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View Full Version : SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL


wildhawker
07-29-2010, 1:05 PM
Complaint here: http://ia360701.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.1.0.pdf

BELLEVUE, WA - The Second Amendment Foundation and a Baltimore County, MD man today sued Maryland authorities in federal court because the man's handgun permit renewal was turned down on the grounds that he could not demonstrate "a reasonable precaution against apprehended danger."

The lawsuit was filed in U.S. District Court for the District of Maryland.

Joining SAF in the lawsuit is Raymond Woollard, who was originally issued a carry permit after a man broke into his home during a family gathering in 2002. Woollard's permit was renewed in 2005, after the man was released from prison. That man now lives about three miles from Woollard. Defendants in the case are Terrence B. Sheridan is the Secretary and Superintendent of the Maryland State Police, and three members of the Maryland Handgun Permit Review Board, Denis Gallagher, Seymour Goldstein and Charles M. Thomas, Jr.

SAF and Woollard are represented by attorneys Alan Gura of Virginia and Cary J. Hansel of Joseph, Greenwald & Laake of Greenbelt, MD.

The lawsuit alleges that "Individuals cannot be required to demonstrate that carrying a handgun is necessary as a reasonable precaution against apprehended danger' as a prerequisite for exercising their Second Amendment rights." Plaintiffs are seeking a permanent injunction against enforcement of the Maryland provision that requires permit applicants to "demonstrate cause" for the issuance of a carry permit.

"Laws that empower bureaucrats to deny the exercise of a fundamental civil right because they cannot show good cause to exercise that right can't possibly stand up under constitutional scrutiny," said SAF Executive Vice President Alan M. Gottlieb. "We are supporting Mr. Woollard in this action because constitutional rights trump bureaucratic whims."

The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.

putput
07-29-2010, 1:08 PM
So this is like 4 states now? Nice. Very Nice.

N6ATF
07-29-2010, 1:08 PM
When seconds count, police are only 2 1/2 hours away!

Maltese Falcon
07-29-2010, 1:14 PM
....I didn't realize when I joined CalGuns that I would also be getting informal ongoing training in criminal / civil case law and judicial procedures. :D

Can I get CEUs for this?

Yahoo for our side...go get them guys!

.

CaliforniaCarry
07-29-2010, 1:19 PM
Damn. How many cases are in progress now? 9? 10?

That's a new case every few days since McDonald. I'm glad I'm on the right team :) The Bradys and LCAV must be crapping their already-soiled panties right about now.

wildhawker
07-29-2010, 1:37 PM
Can I get CEUs for this?

Soon, yes (http://www.calguns.net/calgunforum/showthread.php?t=326232). ;)

yellowfin
07-29-2010, 1:40 PM
So now it's just a question of which horse crosses the finish line first. I can't wait to see what the opposition says in pathetic attempt to respond to it. Believe it or not MD is actually worse than CA is on the CCW issue. It acts as a squeeze on PA which threatens gun rights on the east coast. Getting rid of the MD problem is going to really smooth things out.

Rossi357
07-29-2010, 1:48 PM
I remember a while back, Alan Gura said, "the 2nd amendment is alive and well, and it's coming to your town." WOOOT WOOOT!!!

Window_Seat
07-29-2010, 1:53 PM
Awesome!!! We in the national gun rights community are TEARING IT UP!!!!!!
....................:gura:
:King:

Erik.

Kharn
07-29-2010, 2:12 PM
MD's anti-shall-issue case law is a mess, I can't wait to read the filings.

freonr22
07-29-2010, 2:38 PM
Relentless!

2009_gunner
07-29-2010, 3:45 PM
Fantastic.

I hope Gura files a new carry lawsuit every two weeks until the DC court finally releases their way overdue Palmer decision. That should make them realize this issue is not going away.

mosinnagantm9130
07-29-2010, 4:50 PM
:gura:

wash
07-29-2010, 5:00 PM
Outstanding!

yellowfin
07-29-2010, 5:08 PM
Only NJ, RI, and HI left.

Window_Seat
07-29-2010, 5:37 PM
Only NJ, RI, and HI left.

And not to forget about the territories as they are included in the McDonald ruling, and I imagine that Alan Gura will be collecting more souvenirs from those areas as well. :thumbsup:

Erik.

press1280
07-29-2010, 5:49 PM
Only NJ, RI, and HI left.

Plus MA and IL. I wonder who gets hit next. Maybe 1 state per circuit or all of them?

hoffmang
07-29-2010, 8:52 PM
Plus MA and IL. I wonder who gets hit next. Maybe 1 state per circuit or all of them?

1 per circuit is usually enough.

-Gene

gorblimey
07-29-2010, 11:32 PM
Damn. How many cases are in progress now? 9? 10?

That's a new case every few days since McDonald. I'm glad I'm on the right team :) The Bradys and LCAV must be crapping their already-soiled panties right about now.


This is short-term thinking. The demographics are such that the 5/4 balance of more reasonable folk to constitutional traitors will come to weigh heavily in the other direction. This all will be effectively undone in 20 years.

And I ask again: what the hell kind of a right is this, when the whim of a single robed stooge is sufficient to affirm it or send it crashing to the ground?

Truly, when the Founders were setting this thing up, they gave the judicial branch a bit too much influence. Though I imagine the anti-Federalists were hoping we'd shoot the D.C. bastards long before the "checks and balances" turned into a closed self-serving political mafia.

hoffmang
07-29-2010, 11:56 PM
This is short-term thinking. The demographics are such that the 5/4 balance of more reasonable folk to constitutional traitors will come to weigh heavily in the other direction. This all will be effectively undone in 20 years.

Ignore for a second your personal feelings on the politics and look at the example of Roe v. Wade. That was a 5-4 liberal decision that all liberals were worried would be undermined in 20 years by a majority conservative court. However, that hasn't come to be because by the time the conservative shift in the court occurred, stare decisis and all the case law had made Roe the defacto standard.

Such will it be for Heller and McDonald as long as our 5 make it for about 5 more years.

-Gene

Gray Peterson
07-29-2010, 11:58 PM
Ignore for a second your personal feelings on the politics and look at the example of Roe v. Wade. That was a 5-4 liberal decision that all liberals were worried would be undermined in 20 years by a majority conservative court. However, that hasn't come to be because by the time the conservative shift in the court occurred, stare decisis and all the case law had made Roe the defacto standard.

Such will it be for Heller and McDonald as long as our 5 make it for about 5 more years.

-Gene

THIS!

Rossi357
07-30-2010, 12:43 AM
I doubt that many of the future district court cases will be heard by SCOTUS. They may appeal them to SCOTUS, but the court doesn't have to accept them. They left a lot of guidance in Heller and McDonald for the lower courts. Our super lawyers are systematically taking the lame state laws apart.
I wish I could help more, but living on Social Security doesn't leave much at the end of the month. I'm left sitting in the cheap seats cheering my butt off.

kcbrown
07-30-2010, 2:15 AM
Such will it be for Heller and McDonald as long as our 5 make it for about 5 more years.


Have we got any contingency plans in place to cover the possibility that they don't make it that long?

I have no idea how easy or hard it'll be for the good guys to remain at the bench for that amount of time, nor do I know of any way to really assess that properly. But I'll take a stab at it anyway...


Scalia's 74, as is Kennedy. Thomas is 62. Alito is 60. Roberts is 55. So by my reckoning, at least two justices are at significant risk of not making it. Average retirement age for Supreme Court justices is 79 since 1970 (or so says Wikipedia (http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_St ates#Age), which does appear to cite a source for it), so both Kennedy and Scalia will be right at the average when the 5 year window is up. Assuming that there's a 50% chance for each of Kennedy and Scalia that they will retire within that 5 year window (since 79 is an average, this assumption seems reasonable on its face), it means we have a 75% chance of losing one of them within that window.

That suggests to me that it is absolutely imperative that we get someone we like in the Oval Office next term. Otherwise, based on the above, it's more likely than not that we will lose this war, unless we have other contingencies.

gorblimey
07-30-2010, 2:34 AM
Ignore for a second your personal feelings on the politics and look at the example of Roe v. Wade. That was a 5-4 liberal decision that all liberals were worried would be undermined in 20 years by a majority conservative court. However, that hasn't come to be because by the time the conservative shift in the court occurred, stare decisis and all the case law had made Roe the defacto standard.

Such will it be for Heller and McDonald as long as our 5 make it for about 5 more years.

-Gene


I sincerely hope that stare decisis will still mean something within the longer time frame, and that things will unfold as you describe, but how likely that is I am not sure.

It does seem that the next 20 years will be rather more interesting, in the Chinese proverb sense, than the last 20. Is one a valid template for the other? The fiscal situation is bleak, and the resulting concentration of power in D.C. (as the only entity with the printing press) does not bode well for states' rights and human rights.

However, I've been tending toward the view that our exalted betters will leave the gun issue somewhat alone after the good work you do plays out, and rather concentrate on the economic angle.

Though always armed, the US population has not seriously revolted for quite a while. The financial shenanigans of the Wilson, FDR, and Nixon administrations weren't met with bullets, nor did the appearance of Form 1040 in 1913, nor the breathtaking Wall St. handouts of recent times.

I think that the emergent preponderance of consensus among the ruling elites is that letting us have the guns will diffuse a lot of anger and encourage compliance with the economic (multifarious taxation) side of the situation.

In the meantime, continued evolution and proliferation of sensors, information processing, and ROVs will yield a situation where mere firearms are next to useless against an adversary with that level of technology, making 2A all bark and no bite insofar as fedgov is concerned.

Pont
07-30-2010, 10:19 AM
Have we got any contingency plans in place to cover the possibility that they don't make it that long?

I have no idea how easy or hard it'll be for the good guys to remain at the bench for that amount of time, nor do I know of any way to really assess that properly. But I'll take a stab at it anyway...


Scalia's 74, as is Kennedy. Thomas is 62. Alito is 60. Roberts is 55. So by my reckoning, at least two justices are at significant risk of not making it. Average retirement age for Supreme Court justices is 79 since 1970 (or so says Wikipedia (http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_St ates#Age), which does appear to cite a source for it), so both Kennedy and Scalia will be right at the average when the 5 year window is up. Assuming that there's a 50% chance for each of Kennedy and Scalia that they will retire within that 5 year window (since 79 is an average, this assumption seems reasonable on its face), it means we have a 75% chance of losing one of them within that window.

That suggests to me that it is absolutely imperative that we get someone we like in the Oval Office next term. Otherwise, based on the above, it's more likely than not that we will lose this war, unless we have other contingencies.
It's not *quite* that dire.

Even if we lose one of the Heller 5, the Supremes as a whole don't like to reverse themselves. It would be difficult for the anti-4+1 to argue against the remaining 4 that it's time to take a 2A case with the same scope as Heller/MacDonald again.

Assuming that like any government organization, what the Supreme Court cares most about is its own power. Lacking enforcement ability of their own, their power is severely diminished if they lose respect. Appearing wishy-washy loses them respect and they know it.

ZombieTactics
07-30-2010, 12:53 PM
... "Laws that empower bureaucrats to deny the exercise of a fundamental civil right because they cannot show good cause to exercise that right can't possibly stand up under constitutional scrutiny," said SAF Executive Vice President Alan M. Gottlieb. "We are supporting Mr. Woollard in this action because constitutional rights trump bureaucratic whims." ...

This is a recipe for awesome.

They took their time and found the right plaintiff with the right particulars ... EPIC WIN PREDICTED.

ed bernay
07-30-2010, 1:01 PM
It's not *quite* that dire.

Even if we lose one of the Heller 5, the Supremes as a whole don't like to reverse themselves. It would be difficult for the anti-4+1 to argue against the remaining 4 that it's time to take a 2A case with the same scope as Heller/MacDonald again.

Assuming that like any government organization, what the Supreme Court cares most about is its own power. Lacking enforcement ability of their own, their power is severely diminished if they lose respect. Appearing wishy-washy loses them respect and they know it.

I disagree. It is that dire. If we lose one of them, any case that goes to SCOTUS will water down the "right" affirmed in Heller and McDonald. DO NOT BE COMPLACENT PEOPLE. Donate $$ to SAF, CALGUNS, JFPO when you can and get active for the next election. The left wing SCOTUS justices don't care about what people think of them. If they did for example, Sotomayor wouldn't have been on the minority side in Mcdonald which was contrary to what she said during confirmation hearings. The left doesn't care about appearances, they care about obtaining results for their agenda. They have the media to protect them...how many mainstream media sources discussed Sotomayor's contradiction regarding Heller? 4 anti's + 1 nominated by a left winger = 5 anti's.

IGOTDIRT4U
07-30-2010, 1:58 PM
So now it's just a question of which horse crosses the finish line first. I can't wait to see what the opposition says in pathetic attempt to respond to it. Believe it or not MD is actually worse than CA is on the CCW issue. It acts as a squeeze on PA which threatens gun rights on the east coast. Getting rid of the MD problem is going to really smooth things out.

I was gonna say, this is testing the waters for a CA challenge.

IGOTDIRT4U
07-30-2010, 2:00 PM
Ignore for a second your personal feelings on the politics and look at the example of Roe v. Wade. That was a 5-4 liberal decision that all liberals were worried would be undermined in 20 years by a majority conservative court. However, that hasn't come to be because by the time the conservative shift in the court occurred, stare decisis and all the case law had made Roe the defacto standard.

Such will it be for Heller and McDonald as long as our 5 make it for about 5 more years.

-Gene

Anyone ever wonder if we now have leverage? Want to challenge Heller? Hey, we backed off of Roe all these years, hmmm, here's a new challenge to that.

I agree with the above. Get enough water under the bridge and it's almost a lock.

Satex
07-30-2010, 2:01 PM
When seconds count, police are only 2 1/2 hours away!

How so true. Unfortunately, I speak of personal experience.

Gray Peterson
07-30-2010, 2:40 PM
I was gonna say, this is testing the waters for a CA challenge.

CA has two challenges already.

wash
07-30-2010, 3:22 PM
I did a quick count and there are at least 6 challenges to CCW issuance policies in the states.

That's more cases than any other issue right now.

Rossi357
07-30-2010, 3:36 PM
Ignore for a second your personal feelings on the politics and look at the example of Roe v. Wade. That was a 5-4 liberal decision that all liberals were worried would be undermined in 20 years by a majority conservative court. However, that hasn't come to be because by the time the conservative shift in the court occurred, stare decisis and all the case law had made Roe the defacto standard.

Such will it be for Heller and McDonald as long as our 5 make it for about 5 more years.

-Gene

I suspect thats why they didn't use the P or I clause for incorporation. Way too many cases out there that hinged on the Slaughterhouse ruling. Due process only disturbed a few previous cases.

huck
07-30-2010, 4:19 PM
I wonder why they chose this particular man as their case? It's a renewal - not a new permit. Seems like it could give the court an out. They could do make a ruling on renewing permits and not do anything about original issue permits.

kcbrown
07-30-2010, 5:26 PM
I suspect thats why they didn't use the P or I clause for incorporation. Way too many cases out there that hinged on the Slaughterhouse ruling. Due process only disturbed a few previous cases.

Yep. After all, why should they do the right thing when it's far easier to do the convenient thing?

press1280
07-30-2010, 5:42 PM
I wonder why they chose this particular man as their case? It's a renewal - not a new permit. Seems like it could give the court an out. They could do make a ruling on renewing permits and not do anything about original issue permits.

I think they may get more plaintiffs, but even if they don't, this guy's a good candidate and his story shows the utter stupidity and arbitrariness of MD's system. He's issued a permit after the break in of his house, renewed the permit after the perp gets out of jail, now the perp lives close by, and he can't get his permit renewed.

What's also bad is the perp was just given probation for the break-in, violated the probation by attacking a police officer and another break-in at another house, and is now free. This perp is a repeat offender and shows the utter hypocrisy of the MD authorities. Soft on criminals, but they will not allow someone to protect himself outside his home. This guy had a permit for years and there was no "blood in the streets," because of him carrying.

Kharn
07-30-2010, 8:23 PM
I wonder why they chose this particular man as their case? It's a renewal - not a new permit. Seems like it could give the court an out. They could do make a ruling on renewing permits and not do anything about original issue permits.Because he used the same justification for the initial permit and one renewal, but it was held not valid for his second renewal. MD allows CC or OC on your own property without a permit (I can open carry a C&L 1911 on my hip while cutting the grass on my 1/4 acre and the neighbors can't do anything about it if I stay on my side of the lines), the MSP is claiming since he has only been attacked on his own property he doesn't need to carry off his property (until his previous attacker strikes at another location).

ETA:
Looking at the timing, his initial issue and his first renewal occurred during our one-term Republican governor (who was rumored to have told the MSP to be lenient on permits, but never said anything publicly due to this state's hatred of handguns) and then his denial occurred under our current Democratic governor (former B'more city mayor who wants to push all sorts of restrictions, so he most likely told the MSP to be very strict) who's in the race for his life against the same Republican he defeated four years ago because his fiscal policies screwed up the state. :detective:

Gray Peterson
07-31-2010, 12:29 AM
I wonder why they chose this particular man as their case? It's a renewal - not a new permit. Seems like it could give the court an out. They could do make a ruling on renewing permits and not do anything about original issue permits.

Board of Regents v. Roth is not being used here. There is no need to. It's a simple straight forward carry case, in one of the most friendly court of appeals jurisdictions we have.

krucam
09-20-2010, 1:57 PM
No big surprise today in MD, the State having until today 9/20 to respond to the initial Complaint, did so with a Motion to Dismiss.

1) SAF has no Standing
2) Plaintiff Woollard didn't exhaust all State avenues of redress before this Federal case, citing the 'Younger Abstention'...need to dig into that one a little more.

Just-updated docket with today's Motion:
http://ia360701.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html

Kharn
09-20-2010, 2:52 PM
Deposition of every SAF member in Maryland would be fun (doesn't the AG's office have to send a lawyer to every single one?), I wonder if they can limit it to SAF members before a certain date. A lot of MD'ers signed up immediately after this suit was filed.

Gray Peterson
09-20-2010, 2:57 PM
Posted this at MD Shooters:

Could the state do a 180 "our bad", give this one guy his permit, and be done with it (for now)?
No. The denial triggers Triggers Article III standing. The MTD is without merit His renewal was denied.
I'm sure that is possible, but then they would have to continue with "my bads", because everyone, including myself, will continue to persue the "good and substantial" issue.
If they issue it to Mr. Woollard for "Personal Protection", it must be issued to everyone. See Guillory v. Gates.
I realize that there would be cases of such, but I also "sense" that would very difficult to persue on a continual and broad basis. For instance, they would have to catch YOU violating a carry rule, pull your permit, and then catch ME, and then catch, WHOMEVER. Do they have the resources to do that? Perhaps if they profile, or use "the list" to track you down and surveil your every movement.
I have no response to this. Remember, the right to carry is a fundamental right, and cannot be revoked short of a crime.
Personally, I see them going the route of having you take three written exams, a physical combat training course, 90 day waiting period, and then negating it all, because you didn't spell out your middle name in full, on the application.
The exams, the combat training course, the waiting period are not in the statute. Your good and substantial reason has nothing to do with those issues. We have sheriffs out in California who think they can require whatever they want and hook that into good cause. They are educated pretty quick that they don't do that when it comes to someone pushing them to comply with the statutory law.
Those requirements would require new statutory law. A case with a TRO can be filed pretty quickly to injunct against these new provisions.

There is no way Gura is not prepared for Younger. He would have to know that Woolard had not gone to the State Court of Appeals. It looks like Younger has multiple tests, not just the one about exhausting all state remedies before moving on to a federal level so maybe that is where Gura is planning on arguing against it.
Except there is already a Maryland Court of Appeals case saying that there is no RKBA outside of the home. This would be futile exercise.
Here's another problem: They suggest to the plaintiff that he should have gotten judicial review in state court in baltimore. The problem is that if they brought up Second Amendment claims in state court, and the state court denies those federal constitutional provisions, the same plaintiff cannot rebring the case to federal court, because the Maryland AG will claim res judicata and collatteral estoppel to keep it from happening.

The Maryland AG knows this, and I'm willing to bet there will be an MSJ forthcoming against the state with a reply to the MTD. Their arguments are ridiculous and do not apply to 42USC1983 litigation.

hoffmang
09-20-2010, 4:45 PM
Younger abstention doesn't apply to prospective injunctions and SAF clearly has standing.

-Gene

press1280
09-20-2010, 4:58 PM
MD's response is here: http://ia360701.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.8.1.pdf

Most of it just attacks SAF's standing, and says Wollard/SAF needs to go through the state circuit court first. Only a passing mention of the Second Amendment, the rest is the typical "blood in the streets" reasoning why they restrict permits.
I guess we'll probably see the same thing in the NY carry case as well.

Pointcrossed
09-20-2010, 6:06 PM
I sincerely hope that stare decisis will still mean something within the longer time frame, and that things will unfold as you describe, but how likely that is I am not sure.

It does seem that the next 20 years will be rather more interesting, in the Chinese proverb sense, than the last 20. Is one a valid template for the other? The fiscal situation is bleak, and the resulting concentration of power in D.C. (as the only entity with the printing press) does not bode well for states' rights and human rights.

However, I've been tending toward the view that our exalted betters will leave the gun issue somewhat alone after the good work you do plays out, and rather concentrate on the economic angle.

Though always armed, the US population has not seriously revolted for quite a while. The financial shenanigans of the Wilson, FDR, and Nixon administrations weren't met with bullets, nor did the appearance of Form 1040 in 1913, nor the breathtaking Wall St. handouts of recent times.

I think that the emergent preponderance of consensus among the ruling elites is that letting us have the guns will diffuse a lot of anger and encourage compliance with the economic (multifarious taxation) side of the situation.

In the meantime, continued evolution and proliferation of sensors, information processing, and ROVs will yield a situation where mere firearms are next to useless against an adversary with that level of technology, making 2A all bark and no bite insofar as fedgov is concerned.

The "Red Dawn" concept will not work anywhere in the free world. It only leads to guerrilla warfare, a costly, risky, and unpredictable adversary.

Free People make the technology to fight and win, not government. For Example; who lost the cold war?

Anyway; to get back on course; states do whatever they think will work until the system collapses :cough: California :cough:

Md will eventually learn their lesson if they go the wrong way.

Kharn
09-20-2010, 6:57 PM
If the current D gov gets reelected, he'll fight all the way to the Supreme Court and pull a Daley/Fenty with new gun laws one or two words different from the unconstitutional ones. The AG is an elected position in MD (and the current one is solid, even more-so than the governor's seat) so if the R gov candidate wins his old job back we'd still fight to the SC but no new laws would be passed.

Apocalypsenerd
09-21-2010, 12:12 AM
Gray Peterson and his legalese made my eyes glaze over. How about a translation to english?

res judicata ?
collatteral estoppel ?

I love what you guys on this board do, but come on, res judicata ?

N6ATF
09-21-2010, 12:25 AM
Rest your judi cat, ahhhh...

dantodd
09-21-2010, 12:25 AM
Gray Peterson and his legalese made my eyes glaze over. How about a translation to english?

res judicata ?
collatteral estoppel ?

I love what you guys on this board do, but come on, res judicata ?

I know it is easier to ask, but a short answer may leave you with further questions. With a short google search you can have an answer as deep or superficial as you desire.

Apocalypsenerd
09-21-2010, 1:08 AM
good points.

hoffmang
10-09-2010, 12:23 PM
SAF/Gura filed their opposition to the motion to dismiss (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.9.0.pdf).

It's telling that Maryland never tried to reach the merits of the complaint in their attempt to dismiss.

-Gene

Crom
10-09-2010, 1:56 PM
Wow. SAF/Gura completely shredded their arguments about Younger. I am glad to see this case moving forward. :)

For a non lawyer, I like how it was explained in detail why SAF has standing. I also found it amusing in section III where the equal protections claim were readdressed. In plain English I got this out of it: Hey defendants! Go and read the complaint again! It's all in there!

jdberger
10-09-2010, 5:04 PM
Alan's pretty talented at distilling a legal argument and making it legible to the average (not legally trained) Joe. And he does it with a shovelful of wit, too.

Seesm
10-09-2010, 11:54 PM
Yeah boys

Kharn
10-25-2010, 6:55 PM
Maryland has replied to SAF's response to the state's motion to dismiss:
PDF here (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.10.0.pdf)
10 pages of fail:
1. Younger, again, after Gura shredded Younger in the response
2. SAF has not been harmed so should be excluded
3. "we genuinely have no idea what their claim is" (Gura claims 14th Amendment equal protection violations)

Hint to MD: In a 2A case, its good to address the 2A in something more substantial than a footnote, even if that footnote is 3/4 of a page.

yellowfin
10-25-2010, 7:15 PM
res judicata ?
collatteral estoppel ?

I love what you guys on this board do, but come on, res judicata ?Two obscure Star Wars characters. I think they were friends of Boba Fett.

Crom
10-25-2010, 8:02 PM
Thanks Kharn. Yeah the response by Maryland was very poor. The judge should have no problem denying the motion to dismiss.

krucam
11-13-2010, 9:40 AM
Defendants sent a letter to the Judge Friday...

http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.11.0.pdf

It seems that SAF is threatening a MSJ in this case and Defendants now want a conference and time for Discovery...WTF? They all but admit that they're dragging their feet in this case.

I await SAF's next filing with great anticipation.

Nor-Cal
11-13-2010, 3:14 PM
This is very awsome!

krucam
11-15-2010, 9:41 AM
SAF/Gura filed a Motion for Summary Judgement today in Woollard

11/15/2010 12 MOTION for Summary Judgment by Second Amendment Foundation, Inc., Raymond Woollard. Responses due by 12/2/2010 (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Declaration of Julie Versnel, # 8 Declaration of Raymond Woollard)(Gura, Alan) (Entered: 11/15/2010)

11/15/2010 13 RESPONSE re 11 Request for Conference filed by Second Amendment Foundation, Inc., Raymond Woollard. (Gura, Alan) (Entered: 11/15/2010)

Items 12, 12-2 and 13 are attached.

Kharn
11-15-2010, 12:07 PM
Our recently reelected AG should take some heartburn meds before reading the above files, Gura and Hansel really give it both barrels. They even call out MD's single license for CCW and OC vs case law stating one can be restricted if the other is available. I love this quote: "the state may have an interest in reducing gun violence and accidents, but it cannot presume the exercise of a constitutional right will cause the sort of harm it is allowed to curtail. Defendants cannot point to the impact of their practice- the deprivation of constitutional rights- as their interest."

hoffmang
12-29-2010, 11:50 AM
The motion to dismiss this case was denied: http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.16.0.pdf

Younger abstention doesn't apply. Alan will have to be a bit more specific on his equal protections claim however.

-Gene

uyoga
12-29-2010, 11:57 AM
Excellent News!

N6ATF
12-29-2010, 12:15 PM
WTF? It effectively says "you didn't cite Heller and McDonald"? Give me a break. That's like giving a gas station clerk $30 and them saying you didn't pay them a cent and they won't initialize the pump until you do.

Feigned idiocy BS!

Patrick-2
12-29-2010, 12:28 PM
Cross Posted on MDShooters.com as well:

Notes from the decision:

- MD's desire to perform discovery over SAF's standing is denied, based on the rationale that SAF standing is not an issue - Woollard has all the standing the suit requires. The organizational standing issue is simply not an issue (for now).

- Younger abstention denied for a host of reasons, key of which is the fact the adjudicative hearing that they claim Woollard should have used is not "coercive" - meaning the state is not forcing him to do it. This means the state cannot hide behind pseudo-judicial exemptions. If that means nothing to you, don't worry. It's not about 2A...and it's done. It was a Hail Mary pass by MD to begin with.

- The judge would not dismiss due to weak 14th Amendment claims. He wasn't impressed with the initial complaint made by the SAF on this one, but found enough in the SAF response to the MTD to hold the question open. In this case, the judge said the SAF response included an implication that the law impacted a fundamental right. Note this does not mean the judge agrees with the SAF position, just that under the rules for these things he must assume the implication exists. Don't read too much (i.e.: anything) into this.

So overall good news, as the case can move on. MD will now have to respond directly to the 2A complaints (unless some other shenanigans come up). And the SAF will need to strengthen their 14th Amendment complaint -- they are going to have to go all the way on it and clearly say that bearing of arms is a fundamental right. Big step, but one they are taking in other places, as well.

Again...this is less about 2A than about justice delayed. MD has barely even acknowledged the 2A arguments so far. Now they will need to dig in their heels and start tearing down our claims. Get ready for more "in the home" baloney. The SAF has gotten good at knocking those around...so this ought to be good.

Crom
12-29-2010, 1:20 PM
Thanks Gene; and Patrick for your writeup. Much obliged. :)

press1280
12-29-2010, 3:30 PM
To strengthen the equal protection claim, will Gura try to get records on other "good cause" statements from MD?

hoffmang
12-29-2010, 3:56 PM
To strengthen the equal protection claim, will Gura try to get records on other "good cause" statements from MD?

I doubt it. There are three real issues in most of these cases.

1. The right to bear arms is real and some form of it must be honored by the State/Locals.

2. A fundamental right permit can't be subject to discretion.

3. Some people get these permits. Those people are a class who have superior and therefor unequal protection of the laws.

Point 3 is much less an issue than 1 or 2 as it becomes moot once either 1 or 2 are recognized.

-Gene

dantodd
12-29-2010, 4:09 PM
So overall good news, as the case can move on. MD will now have to respond directly to the 2A complaints (unless some other shenanigans come up). And the SAF will need to strengthen their 14th Amendment complaint -- they are going to have to go all the way on it and clearly say that bearing of arms is a fundamental right. Big step, but one they are taking in other places, as well.


I am not sure why you make the claim above that I italicized. From McDonald:

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

The Word fundamental appears over 200 times in the McDonald opinion. How you see proving 2A is a fundamental right is a "Big step" is beyond me.

mofugly13
12-29-2010, 4:57 PM
I think he's talking specifically about "bearing" arms.

kcbrown
12-29-2010, 5:25 PM
I am not sure why you make the claim above that I italicized. From McDonald:
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.The Word fundamental appears over 200 times in the McDonald opinion. How you see proving 2A is a fundamental right is a "Big step" is beyond me.

Maybe the circuit courts won't bother to consider what SCOTUS says on such "polarizing" issues unless it has explicitly said it in regard to the specific circumstances of the cases in front of them? Courts can extrapolate as much or as little from what SCOTUS says as they please (with the caveat that the more they extrapolate, the greater the chances they'll be overruled). Which way do you think they're likely to go in that regard on such a hot issue as RKBA?

I think it will be very interesting to see how the circuit courts handle this. If you're right then narrowly-tailored cases on "bear" should be treated the same by all the circuit courts, and they should recognize the right to bear arms in public. But I will be very surprised indeed if that's what actually happens.

Which is to say: SCOTUS has already said that "bear" is a fundamental right, but they didn't explicitly say that it is always a fundamental right, nor did they explicitly say that it is a fundamental right everywhere. Quite the contrary, they explicitly said:


the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”


which translates to: the government may regulate the time, place, and manner of both "keep" and "bear".

The implication is also that the level of scrutiny may vary. "Bear" is almost certainly fundamental in the home, but the question the courts will need to answer is whether and where it is fundamental anywhere else. And they won't answer that question unless it's asked. Asking that question is SAF's job.

Quite obviously, we believe it is fundamental essentially everywhere. The text of the 2nd Amendment itself has no conditions upon its "shall not be infringed" clause, and that suggests that both "keep" and "bear" are always fundamental, but courts will surely disagree with that viewpoint and I fully expect them to generally attempt to minimize the scope and breadth of RKBA by minimizing the times, places, and manners in which it is a fundamental right. Some courts will attempt to go further in that regard than others, but I fully expect there will be very few, if any, such courts that will attempt to maximize the right.

I say all that not because I know anything about the circuit courts specifically, but because maximization of the right by the courts would be far too good to be true, and therefore almost certainly won't happen.

The worse the outcome, the greater its probability. :D

Kharn
12-29-2010, 5:49 PM
A holiday present delayed a few days is still a present. :D

dantodd
12-29-2010, 6:29 PM
which translates to: the government may regulate the time, place, and manner of both "keep" and "bear".


Absolutely. But it also means that the right to bear is a fundamental right, as is the right to keep, the specific issue in McDonald. This means that they may regulate but not completely proscribe, the exact issue (though related to keep) at question in Heller and McDonald. It will be difficult for courts/states to claim that certain individuals may be granted the right when others are denied. This could mean that all people are entitled to same right to carry as officers not officially on duty. It may be more narrowly defined as all people need to meet the same, objective, criteria. This would make it even more difficult for judges etc. to carry when you and I cannot. Either way it is eventually determined I suspect it will greatly even the playing field for ccw issuance.

kcbrown
12-29-2010, 10:59 PM
Absolutely. But it also means that the right to bear is a fundamental right, as is the right to keep, the specific issue in McDonald.


It is fundamental in the home, which is the domain specifically being addressed in both decisions. I don't see anything in the decisions that directly says that it is always fundamental regardless of time, place, or manner. And if the decision doesn't directly say it, then as far as lower courts are concerned, SCOTUS didn't say it. Why? Because on an issue like this, why would the lower courts attempt to infer a meaning of something from Heller and McDonald rather than rely on past jurisprudence? If they get it wrong, then SCOTUS will correct them. And if they get it right, then they wind up getting their wish of curtailing RKBA.



This means that they may regulate but not completely proscribe, the exact issue (though related to keep) at question in Heller and McDonald. It will be difficult for courts/states to claim that certain individuals may be granted the right when others are denied. This could mean that all people are entitled to same right to carry as officers not officially on duty. It may be more narrowly defined as all people need to meet the same, objective, criteria. This would make it even more difficult for judges etc. to carry when you and I cannot. Either way it is eventually determined I suspect it will greatly even the playing field for ccw issuance.Perhaps. I certainly hope that ends up being the case. I actually think there's a reasonable chance it'll play out that way. But it's nowhere near certain that it'll play out that way. SCOTUS may have a very different view of RKBA in public than in private. The language in the decisions suggests that things will go the way you portray, but it is only a suggestion, not a directive.

hoffmang
12-30-2010, 1:21 AM
It is fundamental in the home, which is the domain specifically being addressed in both decisions. I don't see anything in the decisions that directly says that it is always fundamental regardless of time, place, or manner.

McDonald said "most notably in the home." The argument you worry about is one Chicago made and failed with. Lots of paragraphs talking about how the right to keep and bear arms is not some second class version of fundamental.

If the Heller court didn't recognize a right to bear arms outside the home then tell me why they felt the need to put the sensitive places doctrine into the decision? Got a prison or courtroom in your home?

This "in the home only" business is simply the best lie left to fight the inevitable.

-Gene

press1280
12-30-2010, 1:50 AM
A holiday present delayed a few days is still a present. :D

Although on the other hand, a dismissal would have sent this forward to the 4th circuit.......

Kharn
12-30-2010, 4:53 AM
Although on the other hand, a dismissal would have sent this forward to the 4th circuit.......MD's MTD did not respond to the complaint's 2A claims, so it is my understanding that an appeal to the 4th at this stage would have been solely about standing and not about the merits.

Patrick-2
12-30-2010, 6:12 AM
To strengthen the equal protection claim, will Gura try to get records on other "good cause" statements from MD?

Respectfully, that's a bad idea. I know many of us feel the discriminatory nature of the permitting process just cries for a comparison of applications, but that doesn't solve anything. Really.

Once you start comparing the "good cause" evidence of Joe and Bob, you accept the fact that the evidence even matters at all. Even if Bob wins his appeal because his excuse was close enough to Joe (who previously won)...everybody loses because the state still made the choice, using subjective criteria they alone create and execute.

Another issue here: the courtroom drama everyone thinks this process would entail is not like that on TV. There will be no Sam McCoy "gotcha" moment when everyone hushes their breath and realizes that "By God, They Were Right!"

No. The only drama that will unfold will be months and months of endless discovery by the plaintiffs and the defendants in small conference rooms devoid of light or oxygen. And the state will get to subpoena everyone who ever bumped into the plaintiffs and ask all kinds of personal questions. Medical records will be entered into the record...everything. Huge waste of time and quite invasive.

Plus, attacking the differences between good cause statements between applicants all but concedes that some statements will not meet the rules. That right there is an instant failure on a facial challenge like this, because facial challenges fail if the state can point to even one case where the law is constitutional. Acknowledging that case for them will get nothing but a thank you from MD AG Gansler -- we will have won the case for him. (I know this case claims as-applied, but it has facial aspects that would cause concern in this strategy)

So everybody get this out of your head. Cases that make challenges based on different treatment of good cause statements are full of fail. All of them. It is bad math.

I am not sure why you make the claim above that I italicized. From McDonald:

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

The Word fundamental appears over 200 times in the McDonald opinion. How you see proving 2A is a fundamental right is a "Big step" is beyond me.

kcbrown and Gene have both provided excellent responses before I got back, so I'll sign on to what they said and add the following bits:

You have no recognized right to bear arms in public. Sorry. That's the truth.

Gene points out the fallacy of the "in the home" arguments in general, but I'll be a little more specific to the cases at hand. The anti-rights crowd parrots two key pieces of dicta in Heller to make their arguments: that 'historical prohibitions against concealed carry are presumptively lawful'; and 'the right is most acute in the home'. These two elements are surrounded by citation and context. Our opponents ignore both. They have tried to morph them into complete bans on public carry and limiting of the right to the home.

We've all talked about the concealed carry dicta before: all that says - according to the supporting cases cited in Heller - is that a legislature has the ability to choose the manner of carry should it have cause to do so. That means they can specify one or the other, ban one form (OC, for instance) or leave all options open. But each case cited in Heller made it clear they could not restrict the manner to the point the right was extinguished.

As for 'in the home'...well, the easy answer there is exactly as Gene put it. The Heller decision lays out cases where prohibitions on public carry are presumptively lawful...meaning that in at least some (if not all) other cases the same restrictions are presumptively unlawful.

I'm not one of these guys who claims Heller and McDonald "failed". I think they did what they were asked to do, and then some. But the Supreme Court hinted at a line somewhere between complete RKBA in public and what exists today in all states (even Shall-Issue): the fact that public bearing of arms is a matter of legislative intent (I am ignoring state constitutions because this is a federal question).

This line needs definition. Our side has offered interpretations of Heller that moves the line somewhere to the middle: we acknowledge that there are some reasonable place limitations; that there might be some time restrictions (martial law but not state of emergency, as argued in NC); and that manner of carry is probably open to legislative intent, provided that intent does not limit all practical options for access to a functional firearm for immediate use in a defensive situation.

The other side?

Nothing. They give not an inch. They pull statements from Heller out of context and ignore everything else. They literally claim Heller is a free pass to enact any restriction they want outside the home. Their argument is simple: 2A fails to exist outside the main living quarters of your home (Chicago claims 2A stops existing even on your porch or in your enclosed, attached garage).

This strategy is not well considered. It pretty much forces a court to evaluate their arguments on those merits. By not providing any middle ground, the argument becomes all or nothing. They could draw a line somewhere else...perhaps offering more restrictive place and/or manner restrictions. But nope. Not an inch. Not smart. Because eventually SCOTUS is going to be faced with two options: one that has tried to draw a line to match dicta in Heller; and the other that claims no line exists at all. SCOTUS is never restricted to the options presents by the litigants, but they obviously shape outcomes. Our opposition provides no option to SCOTUS other than "Yes or No".

Again, our opposition helps us in a multitude of ways.

Although on the other hand, a dismissal would have sent this forward to the 4th circuit.......

I'll echo Kharn's response here. It would have gone to the 4th...and the argument would have been over Younger or some other standing issue. 2A would have had a tangential role, at best. The Fourth would literally have to rule we could go back to the District and start the fight all over again. It would have been a big win to MD and blazed a path every other defendant in the USA would have used.


Prior to this decision, the SAF filed an MSJ to hurry things along. MD was given a deadline to respond to the merits of that MSJ but the judge later gave them a reprieve until the MD MTD was decided. That fight is now over. And another piece of excellent news for our side: no discovery. Though I expect MD will go back and ask for more anyway. It is clear they want to avoid the 2A discussion as long as they possibly can.

MD will now be given a new deadline. I have not yet seen a notice of status conference, but that makes sense. Maybe the judge just sets a new deadline on his own. Either way, hopefully it happens soon and the judge resets the schedule. From here on out this should be a fight over 2A. I am interested in what tactics Gansler copies from other defendants. I don't think he'll put up anything novel...he does not have the legal ability. Gansler is the product of a patronage system in MD and short of hiring in outside help, he will be outgunned. In an odd way, I would be proud of our state if he actually did something original and novel on his own.

Can'thavenuthingood
12-30-2010, 6:59 AM
Soon, yes (http://www.calguns.net/calgunforum/showthread.php?t=326232). ;)
CGF Minimum Continuing Legal Education (MCLE) Program - Assistance Needed (http://www.calguns.net/calgunforum/showthread.php?t=326232)
This Thread is more than 149 days old, you can't reply to it. (http://www.calguns.net/calgunforum/showthread.php?t=326232)

Has this thread been continued elsewhere?
If not its a shame to let it die.

Vick

kcbrown
12-30-2010, 7:24 AM
McDonald said "most notably in the home." The argument you worry about is one Chicago made and failed with. Lots of paragraphs talking about how the right to keep and bear arms is not some second class version of fundamental.

If the Heller court didn't recognize a right to bear arms outside the home then tell me why they felt the need to put the sensitive places doctrine into the decision? Got a prison or courtroom in your home?


Maybe I'm just confused about the terminology.

There's a difference between mere recognition of the existence of a right and going to the trouble to call it a fundamental right. A fundamental right is one that, because it's fundamental, is deserving of strict scrutiny, yes?

Why else apply the "fundamental" modifier? If the mere fact that something is a right (whether or not it's explicitly mentioned in the Constitution) makes it fundamental, then the "fundamental" modifier becomes redundant. And if "fundamental" simply means that it's mentioned in the Constitution but that fact does not materially change the way the right is treated by the courts in all situations (all times, all places, all manners), then again, "fundamental" becomes redundant. Which is to say, if a right which is not "fundamental" can achieve the strength of one that is (or, alternatively, if a right which is "fundamental" can legitimately be weakened to the point where it is no stronger than one that isn't "fundamental"), then the term "fundamental" becomes meaningless and redundant.

That such a modifier exists and is used in the language implies that some rights are not fundamental. But more importantly, my personal opinions notwithstanding, I see no reason to believe that a right which is fundamental must, of necessity, be fundamental in all situations. The right to free speech is a perfect example of that: it is fundamental in some circumstances and not fundamental in others, at least by the way I'm thinking of the use of the term "fundamental" and what that term implies.

It is that latter argument -- that RKBA is not always a fundamental right -- that I expect the lower courts to attempt to use against us.



This "in the home only" business is simply the best lie left to fight the inevitable.
I really do hope you're right about that. But as I said, if SCOTUS didn't come out and say something plainly and unmistakably, then I see no reason to believe that the lower courts will attempt to deduce what SCOTUS meant by it rather than simply rule based on pre-Heller jurisprudence, unless they want to agree with SCOTUS. Mere hints that result from what was not said are, I expect, simply not enough.


Finally, I should note that even the Federal district courts are making the same mistake you are calling me out on. And in a way, that's my entire point. They're attempting to do exactly what I'm saying I expect them to do. I see little reason to believe that the circuit courts won't do the same thing at least some of the time.

hoffmang
12-30-2010, 11:15 AM
Finally, I should note that even the Federal district courts are making the same mistake you are calling me out on. And in a way, that's my entire point. They're attempting to do exactly what I'm saying I expect them to do. I see little reason to believe that the circuit courts won't do the same thing at least some of the time.

They are not making a mistake. They are intentionally attempting to limit the scope because they don't like the right. This is why the strategy is incremental. Corner painting and all that.

-Gene

Gray Peterson
12-30-2010, 11:55 AM
They are not making a mistake. They are intentionally attempting to limit the scope because they don't like the right. This is why the strategy is incremental. Corner painting and all that.

-Gene

QFT

kcbrown
12-30-2010, 2:54 PM
They are not making a mistake. They are intentionally attempting to limit the scope because they don't like the right. This is why the strategy is incremental. Corner painting and all that.

-Gene

Yes, and as I mentioned before, I fully expect them to do precisely that intentionally. I know they're intentionally attempting to limit the scope of the right. That's been my point from the beginning: courts will issue whichever rulings they wish on this issue, because it's a "hot button" issue for them. So "mistake" was the wrong term to use. "Error" is the term I had in mind.

The problem here is that we don't know what SCOTUS will think about RKBA in public. Do they regard that as a fundamental right? A right, yes, but fundamental? Nothing other than the Constitution (and the writings of its authors and those of its amendments' authors) says they must, and SCOTUS has issued rulings contradictory to the plain meaning of the Constitution (as explained by those same writings) before. The language of Heller and McDonald hints that they will, but it is merely a hint. They didn't simply come out and say it.

And they could have. Absolutely nothing prevents SCOTUS from issuing an opinion on whatever they wish whenever they wish. They could have come right out and said that, yes, the right to keep and bear arms is fundamental everywhere at all times. They chose not to, despite the fact that they know that lower courts (particularly those with an agenda) will be reluctant to make inferences from the hints they dropped. That very fact carries weight with me.

I don't think it's all that likely that SCOTUS will not regard RKBA in public as fundamental, but I don't treat that they will as a foregone conclusion, either.


I very much agree with the strategy, however. Nothing's for certain, but it's the best shot we have.

yellowfin
12-30-2010, 3:02 PM
If that is the case we live not in a republic, not an elected representative government for and of and by the people, but an oligarchy. We have no laws and no rights but what 5 out of 9 say the laws and rights are when they say it and how they say it based upon how when and if they wish to say, and we have nothing but random dumb luck on that. WTF? :mad:

GuyW
12-30-2010, 3:10 PM
Has this thread been continued elsewhere?
If not its a shame to let it die.


its alive...
.

Gray Peterson
12-30-2010, 3:21 PM
If that is the case we live not in a republic, not an elected representative government for and of and by the people, but an oligarchy. We have no laws and no rights but what 5 out of 9 say the laws and rights are when they say it and how they say it based upon how when and if they wish to say, and we have nothing but random dumb luck on that. WTF? :mad:

If SCOTUS rules that we do not have right to bear arms outside the home, take a look at how many states are "shall-issue". That is when the politics of the RKBA come into play. We have the 38 states to ratify a new constitutional amendment with much stronger language if they play games. SCOTUS knows this and knows if they go against three quarters of the population of the country they will find themselves overruled via an Article 5 amendment.

I can't say the same, however, for the lower courts....

OleCuss
12-30-2010, 3:31 PM
. . . We have the 38 states to ratify a new constitutional amendment with much stronger language if they play games. SCOTUS knows this and knows if they go against three quarters of the population of the country they will find themselves overruled via an Article 5 amendment.
.
.
.

Thank you! A new thought to me and a worthy one.

kcbrown
12-30-2010, 3:45 PM
If SCOTUS rules that we do not have right to bear arms outside the home, take a look at how many states are "shall-issue". That is when the politics of the RKBA come into play. We have the 38 states to ratify a new constitutional amendment with much stronger language if they play games. SCOTUS knows this and knows if they go against three quarters of the population of the country they will find themselves overruled via an Article 5 amendment.

I can't say the same, however, for the lower courts....

In that event, this is a game that we cannot win even with Constitutional amendments in our arsenal. Not unless the Constitutional amendment(s) explicitly goes on to state that the Supreme Court does not have the power to "interpret" the Constitution in any way other than literal with the meanings of the words coming from their usage at the time they were written. And, quite possibly, not even then. You'd essentially have to somehow force the Supreme Court's to "interpet" the Constitution the way it was intended by its authors, and I don't know that that's possible.

The 14th Amendment and Slaughterhouse are all the evidence I need to support my argument here.

kcbrown
12-30-2010, 4:01 PM
If that is the case we live not in a republic, not an elected representative government for and of and by the people, but an oligarchy. We have no laws and no rights but what 5 out of 9 say the laws and rights are when they say it and how they say it based upon how when and if they wish to say, and we have nothing but random dumb luck on that. WTF? :mad:

That is how it is. Why else do you think the overall freedom of the population has been continuously diminishing over time as more and more laws get put on the books?

We're more heavily regulated and controlled now than at any time in the history of this country. You wonder why old people pine for the "good old days"? This is why.

hoffmang
12-30-2010, 4:14 PM
If the Heller 5 don't think bear = carry then why did they say that Heller should not be read "to cast doubt on longstanding prohibitions" such as "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Id. at 2816-17. Heller.

There are no sensitive places inside homes. They didn't say "keep" arms in sensitive places. The right to bear arms was clearly shown to be two distinct concepts in the holding of Heller (to dispute the stupid anti gun 'idiom' argument). McDonald did nothing to change that analysis beyond making it clear that the entirety of the 2A is incorporated and fully everywhere in the US.

You really need to stop conflating the misbehavior of the lower courts with what the Supreme Court has pretty clearly held.

-Gene

kcbrown
12-30-2010, 4:36 PM
If the Heller 5 don't think bear = carry then why did they say that Heller should not be read "to cast doubt on longstanding prohibitions" such as "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Id. at 2816-17. Heller.

There are no sensitive places inside homes. They didn't say "keep" arms in sensitive places. The right to bear arms was clearly shown to be two distinct concepts in the holding of Heller (to dispute the stupid anti gun 'idiom' argument). McDonald did nothing to change that analysis beyond making it clear that the entirety of the 2A is incorporated and fully everywhere in the US.

You really need to stop conflating the misbehavior of the lower courts with what the Supreme Court has pretty clearly held.


Understand: I am not contesting that SCOTUS regards both keep and bear in public as a right. They quite clearly do, as indicated by the language they chose to use.

The question is whether or not SCOTUS regards it as a fundamental right (and thus one that must call for strict scrutiny or something at least as rigorous) in that environment. And that is much less clear.

As I said, SCOTUS could simply have come out and said it with perfect clarity had they so chosen. They chose not to. Now, why do you think they would choose to not explicitly say that keeping and bearing in public is a fundamental right if that is truly what they believe? SCOTUS is not limited to answering only the questions directly before them. When they exercise that restraint, it is by their own choice.

That they chose to not come out and explicitly say these things tells me that there is a reasonable chance that they do not regard RKBA in public as fundamental, even though they made it clear that they will recognize the right. Those are two different things (more precisely, regarding a right as fundamental is a superset of recognizing the right, since it implicitly recognizes the right as well).

hoffmang
12-30-2010, 4:46 PM
The question is whether or not SCOTUS regards it as a fundamental right (and thus one that must call for strict scrutiny or something at least as rigorous) in that environment. And that is much less clear.
Have you read McDonald (http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf)?


Now, why do you think they would choose to not explicitly say that keeping and bearing in public is a fundamental right if that is truly what they believe? SCOTUS is not limited to answering only the questions directly before them. When they exercise that restraint, it is by their own choice.
No. They don't get to go wildly willy nilly outside the four walls of the controversy in front of them. Arguably they even did that some in Heller. McDonald only challenged the right to keep an operable firearm in the home. As such, they had no reason to opine beyond that necessary to deal with the arguments in that case.

yellowfin
12-30-2010, 4:52 PM
I'm certainly hopeful they'll stick to it as you say, Gene, and treat the forthcoming cases accordingly, but I'll be a LOT more comfortable once we're across the finish line. Right now it's like awaiting heart surgery: you know it's good and the odds are better than 50/50, but lack of 100% certainty and the suspense is rather nerve wracking having one's well being rather up in the air.

hoffmang
12-30-2010, 5:01 PM
I'm certainly hopeful they'll stick to it as you say, Gene, and treat the forthcoming cases accordingly, but I'll be a LOT more comfortable once we're across the finish line. Right now it's like awaiting heart surgery: you know it's good and the odds are better than 50/50, but lack of 100% certainty and the suspense is rather nerve wracking having one's well being rather up in the air.

Lower court intransigence should surprise no one. They're the court system that brought us the nullification of the 2A. It's going to take them a few more trouncings to get that this right means something. All of those are already underway.

-Gene

kcbrown
12-30-2010, 5:04 PM
Have you read McDonald (http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf)?


Yes, I have. And I didn't see anything in the main opinion explicitly stating that RKBA is fundamental in all places and times.

And as I said, if the opinion doesn't explicitly state something, then as far as lower courts are concerned, the opinion may as well not have stated it at all. That SCOTUS can explicitly state something if they so choose, and that they choose not to, raises serious questions in my mind about whether they will do so once the question is directly presented to them.



No. They don't get to go wildly willy nilly outside the four walls of the controversy in front of them.
Of course they do. They're the Supreme Court. The only rules binding them are those stated in the Constitution, and the Constitution does not explicitly limit them to considering only the specific questions before them.

Any other rules they follow are strictly by choice. There may be a tradition, but tradition does not have the weight of law.


It would be imprudent of them to go wild, as you say, but anticipation of later related questions and answering those questions is most certainly within their scope of power.



Arguably they even did that some in Heller. McDonald only challenged the right to keep an operable firearm in the home. As such, they had no reason to opine beyond that necessary to deal with the arguments in that case.Of course they had reason to opine beyond that. It doesn't take a genius to figure out that further challenges that ask about RKBA in different environments would be forthcoming.

Patrick-2
12-30-2010, 5:27 PM
Understand: I am not contesting that SCOTUS regards both keep and bear in public as a right. They quite clearly do, as indicated by the language they chose to use.

The question is whether or not SCOTUS regards it as a fundamental right (and thus one that must call for strict scrutiny or something at least as rigorous) in that environment. And that is much less clear.

As I said, SCOTUS could simply have come out and said it with perfect clarity had they so chosen. They chose not to. Now, why do you think they would choose to not explicitly say that keeping and bearing in public is a fundamental right if that is truly what they believe? SCOTUS is not limited to answering only the questions directly before them. When they exercise that restraint, it is by their own choice.

That they chose to not come out and explicitly say these things tells me that there is a reasonable chance that they do not regard RKBA in public as fundamental, even though they made it clear that they will recognize the right. Those are two different things (more precisely, regarding a right as fundamental is a superset of recognizing the right, since it implicitly recognizes the right as well).

Let me clear up fundamental (a little bit). The term "fundamental" when applied to a right is a heavily loaded term, in a good way. It implies that the right in question pre-exists the establishment of our republic (or any government, for that matter). So in this philosophical framework implemented by our founders (borrowed extensively from many places), the right is always there. Government has but two exceptionally limited roles with fundamental rights: recognizing them (staying away), and settling legitimate differences between the various rights when they collide.

What makes it "fundamental"? Well...the easy answer for 2A is that it is 'enumerated' in the first eight amendments to the Constitution...the things we call the "Bill of Rights". That is enough according to Constitutional Canon. Other rights have since been deemed fundamental, including the right to contract and even more nebulous matters such as personal privacy ala abortion.

But 2A is fundamental by virtue of it being in the Bill of RIghts. The issue we had up to Heller was determining if it was a collective (government/militia) right or an individual right. Obviously, our argument won.

Fundamental rights require the courts to evaluate restrictions against them with extreme prejudice. The assumption is that the restriction is invalid. This differs from most every other analysis the courts use in other cases, where the intent of the legislature is assumed correct because in theory that is the will of the people.

Scrutiny at any level is a 20th Century construct devised to simplify analysis of 'core' rights in civil rights cases - core tenets being those that are considered the primary intent of the right itself. In cases where significant jurisprudence exists, it mostly works to define limitations on restrictions against the 'core' of a right. But like blood tests at a busy doctor's office (no offense, docs), it is sometimes an over-used crutch when a real diagnosis/analysis is required.

The Second Amendment has almost no jurisprudence based on original, categorical analysis since McDonald. This is why scrutiny will generally not have a serious role, even though courts continually go back to that well. It won't work because the well (jurisprudence) is dry because we are still fleshing out what is 'core' to 2A.

As I said, SCOTUS could simply have come out and said it with perfect clarity had they so chosen. They chose not to. Now, why do you think they would choose to not explicitly say that keeping and bearing in public is a fundamental right if that is truly what they believe? SCOTUS is not limited to answering only the questions directly before them. When they exercise that restraint, it is by their own choice.

They could have, but it would have broken most of the historical bounds that they have created for themselves these last 200 years.

As Gene put it, they answer the questions that are posed of them. They will occasionally broaden the inquiry (as they did in Heller) or provide extraneous dicta (as they did in both cases). But it is rare they will aim for the bleachers and try to knock an entire issue out of the park at first bat. That is dangerous, as it violates the idea of limiting the effect an single decision will have on the constitution; and it also keeps things somewhat safe from the law of unintended consequences.

Heller and McDonald were each over 100 pages, each to answer one simple question of law with no findings of fact required. No way they could handle future questions in that same venue without risking much more than their judicial integrity.

And frankly, they went much further than they needed to in both cases. I won't belabor the points...but they did so in a big way. They erased a lot of future work from what was surely an even busier SAF roadmap.

That they chose to not come out and explicitly say these things tells me that there is a reasonable chance that they do not regard RKBA in public as fundamental, even though they made it clear that they will recognize the right. Those are two different things (more precisely, regarding a right as fundamental is a superset of recognizing the right, since it implicitly recognizes the right as well).

Well, that's an interesting argument I think we are going to see more often made by our opposition (at least the smart ones): that the varying degrees of freedom implicit in any fundamental right mean that half the 'keep and bear' equation is worth less than the other. The problem is the clause 'keep and bear' imply two distinct acts joined at the hip. And as such, if one is fundamental, so too is the other.

This is what Gene was alluding to in his earlier post: the current best defense of the anti-rights crowd is to reduce 'keep and bear' down to an idiomatic expression - a literary flourish of the Founders in which it the clause really means 'hold in your home'. It's a stretch even without Heller dicta guiding our path.

So your consideration here is insightful. But you are still wrong. ;)

They are not making a mistake. They [Federal Courts] are intentionally attempting to limit the scope because they don't like the right. This is why the strategy is incremental. Corner painting and all that.

-Gene

This is where I disagree somewhat. In some cases...absolutely. But even in cases where judges might be sympathetic, there is reticence to move too far, too fast. Even when writing is on the wall. But in fairness to Gene, he is closer to the fire and the players than I am...so go with his gut on this one.

I point out my difference of opinion here not to be argumentative, but to set the stage for those who, in the future, get disheartened after seeing one loss after another coming from supposedly "friendly" courts. Some of this is written into the DNA of the system.

Gray pointed something out the other day that might help: Thurgood Marshall - well considered the greatest civil rights litigator of all time - won 29 Supreme Court cases in his quest for equality. We got two under our belt, and I don't think it will take too many more to get most of what we want. Thurgood Marshall spent considerable energy laying the foundation for a path that did not exist -- we get to use the same path (and subsequent legislation) to run at a much faster pace.

Patrick-2
12-30-2010, 5:29 PM
Just reread that.

I seriously need to write smaller posts...

yellowfin
12-30-2010, 5:49 PM
Nah, larger posts are the norm here. This is a highly educational forum so complex ideas are integral therein.

Gray Peterson
12-30-2010, 5:56 PM
Just reread that.

I seriously need to write smaller posts...

Nope, your posts are just fine.

safewaysecurity
12-30-2010, 5:56 PM
How many carry challenges is this now? 7? You got North Carolina I think, New York, Maryland, New Jersey, 2 in Cali, and I think one in Wisconsin.

kcbrown
12-30-2010, 6:59 PM
Let me clear up fundamental (a little bit). The term "fundamental" when applied to a right is a heavily loaded term, in a good way. It implies that the right in question pre-exists the establishment of our republic (or any government, for that matter). So in this philosophical framework implemented by our founders (borrowed extensively from many places), the right is always there. Government has but two exceptionally limited roles with fundamental rights: recognizing them (staying away), and settling legitimate differences between the various rights when they collide.


If this were strictly true then there would be no other level of scrutiny other than "strict" for any fundamental right.

But that's not the case at all. The level of scrutiny varies based on circumstance. There are circumstances in which there is no collision of rights and yet something less than strict scrutiny is chosen by the judiciary.



Well, that's an interesting argument I think we are going to see more often made by our opposition (at least the smart ones): that the varying degrees of freedom implicit in any fundamental right mean that half the 'keep and bear' equation is worth less than the other. The problem is the clause 'keep and bear' imply two distinct acts joined at the hip. And as such, if one is fundamental, so too is the other.
That's an interesting possibility that I hadn't even thought of. As such, though, it's not really what I was getting at.

My original thinking was that "fundamental" implied that the right is so strong that it demands something equivalent to strict scrutiny when a law that purports to abridge it is being analyzed by the court, and as such, the term "fundamental" can change in its applicability depending on time, place, and manner.

A perfect example of this is the 1st Amendment, i.e. your right to free speech. Before you can peacefully demonstrate in the streets, you must get a permit from the government. Note that peacefully demonstrating in the streets collides with nobody's rights, at least if those who claim that driving is a privilege and not a right are to be believed.

If the right to free speech were truly fundamental in that setting, then strict scrutiny would apply and the government would be compelled to use the least restrictive means to achieve its interest. The least restrictive means to achieve its interest for a demonstration in the streets is "required notification" (so the government could put up the requisite signs, clear the streets, etc.). Instead, a permit system is in place. That passes intermediate scrutiny but quite obviously not strict scrutiny, since a permit system is clearly not the least restrictive means available.


As I argued earlier, if the "fundamental" nature of a right (which, fundamental or not, is still a right) has little to no effect on the way it is treated by the judiciary, then the term "fundamental" has no real meaning. If the strongest non-fundamental right is at least as strong as the weakest fundamental right, then the term "fundamental" loses all strength and becomes meaningless for the purpose of analysis of the strength of the right to which it's being applied.


Rather than go on about the use of the term "fundamental", I will simply say that neither Heller nor McDonald explicitly said anything about how "hands off" the government must be when dealing with RKBA outside of the home. This is the fundamental point of contention. The antis will most surely argue that RKBA in public is not deserving of the degree of reverence reserved for it in the home (they will, of course, attempt to argue that it is deserving of no reverence at all in public, but that will surely fail), and Heller and McDonald were essentially silent on that question. All they said is that the right cannot be eliminated entirely from the public venue, and they didn't even say that explicitly: one must infer it. One can quite clearly say that SCOTUS intends the right to be treated with some reverence, but as far as I can tell that's the only thing you can clearly say based on what they wrote. The rest is guesswork, and that's something the lower courts are going to generally be unwilling to engage in.

All of which is to say, I expect that even rational basis scrutiny isn't yet off the table when being applied to RKBA in public.

kcbrown
12-30-2010, 7:01 PM
Just reread that.

I seriously need to write smaller posts...

No, you don't. Not at all. I very much enjoy reading what you've written. It's poignant and thoughtful. Good stuff indeed. Well done, sir!

hoffmang
12-30-2010, 8:29 PM
But that's not the case at all. The level of scrutiny varies based on circumstance. There are circumstances in which there is no collision of rights and yet something less than strict scrutiny is chosen by the judiciary.


Your imprecision with the word "circumstances" is driving some of the problem you're having understanding why I'm saying that "carry arms" is fundamental.

The core of the second amendment right is the right to self defense like the core of one part of the first amendment is the right to speak freely on political topics. In 1A, the further you get from the political the more you see less than strict scrutiny used. Think commercial speech and obscenity.

Being able to use an arm (including a handgun) to defend ones person or loved ones is the core right enshrined in the second amendment. The Heller court said that explicitly. The need for that right to armed self defense is is just as real out on the sidewalk in front of your office as it is at your home. The core right to self defense (and maybe just for the non violent) goes everywhere all the time and predated the Constitution. That makes it clearly fundamental. You'll note for example how often Thomas cites attempts to strip newly freed slaves of their right to carry arms out and about - not just in the home - in McDonald.

When you get further from the core, that's where the scrutiny starts to decrease. Obliterated serial numbers don't increase or decrease your ability to shoot an unlawful agressor. Ranges look to be close to the heart of the right as well regulated implies pretty directly that you're practicing the core right of self defense. NICS instant checks are pretty uneventful in the core right of self defense (the extra hour drooling at other guns in the gun shop is not going to be seen as a burden on your ability to defend yourself - the FFL has your 6.)

When you start drawing concentric circles or onion layers with the natural right to defend oneself at the very core, you can see why DC, Chicago's in the home bans go away quickly. Next up are California, MD, NJ, etc's bans on practical self defense moving about the countryside. The ring around that are gun stores, ranges, and gun shows as you have to have sources to get them and training and practice to be able to defend yourself should you need to.

-Gene

kcbrown
12-30-2010, 11:38 PM
Your imprecision with the word "circumstances" is driving some of the problem you're having understanding why I'm saying that "carry arms" is fundamental.


That is entirely possible.

I've been concentrating on the term "fundamental", but if that term does not confer a binding requirement that the right in question be treated as essentially inviolate, i.e. as something significantly stronger than any other non-fundamental right, then I must regard the term as useless and meaningless.



The core of the second amendment right is the right to self defense like the core of one part of the first amendment is the right to speak freely on political topics. In 1A, the further you get from the political the more you see less than strict scrutiny used. Think commercial speech and obscenity.
And yet, intermediate scrutiny is the method used to examine laws which infringe upon the 1st Amendment with respect to the core purpose of political speech in public, at least in some circumstances (public political demonstrations in the streets being the prime example I'm using here).

So quite clearly, that the activity in question goes to the core of the right in question is not in and of itself the defining factor as to the reverence given to the right, as evidenced by the level of scrutiny chosen.



Being able to use an arm (including a handgun) to defend ones person or loved ones is the core right enshrined in the second amendment. The Heller court said that explicitly. The need for that right to armed self defense is is just as real out on the sidewalk in front of your office as it is at your home. The core right to self defense (and maybe just for the non violent) goes everywhere all the time and predated the Constitution. That makes it clearly fundamental. You'll note for example how often Thomas cites attempts to strip newly freed slaves of their right to carry arms out and about - not just in the home - in McDonald.
I agree that's how it should play out. And yet, once you're out in public, rights seem to somehow diminish in the eyes of the courts. Again, I cite the requirement to get a permit for political speech in the streets as an example.

That Thomas' separate opinion happens to be a concurring one does not make his opinion binding precedent to lower courts nor stare decisis to later SCOTUS decisions. If it did, then lower courts and later Supreme Courts would have to consider the 14th Amendment's PorI clause when examining claims made as a result of lack of 5th Amendment protection of the right to indictment by a grand jury or the lack of 7th Amendment protection of the right to a jury trial in civil cases.


I understand and personally agree with your argument, and I do truly hope SCOTUS winds up seeing things that way. But I remain skeptical, as is my nature, that they will, and as evidence supporting my point of view, I note that the Court explicitly mentioned schools as an example of a "sensitive place" where, somehow, the core right of self-defense is insufficient to overcome the state's desire to ban firearms. Clearly, that an activity goes to the core of a right is insufficient to overcome the desire of the state to arbitrarily control it. And make no mistake, that a school is considered "sensitive" for the purposes of exercise of 2A rights is arbitrary.

Gray Peterson
12-30-2010, 11:48 PM
That is entirely possible.


And yet, intermediate scrutiny is the method used to examine the 1st Amendment with respect to the core purpose of political speech in public, at least in some circumstances (public political demonstrations in the streets being the prime example I'm using here).

So quite clearly, that the activity in question goes to the core of the right in question is not in and of itself the defining factor as to the level of scrutiny chosen.


I agree that's how it should play out. And yet, once you're out in public, rights seem to somehow diminish in the eyes of the courts. Again, I cite the requirement to get a permit for political speech in the streets as an example.

That Thomas' separate opinion happens to be a concurring one does not make his opinion binding precedent to lower courts nor stare decisis to later SCOTUS decisions. If it did, then lower courts and later Supreme Courts would have to consider the 14th Amendment's PorI clause when examining claims made as a result of lack of 5th Amendment protection of the right to indictment by a grand jury or the lack of 7th Amendment protection of the right to a jury trial in civil cases.


I understand and personally agree with your argument, and I do truly hope SCOTUS winds up seeing things that way. But I remain skeptical that they will, as is my nature.


http://www.law.ucla.edu/volokh/herrerareply.pdf

hoffmang
12-31-2010, 12:15 AM
And yet, intermediate scrutiny is the method used to examine laws which infringe upon the 1st Amendment with respect to the core purpose of political speech in public, at least in some circumstances (public political demonstrations in the streets being the prime example I'm using here).

This is a serious error (bolded above.) Strict scrutiny still yields to time/place/manner restrictions while remaining strict scrutiny and not intermediate scrutiny.

I have the right to call someone a communist. I don't have the right to use sound amplification directly into their ear while doing so. I also don't have the right to do it after midnight at their residence at 80db. I have the right to march, but it is subject to some requirements - like potentially waiting for morning rush hour as long as the time itself isn't politically significant.

Permitting and time/place/manner are not at all incompatible with strict scrutiny. Lots of permits and time/place/manner restrictions survive strict scrutiny.

Let me give you a 2A example. If I have the absolute right to bear arms as a law abiding citizen, why can the state disallow me carrying into Folsom Prison to visit a friend? Well, the restriction on firearms entering Folsom is a valid time/place/manner regulation even under strict scrutiny.

-Gene

hoffmang
12-31-2010, 12:17 AM
That Thomas' separate opinion happens to be a concurring one does not make his opinion binding precedent to lower courts nor stare decisis to later SCOTUS decisions. If it did, then lower courts and later Supreme Courts would have to consider the 14th Amendment's PorI clause when examining claims made as a result of lack of 5th Amendment protection of the right to indictment by a grand jury or the lack of 7th Amendment protection of the right to a jury trial in civil cases.

Thomas' required concurrence is very persuasive. You'll also note that the other 4 pointed out other similar laws. It's as much a holding as the "majority" as, without it, the 2A would not have been incorporated.

-Gene

kcbrown
12-31-2010, 12:20 AM
This is a serious error (in italics above.) Strict scrutiny still yields to time/place/manner restrictions while remaining strict scrutiny and not intermediate scrutiny.


Yes, I know. That's not why the permit requirement fails strict scrutiny. It fails because it is not the least restrictive means available. A notification requirement is less restrictive than a permit system, and therefore that makes the permit system something other than the least restrictive means available.



Let me give you a 2A example. If I have the absolute right to bear arms as a law abiding citizen, why can the state disallow me carrying into Folsom Prison to visit a friend? Well, the restriction on firearms entering Folsom is a valid time/place/manner regulation even under strict scrutiny.
Only if disallowing you to carry into Folsom Prison is, indeed, the least restrictive means available to the state to achieve its goal. That would be a difficult thing to show. For instance, if the compelling interest of the state is to prevent the prisoners from acquiring firearms, then visitors could be given the choice to either give up their ability to make physical contact with the prisoners (e.g., force the visit to occur with a transparent wall between the visitor and the prisoner) or to give up their firearm. That is clearly less restrictive than outright banning firearms on the premises.

If there is any less restrictive means available than the one proposed by the law, then the law fails strict scrutiny.


Now apply that principle to schools, where the Supreme Court has already opined that firearms can be restricted/banned, and see where that leads.

kcbrown
12-31-2010, 12:25 AM
Thomas' required concurrence is very persuasive. You'll also note that the other 4 pointed out other similar laws. It's as much a holding as the "majority" as, without it, the 2A would not have been incorporated.


That's an interesting interpretation of the situation. So, by implication, if any concurring justice bases his opinion on something that the others do not concur with but without which his concurrence would have instead been dissent such that the overall holding would have changed, that suddenly becomes as persuasive as the holding itself?

Is there any historical precedent to that?

hoffmang
12-31-2010, 11:56 AM
Yes, I know. That's not why the permit requirement fails strict scrutiny. It fails because it is not the least restrictive means available.

The government problems that OC bans with permitted CCW aims to fix are erroneous reports of man with a gun combined with the historically quite real problem of concealed weapons leading to unfair fights. Your supposed "fix" doesn't deal well with the latter. If a non discretionary permit checks to make sure you don't have a history of violence and that you get some basic training on the use of force, the means, end fit are surprisingly good. There is not a less restrictive means of solving both problems.

Further, your understanding of strict scrutiny is way stricter than it is in practice. I think you should read Adam Winkler's take on this (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360).

-Gene

kcbrown
12-31-2010, 2:48 PM
The government problems that OC bans with permitted CCW aims to fix are erroneous reports of man with a gun combined with the historically quite real problem of concealed weapons leading to unfair fights. Your supposed "fix" doesn't deal well with the latter.


Um, what? Which specific "fix" of mine are you referring to? This quite clearly isn't in reference to my reference to the permit requirement for political demonstrations in the street, nor does it appear to be referring to my suggested alternative to a full-on firearms ban at Folsom Prison...

Please elaborate. Who exactly are we talking about getting into unfair fights here?


Further, your understanding of strict scrutiny is way stricter than it is in practice. I think you should read Adam Winkler's take on this (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360).
If strict scrutiny isn't a well defined thing then that makes it essentially arbitrary, since it becomes whatever the court in question wants it to be at the time (there may be limits, but if those limits aren't well defined then my accusation of arbitrariness stands even more firmly). That lends great strength to the argument that our "rights" are nothing but arbitrarily-adjudicated privileges, and eliminates any real confidence I have that RKBA will be treated the way a fundamental right should be treated.

How in the world can you possibly have any confidence in the court system in the face of such things?

hoffmang
12-31-2010, 4:52 PM
Um, what? Which specific "fix" of mine are you referring to?

"A notification requirement is less restrictive than a permit system." How does that address the very real problems that the government has been trying to deal with under the rubric of carry regulations?

Firearms are going to be prohibited in prisons and on army bases and have been as long as there is a right to arms (and far earlier than this Republic.)

I am saying to you that strict scrutiny doesn't mean what you think it means. You are also treating courts like code and they are not.

-Gene

kcbrown
12-31-2010, 5:19 PM
"A notification requirement is less restrictive than a permit system." How does that address the very real problems that the government has been trying to deal with under the rubric of carry regulations?


That wasn't in reference to carry, that was in reference to the permit requirement for public political demonstrations in the streets.



Firearms are going to be prohibited in prisons and on army bases and have been as long as there is a right to arms (and far earlier than this Republic.)
Yes, they are. This makes it quite plain that the "fundamental right" in question isn't really a fundamental right (inviolate except when no other reasonable means of protecting some other equal or greater right is available) but is instead a privilege that is protected to a degree that varies with circumstance, at the whim of the judiciary.



I am saying to you that strict scrutiny doesn't mean what you think it means. You are also treating courts like code and they are not.
Then what, specifically, does strict scrutiny really mean? Quite clearly the definition on Wikipedia needs to be corrected.

If there's anything that should be treated like code by the courts, it is the protection of fundamental rights! And if the courts are to err with respect to that, it must be in favor of protection of those rights. But instead, we have a system where the courts err in favor of violation of those rights -- where strict scrutiny isn't really strict, courts will allow violation of rights for arbitrary reasons as long as "it's always been done that way", etc.

Despite all that, you appear to have great confidence in that system with respect to RKBA. I'm sorry, but in the face of such a capricious system, I cannot have that kind of confidence. My skepticism stands more strongly than ever.

keneva
12-31-2010, 6:24 PM
Great debate! I love it.

Patrick-2
01-01-2011, 4:40 AM
If this were strictly true then there would be no other level of scrutiny other than "strict" for any fundamental right.

But that's not the case at all. The level of scrutiny varies based on circumstance. There are circumstances in which there is no collision of rights and yet something less than strict scrutiny is chosen by the judiciary.



Confusion is the price of brevity.

I did not mean to imply that everything associated with a fundamental right deserves strict scrutiny. There are shades of gray here, and you set up the perfect example:


A perfect example of this is the 1st Amendment, i.e. your right to free speech. Before you can peacefully demonstrate in the streets, you must get a permit from the government. Note that peacefully demonstrating in the streets collides with nobody's rights, at least if those who claim that driving is a privilege and not a right are to be believed.


The rub here is how the regulations are implemented. The court has held that "content neutral" permitting is permissible when the government can point to a strong enough interest (public safety, crowd control, traffic, etc.). As long as the speech is allowed and not evaluated as part of the process, the act of traffic management falls under intermediate mean-end scrutiny. The reason this is permissible is because the message itself is not evaluated as part of the permitting process - it is still strictly protected. Anyone can apply and get a permit, so the issue of the content of the speech is not in play. As a result, the permitting system does not impact the 'core' of the right, as long the permitting process does not take into account the content of the speech. Your confusion is over how the courts have historically treated your example: they analyze each act in the activity and meet out protection as required. For instance, in this example, the normal ability of the government to manage public areas is actually further restricted because of the First Amendment implication, even though "only" intermediate. They don't need to apply such a high standard when telling PG&E not to perform work in an area due to any reason they want. But the moment you show up with your protest flags...a whole new set of rules come into play. Your protected activity (free speech) has now elevated the consideration of traffic management to a whole new level.

So content-sensitive permitting falls under strict scrutiny, because it challenges a 'core' tenet of the First Amendment: freedom of speech. This has been tested many times, from the Ohio town that would only approve permits for activities that 'met community standards', effective bans on pro-abortion rallies, to the many attempts to shut down Klan marches. All failed.

And blocking a busy street does impact the rights of others, regardless of how they transport themselves through the area (car, walk, bike, etc.).



If the right to free speech were truly fundamental in that setting, then strict scrutiny would apply and the government would be compelled to use the least restrictive means to achieve its interest. The least restrictive means to achieve its interest for a demonstration in the streets is "required notification" (so the government could put up the requisite signs, clear the streets, etc.). Instead, a permit system is in place. That passes intermediate scrutiny but quite obviously not strict scrutiny, since a permit system is clearly not the least restrictive means available.


As the logic goes, the first amendment does not grant at its core the right to speak freely in the center of the intersection of Broadway and 42nd. Nobody is stopping the speech; they are guiding the safety of the surroundings. Some permits are never allowed - for instance, one where the protesters want to use an open train trestle (bridge) over a highway. That is inherently unsafe at all times. The government's responsibility is to be reasonable. But that also means they cannot dis-allow access to one group that they allow to another.



As I argued earlier, if the "fundamental" nature of a right (which, fundamental or not, is still a right) has little to no effect on the way it is treated by the judiciary, then the term "fundamental" has no real meaning. If the strongest non-fundamental right is at least as strong as the weakest fundamental right, then the term "fundamental" loses all strength and becomes meaningless for the purpose of analysis of the strength of the right to which it's being applied.



What you are bumping into is the concept of 'core to the right'. Back to the First Amendment: you can zone bookstores into commercial areas but not zone them by virtue of the content they sell.

There is generally a two-part analysis used in circumstances where a regulation or restriction is suspect. The first is an analysis of whether the regulation impacts a 'core' tenet or activity of the right. If so, strict scrutiny is applied and the government's job just got real hard. If the activity being regulated is not 'core' - meaning there are elements that fall outside the scope of the right (standing in a busy intersection reading from the bible instead of on a corner reading from the same bible) - the rules are lessened.

No single activity exists in a vacuum. As such, the bible preacher above does two things when standing in the street: exercise free speech and also impede traffic. The government can ask him to move somewhere nearby to exercise his right of speech, as long as they do so in a neutral manner (not letting another preacher use the intersection because they like his bible better).

The mere implication of a fundamental right does not grant the actor unlimited power. Nuclear war protesters cannot protest under the wings of B-52 bombers just because they are exercising their "message of peace" (Rome Air Force Base, back in the day) - there are nukes on that thing. But they can stand outside the gates and yell all they want.



Rather than go on about the use of the term "fundamental", I will simply say that neither Heller nor McDonald explicitly said anything about how "hands off" the government must be when dealing with RKBA outside of the home. This is the fundamental point of contention. The antis will most surely argue that RKBA in public is not deserving of the degree of reverence reserved for it in the home (they will, of course, attempt to argue that it is deserving of no reverence at all in public, but that will surely fail), and Heller and McDonald were essentially silent on that question. All they said is that the right cannot be eliminated entirely from the public venue, and they didn't even say that explicitly: one must infer it. One can quite clearly say that SCOTUS intends the right to be treated with some reverence, but as far as I can tell that's the only thing you can clearly say based on what they wrote. The rest is guesswork, and that's something the lower courts are going to generally be unwilling to engage in.

All of which is to say, I expect that even rational basis scrutiny isn't yet off the table when being applied to RKBA in public.


You sum up the entire debate quite well in that paragraph. Absolutely, that is the issue. Heller/McDonald said that the right to possess and carry arms for self defense was 'core' to the right. Now we get to argue about extenuating circumstances.

The government can only make a compelling interest argument here - arguing that bearing of arms in public is overwhelmingly dangerous for society - and for states like MD and CA it is going to be real hard.

Just yesterday a three-judge panel on the Fourth released an opinion (Chester) that said a violent man convicted of misdemeanor domestic abuse still has 2A rights - though because he fell outside the core definition provided in Heller ("lawful people"), his case only required intermediate analysis. Even so, they remanded the case to the District Level for more fact finding, with an interesting twist: they said the government must provide more than broad literary flourishes to justify restriction of his rights. They wanted more than colorful language about the dangers of domestic abuse. They want "proof" that letting Chester own a gun is a bad thing.

So as we look to regulations that restrict the core holders of 2A rights ("lawful people"), there is an even higher burden for the government to meet. If the government must "prove" that a violent, convicted man should not have a gun...then CA and MD are going to need to prove that allowing lawful citizens to carry arms is going to cause harm to society at large, in large scale. And the experience of 40+ states says they cannot prove anything.

dwtt
01-01-2011, 5:05 AM
Patrick, it's good to see you here as well as MDShooters.
Most California gun owners don't realize it but there are some states with worse gun laws, like NJ and MD.

yellowfin
01-01-2011, 7:07 AM
An example of a bad non-CA gun law: in Delaware, they put your name in the paper when you apply for a CCW.

Patrick-2
01-01-2011, 8:48 AM
An example of a bad non-CA gun law: in Delaware, they put your name in the paper when you apply for a CCW.

Like a prize!

Kharn
01-01-2011, 8:03 PM
An example of a bad non-CA gun law: in Delaware, they put your name in the paper when you apply for a CCW.The state doesn't, you're required to place (and pay for) the ad yourself for (IIRC) four weeks before you turn in your application.

N6ATF
01-01-2011, 9:05 PM
LMFAO just like a name change here in CA?

yellowfin
01-02-2011, 9:28 AM
Hmm, perhaps that has potential for creativity.

Patrick-2
03-22-2011, 2:44 PM
Maryland made their first real response (http://ia600101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.26.0.pdf) to the SAF/Gura lawsuit against them today.

This is a cross-post of what I wrote on MDShooters.com. Please swing by and join the conversation here (http://www.mdshooters.com/showthread.php?p=1035718#post1035718).



At the Outset

There is much fail in here. They spent too many pages filling in details that are not apropos to the discussion. They cite as sources themselves. Literally: a great number of the so-called "findings" they present in the first 14 pages or so are declarations from themselves (more pointedly: the named defendants).

As others have noted already, the concede that Maryland is an unusually dangerous place for its size and population; that is has been that way for some time; and that the police and governmental authorities have tried hard - but failed - to bring it under control. They also concede that common altercations in Baltimore can became violent quite quickly. They also note that the speed with which a problem can escalate might preclude a citizen from responding in time - that "some victims might not have time to respond with their gun'.

Yeah, but some will. And that's the ultimate rub. The world is imperfect, and Maryland just conceded that in at least some cases, a violent encounter could be successfully defended against by an armed citizen. Not all of them (even we would not claim that), but some of them. So long as the state denies the right, the number of lawful citizens able to defend themselves quickly approaches zero. I am not arguing philosophy; I see this as a concession and I am surprised they made it. I think as they read this post they might find themselves surprised they made it, too.

The also enter in the record the fact that numerous Shall-Issue states have lower crime than Maryland. Dumb. The SAF does not like to waste time arguing statistics (which do not matter to the Bill of Rights anyway), so its nice to have a defendant concede them for you.

They fill up a lot of pages saying the same things over and over again. They could have knocked off about 20 pages by just doing this:

- Implement: 2A Two-Step in its entirety
- Incorporate Brady Amicus briefings nationwide in their entirety
- "For the Children, So Say We All"

They also recognize that the Equal Protection claim hinges heavily on the Second Amendment claim. If the 2A right does not exist, the EP claim fails. But if it does, then Maryland better stop denying rights. This argument is specifically written for higher courts, and Maryland seems to acknowledge this and takes a cursory shot at it. Big EP claims are almost the exclusive domain of the higher courts.


Enough with what we already knew. Everything I mentioned so far is as expected. On to the parts we (as citizens of Maryland) should be proud of...

What They Did Right

This is - by far - the most expressive and well implemented crafting of the Two-Step yet. Really, it is beautiful in its compliance with the doctrine. It hits all the points. They even described the doctrine using the exact same semantics we do on this board. They then made it all fit into Chester exactly as we predicted they would here on this board. Brilliant.

Will I go over their implementation of it? Not at all. After all, we could have written it (and at certain times while reading this, I was thinking we actually did...).

No. Let's focus on new stuff:


Open Carry of long guns for self defense, without a permit, is acceptable in Maryland in all places in which you can carry a concealed weapon.

I love this one. It is a bold move and takes things a step further than Peruta and Richards in California. Unlike those cases - where the defendants claimed a non-functional firearm or an otherwise illegal act would suffice - Maryland has actually said that its citizens can carry a functional firearm in public for purposes of personal self defense.*

Analysis: Bold move, but desperate. In their mind, it probably gives the judge a Peruta-like "out" to avoid finding for the right. After all, people can carry in Maryland for their defense...so problem solved.

The issue is that they concede the ineffectiveness of the long arm in person self defense in public (and even private) situations. They accept without argument the Heller finding that handguns are especially good for personal defense, but then say that value is negated by the fact criminals find them just as useful. They argue that even though some value exists in handguns for lawful people, the criminal element makes it necessary to restrict your rights. This theory is called the "Thieves Veto" and it never quite explains how the laws in question actually stop violence. Oh wait...they cannot. Maryland already conceded that criminal violence flourishes in spite of their laws, three times in the last 20 pages. Oops.

They never claim the ability to carry this gun is a right, only that it is a gift of the legislature. They make that point directly in a footnote, as well. They openly tell the federal court that this area of law is strictly a legislative affair and that - by extension - the whole idea of judicial review is BS. I think they actually believe this.


They Addressed Nunn, Andrews, Reid and Chandler

I won't say they did a good job, but props should be given for at least trying. For those not super-geeked on this stuff, those cases were favorable cited in Heller as examples of why regulations against concealed carry were permissible: because Open Carry was also available. Maryland tried to make these go away (in a footnote!) by claiming the Supreme Court didn't really mean what they meant...that "The Court did not suggest that it agreed that open carry bans would be unlawful."

They are right. Technically, the Supreme Court suggested that 'bans on concealed carry - or any manner of carry - are presumptively lawful provided at least one manner is left available.'


They took a historical view of the right at the foundation and the at the time of the 14th

Again...credit must be given. They spent more than cursory time focusing on what the Second Amendment meant to the Founders, and on a related note spent time focusing on laws at the time of ratification of the 14th.

Both fail. They should have avoided this argument. It won't help them. Heller made damn clear what the right meant at the time of foundation - RKBA meant to "bear and carry in case of personal confrontation." While Maryland successfully notes the laws in place at the time of the 14th sometimes completely prevented the carrying of arms, they fail to mention that one of the key drivers of the 14th Amendment was the very fact that those same laws prevented freedmen (former slaves) from carrying arms for their own defense! The only saving grace for the racist gun-controllers back then was Slaughterhouse (another case, another day).

If it were not for Slaughterhouse, the Civil Rights movement would have been settled by 1900. Seriously - you cannot continuously abuse people of their rights if those citizens have guns and know how to use them. Good on Maryland favorably quoting this racist legacy. It's nice to see those true stripes every now and then.

They cited Cruikshank

Weak and dumb. They tried to separate themselves from it by citing another case that cited Cruikshank favorably, and by staying away from its core holding (at least in their text)...but they went there. Cruikshank was thoroughly reamed in McDonald by Thomas. For him it seemed personal. I don't think it matters that they used Cruikshank - at arms length - only to buttress a first amendment prior restraint defense. The case is toxic.

For those more curious, please see a good book on it titled "The Day Freedom Died" or even look over Wikipedia page on The Colfax Massacre (http://en.wikipedia.org/wiki/Colfax_massacre). Anyway, I think it's bad form. They had better cases to choose from.


I left off other thoughts I forgot already, so that's enough for now.

Overall

It was easy to read. I am not so sure it was well though out in its entirety. Despite the Open Carry of rifles surprise, nothing here is really all that new or inventive. A stock defense cribbed from every other defendant in the nation, and maybe even a little bit from MDShooters. Some of the parallels were eerie. Just sayin'.

Add a little historical rub that hurts more than helps, plus a significant degree of circular logic, added to the fact they concede many, many of the points we have been making...and it looks pretty good for us so far.

The holes here are large and numerous. Maryland undercuts its own arguments time and time again. It's almost like they did proof-reading of the brief one paragraph/argument at a time - with zero real analysis of the collection of all their arguments taken as a whole. I think in the process of cribbing material elsewhere they failed at some critical stages to think about what they were writing. I think they are going to spend their next response fighting their own words. Also, I doubt their forthcoming MSJ will be anything more involved than this opening defense.

I won't directly handicap the District Court case, but will say nothing here increases the chance Maryland will prevail. A number of their arguments are actually going to help our case. I'd say we moved closer to the goalpost today than Maryland did. We were underdogs this morning.

But right now?

We now see the other dog is missing a lot of teeth.


* On Open Carry of Rifles in Public: Please note the AGs wording foreclosed "demonstrations" and protests while doing the same. Think before you replace the Open Holster Rally with the AK-47 rally.

Anchors
03-22-2011, 2:58 PM
Still hope it wins.

Patrick-2
03-22-2011, 3:48 PM
We stand a decent shot, though we are still an underdog. Thanks.

Already we have people ready to OC SBR AR-15s in downtown Annapolis in front of the capital. Our AG just told the federal courts it was perfectly legal.

Crom
03-22-2011, 8:12 PM
Wow great write up. Thanks for posting your take on the brief. :)

ALSystems
03-22-2011, 8:35 PM
Extremely impressive summary Patrick!
Thanks.

Munk
03-22-2011, 9:54 PM
We now see the other dog is missing a lot of teeth and brain cells.

If they undercut their own arguments as bad as you say.... they're just not thinking well.

Somebody should introduce them to the world of flow-charts.
-Does this argument rely upon another argument higher argument in the chain, so that it supports itself because of itself... if so, start over.

-does this case argue what we want?
- If yes, does it make use of a toxic case that should be avoided at all costs
- ABANDON CASE!!!!

goober
03-22-2011, 10:50 PM
excellent analysis, Patrick..
thank you for posting!

yellowfin
03-23-2011, 4:39 AM
Somebody should introduce them to the world of flow-charts.NO! Keep them stupid and thus easier to beat!

Untamed1972
03-23-2011, 7:29 AM
On the issue of the AG stating that OC of longguns is legal (although a gift from the .leg).....how much you wanna bet the same thing would happen there as is happening with UOC in CA.

Yeah....its legal for now so as long as no one does it.....but as soon as people start doing it then your .leg will rush an emergency bill thru to ban that also....being that it's a gift from the .leg.....they can take it away whenever they want.

Patrick-2
03-23-2011, 8:19 AM
First this post I made on MDShooters, then the follow-up to it...

I am looking for smart eyes on this. Is this making sense?

- Patrick



Speaking of the "besides, people can carry long guns" angle.

It seems to me they're forgetting that DC tried the "you can have a long gun" excuse in Heller and were slapped down with the "in common use for self defense" argument.

This.

Maryland gives a halfhearted attempt to acknowledge and get around Heller's guidance on handguns:

Although the Supreme Court held that the option to have firearms other than handguns was not sufficient to sustain a ban on handguns in the home, ..., the character of—and danger presented by—handguns is different inside and outside of the home. See discussion above at 14-16. “Unlike possession of a gun for protection within a residence, carrying a concealed firearm presents a recognized threat to public order,” exposing “persons other than the offender” to possible “physical harm.” People v. Yarbrough, 169 Cal. App. 4th 303, 314 (2008) (internal citations omitted).

Maryland's argument: The Supreme Court got it wrong in Heller, and look - a California State Appellate Court agrees with some of the "evidence" we introduced 14 pages back that in reality was literally a conversation with ourselves!


DC tried the same game and claimed handguns are more dangerous than long guns, and therefore they must be banned. They also introduced statistics showing they are the most commonly used weapon by criminals. That all backfired, because it conceded to the court that handguns are the most commonly used weapons for a good reason. Those reasons make them more dangerous, and therefore effective in a defense situation. Maryland oddly replicates this failed argument.

Maryland is missing one important doctrinal tenet here (though they actually acknowledge it in writing): that the Supreme Court found the Second Amendment to protect an individual right to self protection using arms. The right protects the use of 'effective and functional' firearms configured for 'immediate use in a hostile situation.' (Note that single-ticks are my way of paraphrasing materials...quotations are generally taken literally from the text.)

Maryland misses that point completely. They are still arguing against an individual right to self defense. The text of the above handgun-ban defense comes from a portion of their argument where they are arguing that even if the right exists, it is subject to intermediate scrutiny. But they forget the core cause of the right, and the proscription from Heller that any interest-balancing approach that allows the government to whittle the right down to meaningless words is proof that the balancing is faulty.

So take a look at the known facts:

Heller specifically said individual self defense is the core tenet of 2A

Governments cannot restrict handguns from individuals, because they are more utilitarian than other arms for personal protection

Heller said that any type of "interest-balancing" that whittles the right down to meaningless words is proof that the balancing is faulty


And now what Maryland argues: that even if the right to bear arms exists, it is subject to a level of 'interest balancing' that - wait for it - removes the very type of firearm that Heller specifically calls out as protected! The argument itself is not only faulted, it is damning. Maryland is arguing that Heller was wrongly decided on this point, and that its binding proscription on this type of interest balancing should be ignored.

The state should have left this one alone. Big hole. They should have focused more energy on the argument that public RKBA is non-core and then tried to caveat a core finding with intermediate scrutiny such that it could be used to restrict the persons, not the object.

But it gets worse for Maryland

Their three arguments that the law does not implicate the "core" of 2A (the first step of the Two-Step) are (exact quotes):


"First, the Heller court located the core Second Amendment right in the home, and the conduct at issue here falls outside of the home." [Emphasis in the original]


"Second, Maryland’s law does not impose a complete ban on the public wearing and carrying of handguns, but rather provides a mechanism by which any law-abiding, responsible individual with a legitimate, demonstrable need can obtain a permit to wear and carry a handgun."


"Third, the law does not regulate the wearing and carrying of all firearms in public, but is limited only to handguns."


They should have stuck with #1, because the next two reasons are damning to their case. Both concede that some form of defense is required by at least some people, and available to all. The long-gun argument is especially hard to defend, simply because it is presented as a considered rationale for defense - as if the state intentionally provides that option for the average citizen, instead of simply forgetting to ban it. But by presenting it as a state response for an optional manner of carry for the average citizen, they open up a few nasty doors for themselves:


Concealed carry is a manner of carry that we fear because of the nature of the act - concealing guns is bad

Handguns are more dangerous than long guns

Maryland provides a manner of carry for individual self defense using arms that does not require a permit.


This could easily backfire on them. Again, reviewing the facts and concessions (I like lists today):


Maryland offers two manners of carry: handgun and long gun
handgun requires a permit because of its dangerous effectivity
long guns require no permit
Heller specifically ruled that handguns are protected because of their effectivity as a personal defense arm


Maryland promotes unlicensed long-gun carry from "legislative gift" to "protected right" under intermediate scrutiny.

Read that again.

Maryland claims the right to public RKBA of handguns is not "core" to the Second Amendment, but then promotes the idea that long-guns would satisfy the right that would exist under even intermediate scrutiny. Elsewhere they argue that the long-gun allowance should be properly considered a gift of the legislature, but they destroyed their own argument by suggesting that if the court finds for a public RKBA right, that the long-gun manner of carry would satisfy the claim. By making non-permitted carry of long-guns responsive to the civil rights claim, they promote carrying of arms beyond the realm of legislative intent.

This argument goes beyond the defense any other state has tried. Everyone else says that intermediate scrutiny means we can subjectively prohibit carry for individuals - then they stop talking. Maryland went further by saying loaded guns answer the question even under less-than-strict circumstances. They took Peruta (unloaded open carry was used there) and upgraded it to loaded assault weapons and PDWs. Whah?

Also, once this has been done they open themselves to a due process issue: not everyone can shoulder a long gun in defense of themselves. Some people do not have the strength, and some may simply be missing one arm. Or be in a wheelchair. Or not able to afford a lightweight PDW properly configured for their needs (like an SBR'd PS-90 for $2000).

The whole discussion they have in this section (pages 29-32, btw) is predicated on the finding of a right to public RKBA and in minimizing its application and scope. But in providing the long gun option, they actually promote the idea of using arms for defense. Once they do that, they open the door to an argument (legitimate, per Heller findings - not dicta) on the types of arms we can use. That is an argument they already lost because the Supreme Court settled in decisively in Heller.

Maryland just argued that non-permitted Open Carry of firearms does not require a permit in Maryland even under intermediate scrutiny. They didn't meant to do it, but they did. And if you add the parts of Heller than bind handguns, that Open Carry would also have to include handguns.

Again...Maryland did not think this argument through to its logical end. All they considered was what would happen if a judge agreed with all of their points - as a complete collection - and ignored all of Heller's guidance on this topic. That won't happen. The judge can toss some of their obviously failed arguments and keep the concessions. Rule #1 when getting sued: keep the concessions to an absolute minimum. They should have stopped defending themselves at "in the home".


I think Maryland just accidentally lowered the bar to unlicensed open carry from strict scrutiny to intermediate.

Thanks Gansler! Glad you got this job through patronage rather than qualification!!!:thumbsup:

Patrick-2
03-23-2011, 8:21 AM
Thanks for the comments, guys.

After more time to consider the possibilities (and a powdered donut with full-power Earl Grey Tea) I buzzed myself into a more generous mood after the above post. See what you think.

-----------


I have read it all in depth and am going back for a third pass. I started with the Maryland defense under intermediate scrutiny for a good reason: most courts nationwide have gone that direction for non-core opinions and Chester set intermediate as a floor. If there is a two-step in the courtroom, intermediate will rule the day. The "reasonable regulation standard" is wasted ink. To their extreme credit, Maryland even recognizes that fact:

Although the defendants expressly preserve for appellate review their contention that “reasonable regulation” is the appropriate standard by which to judge Second Amendment challenges, the remainder of this brief focuses on the standard of review analysis employed by the majority in Chester.

Intermediate is the floor. So that's where I focus my attention: how Maryland proposes to handle a finding that requires it. Remember, intermediate scrutiny represents the most restrictive circumstance Maryland thinks they can get. They are fighting to get to intermediate. Everything else is wishful thinking and they know it.

Other defendants (NJ, Chicago, DC, NY) all claim that intermediate equates to rational basis by another name. Not so Maryland. They do offer the requisite "in the home" option so popular these days - and to their additional credit, Maryland does as good a job as anyone has done yet with the 'in the home' defense.

But 2 out of 3 of their defenses actually involve people walking around with loaded guns in public. The breakdown: one option involving handguns require good cause and a permit; the other involves long guns that are open to all with no permit. You won't see that in the NJ defense.


Maryland appear to be pinning its hopes on twin prongs: that the Plaintiffs get no more than intermediate scrutiny; and that the court uses it to somehow avoid Heller's specific direction on handguns. Heller got a ruling on his handgun that "survived any level of scrutiny."

Two days ago we talked about containment. Today I am wondering if Maryland is actually looking at containment by way of triage. Either they made huge mistakes here, or they acknowledge that public RKBA in general is going to be allowed, and are making a final stand trying to prevent the wide-spread manner of carry involving handguns. If you read their brief with this in mind, you can see a heightened fear over handguns in particular. They may honestly fear what will happen in Baltimore if a lot of people carry handguns. Frankly, so do I. But so be it. The Bill of Rights was a dangerous document in 1789 and it remains so today. We live with it or change it.

Credit Earned

I may have to go back on some of my previous postings on this brief. Not the end result, but by giving our AG credit developing a more nuanced and carefully crafted argument than I originally considered in the areas where it counts (implementation of intermediate scrutiny). I operated under the assumption our AG was literally trying to avoid any chance of any gun anywhere, and saw this brief as overwhelmingly failing that goal.

But I am thinking more along the lines of containment. Maryland recognizes what is coming and is trying to shape the outcome in a way that they feel will be least likely to cause damage. I think they really believe that more guns will cause excessive crime, just as many here feel the opposite will occur.

So either they failed enormously, or they are giving some ground in the hopes they get to keep some.

Looking forward to their next brief.

Kharn
03-23-2011, 9:15 AM
On the issue of the AG stating that OC of longguns is legal (although a gift from the .leg).....how much you wanna bet the same thing would happen there as is happening with UOC in CA.

Yeah....its legal for now so as long as no one does it.....but as soon as people start doing it then your .leg will rush an emergency bill thru to ban that also....being that it's a gift from the .leg.....they can take it away whenever they want.MD's legislature is only in session for 90 days from January through March, its very hectic for the lobbyists/activists, but its great to not have to watch them 24x7 for the entire year (we are already past the cut-off date, any bill that has not passed at least one side of the legislature will not pass this year). The Governor would have to call a special session, and he would have to declare the special session to be on the topic of firearms (no other topics may be considered), if he wanted to "fix" the issue prior to 1 January 2012. :43:

jnojr
03-23-2011, 9:52 AM
So now it's just a question of which horse crosses the finish line first. I can't wait to see what the opposition says in pathetic attempt to respond to it. Believe it or not MD is actually worse than CA is on the CCW issue.

IIRC, CCW without a permit is a straight misdemeanor in MD. In CA, it's a "wobbler"... the DA can choose to prosecute as a misdemeanor if several conditions are met... but there is no requirement for them to do so. The whim of one individual could cost you your rights for life.

The only way CA is "better" is in that several counties in CA are effectively "shall issue", and those permits are valid statewide. In MD, everyone is under the same system, I believe. And, in much of MD, I'm told these laws are... not zealously enforced. In PG or Montgomery County near DC, and around Bodymore, yes. In all the rural parts of the state? Not so much.

Southwest Chuck
03-23-2011, 10:54 AM
I always look forward to your analysis Patrick. It's very incitefull and you do an excellent job evaluating the "Truth and Consequences" of their arguments. You are a valuable asset of CGN and I for one appreciate your efforts. Thank you!
SC

Patrick-2
03-23-2011, 12:42 PM
I always look forward to your analysis Patrick. It's very incitefull and you do an excellent job evaluating the "Truth and Consequences" of their arguments. You are a valuable asset of CGN and I for one appreciate your efforts. Thank you!
SC

Thank you, Sir. I try to be fair despite my bias.

That said, Maryland did as good a job as any implementing the "2A Two-Step" defense that has worked time and time again. If the judge is disposed to it, Maryland will win. No question. We are still the underdogs here. Ask Gray about judges and the Two-Step.

The big mistakes made by Maryland will be decisive at the appellate level, though.

Our judges looks like he might give us a fair shot. We'd love a win, especially since Maryland will have a hard time arguing for a stay of the decision now that they admit citizens can already carry loaded arms in public.

wildhawker
03-23-2011, 12:49 PM
It's unfortunate that some untimely and poorly-prosecuted cases have given judges all the help they need to stay on the dance floor.

-Brandon

Kid Stanislaus
03-23-2011, 12:55 PM
On the issue of the AG stating that OC of longguns is legal (although a gift from the .leg).....how much you wanna bet the same thing would happen there as is happening with UOC in CA.

Yeah....its legal for now so as long as no one does it.....but as soon as people start doing it then your .leg will rush an emergency bill thru to ban that also....being that it's a gift from the .leg.....they can take it away whenever they want.

Does that not strengthen the argument for CC?

Kid Stanislaus
03-23-2011, 1:43 PM
Oh! How sweet it would be to carry a lever action carbine loaded with big heavy 45 caliber bullets mounted on the front end of a 454 Casull case!

navyinrwanda
03-23-2011, 2:06 PM
Maryland's argument seems confused mostly because their litigation strategy – like every other defendant in targeted Second Amendment cases – is to delay any conclusive ruling on the core issue of carry rights outside of the home for as long as possible. They support this strategy by offering sympathetic lower-court judges as many options as possible for limited rulings that delay final resolution. This strategy before the district court also preserves all possible arguments for consideration by appellate courts.

Despite the clear language in Heller, as the Maryland Appeals Court said, “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.” (Williams v. State, 417 Md. 479 2011).

Maryland's attorneys can read as well as anyone else. They understand that they can prevail only if the Supreme Court repudiates the clear language of Heller. And they understand this is likely to happen only if there is a change in the makeup of the Court.

Kharn
03-23-2011, 2:08 PM
IIRC, CCW without a permit is a straight misdemeanor in MD. In CA, it's a "wobbler"... the DA can choose to prosecute as a misdemeanor if several conditions are met... but there is no requirement for them to do so. The whim of one individual could cost you your rights for life.

The only way CA is "better" is in that several counties in CA are effectively "shall issue", and those permits are valid statewide. In MD, everyone is under the same system, I believe. And, in much of MD, I'm told these laws are... not zealously enforced. In PG or Montgomery County near DC, and around Bodymore, yes. In all the rural parts of the state? Not so much.Carrying a handgun in MD without a permit is punishable by 30 days to 3 years in prison. Technically it is a misdemeanor, but the possible 3 year punishment results in a federal prohibition from firearms ownership for anyone convicted regardless of their actual punishment.

Untamed1972
03-23-2011, 2:17 PM
Does that not strengthen the argument for CC?

My point was that they use that as their defense now, knowing that if the judge sides with that arguement and denies CC as a right, that as soon as people start OCing long guns they will out law that too. That's all. The states simply need to be forced to accept that bearing arms IS A PRE-EXISTING RIGHT OF THE INDIVIDUAL, not a gift granted by gonvernment.


It's like the SD sheriff claiming people can UOC so they dont need a CCW (which the Peruta judge totally bought in to), all the while the .leg is feverishly trying to outlaw that too.

press1280
03-23-2011, 2:25 PM
MD's legislature is only in session for 90 days from January through March, its very hectic for the lobbyists/activists, but its great to not have to watch them 24x7 for the entire year (we are already past the cut-off date, any bill that has not passed at least one side of the legislature will not pass this year). The Governor would have to call a special session, and he would have to declare the special session to be on the topic of firearms (no other topics may be considered), if he wanted to "fix" the issue prior to 1 January 2012. :43:

And this is something I can promise you they do not want to do. They're afraid of the shall-issue bill that keeps getting desk drawered every year, so calling a special session, announcing to the public that they're going to try to take away(or make ridiculous hoops to jump) gun rights is a political loser, even in MD.

bulgron
03-23-2011, 2:35 PM
And this is something I can promise you they do not want to do. They're afraid of the shall-issue bill that keeps getting desk drawered every year, so calling a special session, announcing to the public that they're going to try to take away(or make ridiculous hoops to jump) gun rights is a political loser, even in MD.

Makes me wonder why California doesn't have a shall-issue bill submitted every year, even though we know it won't get out of committee.

How lame is the California Republican Party, anyway?

Patrick-2
03-23-2011, 3:04 PM
It gets better. The 90 day session in Maryland has another, more important - deadline attached: Maryland legislators cannot accept nor solicit any donations while the assembly or senate is in session. None.

That tends to keep our sessions from extending. ;)

Maryland is fracked in this response. They use 20 pages to make arguments that undo another 20 pages of arguments.

And Brady isn't helping much. They filed an Amicus that completely mistook our permit system for those in other states. Maryland has a centralized, bureaucratic system where one office at the state police does it all. No Sheriff or local involvement. Brady argued that the "localized approach" used by Maryland means that local officials are more likely to know information about applicants than people "even counties away." They also seem to not understand that PG County alone has almost a million people (and 50,000 outstanding warrants).

I'm not suggesting we are going to win, only that we should.

Patrick-2
03-23-2011, 3:06 PM
Makes me wonder why California doesn't have a shall-issue bill submitted every year, even though we know it won't get out of committee.

How lame is the California Republican Party, anyway?

Ask Arnold. :banghead:

press1280
03-23-2011, 4:01 PM
It gets better. The 90 day session in Maryland has another, more important - deadline attached: Maryland legislators cannot accept nor solicit any donations while the assembly or senate is in session. None.

That tends to keep our sessions from extending. ;)

Maryland is fracked in this response. They use 20 pages to make arguments that undo another 20 pages of arguments.

And Brady isn't helping much. They filed an Amicus that completely mistook our permit system for those in other states. Maryland has a centralized, bureaucratic system where one office at the state police does it all. No Sheriff or local involvement. Brady argued that the "localized approach" used by Maryland means that local officials are more likely to know information about applicants than people "even counties away." They also seem to not understand that PG County alone has almost a million people (and 50,000 outstanding warrants).

I'm not suggesting we are going to win, only that we should.

The Brady amicus in the NJ case was also pretty bad, relying on old NJ state cases, Bach v. Pataki, and Mosby v. Devine as justification against shall-issue.
The rifle comment seemed to be a distraction thrown in to try to derail the case, similiar to Preito pointing to LOC aas protected, and DC/Chicago claiming as long as you have a long gun, then a handgun can be banned/highly regulated.
That and the fact MD admits it has a high crime rate, and admits the carry of a hangun can protect the person.

SanPedroShooter
03-23-2011, 4:06 PM
I found this great quote from John Adams

"Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people."

Its a little late for "nipping shoots", buts here's to SAF and a chain saw... ;)

Untamed1972
03-23-2011, 4:09 PM
I found this great quote from John Adams

"Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people."

Its a little late for "nipping shoots", buts here's to SAF and a chain saw... ;)

I would prefer to see the use of SAF Napalm! "I love the smell of SAF Napalm on the anti's morning!" LOL

SanPedroShooter
03-23-2011, 4:14 PM
Burn baby burn

J.D.Allen
03-23-2011, 4:17 PM
Maryland's argument seems confused mostly because their litigation strategy – like every other defendant in targeted Second Amendment cases – is to delay any conclusive ruling on the core issue of carry rights outside of the home for as long as possible. They support this strategy by offering sympathetic lower-court judges as many options as possible for limited rulings that delay final resolution. This strategy before the district court also preserves all possible arguments for consideration by appellate courts.

Despite the clear language in Heller, as the Maryland Appeals Court said, “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.” (Williams v. State, 417 Md. 479 2011).

Maryland's attorneys can read as well as anyone else. They understand that they can prevail only if the Supreme Court repudiates the clear language of Heller. And they understand this is likely to happen only if there is a change in the makeup of the Court.

The more I think about it the more I am convinced this has to be at the core of the strategy behind the 2A two step. Delay as long as possible until one of the Heller 5 dies. (and hope to heaven Obama wins a second term). :puke:

hoffmang
03-23-2011, 4:18 PM
Makes me wonder why California doesn't have a shall-issue bill submitted every year, even though we know it won't get out of committee.
At least for the last two years, there has been a shall issue bill in CA proposed.
How lame is the California Republican Party, anyway?

They're still lame.

-Gene

Hopalong-MDS
04-13-2011, 9:49 AM
And Brady isn't helping much. They filed an Amicus that completely mistook our permit system for those in other states. Maryland has a centralized, bureaucratic system where one office at the state police does it all. No Sheriff or local involvement. Brady argued that the "localized approach" used by Maryland means that local officials are more likely to know information about applicants than people "even counties away." They also seem to not understand that PG County alone has almost a million people (and 50,000 outstanding warrants).


Even more than MD's "open mouth, insert foot" maneuver, the Brady Amicus just plain surprises me. The MD response was, even if damning, based on reality, or at least something resembling it. The Brady's were just plain wrong, which makes them look like idiots.

Patrick-2
04-13-2011, 11:33 AM
Yes.

I still need to say how wrong I was about our Attorney General. Before reading this first real response, I assumed he would copy simply copy the standard 2A Two Step defense used by others. He did...don't get me wrong.

I said up front was that the chances of Gansler submitting something creative or new would be slim to none. The arguments over open carry of long guns was a new one. It went further than even Peruta went and is a pretty risky move, from a defense perspective. I didn't give him enough credit, that's for sure.

In an odd way, it made me proud of our state. We actually had an original thinker in the state administration. Maybe it helps his office is located in Baltimore instead of Annapolis?

Either way, you gotta give credit to a guy whose answer to a challenge over permits to carry handguns is for us to open carry fully loaded and functional AR-15s with high-cap mags in downtown Baltimore without any permit at all. Freaking beautiful.

His argument boils down to creating a special class of danger surrounding concealed handguns. 90% of all gun violence comes at the end of a handgun, ergo, handguns are more dangerous than any other type of arms. OK. Agreed. The problem is that the Supreme Court dealt that argument a death blow in Heller. They acknowledged the issue, but pointed out that what might be convenient to a criminal is also convenient to a victim. The utility of a handgun is undeniable, and denying them to the law-abiding - knowing full well the criminal will ignore the same restriction - is unconstitutional.

The Supreme Court essentially created a special protection for handguns by noting that arms protections are most acute as commonality increases; and then pointing out that the utility of handguns, in particular, make them even more commonly used for the core right of self defense.

So our esteemed AG is throwing a Hail Mary here. It's an obvious attempt to offer a Peruta-like trap door (like UOC in California) for the judge. Somewhere Maryland did the math and figured that Peruta + Chester == some type of win for public RKBA was likely in the district or appeals court. Open Carry of long guns is tossing a wrench in that equation. Gansler gambit: Will the court rule favorably on both public RKBA and manner of carry (long vs. hand guns) at the same time?

Oddly, Maryland made their argument just as the Fourth delivered a helping hand to Maryland by way of Masciandaro.

I love the irony.

The Gansler Gambit could really backfire on Maryland: they argued that in response to an intermediate scrutiny finding for public RKBA, the response includes public open carry of fully functional and loaded guns without a permit. That's a new and creative defense, no matter how you cut it.

The real risk for Maryland is that the court agrees with the logic...finds an intermediate protection for public RKBA and then applies the Heller holdings on handguns. Now it's time for our side to do that math...

I still don't see us winning in the District. But I have already been wrong on this case in one big way once. I'd take a two-fer on this one.

Revvin' Evan
04-13-2011, 4:09 PM
Yes.

I still need to say how wrong I was about our Attorney General. Before reading this first real response......

Another great break down. Thanks.

Friday will be very entertaining!!!:95:

jnojr
04-14-2011, 9:10 AM
How lame is the California Republican Party, anyway?

You mean, the California Republican Party that hand-picked three people to vote for the biggest tax increase in US history?

CCWFacts
04-14-2011, 12:04 PM
Either way, you gotta give credit to a guy whose answer to a challenge over permits to carry handguns is for us to open carry fully loaded and functional AR-15s with high-cap mags in downtown Baltimore without any permit at all. Freaking beautiful.

That is awesome. If the AG didn't realize that gun owners would, in fact, do that, daily, in large numbers, for as long as necessary, he's high! There will be people carrying loaded AR-15s every day in MD until shall-issue is passed. In Baltimore, Bethesda, and everywhere else.

With this situation, I actually expect that MD will hastily go shall-issue. (Would that moot the case?) Gun activists will not back down from carrying loaded AR-15s all over the state.

hoffmang
04-14-2011, 8:37 PM
With this situation, I actually expect that MD will hastily go shall-issue. (Would that moot the case?) Gun activists will not back down from carrying loaded AR-15s all over the state.

If these cases run their course (all the way to SCOTUS) and loaded open carry of long arms is the only thing that's protected... Well, you'll probably get to see photos of Alan Gura and me carrying loaded ARs in Baltimore...

However I expect courts of appeals and the Supreme Court to be a bit more... calm and rational.

-Gene

Kharn
04-15-2011, 3:45 AM
From MDShooters:
More delay...
Joint motion for extension of time.
Plaintiffs' opposition to defendant's cross-motion for summary judgment due April 25, 2011
Defendants' reply in support of cross-motion for summary judgment is due May 18, 2011.
http://ia700101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.32.0.pdf

Patrick-2
04-15-2011, 4:48 AM
Not a surprise. There have been some recent decisions I imagine require thought. Also, that guy is damn busy. Thanks.

Patrick-2
04-15-2011, 4:50 AM
That is awesome. If the AG didn't realize that gun owners would, in fact, do that, daily, in large numbers, for as long as necessary, he's high! There will be people carrying loaded AR-15s every day in MD until shall-issue is passed. In Baltimore, Bethesda, and everywhere else.

With this situation, I actually expect that MD will hastily go shall-issue. (Would that moot the case?) Gun activists will not back down from carrying loaded AR-15s all over the state.

No, people won't. We know the AG was not telling the complete truth.

Even though we have state preemption, carrying long arms in most of Maryland will get you tagged and bagged. There are a myriad of options available to do this, and CalGuns members can probably think of a few I cannot.

We have had a letter from the assistant AG for a few years saying the same thing Gansler told the court. Not many took it as a serious option. This latest defense from the AG is making some people wonder if we shouldn't push some buttons.

But it's not easy. For one thing, there can be no demonstrations or protests with guns. So a group of pro-gun people standing in front of the capital is out of the picture. If it were possible, it would have been done plenty of times by now. This is literally a personal defense option (even though the history of the law is more to carry a rifle for hunting purposes).

I live in an area where it is not uncommon to see people with shotguns outside doing work. The farmers hate the deer and some have nuisance permits for year-round culling. The rest of the farmers...have backhoes. If I slung an AR over my shoulder and went into our county seat (capital) I would certainly attract LEO attention but I doubt I would be arrested. It is likely most residents would just roll their eyes and move along, so no real effect. Baltimore would be a far different thing and whatever charges they applied would probably stick. Nobody wants to go to our state supreme court over a criminal conviction.

That does not mean we aren't doing anything, though...

Hopalong-MDS
04-15-2011, 7:13 AM
If I slung an AR over my shoulder and went into ... Baltimore would be a far different thing and whatever charges they applied would probably stick. Nobody wants to go to our state supreme court over a criminal conviction.

That does not mean we aren't doing anything, though...

The problem with using the whole "But Gansler said I could!" approach to set a precedent is that the people who are just crazy enough to do it would probably make for less-than-ideal plantiffs for a Gura-style case. They would likely lose in the long run setting a precedent that we'd then have to overcome. The people who would make great plantiffs, the kind who would make this a great case for us, are all smart enough to not do it. It's a Catch-22.

n8munn24
04-15-2011, 7:29 AM
I just had my interview yesterday for my permit in Placer County. The sheriff said that the only thing that would possibly hold me from getting one is that I am young, 23, and could be seen as immature, which I am pretty sure I showed other wise in the interview; and that my reason to get a ccw ; "to protect my life or anothers in the event of a deadly or great harmful situation arises. no one else is responsible for that but me and to no obtain the proper tools , legally ( a ccw), woukd be neglegent on my behalf and irresponible." among other reasons the sheriff said that they were too "lite" and could prevent an issuing o a license. If i am denied I willn go through the repeal process and will take legal action until i get one, my life and the life of my future wife, or any other person for that matter is worth too much for me not to protect when/ if i have the opportunity to stop it.

Mesa Tactical
04-15-2011, 7:40 AM
Makes me wonder why California doesn't have a shall-issue bill submitted every year, even though we know it won't get out of committee.

How lame is the California Republican Party, anyway?

You seem to be suffering under the misapprehension that the Republican Party gives a rat's *** about gun rights.

hoffmang
04-25-2011, 9:50 PM
Alan Gura filed a reply (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.34.0.pdf) in this case today.

It's a particularly enjoyable read.

-Gene

Connor P Price
04-25-2011, 10:08 PM
Alan Gura filed a reply (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.34.0.pdf) in this case today.

It's a particularly enjoyable read.

-Gene

Particularly enjoyable read is an understatement.

Librarian
04-25-2011, 10:09 PM
"Without question, firearms are a leading cause of statistics" Ha!

tommyid1
04-25-2011, 10:38 PM
....I didn't realize when I joined CalGuns that I would also be getting informal ongoing training in criminal / civil case law and judicial procedures. :D

Can I get CEUs for this?


.

ditto lol

383green
04-25-2011, 10:51 PM
"Without question, firearms are a leading cause of statistics" Ha!

LOL, indeed!

Another delightful observation:

The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.

resident-shooter
04-25-2011, 11:30 PM
SAF sure delivers a lot of raped anti's on the plates :D

boxcab
04-26-2011, 9:27 AM
"The study is similar in value to one that would argue against the issuance of drivers' licenses by linking deaths involving cars to licensed drivers."

Nicely done...

dantodd
04-26-2011, 9:48 AM
Wow. Just Wow.....

Were professorial declarations relevant to the content of constitutional provisions, the next criminal case arising before this Court could include “expert” testimony explaining the social harms caused by allowing criminals a sphere of privacy against certain forms of search and seizure, various aspects of due process, or the right to counsel itself. And if the case concerned tax evasion, the defense could call an economist to explain the various policy deficiencies inherent in taxing income, the Sixteenth Amendment notwithstanding.


ETA: The evisceration of "good moral character" was one of those few places where the overkill of turning a firehose on a matchstick was sooooo worth the result.

yellowfin
04-26-2011, 10:24 AM
Alan Gura filed a reply (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.34.0.pdf) in this case today.

It's a particularly enjoyable read.

-GeneReading this really makes me wish this case wasn't still stuck in the minor leagues.

dantodd
04-26-2011, 10:47 AM
Reading this really makes me wish this case wasn't still stuck in the minor leagues.

There are no minor leagues.

Lulfas
04-26-2011, 10:50 AM
The dubious use of statistics is exemplified by Defendants’ assertion that over a recent
four year period, Maryland approved “16,026 original or renewal [handgun carry] permits, for a
rate of approval of 92.5%.” Def. Br. at 9. The bulk of this number is for renewal permits.
Defendants’ source reveals Maryland granted only 6,771 of 7,566 original permit applications
over that same time period, for an annual average under 1,693 permits. MSP, 2009 ANNUAL
REPORT 30 (2010), available at http://msp.maryland.gov/downloads/2009_Annual_Report.pdf
(last visited April 23, 2011). The bottom line is that for 2009, Maryland issued only 4,274
permits, id., for an adult population of 4,420,588. Maryland 2010 Census Data, http://planning.
maryland.gov/msdc/census/cen2010/PL94-171/CNTY/18plus/2010_18up_Summary.pdf (last
visited April 23, 2011).

I don't quite get this part. 16026 original or renewals per posted, for a rate of approval of 92.5%. Easy enough. Next line, Maryland granted 6771 of 7566 new permits, about 90% approval rate. However, it then says Maryland issued 4274 for 2009. According to the cites, those all look like for year 2009. Did Maryland issue 4274 for the year or 6771? The population of Maryland seems like a bit of a canard, assuming I'm reading the rest of that paragraph correctly, 90% of those who applied for the license were granted it. Anyone able to make more sense of it than I?

Edit: Also, I'm sure someone who speaks to Gura will see this, there is a typo on footnote 10 on page 29 of the document, 21 of the brief:
Interestingly, the State takes sometimes takes a different position regarding the legality of

boxcab
04-26-2011, 10:56 AM
The first numbers reflect a 4 year period. 16,026 divided by 4 is around 4,000 per year. The 4,274 must be actuals for 2009.

I think...


The 6,771 were NEW permits vise renewals for the time period.

dantodd
04-26-2011, 11:02 AM
I don't quite get this part. 16026 original or renewals per posted, for a rate of approval of 92.5%. Easy enough. Next line, Maryland granted 6771 of 7566 new permits, about 90% approval rate. However, it then says Maryland issued 4274 for 2009. According to the cites, those all look like for year 2009. Did Maryland issue 4274 for the year or 6771? The population of Maryland seems like a bit of a canard, assuming I'm reading the rest of that paragraph correctly, 90% of those who applied for the license were granted it. Anyone able to make more sense of it than I?

Edit: Also, I'm sure someone who speaks to Gura will see this, there is a typo on footnote 10 on page 29 of the document, 21 of the brief:
Interestingly, the State takes sometimes takes a different position regarding the legality of

6771 = new permits ONLY in 4yr period.
4274 = renewals AND new permits in 2009
1693 = average new permits per annum. (it would seem the annual break-out wasn't available)

Lulfas
04-26-2011, 11:03 AM
The first numbers reflect a 4 year period. 16,026 divided by 4 is around 4,000 per year. The 4,274 must be actuals for 2009.

I think...


The 6,771 were NEW permits vise renewals for the time period.

That sounds right then. The fact they use 4 year average numbers and then switch to 1 year and only refer to it as a "time period" in the brief confused me.

yellowfin
04-26-2011, 11:53 AM
There are no minor leagues.If they say "We can't rule in favor of this because the court above us hasn't said so yet" , then they most certainly are minor league.

BlindRacer
04-26-2011, 11:53 AM
I'm just about half way through reading it, and I just had to pause, and say how amazingly beautiful that document is.

Every argument the opposition has, is utterly smashed to bits. They have no leg to stand on. Why do they even try.

dantodd
04-26-2011, 12:24 PM
If they say "We can't rule in favor of this because the court above us hasn't said so yet" , then they most certainly are minor league.

I'm sure Alan would approve of an NHL comparison though his beloved Kings got finished off last night.

As long as we're in Federal court it's the big leagues. The courts are like the officials. It's still the same players and the stakes are the same but there are replay officials (the Circuit) and then there are officials further up the chain who can give out suspensions etc. after reviewing plays. (SCOTUS)

Yes, it is slow and time consuming and we have to go to SCOTUS more than we'd like but ultimately it's the same game. If SCOTUS keeps correcting errors made "on the ice" eventually the rest of the officials will start calling the game the right way.

Assuming that this is somehow "minor leagues" suggests that it is acceptable to play the game at a lower level of skill or quality, this is not the case. In many ways it is even more important than the appeals because this is where you have to be sure to get everything into the record upon which you will base your future litigation.

IrishPirate
04-26-2011, 12:28 PM
what's the status here? the OP was in July of last year, has there been any movement yet???

command_liner
04-26-2011, 12:40 PM
Nice bit of work.
Hopefully all the eastern states read it and fold their tents. Not too likely.


Tis a pity about the error in English language usage on page 5. For numeric values,
one can specify a range, or an estimate. But an _average_ is a single computed value.

gose
04-26-2011, 12:46 PM
I'm just about half way through reading it, and I just had to pause, and say how amazingly beautiful that document is.
Every argument the opposition has, is utterly smashed to bits. They have no leg to stand on. Why do they even try.

Because being wrong doesnt necessarily mean you'll lose in court, unfortunately.

Caladain
04-26-2011, 1:03 PM
Nice bit of work.
Hopefully all the eastern states read it and fold their tents. Not too likely.


Tis a pity about the error in English language usage on page 5. For numeric values,
one can specify a range, or an estimate. But an _average_ is a single computed value.

For the more dim among us, can you quote the offending part?

J.D.Allen
04-26-2011, 1:28 PM
Alan Gura filed a reply (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.34.0.pdf) in this case today.

It's a particularly enjoyable read.

-Gene

:gura::90:

This is a veritable feast of delectable 2A goodness.

Quite possibly one of the best quotes I have ever heard on this subject:

"the question here is not whether the carrying of arms is a good idea—the question is whether carrying arms is constitutionally protected. Objective standards and due process—not Defendants’ philosophy or personal beliefs about the value of this activity—must carry the day. "

WOW

eaglemike
04-26-2011, 1:39 PM
That is indeed a beautiful read.

The only thing I'd like to see (even though it would likely mean nothing in the court) is a solid note that these rights were not granted by the Constitution of the United States, but were affirmed in writing by the Framers.

Alan Gura is special. I'm very happy he's doing this work. :D

keneva
04-26-2011, 1:43 PM
That was un!

keneva
04-26-2011, 1:43 PM
Oops, FUN!

Kharn
04-26-2011, 2:18 PM
It may be important to note that this case was reassigned from Judge Motz to Judge Benson Everett Legg, on 11 April.

Motz was appointed by Reagan and is on senior status (semi-retired), he was Chief Judge of the Court from 1994-2001, Legg was nominated by George HW Bush and was the Chief Judge 2003-2010.

Lulfas
04-26-2011, 2:24 PM
For the more dim among us, can you quote the offending part?

Yeah, I see what he is getting at.


One recent study reveals that states
which conformed their gun carry laws to constitutional standards reaped an average $2-$3 billion
crime-reduction benefit within the first five years of constitutional compliance. Florenz Plassman
& John Whitley, Comment: Confirming “More Guns, Less Crime,” 55 STANFORD L. REV. 1313,
1365 (2003)

yellowfin
04-26-2011, 2:46 PM
Oh I'm not saying that about our side, I'm saying that judges that can't make a decision other than either the wrong one or "he didn't say Simon Says" are nothing but stooges.

N6ATF
04-26-2011, 3:03 PM
Oh I'm not saying that about our side, I'm saying that judges that can't make a decision other than either the wrong one or "he didn't say Simon Says" are nothing but stooges.

Should we Photoshop them into The Three Stooges photos?

kcbrown
04-26-2011, 4:52 PM
This was an awesome read.

There is one part of the argument, however, that looks to me to be a bit of theater:


Accordingly, the Supreme Court has emphatically declared that the Second Amendment’s content is not up to any court’s evaluation of what makes for optimal public policy. The Second Amendment does not “require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise.” McDonald, 130 S. Ct. at 3050.


We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all . . . Like the First, [the Second Amendment] is the very product of an interest-balancing by the people . . .


It is therefore absurd for Defendants to offer as an expert a “Professor of Public Policy,” representing one side of an academic debate about the social utility of guns, opining about whether the right to carry arms is a good idea. See generally Decl. of Phillip Cook. As the Statement of Facts presented supra demonstrates, Plaintiffs are equally capable of mustering a veritable militia of distinguished social scientists who disagree with Professor Cook.



Why is it a bit of theater? Simple: the fact that a right can, in the eyes of the court, be legitimately infringed at all by the state means that said court has invoked an interest-balancing approach of some kind. More precisely, even strict scrutiny is a form of interest balancing that is perform by the courts, not the people. Because courts do decide on a case by case basis whether or not a law infringes on a right by examining, among other things, the interests of the state, as opposed to simply overturning the law if it reduces, places conditions upon, or otherwise adversely affects the right at all, the Supreme Court's claim is false on its face.

In other words, when the Supreme Court stated the quoted section referred to by Gura, it was lying. And Gura assuredly knows that.

stix213
04-26-2011, 5:51 PM
Without question, firearms are a leading cause of statistics, and the debate about which figures are superior is not one that will ever be truly resolved, in an absolute sense.


Hahahahaha, I can't believe he squeezed something that funny in there :D

Pat Riot
05-20-2011, 9:19 AM
Well May 18th has come and gone... Anyone know the status here?

krucam
05-20-2011, 10:54 AM
Well May 18th has come and gone... Anyone know the status here?

The final brief was filed by Defendants: http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.38.0.pdf

Heavy (complete) reliance on the 4th Circuits ruling in Masciandaro, which didn't go our way.

The MDShooters play-by-play from Wed is here: http://www.mdshooters.com/showthread.php?t=40649&page=148

Patrick-2
07-21-2011, 11:20 AM
Ok. First read and report from my iPhone. So not too detailed.

Today's hearing went well. Good, even.

This judge was prepared. He studied everything, including cited cases.

His words: he leans towards the right extending outside the home...but it might be subject to lesser scrutiny. The question is whether G&S survives that intermediate standard. Also discussed was the idea of "advanced intermediate" (his words), muck like Ezell. He asked both sides if it existed. Both pretty much said yes.

The judge recognized that the point of Maryland regulation was to reduce the number of permit holders in the state. The state reluctantly agreed. The judge asked about statistics of permit holders that commit crimes...in Texas. Maryland tripped over it Gura said "zero point one three percent."

The judge asked if the state public interest argument let's them "ration a constitutional right." The state said yes.

It is not all roses for our side. The judge appears sympathetic to arguments that dense populations in parks or downtown will represent a significant risk. But then he noted that would be another case, if Maryland banned those areas.

We can still lose this, easily. The number one question asked was literally "how do I end-run the constitutional question?"

The 4th circuit said don't answer it if you can avoid it. So the first hurdle is just getting him to answer it.

I won't handicap this yet. I have six pages Of notes and will do a full report later when the iPhone and lunch is not an issue.

Crom
07-21-2011, 11:33 AM
Thanks for the brief report Patrick. I hope you have a good lunch. :)

choprzrul
07-21-2011, 11:55 AM
Nice piece of reporting and thank you for the update.

.

ccmc
07-21-2011, 1:03 PM
His words: he leans towards the right extending outside the home...but it might be subject to lesser scrutiny. The question is whether G&S survives that intermediate standard. Also discussed was the idea of "advanced intermediate" (his words), muck like Ezell. He asked both sides if it existed. Both pretty much said yes.

The judge recognized that the point of Maryland regulation was to reduce the number of permit holders in the state. The state reluctantly agreed. The judge asked about statistics of permit holders that commit crimes...in Texas. Maryland tripped over it Gura said "zero point one three percent."

The judge asked if the state public interest argument let's them "ration a constitutional right." The state said yes.

It is not all roses for our side. The judge appears sympathetic to arguments that dense populations in parks or downtown will represent a significant risk. But then he noted that would be another case, if Maryland banned those areas.

We can still lose this, easily. The number one question asked was literally "how do I end-run the constitutional question?"

The 4th circuit said don't answer it if you can avoid it. So the first hurdle is just getting him to answer it.


Thanks for that info. I think here in FL the crime rate for CWFL holders is similar to that of TX. Wonder if all shall issue states are about the same. That certainly would make CWFL holders about the most law abiding group of people in the country. Glad Gura had the numbers available. Did MD not have those numbers or did they just ignore or refuse to answer the question?

The point about rationing a constitutional right borders on the unbelieveable. Did the judge have any visible reaction to that statement?

Patrick-2
07-21-2011, 4:44 PM
First, the judge did something unusual last night: he created a crib sheet for today's hearing. In it, he handicapped his views on certain issues, such as scrutiny - intermediate. He also provided a list of discussion topics for the hearing, in the way of questions.

The judge today started the hearing asking counsel to at least work through the list, but that they were free to "roam" beyond them as they saw fit. Good luck...the list was pretty complete.

I will say before we begin that Judge Legg ("JL" in these notes) was really up to speed on the case and the relevant jurisprudence. He did his homework, even reading the cited materials and the most recent case law. Not a small task for a busy man.

The Arguments

First, a bit on style. Judge Legg is working through these arguments by essentially taking what counsel says and adding his own reading of jurisprudence to the mix. Then he asks counsel if he got it right. He's not challenging directly, but rather making statements and then asking others to agree/disagree. It's non-confrontational and low-drama.

Alan Gura started by noting that plaintiffs did not necessarily agree with the characterization that "all parties agree on intermediate scrutiny." He obviously pushed higher. The judge talked a bit about "Advanced Intermediate Scrutiny" and something above intermediate but less than strict. In other words, the Ezell standard.

The judge clarifies exactly what he is being asked to do: rule on the constitutionality of the "Good and Substantial" requirement - not anything else. The judge lists all of the objective standards used by Maryland to determine sutiability for a permit (criminality, convictions, drug-abuse, mental incapacity, etc.) and verifies that they are not in contention. Gura agrees and produces a laundry list of things this case is not about. He points out that even if the judge rules in favor of Woollard, that there are still going to places and times in which carry is legitimately not allowed. Courthouses, etc.

The judge agreed on the narrow nature of the inquiry.

The discussion moves toward the core of the right and whether public RKBA fits there. He doesn't ask the question - instead he quotes from the Masciandaro dissent, noting that the judge said it did. But...it was not appropriate for that case due to other factors. Pay attention...that is going to be a revolving theme here.

Judge Legg notes that "the Supreme Court settled the individual versus collective right in Heller. They answered that question and included hunting, militia service, self defense and opposition to tyrannical regimes as core to the right." Gura agrees.


Gura noted that nowhere in their pleading has Maryland actually identified a cogent reason to restrict the right. He also makes a point that the Miller decision in 1939 convicted someone for carrying an unusual weapon, but that nobody actually challenged the idea of his carrying a weapon in public, in general. The issue there was not public carry, but rather a sawed-off shotgun.

I'm going to skip a little back-and-forth because we'll all get the audio soon, but the judge did get to a point where the discussion came down to public policy versus the constitutional right. His view:

"If we held a Constitutional Convention today, we could recognize the urbanized society we live in today and make changes that make sense. If we were all delegates to that convention, we could do things differently....but we are not there. The state's interest is not to uphold the best policy, but to uphold the Constitution. Whether that is the best policy or even unwise, that is not ours to decide."

I was sitting behind the defense table and saw a very short, one-line note pass to lead counsel. I could not read it, but in my head I imagine it said "Damn. We're hosed."

Not so fast...put down those beers. There are caveats (we're getting there).

Gura did note that in the land of our imaginary constitutional convention looking to "fix" the rights that would "harm" governmental interest in putting bad guys behind bars, the 4th Amendment would almost surely be "fixed" before the Second. Good point. Not a cop in the land loves Miranda.


So now we get to the important part.

Judge Legg asks whether we have an issue of constitutional avoidance. I will interject here that the question he is asking applies in general to issues before courts - if they can decide a controversy without reaching the constitutional question, they should. But it also applies quite directly here because controlling jurisprudence in the Fourth Circuit (Masciandaro) tells lower courts to avoid answering 2A questions unless forced to do it.

Gura argues that the question is unavoidable. He notes that the majority opinion in Masciandaro did not actually rule against the RKBA question, but rather a "time/place/manner" issue that short-circuited the 2A inquiry. While noting he does not agree with the outcome, it did leave the question open. He notes that the majority did acknowledge that there would be cases where the question should be answered. Gura also argues that the Supreme Court is not meant to be "the court of first impression."

Gura asks, "If this is not a case requiring an answer to the constitutional question, what is?"

In other words, Gura appears to saying that whatever the judge wishes to decide, he should swing for the bleachers and let the appellate courts deal with the results. Don't avoid it. Own it.

Judge Legg seems to agree. He notes the only way to avoid the question is to read Masciandaro as requiring the question to be proposed to the Supreme Court "undeveloped." He says that while he thinks Masciandaro is correct on its avoidance principle in general, here it was "harder to create the end-run [on the question]."

Alan Gura gets to First Amendment parallels. We know them; I won't recount them here. He does point out the affirmative nature of both the first and second amendments: that both protect individual activities that the government cannot "fully intrude." In the 1A context, the jurisprudence protects speech that is outside the "core" right to political speech (notes EMA video game case as being non-political speech). The same philosophy applies in the second amendment context - the government cannot just decide to ban rights it does not like. It must protect them.

Judge Legg interrupts..."and sometimes even unpopular opinions..."

On social science...Gura notes that it doesn't matter when you are addressing exercise of a core activity. Maybe on the edges, but not the core. Both sides have numbers, but the fact is that absent a compelling reason, the government cannot pick favorite rights. I am paraphrasing, because I think we would all agree with his views on the matter.

Judge Legg introduces an analogy: imagine the landscape of the right divided with a line down the center. Social Science might apply to one side of that line - to regulations that are related to the right but that do not restrict its exercise. Serial numbers on guns are his example. You can trot out social science to support the notion that requiring serial numbers could help track and capture criminals (my note: or ATF agents...). But requiring serial numbers does not stop the exercise of the right. The gun works the same.

The judge then suggests that you can "compress" a right, but only so far. You can work the edges and margins, but at some point you get to the center and "you can compress it no more."

<Fifteen Minute Break before MD steps in>

For those ever interested, the vending machines in the Baltimore Federal Courthouse are hidden in the back of the jury room on the Fourth floor. Make nice with the interns and they will take care of you.

I'll end this post here so you can read it, and start working on the Maryland arguments in a second post. At some point, I am going to tie some of this together. I've left out a small discussion in this phase that has big implications, because it is better fleshed out in the Maryland defense. Sorry for the intrigue, but there are some really important questions coming up that will affect not only this decision, but also the effect of the decision.

ZombieTactics
07-21-2011, 4:58 PM
... Gura did note that in the land of our imaginary constitutional convention looking to "fix" the rights that would "harm" governmental interest in putting bad guys behind bars, the 4th Amendment would almost surely be "fixed" before the Second. Good point. Not a cop in the land loves Miranda. ... Stuff like this is why I know that Gura is smarter and quicker-of-wit than almost anyone can even pretend to be. His intellect is intimidatingly precise and flexible at the same time.

safewaysecurity
07-21-2011, 5:13 PM
In the 1A context, the jurisprudence protects speech that is outside the "core" right to political speech (notes EMA video game case as being non-political speech). The same philosophy applies in the second amendment context - the government cannot just decide to ban rights it does not like. It must protect them.


I was hoping that 2A lawyers would use the EMA video game case because political speech is considered the core right and these video games are not related to political speech and it was about minors buying the games not even use and the court applied strict scrutiny.

press1280
07-21-2011, 5:30 PM
As far as Constitutional avoidance(2A specifically), the only possible out I could see is the judge simply ruling that as long as MD issues permits, then they can't pick and choose who they give it to and rule MD violated the 14th Amendment EP clause. That's the only out I see which is HIGHLY unlikely. Otherwise he can just punt the issue altogether like the other courts, or go for the gold and actually make a REAL ruling.

Patrick-2
07-21-2011, 6:07 PM
Maryland opens by saying Masciandaro requires the court to first decide if the law would survive the proposed scrutiny by assuming it was covered by the second amendment. Only if the law fails that level of scrutiny does the court actually need to determine if it was core.

So Maryland is focusing on defeating this thing via intermediate scrutiny. They don't even want to argue whether it affects a core right.

Judge Legg starts talking Masciandaro in detail. He notes that the use of intermediate scrutiny was due to a place restriction, not a holding that the carry was outside the umbrella of the right. The state counters by reading an excerpt from the decision that appears to make it sound like Masciandaro made a non-core determination. The judge interrupts and starts looking for the passage. He remembers it. He cannot find it, and asks court staff to find it for him. They do.

Judge Legg continues reading the whole passage, in context. Masciandaro found the public RKBA outside the core protection because of the nature of the place of carry. It was not a 'sensitive place', as Gura suggested - but neither was it any-old-place as Maryland suggested. Notably, it was restricted because the place was densely populated with people, including children.

They go back and forth a bit over this during this phase of the discussion. It is important to the judge, and I can see where it might be going. This is a key question and a potential hole in Masciandaro.

Maryland continues by trotting out the same "presumpitvely lawful restrictions on concealed carry" dicta everyone else uses to defend their policies. The judge notes Maryland allows Open Carry with the same permit. So what't the issue with Concealed Carry versus Open Carry and can't Maryland just choose OC if they are worried about LEOs knowing who is carrying a gun by visual inspection?

The discussion here between OC and CC is somewhat surreal. Some of you guys are really going to like the audio here. I can't do it justice, but the judge at some point asks about the public safety issues that might result from letting people carry a powerful shotgun on the street, instead of a .38 Special. Maryland flubs this a bit but comes down to "handguns are evil."

Judge Legg goes back to the Masciandaro 'densely packed places' language. He says that the state can - according to Masciandaro - restrict carry in densely packed places, but not in those "where people do not congregate."

Let me say, nobody appeared ready for this suggestion.


Moving on, Maryland argues that the "overall regulatory scheme" is fair and balanced to exercise of the right. Maryland is not DC or Chicago. People can carry and bear arms when hunting, when in their home, when performing target practice and training, when defending their home and business, and in "traditional ways." None of this requires a permit.

Please note something missing from the above list: loaded open carry of long guns. The judge referenced the state claim there, but the state conveniently avoids it. I don't recall them really talking it up, but maybe I missed it (anyone else?). Maybe a certain set of questions from some couch commandos on the internet - funneled through friendly Maryland legislators in a way that required the state to respond to the inquiries - made them acknowledge the futility of that argument?

Or maybe the figured it out on their own. Either way, they did not lean on it. Smart.


Judge Legg interjects that he is leaning towards finding the right does extend outside the home. Another note between defense counsel. :)

The issue for the judge is what that means under intermediate scrutiny. Does it kill G&S?

The judge says they can regulate the time/place/manner per Masciandaro and that the plaintiffs seem to agree they can do this (my note; in principle, but probbaly not in application). This leads to a key question for the judge, "How does requiring good cause reduce risk in the public place?"

Maryland talks about legislative findings that violent crime in Maryland is bad and was increasing at the time the law was passed. Counsel notes that the laws of the time were not effective at stopping bad guys from performing violence...so they created more laws.

The judge says he was trying to "tweak out" the practical effect of the requirement, but could only come up with one: that the G&S Cause requirement reduces the number of law-abiding people with carry permits. He asks the state if they have another reason. The state essentailly says, "Nope. That's about it."

The judge points out that the people who commit violent crimes are not generally people like Mr. Woollard (he outlines the law-abiding qualities of Mr. Woollard and notes Maryland once gave him a permit).

To bolster their argument, the state trots out the "Thieves Veto" defense: that more people with guns on their person means more opportunity for criminals to target and take those guns from their person or their cars, bags, etc. The judge seems to understand the argument and suggests more guns in glove boxes means more guns stolen. Defendants agree and don't point out that leaving a gun unattended in a glove-box is illegal, even with a permit.

Defendants also claim that encounters with criminals would become deadly, where today they are not (nobody killed but victims are victimized). They also say that some routine encounters would become deadly, but are circumspect about how they do it. They know this is a BS argument in 40+ states.

The state also points to the Violence Policy Center data that suggest as many as 200 permit holders - nationwide - have done bad things since 2007. (my note: out of an estimated 6.8 million carriers)

The judge asks how many people are affected by the restriction. How many people would get a permit?

The state says they have no idea, but it would be small. The judge asks about Texas...what kind of stats exist for Texas?

Maryland kinda garbles the question and talks about the number of people who commit crimes in Texas. They don't have good numbers. But they say the number would be hard to quantify anyway, because "Texas allows Open Carry without a permit, so the true number would be hidden by that." (Note: that BS did not go unchallenged in the Gura rebuttal later on - Texas does not allow OC in the least. Gura gives the number and it is roughly 0.13% of carriers.)

Maryland eventually says the number of Texas residents who have permits appears to be about 1.8%.

The judge says, "Texas is big. That is a lof of people."

The judge then proposes that if 1.8% of Maryland residents applied for a permit, it would be manageable (for processing purposes), but still significant. So, a lot of MD people are affected by the restriction. At the end of all this, the judge notes that managing the permit load is "not relevant to the constitutional question, anyway."

Now Maryland claims that 90% of those who apply are approved for a permit. They argue that the state uses social science to craft a "reasonable fit" between permit policy and public safety. They then argue that other things people can do with guns in Maryland (ranges, hunting, etc.) are good enough to claim that the entire regulatory scheme is fair.

The judge starts digging into the approval process and good cause requirements, in detail. The state says people with enhanced risk can get permits. The judge asks if a lawful resident of east or west Baltimore - living in a dangerous neighborhood full of drug dealers and violent crime - would get a permit due to their enhanced risk over the people in the courtroom.

Anwer: no. Those residents need to demonstrate cause "above that of their neighbors." (my note: WTF?!)

But the Maryland regulations are nothing close to Heller's prohibitions...


Before getting to First Amendment parallels, the judge cuts the Maryland time off. He is going to give them both a few minutes to answer a question: how does Masciandaro's ruling - that the "dense public nature" of the location caused the issue - affect Woollard?

Maryland argues that Masciandaro says they can restrict permits because the core of the right does not exist anywhere but in the home. Gura says that Masciandaro upheld a place restriction, not a broad restriction everywhere. The judge asks if Maryland could argue for a ban of all carry in Baltimore or Prince George's County (places the state called out in their written arguments). Gura says that they can create all the prohibited areas they want, and none of them would change the fact this case is not about prohibited places. It is about the prior restraint of a fundamental right, writ large.

Gura notes that if Maryland bans guns in Baltimore, he would argue against the outcome. "But that would be another case."

The judge seemed to agree.


Everyone goes home.

More on my thoughts later. But the short-circuit here is that winning this level is not necessarily impossible. I guess you can say I have upgraded my outlook from "improbable, due to Masciandaro" to "Hopeful, due to Masciandaro."

The key questions that will guide this case are:

- Can the judge claim the Masciandaro ruling does not find public RKBA non-core, by finding it only applied to a time/place/manner issue? Is he looking for a hole in Masciandaro's holding?

- If so, does the Maryland G&S requirement survive intermediate - perhaps even "advanced intermediate" - scrutiny?

And then in the event of a win, what is the practical effect? The judge seemed predisposed to the idea Maryland could ban guns in densely populated areas, per Masciandaro. We would need something from the 4th Circuit ot the SCOTUS to overcome that.

Enough for tonight.

Patrick-2
07-21-2011, 6:09 PM
A note: you would have to really look for a 14th EP argument today. It wasn't a topic for the judge.

wildhawker
07-21-2011, 6:25 PM
Big thanks for this detailed recap, Patrick.

-Brandon

hoffmang
07-21-2011, 6:32 PM
I was hoping that 2A lawyers would use the EMA video game case because political speech is considered the core right and these video games are not related to political speech and it was about minors buying the games not even use and the court applied strict scrutiny. I wonder why (http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1448_RespondentAmCuVindiciaInc.pdf)?


Judge Legg interjects that he is leaning towards finding the right does extend outside the home. Another note between defense counsel. :)


Patrick,

Thank you very much for the summary. I know how much work these are!

-Gene

Southwest Chuck
07-21-2011, 6:47 PM
As always, Patrick, your analysis is outstanding and very much appreciated by everyone, I'm sure. I love your ever so subtle injection of humor, in a serious subject such as this and gave me quite a chuckle (note passed to defense council "we're Hosed" LOL). Any idea when we can expect a recording of the orals will be made available? I for one, am waiting on the edge of my proverbial seat for this one! :D


.Edit: Never mind. This was posted over at MDShooters:

Quote:
Originally Posted by Plinkey View Post
http://www.mdd.uscourts.gov/publicat...structions.pdf

That should get you in the right direction.
That link was awesome,

the URL for the audio:

http://www.ca4.uscourts.gov/

edit: we need to wait a couple of days before it's posted

yellowfin
07-21-2011, 8:29 PM
Thank you so much, Patrick! Excellent work and a most welcomed booster of hope, as well as very informative and entertaining.

monk
07-21-2011, 8:38 PM
As always, Patrick, your analysis is outstanding and very much appreciated by everyone, I'm sure. I love your ever so subtle injection of humor, in a serious subject such as this and gave me quite a chuckle (note passed to defense council "we're Hosed" LOL). Any idea when we can expect a recording of the orals will be made available? I for one, am waiting on the edge of my proverbial seat for this one! :D


.Edit: Never mind. This was posted over at MDShooters:

Hey, the link for the pdf doesn't work for me. Could you possible post the full link?

Rossi357
07-21-2011, 8:50 PM
If so, does the Maryland G&S requirement survive intermediate - perhaps even "advanced intermediate" - scrutiny?
Enough for tonight.

Did we just get another level of scrutiny? I thought there was only three.
Strict scrutiny
Intermediate scrutiny
Rational basis review
I agree with Judge Thomas....toss scrutiny in the garbage can.

Southwest Chuck
07-21-2011, 9:27 PM
Hey, the link for the pdf doesn't work for me. Could you possible post the full link?


It's basically a Transcript and Recording order form from the court. $26.00 for a recording, but I'm sure it will be posted up in a couple of days.

Try this again:
http://www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

or this:
http://www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

Hum, it keeps shortening it.
Maybe this and cut and paste:
www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

http://www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

I give up. The original post is Here (http://www.mdshooters.com/showthread.php?t=40649&page=160) at post 3184

dantodd
07-21-2011, 10:03 PM
1) Patrick you are a superstar. The contributions you and Gray make even though you are not residents are astounding.

2) Sounds like the judge managed his time really well and set this up more as a seminar than a traditional oral argument. It sounds like it really worked. I wonder if this is his normal modus operandi?

3) Alan Gura is an absolute rock star yet again.

monk
07-21-2011, 10:04 PM
It's basically a Transcript and Recording order form from the court. $26.00 for a recording, but I'm sure it will be posted up in a couple of days.

Try this again:
http://www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

or this:
http://www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

Hum, it keeps shortening it.
Maybe this and cut and paste:
www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

http://www.mdd.uscourts.gov/publications/Forms/TranscriptOrderInstructions.pdf

I give up. The original post is Here (http://www.mdshooters.com/showthread.php?t=40649&page=160) at post 3184

Actually those worked, thanks!

command_liner
07-21-2011, 10:16 PM
Did we just get another level of scrutiny? I thought there was only three.
Strict scrutiny
Intermediate scrutiny
Rational basis review
I agree with Judge Thomas....toss scrutiny in the garbage can.

Several people have pointed out, and I wrote about it in this thread or
another recent thread. The "levels of scrutiny" verbiage is recently-invented
nonsense that appears no place in the Constitution. The whole "levels of
scrutiny" crap was in invention used to NOT apply the plain wording of
the 14th after that unfortunate ruling in the 1880s.

"Advanced intermediate scrutiny"? Why not "left-handed nose picking
scrutiny"? The Constitution is pretty clear on this point: "shall not be
infringed". Apply the law as it is written, and there is no room for variations
of scrutiny.

safewaysecurity
07-21-2011, 10:57 PM
I wonder why (http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1448_RespondentAmCuVindiciaInc.pdf)?


Lol I know that. But I knew that when that decision was released that 2A lawyers would jump all over it. Or at least I hoped they would. Hopefully not just AG.

hoffmang
07-21-2011, 11:30 PM
Lol I know that. But I knew that when that decision was released that 2A lawyers would jump all over it. Or at least I hoped they would. Hopefully not just AG.

I know Don Kilmer is using it in Nordyke and he forgot about Alan and my involvement in EMA.

-Gene

safewaysecurity
07-21-2011, 11:46 PM
I know Don Kilmer is using it in Nordyke and he forgot about Alan and my involvement in EMA.

-Gene

Do you mean he's going to use it in Nordyke? Cuz that's still waiting for en banc review right? Or did he already file something with it in it.

wildhawker
07-22-2011, 1:42 AM
Do you mean he's going to use it in Nordyke? Cuz that's still waiting for en banc review right? Or did he already file something with it in it.

Don filed 28(j)s earlier this month for EMA and Ezell.

BlindRacer
07-22-2011, 9:53 AM
Amazing recap! Thank you so much for that.

Is there a time line on the Judge's deliberation? Do we know if he is usually quick with his decisions?

Knuckle Dragger
07-22-2011, 2:54 PM
Wow, this was really a great report. I'm going to have to take lessons from you.

This bit caught my eye: .... The judge asks if Maryland could argue for a ban of all carry in Baltimore or Prince George's County (places the state called out in their written arguments).....


Boston essentially made this claim in a Hightower footnote: 20 - Arguably, densely populated cities such as Boston, with areas that have disproportionately high rates of gun violence, comport with what the Heller Court deemed to be “sensitive places” where prohibitions on handguns are presumptively lawful.

Note: Boston is taking a very broad view - they're not talking just about carrying, they're talking about possession as well.

RKV
07-22-2011, 3:18 PM
WRT so-called "sensitive places" I'd suggest that we focus the judge's attentions on...

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 1005–1006 (1989):

” The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, 429 U.S., at 103, 97 S.Ct., at 290. ... In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.”

Unless and until the government is financially liable (if not criminally liable) for failure to protect, no place can be legally defined as outside of the scope of "keep and bear." As most here are aware there is no general legally enforceable affirmative duty to protect individuals by the state. IANALNDIPOOTV - but that's the way I see it. The gov currently wants to have its cake and eat it too, and unless it assumes FULL responsibility for individuals safety, to the extent to which it can be penalized for failure, it has no legitimate right to "infringe" on our ability to defend ourselves.

Patrick-2
07-22-2011, 3:55 PM
Everyone...

Let's talk about the "places" (non)issue:

It is a way around Masciandaro's "make no finding on RKBA" guidance. Gura framed Masciandaro as not entirely controlling for Woollard because, according to Gura, Masciandaro was about a 'sensitive place' (even though Gura did not agree it was sensitive). The judge did not completely agree with Gura, but neither did he agree with the state that it was not a special location. The judge went down the middle there and used the words of masciandaro to suggest another category of somewhere-in-between.

The big point here is not that the places exist, but that there was a law already on the books in Masciandaro that the Fourth Circuit said trumped whatever right existed - if it existed. The Fourth Circuit used that "place" (whatever it was) to avoid making the 2A call on public RKBA because the judges there did not want to do it.

Nobody in Maryland - not Gura, not Judge Legg, and not even the AG's office - has suggested in Woollard that the judges ruling be subject to some kind of new place limitation.

The whole point of the discussion was not about where Maryland residents could carry. It was about determining what parts of Masciandaro apply to Woollard. That is why Gura argues that the Fourth Circuit ruled on a "place" issue - because it short-circuits some of the circuit guidance and lets the judge take a more holistic view. Masciandaro is a set of handcuffs on a judge, but only when the law is controlling (think: similar situation).

So let me try explaining this another way: Maciandaro ruled the way it did because "place restrictions" were involved. Woollard has no "place restrictions". So the big question yesterday was: if Woollard does not involve the same question as Masciandaro (a place restriction), then how much of the Masciandaro answer applies to Woollard?

Our answer: not enough to avoid the 2A inquiry. Maryland's answer: Enough to toss the whole Woollard case in the trash. The Judge's answer: ???

So the judge was not questioning whether he says G&S is unconstitutional "except in busy places." He was exploring how much of Masciandaro applies to Woollard. When he was tossing hypothetical restriction in Maryland, they were not proposals. They were legal test of the relief Gura was proposing. If the "relief" we want violated Masciandaro, then the judge has hands tied. If the relief does not break Mascianadaro, then it is possible to grant Woollard his relief and still not break ranks with his circuit decision.

Nobody says the judge will do this. He was exploring the boundaries of Masciandaro. Nobody was quite ready for that line of inquiry, and he had enough developed ideas that it did not look spontaneous. Why he went down that path is known only to him.

He could easily have explored this topic just so he could dismiss it as an option. Or, he might be looking for a way to thread the needle. We won't know for some time.

mofugly13
07-22-2011, 4:27 PM
Wow, Patrick. Thanks. I thoroughly enjoy reading every post you make.

krucam
11-30-2011, 2:21 PM
77 page transcript from July's Hearing is below.

http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.44.0.pdf