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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
APRIL LOVE,
Plaintiff-Appellant,
v.
ROBERT G. PEPERSACK, SR.;
No. 94-1582
MERRILL A. MESSICK, JR.; ERNEST
ELDON PLETCHER; ELMER HUNT
TIPPETT, JR.; STATE OF MARYLAND,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CA-93-2609-PJM)
Argued: December 7, 1994
Decided: February 3, 1995
Before HALL and LUTTIG, Circuit Judges, and CURRIE,
United States District Judge, District of South Carolina,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Hall wrote the opinion of the
Court, in which Judge Currie joined. Judge Luttig wrote a separate
concurring opinion.
_________________________________________________________________
COUNSEL
COUNSEL: Howard J. Fezell, Frederick, Maryland, for Appellant.
Mark Holdsworth Bowen, Assistant Attorney General, Pikesville,
Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney
General of Maryland, Pikesville, Maryland, for Appellees.
_________________________________________________________________
OPINION
HALL, Circuit Judge:
April Love appeals the dismissal of her 42 U.S.C.§ 1983 civil
rights suit against various Maryland state troopers. We affirm.
I.
According to her complaint, in September, 1990, April Love tried
to purchase a handgun at a shop in Prince George's County, Mary-
land. She filled out an application required by state law. All of her
answers to the questions posed were true and correct.
The licensing division of the Maryland state police received the
application on September 18, 1990. It was strapped for time -- Mary-
land law gives the police only seven days to deny the application; if
it does not act, the dealer may legally sell the firearm. 27 Md. Code
Ann. § 442(b) (1992). On September 21, Corporal Ernest Pletcher
reviewed the application and a computer printout from Maryland
police and Federal Bureau of Investigation files. He discovered that
Ms. Love had been arrested on four occasions. In 1976, while work-
ing as a stripper, Ms. Love had been arrested twice for participating
in an obscene show and once for indecent exposure. In 1978, she had
been arrested and charged with two counts of battery and one of
resisting arrest. She was convicted of only one of these crimes -- a
misdemeanor 1 -- though disposition of the charges was not apparent
on the computer printout.
Without further investigation, Pletcher recommended that the
application be denied. Sergeant Robert Pepersack reviewed the file
and made the final decision to deny the application. A letter to Ms.
Love reporting the denial was signed by Lieutenant Merrill Messick.
In separate correspondence, Messick instructed the dealer not to sell
Ms. Love the handgun.
The reason for the denial was the prior arrest record itself, and both
Pletcher and Pepersack later testified that it was standard practice to
deny applications on that basis. The Maryland Code lists several
grounds for denying an application, but a prior arrest is not such a
ground.
Love exhausted state administrative remedies without success, and
then sued in state court. She won. The court ordered the state police
to approve her application. Love then filed this§ 1983 suit -- alleg-
ing violations of substantive due process, a "right to contract," and the
Second Amendment -- against Pletcher, Pepersack, Messick, and the
state police commander, Colonel Elmer Tippett. The defendants
moved to dismiss, and the district court granted the motion.
Love appeals.
II.
We divide due process into "substantive" and"procedural" prongs,
though the latter term is redundant and the first is, strictly speaking,
a conflict in terms. Love asserts only a substantive due process claim.
Substantive due process is a far narrower concept than procedural; it
is an absolute check on certain governmental actions notwithstanding
"the fairness of the procedures used to implement them." Weller v.
Dep't of Social Services , 901 F.2d 387, 391 (4th Cir. 1990) (quoting
Daniels v. Williams , 474 U.S. 327, 331 (1986)).
To win her case, Love must first have a property right in the
approval of her application to purchase a handgun. Property rights can
be created and defined by state laws,
Board of Regents v. Roth
,
408
U.S. 564, 577
mit cannot create property rights unless "the[state actor] lacks all dis-
cretion to deny issuance of the permit or to withhold its approval. Any
significant discretion conferred upon the local agency defeats the
claim of a property interest." Gardner v. Baltimore Mayor & City
Council , 969 F.2d 63, 68 (4th Cir. 1992).
Whether Love has a property interest under Gardner is a close call,
as is whether Gardner ought to even apply outside the context of land
use. 2 The state permitting statute, 27 Md. Code Ann. § 442, requires
the applicant to deny all potentially disqualifying circumstances in the
application itself. The police have the power to deny the application
only if it is incomplete or any information on it is false. It is a stretch
to deem that power "discretionary." Nonetheless, because we decide
below that Love's claim fails the second prong of the substantive due
process test, we will assume without deciding that Gardner does gov-
ern here and that Love has a property interest in approval of her
application. 3
A violation of "substantive" due process occurs only where the
government's actions in depriving a person of life, liberty, or property
are so unjust that no amount of fair procedure can rectify them.
[T]he residual protections of "substantive due process" in
this (or any) context run only to state action so arbitrary or
irrational, so unjustified by any circumstance or governmen-
tal interest, as to be literally incapable of avoidance by any
pre-deprivation procedural protections or of adequate rectifi-
cation by any post-deprivation state remedies. Irrationality
and arbitrariness imply a most stringent standard against
which state action is to be measured in assessing a substan-
tive due process claim.
Rucker v. Harford County , 946 F.2d 278, 281 (4th Cir. 1991), cert.
denied , 112 S.Ct. 1175 (1992).
Here we agree with the district court that Love's claim fails.
Though their acts apparently violated state law, these police officers
were forced by the extreme time constraints to streamline investiga-
tions. They erred on the side of caution by denying applications where
a computer check showed arrests with unknown dispositions. We can-
not say that this corner-cutting was "unjustified by circumstance or
governmental interest" or that its effect was"literally incapable of
. . . adequate rectification by any post-deprivation state remedies."
Indeed, the deprivation here was fully rectified. State courts exist in
order to, among other things, protect citizens against misapplications
of state law. We would trivialize the Due Process Clause to invoke
it every time the citizen defeats the state in state court. The Clause is
violated only where the state courts can do nothing to rectify the
injury that the state has already arbitrarily inflicted. 4
III.
Citing law review articles, Love argues that she has an individual
federal constitutional right to "keep and bear" a handgun, and Mary-
land may not infringe upon this right.
She is wrong on both counts. The Second Amendment does not
apply to the states. Presser v. Illinois , 116 U.S. 252 (1886); United
States v. Cruikshank , 92 U.S. 542 (1876). 5 Moreover, even as against
federal regulation, the amendment does not confer an absolute indi-
vidual right to bear any type of firearm. In 1939, the Supreme Court
held that the federal statute prohibiting possession of a sawed-off
shotgun was constitutional, because the defendant had not shown that
his possession of such a gun bore a "reasonable relationship to the
preservation or efficiency of a well regulated militia." United States
v. Miller , 307 U.S. 174, 178 (1939). Since then, the lower federal
courts have uniformly held that the Second Amendment preserves a
collective, rather than individual, right. This court's precedent is
United States v. Johnson , 497 F.2d 548 (4th Cir. 1974). In Johnson ,
the defendant challenged the constitutionality of the federal statute
prohibiting possession of firearms by convicted felons. We were not
impressed ( id. at 550):
Johnson's argument that [18 U.S.C. §] 922(g) is an
unconstitutional violation of his Second Amendment right to
keep and bear arms is not new. See, e.g., United States v.
Miller , 307 U.S. 174 , 59 S.Ct. 816, 83 L.Ed. 1206 (1939).
The courts have consistently held that the Second Amend-
ment only confers a collective right of keeping and bearing
arms which must bear a "reasonable relationship to the pres-
ervation or efficiency of a well-regulated militia."
307 U.S.
at 178
section 922(g) in any way affects the maintenance of a well
regulated militia.
Love has likewise not identified how her possession of a handgun will
preserve or insure the effectiveness of the militia.
The judgment is affirmed.
AFFIRMED
LUTTIG, Circuit Judge, concurring in the judgment:
I concur only in the judgment reached by the majority, and I do so
only because Gardner v. Baltimore Mayor and City Council , 969
F.2d 63 (4th Cir. 1992), is the law of the circuit.
obscene show.
ancient sense known to Anglo-American law. Throughout our opinion in
Gardner , we emphasized the land-use context of our "lack of all discre-
tion" standard, see , e.g. , id. at 68-69, and we are unwilling to extend it
where, as here, such an extension is unnecessary to our decision.
posed property interest, including an administrative hearing and a right
of access to the state courts under the state's administrative procedures
act. She used these procedures and vindicated her property right, which
fully explains why she has not pled a claim for denial of procedural due
process.
"right to contract" with the gun dealer. There is no positive federal "right
to contract" at all times on all subjects, though individuals are generally
free to contract in a manner and with objectives that do not violate local
law, and this liberty may give rise to an interest protected by the Four-
teenth Amendment's Due Process Clause.
See generally
,
Roth
,
408 U.S.
at 572
process claim.
rates the Second Amendment, and that therefore the Second Amendment
"applies" to Maryland. It may well "apply" to Maryland in this manner,
but, if it does, it is only as a matter of state law, and violations of state
law are not cognizable under § 1983. Clark v. Link , 855 F.2d 156, 161
(4th Cir. 1988).