Maryland just filed its brief in opposition in Gardner v. Maryland, No. 25-5961, urging the Supreme Court to pass. I want to explain why the Court should do the opposite.
The Facts Are Almost Too Good
Good facts make good law. Bad facts make bad law — and cases like United States v. Rahimi, 602 U.S. 680 (2024) illustrate exactly what I mean. Gardner is the polar opposite.
Eva Marie Gardner is a Virginia resident with a long-standing Virginia concealed carry permit. On January 16, 2021, she was driving northbound through Maryland on I-270 — traveling from her home in Virginia to visit her mother in Pennsylvania. Another driver, Khalid Binafif, struck her vehicle twice and then approached her car on foot in a threatening manner. She displayed her holstered handgun. Binafif stopped and retreated. Gardner called 911 herself, disclosed the firearm, explained the accident and the threat, and waited for police.
A responding officer confirmed she had a valid Virginia permit — and no Maryland permit. Under Maryland Criminal Law § 4-203, that was enough for an arrest and a conviction by a Montgomery County jury in early 2022. She appealed through the Maryland courts and was denied at every level, eventually filing her SCOTUS cert petition pro se.
Here is what tells me the Court is paying attention: SCOTUS sua sponte ordered Maryland to respond — that signals at least one Justice has flagged this for a closer look.
Bruen’s Framework Puts the Burden Squarely on Maryland
Under the framework established in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), the analysis begins with the plain text. Gardner was carrying a handgun in public. The Second Amendment’s text — “the right of the people to keep and bear Arms” — plainly covers that conduct. “Keep” means the right to possess. “Bear” means the right to carry in public for self-defense. The text is implicated.
Once the text is implicated, the burden shifts to the government. Maryland must show a historical tradition of firearms regulation that would justify requiring a nonresident interstate traveler — already licensed in her home state — to obtain a separate Maryland permit before transiting through. My read is that burden is essentially impossible to meet.
There is no founding-era tradition of states blocking travelers from carrying firearms through their jurisdictions. The historical record actually runs the other way: travelers were routinely exempted from local firearms regulations going back to the colonial period. This is not merely silence in the historical record favoring Gardner — it is affirmative evidence.
Maryland’s Licensing Law Was Already Struck Down by Bruen
Here is a wrinkle I have not seen anyone else connect. Gardner was convicted in early 2022 — roughly five months before Bruen was decided on June 23, 2022. The Maryland carry licensing regime she supposedly should have used was a discretionary “may-issue” scheme. Bruen expressly named Maryland as one of the states whose licensing system was unconstitutional — alongside New York, California, New Jersey, Massachusetts, and Hawaii.
Maryland is therefore arguing Gardner should have obtained a permit under a licensing law the Supreme Court subsequently declared unconstitutional. Even assuming Maryland can require out-of-state travelers to get a Maryland permit, the specific law she would have had to use was invalid. That is a serious Second Amendment problem Maryland’s brief does not answer.
NYSRPA v. City of New York Is the Closest Precedent
The broader question of a Second Amendment right to travel with a firearm has a direct precursor in New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S. 336 (2020). SCOTUS granted cert on whether New York City’s premises-license regime — barring permit holders from transporting their guns outside the city — violated the Second Amendment and the right to travel. New York City mooted the case by amending its law after cert was granted, and Justice Alito, joined by Justices Thomas and Gorsuch, dissented from the mootness ruling, arguing the Court should have reached the merits.
Gardner presents the same underlying question in starker form. A Virginia woman driving from Virginia to Pennsylvania was not sightseeing in Maryland — she was passing through. The Court already showed interest in this question five years ago, and Gardner gives it a second chance to answer it.
Maryland’s Brief Does Not Help Its Case
Maryland’s first argument is that the trial record was not developed on Second Amendment grounds. That is a category error. Second Amendment history is a legislative fact — it speaks to the meaning and tradition of a constitutional provision, not to whether a driver ran a red light. There was no evidentiary trial on Second Amendment history in Heller, McDonald v. City of Chicago, 561 U.S. 742 (2010), Bruen, or Rahimi. There never is. Maryland is inventing a requirement that does not exist.
Maryland also points to pending national concealed carry reciprocity legislation as a reason the Court need not act. The bills have not passed, and even if they did they would do nothing for a woman convicted in 2022. Congress’s Firearm Owners’ Protection Act of 1986, 18 U.S.C. § 926A, already acknowledges that Americans have a right to travel between states with their firearms — though its locked-container requirement means Gardner could not invoke it for her loaded, holstered handgun. The Second Amendment independently protects what FOPA does not reach.
Closing
Every step forward in this litigation is another brick in the wall toward fully restoring our Second Amendment rights nationwide. If the Court takes Gardner, the question — whether the Second Amendment protects a nonresident interstate traveler holding a valid home-state permit — gets the definitive answer it deserves. The facts are among the most sympathetic I have seen: a law-abiding woman, a long-held Virginia permit, a genuine self-defense use, and a criminal conviction for it. That is exactly the kind of case that earns attention at One First Street.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.