So holds the District of Maryland in Woollard v. Sheridan (D. Md. Mar. 2, 2012):
The Maryland statute’s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end [of public safety]. The requirement that a permit applicant demonstrate “good and substantial reason” to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States’ laws do, limit the carrying of handguns to persons deemed “suitable” by denying a permit to anyone “whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.”
Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate “good reason” beyond a general desire for self-defense….
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment [JB: You mean the 14th Amendment?] surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.
The court second-guesses Maryland’s rationales.
While each possibility presents an unquestionable threat to public safety, the challenged regulation does no more to combat them than would a law indiscriminately limiting the issuance of a permit to every tenth applicant. The solution, then, is not tailored to the problem it is intended to solve. Maryland‘s ―good and substantial reason‖ requirement will not prevent those who meet it from having their guns taken from them, or from accidentally shooting themselves or others, or from suddenly turning to a life of crime. Indeed, issuing permits specifically to those applicants who can demonstrate an increased likelihood that they may need a firearm would seem a strange way to allay Defendants‘ fear that ―when handguns are in the possession of potential victims of crime, their decision to use them in a public setting may actually increase the risk of serious injury or death to themselves or others.‖ Id. at 15. If anything, the Maryland regulation puts firearms in the hands of those most likely to 20 use them in a violent situation by limiting the issuance of permits to ―groups of individuals who are at greater risk than others of being the victims of crime.‖ Id. at 40.
And places the burden on the state:
At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method. The showing, however, is always the Government‘s to make. A citizen may not be required to offer a ―good and substantial reason‖ why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.
Eugene Volokh has a detailed analysis.
Let’s see what Judge Wilkinson has to say about this on appeal. I like how the district court side-stepped Wilkinson’s opinion in Masciandaro.
In considering the case at bar, this Court is mindful of Judge Wilkinson‘s admonition that one should venture into the unmapped reaches of Second Amendment jurisprudence ―only upon necessity and only then by small degree.‖ Id. Today, however, such necessity exists. Woollard has squarely presented the question, and resolution of his case requires an answer. While we may leave for another day the dauntingly nuanced ―litigation over schools, airports, parks, public thoroughfares, and various additional government facilities,‖ see id., the instant suit does require the Court to determine whether Maryland‘s broad restriction on handgun possession outside the home burdens any Second Amendment right at all.
In undertaking this imposing task, the Court finds a ready guide in Judge Niemeyer‘s analysis in Masciandaro. While a majority of the panel found that Judge Niemeyer‘s reasoning was not essential to disposition of the case, it is both sound and persuasive.
Update: And in some more CA4 dancing, a district court in S.D. W.Va. sidestepped judge Wilkinson’s opinion, and relied on Judge Niemeyer’s separate opinion finding that the Second Amendment applies outside the home.
While it is true that the Fourth Circuit has so far stopped short of expressly recognizing a
Second Amendment right to keep and bear arms outside the home,5 this Court has no such hesitation.5
5.In fact, the Fourth Circuit has expressly declined to address the first step in the Chester analysis at least four times. See Carter, 2012 WL 207067, at *4 (summarizing the Fourth Circuit’s deferral in reaching any conclusion about the scope of the Second Amendment’s protection under step one in Chester, 628 F.3d 673, Masciandaro, 638 F.3d 458, and Staten, 666 F.3d 154). Despite those declinations, this Court is in agreement with Judge Niemeyer’s statements in Masciandaro that such constitutional avoidance is inappropriate when, as here, a federal court is directly confronted with the contention that a firearm regulation violated a defendant’s Second Amendment rights. See 638 F.3d at 468 n.* (Niemeyer, J., writing separately as to Part III.B.). . . .
Furthermore, the Court finds entirelypersuasive Judge Niemeyer’s separate opinion as to Part III.B. in Masciandaro, 638 F.3d at 467-68 (Niemeyer, J., writing separately as to Part III.B.). There, Judge Niemeyer makes several observations drawn from the text of the Supreme Court’s opinion in Heller, including those mentioned above. In addition, Judge Niemeyer notes that “the Heller Court’s description of its actual holding also implies that a broader right exists” . . . The Court joins in Judge Niemeyer’s conclusion and holds that the Second Amendment, as historically understood at the time of ratification, was not limited to the home.7
7. The fact that courts may be reluctant to recognize the protection of the Second Amendment outside the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses. [JB: This is a point Judge Sykes made during oral argument in Ezell]
Eugene Volokh has more.