Vol. 28 No. 7 – Federal Court Uphold’s Maryland’s “Good Cause” Requirement For CCW Permit


On March 21, 2013, the Fourth Circuit U.S. Court of Appeals, in the case of Woolard; Second Amendment Foundation, Inc., v. Gallagher; et al., held that “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,” was not unconstitutional.

The district court had permanently enjoined the enforcement of the law, holding that “the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, [and] that such right is impermissibly burdened by Maryland’s good-and-substantial-reason requirement. . ”

However, the Court of Appeal concluded that “(b)ecause we disagree with the [district] 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.”

Requirements for Issuing a CCW Permit

Maryland’s statute regulating the carrying of a concealed weapon is very similar to California’s law [Penal Code sections 26150 and 26155].  The Maryland law also contains a number of exceptions to the requirement of a permit, including an exception for members of law enforcement.

“Under its permitting scheme, Maryland obliges “[a] person [to] have a permit issued before the person carries, wears, or transports a handgun.” Such permits are not needed, however, by persons in numerous specified situations, including those who are wearing, carrying, and transporting handguns in their own homes and businesses or on other real estate that they own or lease.”

Unlike California’s law, where permits are issued, primarily by sheriffs and police chiefs, their permits are “issued by the Secretary of the Maryland State Police or the Secretary’s designee. 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.”

“Pursuant to the good-and-substantial reason requirement, permit eligibility also necessitates the Secretary’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.”

“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 handgun permit,” and whether “the permit is necessary as a reasonable precaution for the applicant against apprehended danger.”

“The Handgun Permit Unit has identified “four primary categories” 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 detective, armored car driver, and special police officer); (3) for “assumed risk” professions (e.g., judge, police officer, public defender, prosecutor, or correctional officer); and (4) for personal protection.” “As for the fourth category—personal protection—the Permit Unit considers whether the applicant needs a handgun permit as a safeguard against “apprehended danger.”

“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 “living in a dangerous society.” That same precedent, as the Permit Unit interprets it, “caution[s] the Unit against relying exclusively on apprehended threats.” So, the Permit Unit examines such factors as (1) the “nearness” or likelihood of a threat or presumed 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 initial threat occurred.”

Court of Appeals Legal Analysis

“We now know, in the wake of the U.S. 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. Heller, however, was principally concerned with the “core protection” of the Second Amendment: “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Additionally, “the Supreme 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.”

“Two years after issuing its Heller decision, in McDonald v. City of Chicago, the Supreme Court considered the constitutionality of municipal bans in Chicago and one of its suburbs on the possession of handguns in the home.” The Court “reiterated Heller’s holding “that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” 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.”

The Fourth Circuit stated that “like several of our sister circuits, we have found that “a two-part approach to Second Amendment claims seems appropriate under Heller.”

“The first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical 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 appropriate form of means-end scrutiny.”

The Court of Appeal then stated that it would “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 . . . .”

The Court said it must then “decide if the State has demonstrated that there is a “reasonable fit” between the good-and-substantial-reason requirement and the governmental objectives of protecting public safety and preventing crime. Importantly, the State must show a fit that is ‘reasonable, not perfect.’”

The Court notes that, under Maryland’s permit 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. For example, Woollard may move handguns to and from bona fide repair shops and places of legal purchase and sale. Woollard may also wear, carry, and transport handguns if he engages in target shoots and practices, sport shooting events, hunting and trapping, specified firearms and hunter safety classes, and gun exhibitions.”

Additionally, “the State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public.”

The Court then sets forth numerous examples provided by the state of how the permit requirement protects public safety and, therefore, “according to the State, the good-and-substantial-reason requirement “strikes a proper balance between ensuring 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.” The Court of Appeals concludes by stating that “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.”


As noted above, California law authorizes sheriffs and/or municipal police chiefs to issue permits to carry concealed weapons to those who meet certain standards, which include “good cause” for the issuance of the permit. Chiefs and sheriffs have been challenged on this by proponents of the Second Amendment who argue that requiring the determination of good cause interferes with their “right” to bear arms.

Currently, two California cases are under submission to the Ninth Circuit U.S. Court of Appeals, as a result of two California Sheriffs denying applications for CCW permits.

The cases, Richards; et al., v. Ed Prieto and County of Yolo and Peruta v. County of San Diego involve denials for different reasons but, in each case, the sheriffs articulated why good cause was not found to be present. [See J&M Client Alert Memo, May 23, 2011, Vol. 26, No. 12 – “Another Challenge To California’s Law On Concealed Weapon Permits.”]

The firm of JONES & MAYER, as counsel to the California State Sheriffs’ Association (CSSA), the California Police Chiefs’ Association (CPCA), and the California Peace Officers’ Association (CPOA), filed an amicus brief supporting San Diego Sheriff Bill Gore in thePeruta case.

On December 12, 2012, the Seventh Circuit U.S. Court of Appeals ruled, in Moore et al. v. Madigan,[See J&M Client Alert, December 18, 2012, Vol. 27, No. 23 – “Federal Appellate Court Voids Illinois’ Ban On Concealed Weapons”]. that the total ban on carrying concealed weapons in public, is unconstitutional. The State of Illinois had a law which prohibited virtually anyone from carrying a concealed gun in public, which was ready to use (loaded, immediately accessible, uncased).

Neither the Richards case, nor the Peruta case, involve total bans on CCW permits, but merely require good cause be shown to secure such a permit. That is the same in the Maryland case, as well.

California law places the responsibility on the applicant to show, and prove, that good cause exists for the issuance of a CCW permit. However, the law also requires the issuing agency to articulate why it does not issue a permit and, if it is based on a finding that no good cause exists, the reason for that determination.

Furthermore, each agency is required by law to have a published policy regarding the issuance of CCW permits.

California Penal Code 26202 states, in part, that “if the licensing authority determines that good cause does not exist, the notice shall inform the applicant that the request for a license has been denied and shall state the reason from the department’s published policy, described in Section 26160, as to why the determination was made.”

Finally, as to municipalities, Penal Code 26155(c) states that “nothing in this chapter shall preclude the chief or other head of a municipal police department of any city from entering an agreement with the sheriff of the county in which the city is located for the sheriff to process all applications for licenses, renewals of licenses, and amendments to licenses, pursuant to this chapter.”

As we always urge, it is important to confer with your agency’s attorney for advice and guidance when addressing a legal issue. If you wish to discuss this case in greater detail, please do not hesitate to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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