra note 5. The State simply has not
professed, however, that the police may detain handgun carriers without
regard for their Fourth Amendment rights. Accordingly, there is no genu-
ine dispute as to any material fact that would render it inappropriate to dis-
pose of this matter on the parties’ cross-motions for summary judgment.
See Fed. R. Civ. P. 56(a).
WOOLLARD v. GALLAGHER 29
reasonable fit between the good-and-substantial-reason
requirement and Maryland’s objectives of protecting public
safety and preventing crime. In this regard, we find ourselves
in agreement with much of the Second Circuit’s recent deci-
sion in Kachalsky, rejecting the theory that New York’s hand-
gun licensing scheme violates the Second Amendment by
requiring an applicant to demonstrate "proper cause" — i.e.,
a special need for self-protection — as a prerequisite for a
license to carry a concealed handgun in public. See 701 F.3d
at 83-84. We specifically subscribe to the Kachalsky court’s
analysis that New York’s proper-cause requirement "is ori-
ented to the Second Amendment’s protections," and consti-
tutes "a more moderate approach" to protecting public safety
and preventing crime than a wholesale ban on the public car-
rying of handguns. See id. at 98-99. The same must be said
of Maryland’s comparable good-and-substantial-reason
requirement.10
The good-and-substantial-reason requirement was inappro-
priately condemned by the district court for being a "rationing
system," that "does no more to combat [threats to public
10
The contrast between New York’s (and Maryland’s) "moderate
approach" and a wholesale ban on the public carrying of firearms is under-
scored by the Seventh Circuit’s recent decision in Moore v. Madigan. See
702 F.3d 933, 940, 942 (7th Cir. 2012) (declaring unconstitutional Illi-
nois’s "flat ban on carrying ready-to-use guns outside the home," but stay-
ing the mandate "to allow the Illinois legislature to craft a new gun law
that will impose reasonable limitations"), discussed supra note 5. Writing
for Moore’s panel majority, Judge Posner distinguished the Illinois prohi-
bition from "[t]he [less-restrictive] New York gun law upheld in Kachal-
sky." 702 F.3d at 941. Thereafter, when rehearing en banc was denied on
a 5-4 vote, the four non-prevailing judges joined in a dissent alerting the
Illinois legislature that the panel majority left "a good deal of constitu-
tional room for reasonable public safety measures concerning public car-
rying of firearms," including a measure along the lines of "New York’s
state law requiring ‘proper cause’ for issuance of a permit to carry a gun."
Moore v. Madigan, No. 12-1269(L), slip op. at 6 (7th Cir. Feb. 22, 2013)
(Hamilton, J., dissenting from the denial of rehearing en banc) (citing
Kachalsky).
30 WOOLLARD v. GALLAGHER
safety] than would a law indiscriminately limiting the issu-
ance of a permit to every tenth applicant." See Woollard, 863
F. Supp. 2d at 474. The court pointed out, inter alia, that the
good-and-substantial-reason requirement "will not prevent
those who meet it from having their guns taken from them."
Id. The Appellees have added that, because "[c]rime is largely
random and unpredictable," the State is "plainly incapable of
predicting who might be victimized and thus have more prac-
tical use for firearms." Br. of Appellees 68. Additionally, the
Appellees have suggested that a "shall-issue" regime, increas-
ing the number of law-abiding handgun carriers, would more
effectively protect public safety and prevent crime than does
Maryland’s current permitting scheme. See id. at 63. But we
cannot substitute those views for the considered judgment of
the General Assembly that the good-and-substantial-reason
requirement strikes an appropriate balance between granting
handgun permits to those persons known to be in need of self-
protection and precluding a dangerous proliferation of hand-
guns on the streets of Maryland. See Kachalsky, 701 F.3d at
100 ("New York determined that limiting handgun possession
to persons who have an articulable basis for believing they
will need the weapon for self-defense is in the best interest of
public safety and outweighs the need to have a handgun for
an unexpected confrontation.").
As the Second Circuit recognized in Kachalsky, "[i]t is the
legislature’s job, not ours, to weigh conflicting evidence and
make policy judgments." 701 F.3d at 99. The duty of the
courts is to ensure that the legislature’s policy choice substan-
tially serves a significant governmental interest. That is, the
courts must be satisfied that there is a reasonable fit between
the legislative policy choice and the governmental objective.
See Staten, 666 F.3d at 167 (reiterating that "[i]ntermediate
scrutiny does not require a perfect fit; rather only a reasonable
one").
Thus, the district court was also wrong to denounce the
good-and-substantial-reason requirement’s failure to single-
WOOLLARD v. GALLAGHER 31
handedly safeguard the public from every handgun-related
hazard. The court expressly faulted the good-and-substantial-
reason requirement for not "ensuring that guns are kept out of
the hands of those adjudged most likely to misuse them, such
as criminals[,] the mentally ill," or "anyone whose conduct
indicates that he or she is potentially a danger to the public if
entrusted with a handgun"; for not "ban[ning] handguns from
places where the possibility of mayhem is most acute, such as
schools, churches, government buildings, protest gatherings,
or establishments that serve alcohol"; and for not "attempt[-
ing] to reduce accidents, as would a requirement that all per-
mit applicants complete a safety course." See Woollard, 863
F. Supp. 2d at 474 (internal quotation marks omitted). Aside
from disregarding the existence of other laws with many of
those very aims — including separate provisions of Mary-
land’s handgun permitting scheme — the court improperly
conducted a review more reminiscent of strict scrutiny than
intermediate scrutiny.
The district court’s misapplication of the intermediate scru-
tiny standard is illustrated by its pronouncement that "[a] citi-
zen may not be required to offer a ‘good and substantial
reason’ why he should be permitted to exercise his rights," in
that "[t]he right’s existence is all the reason he needs." Wool-
lard, 863 F. Supp. 2d at 475. There simply is no way to har-
monize the district court’s declaration with our recognition in
Masciandaro that intermediate scrutiny applies to laws bur-
dening any right to carry firearms outside the home, where
"firearm rights have always been more limited, because public
safety interests often outweigh individual interests in self-
defense." See 638 F.3d at 470; see also Kachalsky, 701 F.3d
at 99 n.23 (rejecting the notion that "handgun possession in
public has the ring of an absolute constitutional right," and
deeming it "quite obvious" that "possession of a weapon in
the home has far different implications than carrying a con-
cealed weapon in public"); Br. of Appellants 43 ("The same
factors that make handguns the weapon of choice for defense
of the home also make them the weapon of choice for crimi-
32 WOOLLARD v. GALLAGHER
nals outside the home . . . . Similarly, an individual’s posses-
sion of a handgun in his own home obviously does not present
the same risks to public safety as does his carry of the same
handgun in public.").
In summary, although we assume that Appellee Woollard’s
Second Amendment right is burdened by the good-and-
substantial-reason requirement, we further conclude that such
burden is constitutionally permissible. That is, under the
applicable intermediate scrutiny standard, the State has dem-
onstrated that the good-and-substantial-reason requirement is
reasonably adapted to Maryland’s significant interests in pro-
tecting public safety and preventing crime.
C.
Because we conclude that the good-and-substantial-reason
requirement is constitutional under the Second Amendment as
applied to Appellee Woollard, we also must reject the Appel-
lees’ facial challenge. See Masciandaro, 638 F.3d at 474. As
the Supreme Court has explained, "a person to whom a statute
may constitutionally be applied will not be heard to challenge
that statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973);
see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) ("It
is neither our obligation nor within our traditional institutional
role to resolve questions of constitutionality with respect to
each potential situation that might develop.").11
11
Finally, as did the district court, we reject the Appellees’ contentions
that the good-and-substantial-reason requirement amounts to an unconsti-
tutional prior restraint on the exercise of Second Amendment rights, and
that such requirement contravenes the Equal Protection Clause of the
Fourteenth Amendment. See Woollard, 863 F. Supp. 2d at 472, 475-76,
discussed supra note 4. Like the Second Circuit — echoing the district
court’s discussion of the prior restraint theory herein — "[w]e are hesitant
to import substantive First Amendment principles wholesale into Second
WOOLLARD v. GALLAGHER 33
IV.
Pursuant to the foregoing, we reverse the judgment of the
district court.
REVERSED
Amendment jurisprudence." See Kachalsky, 701 F.3d at 91-92 (emphasis
omitted) (citing Woollard, 863 F. Supp. 2d at 472). We also conclude that
the Appellees’ prior restraint theory would fail in that it is premised on an
uncorroborated assertion that the good-and-substantial-reason requirement
vests the State "with virtually unbridled and absolute power to deny per-
mits." Br. of Appellees 58 (internal quotation marks omitted); cf. Kachal-
sky, 701 F.3d at 92 ("Plaintiffs’ complaint is not that the proper cause
requirement is standardless; rather, they simply do not like the standard —
that licenses are limited to those with a special need for self-protection."
(emphasis omitted)). As for the Appellees’ equal protection claim, they
now have essentially acknowledged that it is co-extensive with their Sec-
ond Amendment claim. See Br. of Appellees 58 & n.14.