Williams v. State, 01999, September Term, 2008.

• Court: Court of Special Appeals of Maryland
• Citation: 188 Md. App. 691,982 A.2d 1168
• Docket Number: No. 01999, September Term, 2008.,01999, September Term, 2008.
• Parties: Charles F. WILLIAMS, Jr. v. STATE of Maryland.
• Decision Date: 30 October 2009

982 A.2d 1168 188 Md. App. 691 Charles F. WILLIAMS, Jr.
v.
STATE of Maryland. No. 01999, September Term, 2008. Court of Special Appeals of Maryland. October 30, 2009.

James B. Hopewell, Riverdale, for Appellant.

Jeremy M. McCoy (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

[982 A.2d 1169]

Panel: WRIGHT, MATRICCIANI, RODOWSKY, LAWRENCE F. (Retired, Specially Assigned), JJ.

MATRICCIANI, J.

Appellant Charles F. Williams, Jr. appeals the judgment of the Circuit Court for Prince George's County convicting him of unlawful possession of a handgun. On October 6, 2008, the court sentenced Williams to three years of incarceration, with all but one year suspended, for violating Md.Code (2002), § 4-203(a)(1)(i) of the Criminal Law Article ("CL"). Appellant presented four issues for our consideration, which we have consolidated into three issues and rephrased as such:

I. Whether the circuit court erred in ruling that CL § 4-203 does not infringe appellant's right to keep and bear arms under the Constitution of the United States.

II. Whether the police officer violated appellant's "right to instrastate [sic] travel" by stopping and interrogating appellant without reasonable cause.

III. Whether the circuit court erred when it failed to grant appellant's motion to suppress evidence.

We affirm the circuit court's ruling and treat each issue in turn.

FACTS

On August 15, 2007, appellant purchased a handgun from a licensed dealer in Forestville, Maryland. Appellant completed the Maryland State Police application and submitted an affidavit to purchase a regulated firearm that same day and received a certificate of completion for both. On September 14, 2007, appellant paid the balance that was due on the handgun.

On October 1, 2007, the appellant went to his girlfriend's house and picked up the gun. While the appellant was en route to his home, an officer with the Prince George's County Police Department observed him rummaging through a backpack near a wooded area. The officer then turned his cruiser around and observed appellant turn and place something in the brush area "as if he was hiding something." The officer approached the appellant and asked what he was doing. Appellant responded that he was going through the backpack to see what was in it. The officer then asked what appellant had hidden in the bushes, to which he replied, "my gun."

The officer recovered a black handgun from the brush area where he had observed appellant. After the officer read the appellant his Miranda¹ rights, the appellant gave a written statement in which he acknowledged possession of the gun and that he had placed the gun in the area where the officer located it.

On August 25, 2008 the circuit court held a motions hearing in which it denied appellant's motion to suppress his oral statements to the officer. The court issued a written memorandum and order in response to appellant's motion to dismiss the indictment based on District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), finding that the exceptions to the ban on the wearing, carrying or transporting of a handgun as set forth by the Maryland legislature in CL § 4-203 complied with the holding in Heller.

DISCUSSION I.

Appellant contends that the circuit court infringed his constitutional right to keep, bear, and carry arms² by ruling that he committed a crime. He argues that both

982 A.2d 1170

CL § 4-203 and the regulations which control applications for handgun permits are unconstitutional based on Heller.

He also argues that Maryland's regulatory scheme for handguns violates constitutional standards by imposing criminal penalties for violations of the statute rather than less oppressive civil penalties. In support of this argument he cites to Title 29 of the Code of Maryland Regulations (COMAR), which regulates security guard certification and imposes administrative penalties for an agency that allows employees to be armed in the performance of their duty without a valid permit. Appellant argues that the discrepancy between the criminal code and COMAR amounts to an equal protection violation.

Appellant was punished pursuant to CL § 4-203, which provides, in pertinent part:

(a) Prohibited.—(1) Except as provided in subsection (b) of this section, a person may not:

(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person [...]

* * *

(b) Exceptions.—This section does not prohibit [...]

* * *

(2) the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under Article 27, § 36E[³] of the Code [...]

* * *

(6) the wearing, carrying, or transporting of a handgun by a person on real estate that the person owns or leases or where the person resides or within the confines of a business establishment that the person owns or leases [...]

* * *

(c) Penalty.—

(1) A person who violates this section is guilty of a misdemeanor and on conviction is subject to the penalties provided in this subsection.

(2) If the person has not previously been convicted under this section, § 4-204 of this subtitle, or § 4-101 or § 4-102 of this title:

(i) except as provided in item (ii) of this paragraph, the person is subject to imprisonment for not less than 30 days and not exceeding 3 years or a fine of not less than $250 and not exceeding $2,500 or both [.]

In determining the constitutionality of a statute, "the basic rule is that there is a presumption that the statute is valid." Galloway v. State, 365 Md. 599, 611, 781 A.2d 851 (2001). We are reluctant to find a statute unconstitutional if, "by any construction ... it can be sustained." Beauchamp v. Somerset County, 256 Md. 541, 547, 261 A.2d 461 (1970). If we determine that the statute is vague, and thus offends due process, or over broad, by "sweep[ing] within the ambit of constitutionally protected expressive or associational rights", then we will find the statute unconstitutional. Galloway, 365 Md. at 612, 781 A.2d 851. The party challenging the statute's constitutionality bears the burden of establishing its unconstitutionality. Beauchamp, 256 Md. at 547, 261 A.2d 461. Appellant fails to shoulder this burden here.

To begin, we note that there is no Maryland corollary of the federal constitutional right codified in the Second Amendment.⁴

982 A.2d 1171

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, 407 A.2d 763 (1979); see also Scherr v. Handgun Permit Review Bd., 163 Md.App. 417, 443, 880 A.2d 1137 (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, 23 L.Ed. 588 (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, 6 S.Ct. 580, 29 L.Ed. 615 (1886), and Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (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...