Maryland court refuses to incorporate the 2nd Amendment
News story here. The critical parts of the ruling:
"To begin, we note that there is no Maryland corollary of the federal constitutional right codified in the Second Amendment.*fn4 Furthermore, we have held previously that the Second Amendment is not applicable to the states. See Onderdonk v. Handgun Permit Review Board of Dep't of Public Safety & Correctional Services, 44 Md. App. 132, 135 (1979); see also Scherr v. Handgun Permit Review Bd., 163 Md. App. 417, 443 (2005). This is significant because it means that appellant must hang his musket, so to speak, on Heller's interpretation of the federal constitutional right. Heller filed a lawsuit in U.S. District Court for the District of Columbia seeking to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibited the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibited the use of "functional firearms within the home." Heller, 128 S.Ct. at 2788. The Supreme Court held that the Second Amendment guaranteed the individual right to possess and carry weapons in case of confrontation. Id. at 2797. As a consequence of this interpretation, the Court held that the District's ban on handgun possession in the home violated the Second Amendment, as did its prohibition against rendering any firearm operable for the purpose of immediate self-defense, if it is lawfully within the home. Id. at 2822.
Of more immediate concern for the issue before us, and ultimately fatal to appellant's argument, is the fact that the Heller Court reaffirmed the holding in United States v. Cruikshank, 92 U.S. 542 (1875), that "[t]he [S]econd [A]mendment . . . means no more than that it shall not be infringed by Congress." Id. at 553. While parenthetically noting the weakness of Cruikshank's argument regarding non-incorporation of the right, the Court found that its later decisions in Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894), reaffirmed that the Second Amendment applies only to the federal government. Heller, 128 S.Ct. at 2813. Appellant can cite to only one case subsequent to Heller in which a court has held that the right established in Heller applies against state and local governments. In that decision, Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), reh'g granted, 575 F.3d 890 (9th Cir. 2009), a panel of judges in the Ninth Circuit held that the right to bear arms was a fundamental right warranting substantive due process protection through the Fourteenth Amendment. However, an en banc rehearing was granted for this case in July with the express instruction that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke, 575 F.3d at 890. After rehearing the case on September 24, 2009, the Court issued an order postponing judgment until the Supreme Court's disposition of three similar cases which had certiorari petitions pending.
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Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL § 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State." CL § 4-203(a)(i), id. at (a)(ii). This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. CL § 4-203(b)(6). Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right."