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View Full Version : MD Court of Appeals: 2A Does Not Apply Outside of Home (UOC'ers read this!)


Gray Peterson
01-05-2011, 1:50 PM
State of Maryland v. Williams (http://mdcourts.gov/opinions/coa/2011/16a10.pdf)

Particulars:

Petitioner also lacked standing to challenge Section 5-301 et seq. of the Public Safety Article, Maryland Code (2003), as well as COMAR 29.03.02.04, governing carry permitting, because he had failed to even apply for a permit to wear, carry, or transport a handgun.

I hope one understands why it was suggested that UOC'ers apply for a carry license.

This is not the case, because Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession, the dicta in McDonald that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self defense within the home,” notwithstanding. __ U.S. at __ , 130 S. Ct. at 3044, 177 L. Ed. 2d at 922. Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.

This is easy to say, of course, when you try to ignore parts of the ruling you don't like.....

This does not effect the Woollard case or the applicability of strict scrutiny in law abiding citizens in the 4th Circuit (where Maryland is) in the case of United States v. Chester.

Gray Peterson
01-05-2011, 2:38 PM
Rule 10 of the Rules of the Supreme Court:

PART III. JURISDICTION ON WRIT OF CERTIORARI
Rule 10. Considerations Governing Review on Certiorari
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
(b)a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

We're getting close to a circuit split already.....

Bhobbs
01-05-2011, 2:40 PM
So to them most notably = only?

Gray Peterson
01-05-2011, 2:42 PM
So to them most notably = only?

Yep, according to Maryland's highest court. The bolded underlined quote, to be clear, is essentially the MD CoA slapping their superiors Justice Alito and Scalia for refusing to go into full detail that there is a right to carry outside of the home, rather than only deciding the issues in front of them that they typically do. This is generally considered in poor taste in courtroom decorum.

And people are surprised when I tell them not to file in state court in anti-gun states, or file in bad federal venues. I can't blame Mr. Williams for trying to get out from under his conviction, but I believe that Williams conflicts with Chester.

CalBear
01-05-2011, 3:10 PM
Any predictions on how quickly we'll see a definite circuit court split? And how quickly could carry escalate to the SCOTUS.

taperxz
01-05-2011, 3:10 PM
Ok, does this case stop or does this case go to the next step?

Theseus
01-05-2011, 3:20 PM
I don't see this logic. . . we don't have a full right, because we didn't ask for the privilege?

The logic escapes me, but that does not mean it isn't reasonable to apply just so you can shut that door in court.

J.D.Allen
01-05-2011, 3:30 PM
The Brady Bunch must be doing this
:party:

Crom
01-05-2011, 3:33 PM
If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.


The Supreme Court Justices will not be amused.

Gray Peterson
01-05-2011, 3:36 PM
The Supreme Court Justices will not be amused.

QFT.

xenophobe
01-05-2011, 3:39 PM
This is probably one of the worst east-coast states to have this happen in. Maryland doesn't have a specific RKBA clause in their constitution.

CalBear
01-05-2011, 3:42 PM
The logic here is quite funny. How do they come to this conclusion when:

The right applied outside of the home during the time of the founders.

The 2nd amendment says the right to bear arms shall not be infringed

The Supreme Court said "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self defense within the home"

yellowfin
01-05-2011, 3:43 PM
If MD had a RKBA clause in their constitution, they'd be shall issue already and we wouldn't need to sue them.

J.D.Allen
01-05-2011, 3:51 PM
Can't wait until :gura: gets to argue this issue before the big :hammer:kahunas at SCOTUS and they get to do this :90: to all the activist anti judges in the country.

Gray Peterson
01-05-2011, 3:53 PM
There's something about the above post by JD that sends me into giggles....

N6ATF
01-05-2011, 3:55 PM
The Supreme Court Justices will not be amused.

It would be nice if SCOTUS would GVR and say “The 2A applies outside of the home. That clear enough, you anti-civil rights pieces of crap?”

yellowfin
01-05-2011, 4:09 PM
If I had to guess, this will actually help the Woollard case by demanding that MD be corrected on the issue. I hope these fools pissed off the SCOTUS as much as possible so they'll slap them even harder, maybe make stronger rulings addressing any and all procedural impediments as not only unconstitutional but directly 1983 violations.

wildhawker
01-05-2011, 4:41 PM
It would be nice if SCOTUS would GVR and say “The 2A applies outside of the home. That clear enough, you anti-civil rights pieces of crap?”

I want Scalia to write this one. :43:

press1280
01-05-2011, 4:43 PM
Not suprising. However I would say the decision did several times reference that Williams didn't apply for a permit, so all his testimony about being denied went down the toilet.
BTW-the concurrence at least got it somewhat correct and seems to be implying that SCOTUS will strike down a restrictive permit system. If anyone saw the video of the oral arguments, I'm betting this is from the old white guy who refuted MD's AG's testimony about them approving 93% of applications.
"While I agree with the majority that the Petitioner’s conviction should be affirmed,
I would not hold that the Petitioner’s conduct is “outside of the scope of the Second
Amendment.” I would affirm on the ground that, although the Second Amendment is
applicable to an “on the street” possession of a handgun, that Amendment is satisfied by a
statute that places reasonable restrictions on the constitutional right to bear arms."

Wherryj
01-05-2011, 5:00 PM
I don't see this logic. . . we don't have a full right, because we didn't ask for the privilege?

The logic escapes me, but that does not mean it isn't reasonable to apply just so you can shut that door in court.

If you read the text of the second amendment you will see the logic:

A well regulated government militia, being necessary to the security of only whichever free state so desires, the right of the elite people to keep and bear arms inside their home, shall not be overly infringed.

The Cable Guy
01-05-2011, 5:27 PM
If you read the text of the second amendment you will see the logic:

A well regulated government militia, being necessary to the security of only whichever free state so desires, the right of the elite people to keep and bear arms inside their home, shall not be overly infringed.

Doh! I never read this one before. I guess you really have to read the fine print.

ke6guj
01-05-2011, 5:34 PM
I don't see this logic. . . we don't have a full right, because we didn't ask for the privilege?

The logic escapes me, but that does not mean it isn't reasonable to apply just so you can shut that door in court.

it might not be right, but that is the way they look at it right now, you have to actually apply to gain standing. remember this, there wouldn't even be a Heller ruling if Heller hadn't applied. Out of all of the original Parker plantiffs, he was the only one left, because he took the time to apply.

NightOwl
01-05-2011, 5:37 PM
I want Scalia to write this one. :43:

I'd like Thomas to write it, but then I'm biased, I want him to write every opinion.

N6ATF
01-05-2011, 5:42 PM
Should just have Thomas as the only justice and he picks his possible successors... "I am unanimous in my opinion on this!"

yellowfin
01-05-2011, 5:49 PM
Here's the nitty gritty on the application in MD: they pre-screen and pre-reject people so they don't submit formally submit an application or the app is pre-rejected without formal process. The plaintiff likely did interview etc. but they essentially threw it in the trash so they could officially say "Application? What application? We don't see an application here, do you?" Remember this is Jim Crow we're dealing with here: playing fair isn't in the rules.

Legasat
01-05-2011, 5:52 PM
Can't wait until :gura: gets to argue this issue before the big :hammer:kahunas at SCOTUS and they get to do this :90: to all the activist anti judges in the country.

Extremely well said!!!

Window_Seat
01-05-2011, 6:28 PM
How can any court allow for continued de facto bans on carry outside the home, while acknowledging the "sensitive places" dictum in Heller as this court did TWICE? Does this not scream for a SCOTUS reversal because of that alone?

Erik.

yellowfin
01-05-2011, 6:42 PM
It does, and the lower courts know it, but they hate gun rights so much they'll delay and nitpick as long as they absolutely can in every possible way until slapped down SPECIFICALLY item by item.

ed bernay
01-05-2011, 7:04 PM
the guy got arrested and convicted. forgive me for my ignorance but how can he Not have standing?

yellowfin
01-05-2011, 7:06 PM
the guy got arrested and convicted. forgive me for my ignorance but how can he Not have standing?He doesn't have standing to question whether the law was right when the question posed by the court at the time is whether he broke the law regardless of whether the law is right or wrong. He doesn't have standing to change the subject.

nick
01-05-2011, 7:11 PM
It would be nice if SCOTUS would GVR and say “The 2A applies outside of the home. That clear enough, you anti-civil rights pieces of crap?”

Which can be interpreted as "The 2A most certainly does not apply outside of home. Moreover, calling it a right is silly". What? Isn't that how it works? :confused:

nick
01-05-2011, 7:13 PM
How can any court allow for continued de facto bans on carry outside the home, while acknowledging the "sensitive places" dictum in Heller as this court did TWICE? Does this not scream for a SCOTUS reversal because of that alone?

Erik.

Out of curiosity, when was the last time you saw or heard of an intellectually honest judge?

Window_Seat
01-05-2011, 7:19 PM
Out of curiosity, when was the last time you saw or heard of an intellectually honest judge?

Here ya are (http://www.judgenap.com/) :cool:

We might have a few, they are far & few between, but they exist.

Erik.

kcbrown
01-05-2011, 7:27 PM
Which can be interpreted as "The 2A most certainly does not apply outside of home. Moreover, calling it a right is silly". What? Isn't that how it works? :confused:

LOL. Yep.

After all, if SCOTUS can say "we don't like the implications of the 14th Amendment as written, so clearly what the authors really meant was this...", with respect to a written document that they're supposed to be subservient to, then why can't lower courts play the same games with SCOTUS decisions?

taperxz
01-05-2011, 7:31 PM
http://i857.photobucket.com/albums/ab131/taperx/Antonin_Scalia_SCOTUS_photo_portrait.jpg

nick
01-05-2011, 7:39 PM
Here ya are (http://www.judgenap.com/) :cool:

We might have a few, they are far & few between, but they exist.

Erik.

I'll believe it when I research him :)

nick
01-05-2011, 7:42 PM
http://i857.photobucket.com/albums/ab131/taperx/Antonin_Scalia_SCOTUS_photo_portrait.jpg

Useful to us, sure. Intellectually honest? Not really.

Helpful_Cub
01-05-2011, 7:52 PM
If and when the SCOTUS does slap it down, it would add even that much more ammo to our growing stockpile of litigation history. Plus it would be rubbed in MD's face, which is 3rd in my book to NJ and CA on these related issues.

nicki
01-05-2011, 8:07 PM
We have to give the Justices their turn.

Since I figure the next SCOTUS case will probably be a carry case, I want Justice Thomas to write it.

The may issue CCW permit systems are a left over from the Jim Crow era and I want to see Justice Thomas bury them.

I am leery of Justice Kennedy, but as we get more wins, he may come even more to our side.

Nicki

hoffmang
01-05-2011, 8:08 PM
Useful to us, sure. Intellectually honest? Not really.

QFT.

1. I roll my eyes when people say that MD pre-screens... Send the unlawful bureaucrats certified mail already...

2. This is why I say again and again that the venues that we bring these cases really matters. Notice how may California State Court decisions are cited in this case. Do not litigate the newly found right to arms in California State Courts or the wrong Federal District Court in California...

If you recall I posted video of the oral argument in this. It's a classic example of "not the right people." See:
15648669

-Gene

753X0
01-05-2011, 8:13 PM
This is probably one of the worst east-coast states to have this happen in. Maryland doesn't have a specific RKBA clause in their constitution.

They do now....a la McDonald!

Window_Seat
01-05-2011, 8:39 PM
http://i857.photobucket.com/albums/ab131/taperx/Antonin_Scalia_SCOTUS_photo_portrait.jpg
Useful to us, sure. Intellectually honest? Not really.
...Well, I mean, what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it's wrong, I have -- even I have acquiesced in it.

—Justice Scalia

"It" being Incorporation via the PoI clause of Amendment XIV.

Erik.

sawchain
01-05-2011, 8:42 PM
I haven't finished all of the video that Gene posted yet, but I feel compelled to address one issue that's continually being discussed therein. That is, does a person have a right to carry a weapon outside of their home?

If a person doesn't have a right to carry a weapon outside of their home, how the hell would a weapon have gotten to their house in the first place?! A stork? Or are they implying we all must manufacture our own weapons in our garages?

Librarian
01-05-2011, 8:53 PM
Another look at Williams v. State from Volokh (http://volokh.com/2011/01/05/highest-court-of-maryland-holds-that-second-amendment-does-not-protect-carrying-concealed-or-not-of-guns-outside-the-home/).

Librarian
01-05-2011, 9:12 PM
I haven't finished all of the video that Gene posted yet, but I feel compelled to address one issue that's continually being discussed therein. That is, does a person have a right to carry a weapon outside of their home?

If a person doesn't have a right to carry a weapon outside of their home, how the hell would a weapon have gotten to their house in the first place?! A stork? Or are they implying we all must manufacture our own weapons in our garages?

'Transport from gun store to home' is qualitatively different from 'carry loaded and ready to use outside the home'. We have, in most places, the first.

sawchain
01-05-2011, 9:25 PM
'Transport from gun store to home' is qualitatively different from 'carry loaded and ready to use outside the home'. We have, in most places, the first.

You're right. I gather that's also the reason transport between two bona fide residences is allowed as well.

Throughout the hearing, I can't help but keep thinking "right of the people to keep and bear arms shall not be infringed." Debating whether guns are allowed to be loaded is moot. What if this discussion were about my right to carry a six foot spear? The notion of loading a spear is silly. Should my right to carry the spear itself therefore be denied because it's always potentially dangerous?

gcrtkd
01-05-2011, 9:30 PM
2A(MD) == nugatory

kcbrown
01-05-2011, 9:38 PM
This court decision was entirely predictable (http://www.calguns.net/calgunforum/showpost.php?p=5523969&postcount=70). I anticipate we're going to see a lot more of this until SCOTUS explicitly rules on it, and we'll see this kind of nonsense for very nearly every combination of 2A right and circumstance.

Everything is going to have to be litigated on this all the way up to the top. Many courts are going to be adamantly against 2A rights and will do absolutely everything they possibly can to curtail them to the maximum extent possible, and each time SCOTUS will have to rule on it in order to set things straight. And SCOTUS is much more neutral on 2A than it was on civil rights cases (Brown v Board of Education was decided unanimously by SCOTUS).

We are going to have to fight for every inch of our 2A rights. It's why I remain highly skeptical that we'll see meaningful (as in, not hindered by all manner of restrictions) state-wide shall-issue CCW within 36 months of McDonald.


My search fu is weak on this, but it looks to me like the courts in general were quite a bit more favorable to civil rights than they currently are to 2A rights. The question I have is: when looking at civil rights cases, were the lower courts as insistent on interpreting everything SCOTUS said in the narrowest manner imaginable, to the point where they entirely ignored certain key elements of what SCOTUS said, the way they are doing with 2A cases?

taperxz
01-05-2011, 9:40 PM
To me, the answer for these judges was right in front of them and one actually addressed it but none of them could connect the dots. Yes McDonald left the door open for "other" places outside the home and then the right to "carry" and "bear' arms! The travesty is that Maryland used jibberish from the Bradys! :mad:

taperxz
01-05-2011, 9:45 PM
This court decision was entirely predictable (http://www.calguns.net/calgunforum/showpost.php?p=5523969&postcount=70). I anticipate we're going to see a lot more of this until SCOTUS explicitly rules on it, and we'll see this kind of nonsense for very nearly every combination of 2A right and circumstance.

Everything is going to have to be litigated on this all the way up to the top. Many courts are going to be adamantly against 2A rights and will do absolutely everything they possibly can to curtail them to the maximum extent possible, and each time SCOTUS will have to rule on it in order to set things straight. And SCOTUS is much more neutral on 2A than it was on civil rights cases (Brown v Board of Education was decided unanimously by SCOTUS).

We are going to have to fight for every inch of our 2A rights. It's why I remain highly skeptical that we'll see meaningful (as in, not hindered by all manner of restrictions) state-wide shall-issue CCW within 36 months of McDonald.


My search fu is weak on this, but it looks to me like the courts in general were quite a bit more favorable to civil rights than they currently are to 2A rights. The question I have is: when looking at civil rights cases, were the lower courts as insistent on interpreting everything SCOTUS said in the narrowest manner imaginable, to the point where they entirely ignored certain key elements of what SCOTUS said, the way they are doing with 2A cases?

We are only going to see more of this if the wrong venue continues to push the wrong buttons.

As Gene has always said, this is why its so important to pick the right place with the right people at the right time.

Maryland was the wrong place with the wrong plaintiff in the wrong court room!

nick
01-05-2011, 11:17 PM
...

"It" being Incorporation via the PoI clause of Amendment XIV.

Erik.

Yep. If you manage to violate people's rights for long enough (140 years seems long enough, it seems), you're good to go.

Kharn
01-06-2011, 1:47 AM
It is important to note that concealed and open carry both require the same may-issue handgun permit in MD, thus the references to the defendant's failure to apply for one.
QFT.

1. I roll my eyes when people say that MD pre-screens... Send the unlawful bureaucrats certified mail already...

If you recall I posted video of the oral argument in this. It's a classic example of "not the right people." See:
-GeneGene,
The MSP desk sergeants will tell anyone that asks about an application that you won't get the permit and to save your money, the worker taking your finger prints will tell you it is not going to happen, the trooper that does the mandatory interview will tell you to save your money (at that stage he can still tear up your application and give your money back, IIRC), etc. Every step of the way is 'don't waste your time'. It's also $140, non-refundable, 100% upfront if you decide to go beyond the interview. They're not refusing to let anyone participate in the process, they're just telling you its not worth it and making it expensive and disheartening.

05FLHT
01-06-2011, 4:07 AM
2. This is why I say again and again that the venues that we bring these cases really matters. Notice how may California State Court decisions are cited in this case. Do not litigate the newly found right to arms in California State Courts or the wrong Federal District Court in California...


The problem is your asking for a luxury that is not easily afforded. Before the ink McDonald was written in dried, criminal defense attorneys understood the decision was another wet noodle to throw against the wall. You can't plan for it or stop it. You just have to accept that it will happen and hope the damage, if any (see Miranda), is not too great.

Although Williams may not be the ideal candidate to champion the core fundamental right of self defense protected by the Second Amendment, I highly doubt MD throwing down the gauntlet will result in anything short of a SCOTUS ***** slap.

kcbrown
01-06-2011, 5:37 AM
We are only going to see more of this if the wrong venue continues to push the wrong buttons.

As Gene has always said, this is why its so important to pick the right place with the right people at the right time.

Maryland was the wrong place with the wrong plaintiff in the wrong court room!

This is true as far as it goes, but your assumption is that if you fight in the right venue, the other "wrong venues" will suddenly change their tune once a ruling has been issued by SCOTUS.

My point is that for that to work, rulings by SCOTUS will have to be issued against all combinations of the ways to exercise 2A and the circumstances under which to exercise them.

For any such combination that has not been explicitly ruled upon by SCOTUS, the court in the "wrong place" will rule against exercise of the right. They will simply claim, as Maryland did, that SCOTUS hasn't explicitly weighed in on the combination in question.

So that means if you want to carry in a particular place, for instance, you either have to be living in a jurisdiction that is 2A friendly, or you have to have a ruling by SCOTUS that explicitly covers carry in that place. The court there will claim that SCOTUS will have to explicitly say that such a place is not "sensitive", and that since SCOTUS hasn't yet weighed in on that particular place, this court regards it as being sensitive. That's just one example of the kind of reasoning the court can use against you.


Do not underestimate the ends to which the anti-RKBA courts will go to prevent you from exercising your 2A rights. This isn't like the civil rights litigation of the sixties where most courts were at least on the fence about the rights in question and SCOTUS was unanimous in overturning their own precedent. RKBA is an entirely different animal because it involves items which are dangerous when in the wrong hands and, as per the writings of this country's founders, potentially dangerous to government when in the right hands. This is very different from whether or not someone has to sit at the back of the bus because of their color.

Fortunately, our guys understand all this, and this is why I believe their strategy will eventually win the day. But I think it's going to be a much harder fought battle than even they realize.

B Strong
01-06-2011, 5:50 AM
I don't see this logic. . . we don't have a full right, because we didn't ask for the privilege?

The logic escapes me, but that does not mean it isn't reasonable to apply just so you can shut that door in court.


The whole concept of "standing" in these cases means that the court likes to see the plantiff jump through as many bureaucratic hoops as possible before filing suit.

B Strong
01-06-2011, 5:52 AM
This is true as far as it goes, but your assumption is that if you fight in the right venue, the other "wrong venues" will suddenly change their tune once a ruling has been issued by SCOTUS.

My point is that for that to work, rulings by SCOTUS will have to be issued against all combinations of the ways to exercise 2A and the circumstances under which to exercise them.

For any such combination that has not been explicitly ruled upon by SCOTUS, the court in the "wrong place" will rule against exercise of the right. They will simply claim, as Maryland did, that SCOTUS hasn't explicitly weighed in on the combination in question.

So that means if you want to carry in a particular place, for instance, you either have to be living in a jurisdiction that is 2A friendly, or you have to have a ruling by SCOTUS that explicitly covers carry in that place. The court there will claim that SCOTUS will have to explicitly say that such a place is not "sensitive", and that since SCOTUS hasn't yet weighed in on that particular place, this court regards it as being sensitive. That's just one example of the kind of reasoning the court can use against you.


Do not underestimate the ends to which the anti-RKBA courts will go to prevent you from exercising your 2A rights. This isn't like the civil rights litigation of the sixties where most courts were at least on the fence about the rights in question and SCOTUS was unanimous in overturning their own precedent. RKBA is an entirely different animal because it involves items which are dangerous when in the wrong hands and, as per the writings of this country's founders, potentially dangerous to government when in the right hands. This is very different from whether or not someone has to sit at the back of the bus because of their color.

Fortunately, our guys understand all this, and this is why I believe their strategy will eventually win the day. But I think it's going to be a much harder fought battle than even they realize.

Very well stated.

At the very least, well thought out challenges in "the wrong area" can lay the groundwork for better challenges farther up the judicial ladder.

vantec08
01-06-2011, 6:05 AM
This court decision was entirely predictable (http://www.calguns.net/calgunforum/showpost.php?p=5523969&postcount=70). I anticipate we're going to see a lot more of this until SCOTUS explicitly rules on it, and we'll see this kind of nonsense for very nearly every combination of 2A right and circumstance.

Everything is going to have to be litigated on this all the way up to the top. Many courts are going to be adamantly against 2A rights and will do absolutely everything they possibly can to curtail them to the maximum extent possible, and each time SCOTUS will have to rule on it in order to set things straight. And SCOTUS is much more neutral on 2A than it was on civil rights cases (Brown v Board of Education was decided unanimously by SCOTUS).

We are going to have to fight for every inch of our 2A rights. It's why I remain highly skeptical that we'll see meaningful (as in, not hindered by all manner of restrictions) state-wide shall-issue CCW within 36 months of McDonald.


My search fu is weak on this, but it looks to me like the courts in general were quite a bit more favorable to civil rights than they currently are to 2A rights. The question I have is: when looking at civil rights cases, were the lower courts as insistent on interpreting everything SCOTUS said in the narrowest manner imaginable, to the point where they entirely ignored certain key elements of what SCOTUS said, the way they are doing with 2A cases?


Exactly. Until we get a once-and-for-all, clear, definitive, put-the-foot-down ruling on the entire basis of the 2nd, it will continue. Considering the 5-4 makeup of SCOTUS, it doesnt bode well for the long term as they continue to snipe away at the 2nd. Its like picking at a scab. . .it will never heal.

Gray Peterson
01-06-2011, 8:11 AM
It is important to note that concealed and open carry both require the same may-issue handgun permit in MD, thus the references to the defendant's failure to apply for one.
Gene,
The MSP desk sergeants will tell anyone that asks about an application that you won't get the permit and to save your money, the worker taking your finger prints will tell you it is not going to happen, the trooper that does the mandatory interview will tell you to save your money (at that stage he can still tear up your application and give your money back, IIRC), etc. Every step of the way is 'don't waste your time'. It's also $140, non-refundable, 100% upfront if you decide to go beyond the interview. They're not refusing to let anyone participate in the process, they're just telling you its not worth it and making it expensive and disheartening.

Granted, the governmental agents should NOT do this, but you gotta admit people need to steel themselves.

-Gray

taperxz
01-06-2011, 8:39 AM
This is true as far as it goes, but your assumption is that if you fight in the right venue, the other "wrong venues" will suddenly change their tune once a ruling has been issued by SCOTUS.

My point is that for that to work, rulings by SCOTUS will have to be issued against all combinations of the ways to exercise 2A and the circumstances under which to exercise them.

For any such combination that has not been explicitly ruled upon by SCOTUS, the court in the "wrong place" will rule against exercise of the right. They will simply claim, as Maryland did, that SCOTUS hasn't explicitly weighed in on the combination in question.

So that means if you want to carry in a particular place, for instance, you either have to be living in a jurisdiction that is 2A friendly, or you have to have a ruling by SCOTUS that explicitly covers carry in that place. The court there will claim that SCOTUS will have to explicitly say that such a place is not "sensitive", and that since SCOTUS hasn't yet weighed in on that particular place, this court regards it as being sensitive. That's just one example of the kind of reasoning the court can use against you.


Do not underestimate the ends to which the anti-RKBA courts will go to prevent you from exercising your 2A rights. This isn't like the civil rights litigation of the sixties where most courts were at least on the fence about the rights in question and SCOTUS was unanimous in overturning their own precedent. RKBA is an entirely different animal because it involves items which are dangerous when in the wrong hands and, as per the writings of this country's founders, potentially dangerous to government when in the right hands. This is very different from whether or not someone has to sit at the back of the bus because of their color.

Fortunately, our guys understand all this, and this is why I believe their strategy will eventually win the day. But I think it's going to be a much harder fought battle than even they realize.

I dont know if that is entirely accurate. (whats in bold) When watching the video there was a conversation with one justice asking what other states are doing. It seems to me that the court of asking for a precedence in similar 2A cases across the land.

What i didn't like seeing was that even though they said there were about 10 states involved in the same type of cases, No one asked what the the other 40 states do and how they would rule on this. They basically blow off incorporation and SCOTUS. One judge even mocked the intelligence of SCOTUS.

Maybe i am wrong here but isn't precedence King? If you have 40 other state rulings in favor of RKBA it seems to me the minority will have to fall in line.

kcbrown
01-06-2011, 9:28 AM
I dont know if that is entirely accurate. (whats in bold) When watching the video there was a conversation with one justice asking what other states are doing. It seems to me that the court of asking for a precedence in similar 2A cases across the land.


Just because a court asks a question doesn't mean the court will actually consider the answer. Consider what happened in Peruta, where the court initially acted as if it was going to carefully and intelligently examine the case, the SCOTUS opinion, etc., only to say later on that, essentially, McDonald says that RKBA only applies in the home.



What i didn't like seeing was that even though they said there were about 10 states involved in the same type of cases, No one asked what the the other 40 states do and how they would rule on this. They basically blow off incorporation and SCOTUS. One judge even mocked the intelligence of SCOTUS.

Maybe i am wrong here but isn't precedence King? If you have 40 other state rulings in favor of RKBA it seems to me the minority will have to fall in line.Rulings in other courts of the same level may have some persuasive power but I don't see why they'd be binding, else all courts at any given level would eventually all rule the same regardless of whether or not SCOTUS has weighed in on the issue in question.

Considering that this court essentially ignored SCOTUS, why would you think they'd find opinions from courts that are lower than SCOTUS to be more persuasive unless those opinions are ones this court happens to agree with?

No, you must remember that when you're talking about appointed judges, you're talking about people who are used to exercising power. They will rule whichever way suits their own agenda best. If their opposition to RKBA is sufficiently strong and their other motivations sufficiently weak in comparison, then they will rule against it even in the face of what others might regard as binding precedent. In the end, everything is advisory because there is essentially nothing short of direct commission of a felony that can, in general, cause a judge to be immediately and forcibly removed. I don't believe it's been tested, but I suspect that even direct refusal to issue a ruling as directed by SCOTUS won't directly cause a judge to be removed -- he'd have to be impeached first. That would probably happen in that case, which is why I don't believe it's actually been tested. But it gives insight into what the courts can get away with. Namely, lower courts can get away with ignoring the wishes of SCOTUS as long as those wishes aren't expressed directly. If SCOTUS merely hints at something, even if it's a strong hint, lower courts are free to ignore it -- I'm deeply skeptical that judges would be impeached over that.

wash
01-06-2011, 9:53 AM
The MSP desk sergeants will tell anyone that asks about an application that you won't get the permit and to save your money, the worker taking your finger prints will tell you it is not going to happen, the trooper that does the mandatory interview will tell you to save your money (at that stage he can still tear up your application and give your money back, IIRC), etc. Every step of the way is 'don't waste your time'. It's also $140, non-refundable, 100% upfront if you decide to go beyond the interview. They're not refusing to let anyone participate in the process, they're just telling you its not worth it and making it expensive and disheartening.
This is why things like the CGF CCW initiative are so important, it shows lawful gun owners how to push back against their sheriffs and get the license they want.

Being organized and knowing the law might be able to make that 93% figure actually mean something in MD.

dantodd
01-06-2011, 10:43 AM
I don't see this logic. . . we don't have a full right, because we didn't ask for the privilege?

The logic escapes me, but that does not mean it isn't reasonable to apply just so you can shut that door in court.

Because it is not automatically illegal to regulate a right. If the permits are actually issued in such a manner that it doesn't unduly suppress the exercise of the right then there is no case. If he didn't apply for a permit there is no way for the court to determine if he would have been approved.

You can argue that it is a futile act to apply but that would require a special claim and evidence to support the claim, something that I suspect he didn't bother with.

yellowfin
01-06-2011, 12:26 PM
Granted, the governmental agents should NOT do this, but you gotta admit people need to steel themselves.

-GrayPerhaps, but it's a different matter than simply enduring disfavored treatment. What they were saying constituted a professional opinion given which people take as having weight of authority. Perhaps they should have ignored them but generally people tend to believe such assessments.

Write Winger
01-06-2011, 1:21 PM
I guess we can only bear arms against a tyrannical government or foreign invaders from the comfort of our living rooms, just as our Founders intended and just as they fought off King George. All those couch potato Minutemen Militias...

N6ATF
01-06-2011, 1:39 PM
LOL you can't even do that. If criminal cops break in without a search warrant and you shoot them, KYA goodbye.

press1280
01-06-2011, 4:27 PM
He doesn't have standing to question whether the law was right when the question posed by the court at the time is whether he broke the law regardless of whether the law is right or wrong. He doesn't have standing to change the subject.

I'd look at it in this way-since Williams didn't apply, his lawyer is basically forced to argue that MD can't even require a permit to carry,period. Even though MD's AG was full of crap with the 93% figure(and at least 2 judges were skeptical of that), they can't exploit that since MD does issue some permits.

ed bernay
01-06-2011, 4:38 PM
He doesn't have standing to question whether the law was right when the question posed by the court at the time is whether he broke the law regardless of whether the law is right or wrong. He doesn't have standing to change the subject.

I'm not a lawyer so I'm not up to speed on all of the case law. What are you basing this on? What case law says you can't later challenge whether a law is right or wrong at the time of conviction especially in light of later developing case law that contradicts the original law someone was convicted on? Doesn't the recent DC case Magnus vs US say different? IMHO the MD court decision is full of excrement.

nick
01-06-2011, 6:28 PM
It is important to note that concealed and open carry both require the same may-issue handgun permit in MD, thus the references to the defendant's failure to apply for one.
Gene,
The MSP desk sergeants will tell anyone that asks about an application that you won't get the permit and to save your money, the worker taking your finger prints will tell you it is not going to happen, the trooper that does the mandatory interview will tell you to save your money (at that stage he can still tear up your application and give your money back, IIRC), etc. Every step of the way is 'don't waste your time'. It's also $140, non-refundable, 100% upfront if you decide to go beyond the interview. They're not refusing to let anyone participate in the process, they're just telling you its not worth it and making it expensive and disheartening.

So normally you wouldn't bother trying to jump through those hoops, sure. However, if you're filing a lawsuit, you better cover your bases. I guess, proper preparation is one of the things that distinguish good litigants from bad. Mind you, it applies to pretty much any field.

resident-shooter
01-06-2011, 7:04 PM
Can't wait until :gura: gets to argue this issue before the big :hammer:kahunas at SCOTUS and they get to do this :90: to all the activist anti judges in the country.

u said it better than i could :D

MrBrent
01-06-2011, 8:18 PM
I listened to the oral arguments that Gene posted and is it just me or did the attorney seem unprepared?? He seamed clueless about the questions the judges were asking him about Heller and McDonald. I can see why they ruled against him.

hoffmang
01-06-2011, 11:24 PM
I listened to the oral arguments that Gene posted and is it just me or did the attorney seem unprepared?? He seamed clueless about the questions the judges were asking him about Heller and McDonald. I can see why they ruled against him.

"Unprepared" is being kind...

-Gene