Argued: October 25, 2016
from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
Gura, GURA & POSSESSKY, PLLC, Alexandria, Virginia, for
Holdsworth Bowen, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Pikesville, Maryland, for Appellees.
Hansel, HANSEL LAW, P.C., Baltimore, Maryland, for Appellant.
E. Frosh, Attorney General of Maryland, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Michael Connelly, Ramona, California, for Amicus United
States Justice Foundation; Robert J. Olson, Herbert W. Titus,
William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM
J. OLSON, P.C., Vienna, Virginia, for Amici Conservative
Legal Defense and Education Fund, Downsize DC Foundation,
DownsizeDC.org, Gun Owners Foundation, Gun Owners of America,
Inc., Institute on the Constitution, and The Heller
SHEDD, DUNCAN, and FLOYD, Circuit Judges.
James Hamilton is a convicted felon in Virginia who has had
his civil rights restored by the Governor of Virginia and his
firearms rights restored by the Virginia courts. Now, as a
resident of Maryland, he desires to obtain a permit for a
handgun and possess a long gun, both of which he is unable to
do in Maryland absent a full pardon from the Governor of
Virginia. He brought this as-applied Second Amendment
challenge to Maryland's firearms regulatory scheme,
arguing that the scheme is unconstitutional as applied to
him. The district court dismissed his complaint for failure
to state a claim, and Hamilton appealed. For the reasons
discussed below, we affirm.
pleaded guilty on November 6, 2006, in Virginia to three
felonies: (1) credit card fraud, in violation of Va. Code
§ 18.2-195; (2) credit card theft, in violation of Va.
Code § 18.2-192; and (3) credit card forgery, in
violation of Va. Code § 18.2-193(1)(a). He was sentenced
to four years imprisonment, which was suspended, a term of
four years of probation, and ordered to pay $1, 247.90 in
restitution and an additional $1, 090.00 in court
November 20, 2013, the Governor of Virginia restored
Hamilton's rights to vote, hold public office, sit on a
jury, and serve as a notary, but specifically did not restore
his "right to ship, transport, possess or receive
firearms, which must be restored in accordance with Va. Code.
§ 18.2-308.2." J.A. 22; see also J.A. 7,
¶ 10. His firearms rights were restored pursuant to that
code section on April 22, 2014, by the Circuit Court for
Spotsylvania County, Virginia. Hamilton subsequently was
registered as an Armed Security Officer with the Virginia
Department of Criminal Justice Services, and is certified in
the use of handguns and shotguns. Additionally, as of the
filing of his reply brief before this Court, he is employed
through a contractor as a Protective Security Officer with
the Department of Homeland Security (DHS). See
Appellant's Reply Br. at 1. Hamilton is married, has
three children, serves as the head coach of a junior league
wrestling team, and has no history of violent behavior.
desires to purchase and possess both a handgun and a long gun
for self-defense within his own home, but asserts that he is
unable to do so due to Maryland's regulatory scheme for
firearm ownership. Maryland prohibits possession of a
handgun, rifle, or shotgun by anyone who has been
"convicted of a disqualifying crime." See
Md. Code Ann., Pub. Safety §§ 5-133(b)(1),
5-205(b)(1). A "disqualifying crime" includes both
a violation classified as a felony in Maryland and a
violation classified as a misdemeanor in Maryland that is
punishable by more than two years imprisonment. Id.
in order to possess a handgun, a person must first apply for
and obtain a permit from the Maryland State Police (MSP).
See id. §§ 5-101(r)(1), 5-117, 5-118,
5-303. As part of that application, the applicant must state
under penalty of perjury that the applicant "has never
been convicted of a disqualifying crime, " and must
certify that the applicant is not otherwise prohibited from
possessing a handgun under § 5-133(b). Id.
§§ 5-118(b)(3), 5-306(a)(2)(i). Possession of a
handgun without a permit is a misdemeanor punishable by up to
five years imprisonment, id. § 5-144, and
possession of a rifle or shotgun in violation of the
regulatory scheme is a misdemeanor punishable by up to three
years imprisonment, id. § 5-205(d).
crimes for which Hamilton was convicted in Virginia each have
a Maryland equivalent: (1) receiving property by stolen,
counterfeit, or misrepresented credit card, in violation of
Md. Code Ann., Crim. Law § 8-209, a felony under the
facts of Hamilton's conviction; (2) credit card theft, in
violation of Md. Code Ann., Crim. Law § 8-204, a
misdemeanor subject to eighteen months imprisonment; and (3)
credit card counterfeiting, in violation of Md. Code Ann.,
Crim. Law § 8-205, a felony. Thus, on the basis of at
least two of his Virginia felony convictions, Hamilton has
two disqualifying convictions in Maryland.
wanted to obtain a permit to carry a handgun from the MSP,
and although he did not formally apply for such a permit, he
made inquiries regarding obtaining a permit and was
ultimately informed by an Assistant Attorney General that he
could not possess a firearm in Maryland unless he obtained a
full pardon from the Governor of Virginia. Fearing arrest,
prosecution, incarceration, and fines, Hamilton has refrained
from attempting to obtain a handgun, rifle, or shotgun.
suit was brought in July 2015 against Appellees William L.
Pallozzi, Superintendent of the MSP, and Brian E. Frosh,
Attorney General of Maryland (collectively, the
"Maryland Defendants"), both in their official
capacities. Hamilton seeks a declaration that the regulatory
scheme is unconstitutional under the Second Amendment as
applied to him, and further seeks a permanent injunction
against the Maryland Defendants and their employees from
enforcing the regulatory scheme against him as it pertains to
his Virginia convictions. The Maryland Defendants moved to
dismiss the complaint for failure to state a claim, and
Hamilton subsequently moved for summary judgment. In their
opposition to summary judgment, the Maryland Defendants
raised a concern regarding justiciability.
both motions fully briefed, the district court proceeded to
decide the matter on the Maryland Defendants' motion to
dismiss in a published opinion. Hamilton v.
Pallozzi, 165 F.Supp.3d 315 (D. Md. 2016). The district
court first, with a great deal of hesitation, determined that
the case was justiciable. Id. at 323. Then, the
district court found that under our two-step approach to
Second Amendment challenges as announced in United States
v. Chester, 628 F.3d 673 (4th Cir. 2010), Hamilton
failed to state a claim at the first step. Specifically, the
[B]ecause of [Hamilton]'s criminal past, the State of
Maryland has acted well within its discretion in choosing to
withhold firearms privileges from him-at least until he
obtains a full pardon under Virginia law. [Hamilton] has not
shown that his factual circumstances "remove his
challenge from the realm of ordinary challenges."
Accordingly, he has not carried-and cannot carry-his
burden at Chester prong one, and the Court will
dismiss his § 1983 claim.
Hamilton, 165 F.Supp.3d at 328 (quoting United
States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012)). The
court dismissed the complaint with prejudice, and Hamilton
timely noticed this appeal.
the Maryland Defendants did not notice a cross-appeal of the
district court's determination that the case was
justiciable, the issue was briefed by the parties.
See Appellant's Br. at 15-24; Appellee's Br.
at 5-11. Justiciability is an issue of subject-matter
jurisdiction, and we have an independent obligation to
evaluate our ability to hear a case before reaching the
merits of an appeal. Brickwood Contractors, Inc. v.
Datanet Eng'g, Inc., 369 F.3d 385, 389 (4th Cir.
2004) (en banc). Once satisfied that we have jurisdiction, we
will reach the merits of the appeal.
district court decided this case on the basis of the Maryland
Defendants' motion to dismiss rather than Hamilton's
competing motion for summary judgment. Hamilton, 165
F.Supp.3d at 318 n.1. As to justiciability, we review the
factual findings for clear error and the legal conclusions de
novo. Al Shimari v. CACI Premier Tech.,
Inc., 840 F.3d 147, 154 (4th Cir. 2016). As to the
merits of Hamilton's claim, we review de novo a dismissal
for failure to state a claim, assume as true all factual
allegations in Hamilton's complaint, and draw all
reasonable inferences in Hamilton's favor. Kloth v.
Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006).
However, "we need not accept the legal conclusions drawn
from the facts, and we need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments."
Id. (internal quotations and citations omitted).
challenges two different statutes that have two different
requirements for justiciability. The first challenge, as to
the permitting scheme for a handgun, is one in which he
argues the injury has already occurred. The second challenge,
as to the criminalization of possession of a long gun, is a
a party . . . brings a preenforcement challenge to a statute
or regulation, it must  allege 'an intention to engage
in a course of conduct arguably affected with constitutional
interest, ' and  there must exist 'a credible
threat of persecution' under the statute or
regulation." Va. Soc'y for Human Life, Inc. v.
Fed. Election Comm'n, 263 F.3d 379, 386 (4th Cir.
2001) (quoting Babbitt v. United Farm Workers Nat'l
Union, 442 U.S. 289, 298 (1979)). There is no dispute
that Hamilton meets both requirements for the ...