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[Cite as Love v. Pepersack, 47 F.3d 120 (4th
Cir. 1995), cert. denied, 116 S. Ct. 64 (1995).]
April LOVE v. Robert G. PEPERSACK, Sr.; Merrill A. Messick, Jr.; Ernest
Eldon Pletcher; Elmer Hunt Tippett, Jr.; State of Maryland.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 7, 1994.
Decided Feb. 3, 1995.(p.121)
Howard J. Fezell, Frederick, MD, for Appellant.
Mark Holdsworth Bowen, Asst. Atty. Gen., Pikesville, MD, for appellees. ON
BRIEF: J. Joseph Curran, Jr., Atty. (p.122)Gen.
of Maryland, Pikesville, MD, for appellees.
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
K.K. HALL, Circuit Judge:
April Love appeals the dismissal of her 42 U.S.C. §
1983 civil rights suit against various Maryland state troopers. We
According to her complaint, in September, 1990,
April Love tried to purchase a handgun at a shop in Prince George's County,
Maryland. 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--Maryland 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 working 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--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--alleging 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.
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, 106
S.Ct. 662, 665, 88 L.Ed.2d 662 (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, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972),
but laws calling for issuance of a license or permit cannot create property
rights unless "the [state actor] lacks all discretion (p.123)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. 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 govern here and that Love
has a property interest in approval of her application.
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 governmental interest, as to
be literally incapable of avoidance by any pre-deprivation procedural
protections or of adequate rectification 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 substantive due
Rucker v. Harford County, 946
F.2d 278, 281 (4th Cir. 1991), cert. denied, 502 U.S. 1097,
112 S.Ct. 1175, 117 L.Ed.2d 420 (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 investigations. They erred on the
side of caution by denying applications where a computer check showed arrests
with unknown dispositions. We cannot 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
Citing law review articles, Love argues that she
has an individual federal constitutional right to "keep and bear" a handgun, and
Maryland 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, 6 S.Ct. 580, 29 L.
Ed. 615 (1886); United States v. Cruikshank, 92 U.S.
542, 23 L.Ed. 588
(p.124) (1876). Moreover,
even as against federal regulation, the amendment does not confer an absolute
individual 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, 59 S.Ct. 816,
818, 83 L.Ed. 1206 (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
Amendment only confers a collective right of keeping and bearing arms which
must bear a "reasonable relationship to the preservation or efficiency of a
well-regulated militia." 307 U.S. at 178, 59 S.Ct. at
818. Johnson presents no evidence that section
922(g) in any way affects the maintenance of a well regulated
Love has likewise not identified how her possession
of a handgun will preserve or insure the effectiveness of the militia.
The judgment is affirmed.
LUTTIG, Circuit Judge, concurring in the
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.
 She paid a fine upon conviction in Florida of participating in
an obscene show.
 Ownership and free use of land is "property" in perhaps the
most ancient sense known to Anglo-American law. Throughout our opinion in
Gardner, we emphasized the land-use context of our "lack of all
discretion" 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.
 On the other hand, she had full procedural protections for this
supposed 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.
 Love also argues that the disapproval of her application
violated her "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
Fourteenth Amendment's Due Process Clause. See generally, Roth, 408 U.S. at 572, 92 S.Ct. at 2706-07. This "claim"
is therefore just a component of the substantive due process claim.
 Love makes an odd argument that the Maryland Constitution
incorporates 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).