View Full Version : (MD) Maryland Appeals Court Rules that "bear arms" only applies in home
11-06-2009, 4:59 AM
Taking Liberties Article (http://www.cbsnews.com/blogs/2009/11/04/taking_liberties/entry5517894.shtml)
Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL Sec. 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the state." This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right.
This article goes to show you why state judges in entrenched states simply cannot be trusted in any way shape or form to rule honestly on the 2nd amendment. This is one of the reasons why I'm hoping Palmer (http://wiki.calgunsfoundation.org/index.php/Palmer_v._District_of_Columbia) will reach the Supreme Court.
11-06-2009, 5:24 AM
I think Mr Gura is going to have a collection of states writing him checks for this reason. I guess he'll collect their license plates with "$2.5M", "$3.7M", or "YES2A" as the lettering.
I think the outcome would have been very different if the defendant were a white guy who did not hide his gun in the bushes upon sighting a police car. PG County is a mix of the wealthiest mostly-white developments and the poorest mostly-black ghettos of the state and the law enforcement in the area reflects that.
MD case law is, in light of Heller and the possible outcome of McDonald, hilarious.
Snowden v Handgun Permit Review Board 1980:
If we accept Snowden's reasoning there would never be a time when a lawful person, fearful of his safety, would be denied a permit to carry a gun. Any vague threat would be sufficient to cause apprehension and, thus, the right to have a permit to carry a handgun. We think the phrase "good and substantial reason," as used in Md.Ann.Code art. 27, § 36E(a)(6), means something more than personal anxiety over having one's name connected publicly with anti-drug and anti-crime activities. It means, we believe, something more than the concern the individual may have because he has been told by another, that she heard some unidentified men threatening to harm the applicant if he journeys to Meade Village. The statute makes clear that it is the Board not the applicant, that decides whether there is "apprehended danger" to the applicant. If the Act were read as Mr. Snowden would have the court read it, there would be no necessity for a review by the Board. Each person could decide for himself or herself that he or she was in danger. The State Police would become a "rubber stamp" agency for the purpose of handing out handgun permits. The carefully considered legislation would be rendered absolutely meaningless insofar as the control of handguns is concerned.
Scherr v. Handgun Permit Review Bd 2005, citing Onderdonk v. Handgun Permit Review Board, 1979
A plethora of cases hold that a statute, such as Maryland’s, which reasonably regulates the “right to bear arms” does not violate the
Second Amendment’s limitation on the federal government.
We note that the bearing of arms was never treated as an absolute right at common law. “It was regulated by statute as to time and place as far back as the Statute of Northhampton in 1328 and on many occasions since.” United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 . . . (1943).
The State’s regulation of “wearing, carrying and transporting” of handguns is but a modern improvement on the Statute of Northhampton. It does not violate the Second Amendment because that amendment is not applicable to the States. The State statute, being a reasonable exercise of police power, is constitutional.I think some MD judges are going to have a lot of 'splaining to do after McDonald comes back, especially given their reliance on Presser & Cruikshank in denying 2A claims.
11-06-2009, 7:18 AM
If the Act were read as Mr. Snowden would have the court read it, there would be no necessity for a review by the Board. Each person could decide for himself or herself that he or she was in danger. The State Police would become a "rubber stamp" agency for the purpose of handing out handgun permits. The carefully considered legislation would be rendered absolutely meaningless insofar as the control of handguns is concerned.
Yep.....that's pretty much it! That's how 80% of the rest of the country does it. What makes MD, CA, NY and a couple others so damn special? Oh yeah....I remember....they're special because their gun control creates more crime which in turn breeds more gun control.
11-06-2009, 12:11 PM
This misreading of Heller is bound to inspire the SCOTUS to address the misunderstanding. It will doubtlessly be brought to their attention in amicus briefs and/or other filings. The recent New Jersey ruling is also a stick-in-the-eye for the Heller majority, that seems to double-dare them to incorporate in McDonald v Chicago.
I can't help but believe that the Maryland court knows fully well the difference between the scope of a particular case, and the extent of a fundamental right. It is a truly mind boggling ruling. New York's recent defense of a gunlock/safe storage law is similarly contemptuous and myopic of the high court's opinion.
On one hand, the 9th and the 7th circuit courts of appeal are punting to to SCOTUS on incorporation. On the other, anti-gun courts like Jersey and Maryland, with astounding hubris, are forging ahead as if the issue of incorporation is not even on the table, let alone squarely in the sights of the highest court in the land.
11-06-2009, 12:45 PM
On the other, anti-gun courts like Jersey and Maryland, with astounding hubris, are forging ahead as if the issue of incorporation is not even on the table, let alone squarely in the sights of the highest court in the land.
SUNDAY! SUNDAY! SUNDAY!!!!!
ARE YOU READY TO RUMBLE?????
IT'S TIME FOR RAW.....THE SCOTUS SMACKDOWN CAGE MATCH!
(Wouldn't be awesome if courtrooms were run like WWE? LOL Would certainly make it more interesting sometimes.)
11-06-2009, 4:00 PM
See, here's what I don't get, referring to the first post and this MD decision.
According to this judge, in say, the year 1800, there was no right to free speech, no right to freedom of religion, no right to jury trials, basically no civil rights at all.
Because according to him, we only have those civil rights that the USSC has specifically ruled on. The second amendment says we have a right to "bear" arms, but because no decision on that has come down yet, it doesn't exist, never mind the fact that it's right frackin' there on plain paper.
Well that's NOT how it works. We have civil rights. The judges have claimed a right to interpret them, and that's bad enough. But to claim that we don't have any rights UNTIL they interpret them? No, that's going too damned far.
And there's not one iota of real legal argument anywhere that says people who have a right to KEEP arms don't have a right to bear them. No such structure has even been attempted; all these years the grabbers among legal "scholars", judges, etc. have tried to claim that we have NEITHER.
Now that the USSC says we have a right to "keep" arms, it's dead obvious we also have a right to bear them.
The above needs to get cleaned up and stuck in an Amicus of some sort...
Here's a link to the Williams v MD (the one mentioned in the article) decision: MDCourts.gov pdf (http://mdcourts.gov/opinions/cosa/2009/1999s08.pdf)
In case counting sheep fails:
Scherr v. Handgun Permit Review Bd 2005 (http://www.courts.state.md.us/opinions/cosa/2005/780s04.pdf)
Snowden v Handgun Permit Review Board 1980 (http://www.mdshooters.com/attachment.php?attachmentid=10782&d=1251931397) (or if that link doesnt work, see Post #3 (http://www.mdshooters.com/showthread.php?t=23865))
Onderdonk v. Handgun Permit Review Board, 1979 (http://md.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CMD%5CMD__%5C1979%5C19791108_0040064.MD.htm/qx)
11-07-2009, 3:21 AM
These anti-courts along with the Bradys are trying to spin Heller into its lowest common denominator:the 2A ONLY applies in the home. No other constitutional right is so confined to the home, why would this one be any different?
You'd think with incorporation that the "may-issues" may have to review their issuance policies, but some are so thick-headed that they'll make you take them back to court again and again and again. I guess when you're spending someone else's money(taxpayer's), you can keep fighting as long as you have your job.
I'm wondering why this guy was going through some backpack, with a legally purchased gun, on a streetcorner? He unfortunately invited trouble and obviously had no clue about proper transportation of a weapon. It seems to own a gun in some states you almost need to be an attorney.
11-07-2009, 7:41 AM
I may ONLY have religion in my own home.
I may ONLY have free speech in my own home.
I may ONLY have a free press in my own home.
I may ONLY have assemblies in my own home.
I may ONLY have the right to petition the government for a redress of grievances in my own home.
I may ONLY have arms (limited) in my own home.
I may ONLY have soldiers camped on my front lawn and in my back yard, Not in my own home.
I may ONLY have protection from unreasonable search and seizure in my own home. TRUE!!! On the street, I am, and you are subject to cavity search for no reason…
I may ONLY have protection from self-incrimination in my own home.
I may ONLY have the right to a speedy trial in my own home.
I may ONLY have a trial by jury in my own home.
I may ONLY have protection from cruel and unusual punishment in my own home.
OK, I think I have a handle on it…
Thank you, may I have another….
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