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krucam
04-22-2011, 12:31 PM
Stephen Halbrook has apparently filed a Writ for Cert to the Supreme Court in the case of Williams v. Maryland.

QUESTION PRESENTED
Whether peaceably carrying or transporting a
registered handgun outside the home, without a carry
permit that is unobtainable by ordinary, law-abiding
citizens, is outside of the scope of “the right of the
people to . . . bear arms” protected by the Second
Amendment to the United States Constitution.

PETITION FOR A WRIT OF CERTIORARI (http://www.stephenhalbrook.com/lawsuits/Petition_cert_Williams_FINAL.pdf)

Williams was a case in the criminal courts, not civil. The opinion was notable in their audacity in my opinion, saying "iIf the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."

Careful what you wish for, perhaps.

Williams v Maryland Opinion (http://mdcourts.gov/opinions/coa/2011/16a10.pdf)

The question now is if this one will have the legs, or perhaps they'll deny it, knowing of SAF/CGF/Gura's blitzkrieg in the lower courts. I guess we'll see...

Gray Peterson
04-22-2011, 1:00 PM
The question now is if this one will have the legs, or perhaps they'll deny it, knowing of SAF/CGF/Gura's blitzkrieg in the lower courts. I guess we'll see...

I trust Halbrook more than I do the lawyer that argued his case in front of the Court of Appeal. Halbrook is a good arguer and not prone to be in the loo when it's your turn, or shouting counter-arguments from the bench during AG Gansler's oral argument.

yellowfin
04-22-2011, 1:05 PM
Excellent. They need to have something that clearly makes them mad so they'll give a solid knockout punch between the eyes instead of a watered down, one foot in one foot out wishy washy limp fish.

Patrick-2
04-22-2011, 1:18 PM
First, Stephen Halbrook is top notch.

Second, this is about as good a criminal case as we will ever have to get to the Supreme Court. Here are the facts, uncontested by both Maryland and the Plaintiff:


Williams legally purchased his handgun at a Maryland dealer, took a training course and took lawful possession of the gun a month later
Williams had the gun at his girlfriend's house and stopped by to take it home
A cop saw Williams rummaging in his bag at a bus stop and turned his cruiser around to check him out. The LEO saw Williams place something in some bushes
LEO asks Williams what was in the bushes. Williams states "my gun".
Arrest and hilarity ensue


Notice something here?

Williams was doing nothing wrong. No crime was alleged to occur, other than his possession of a lawfully acquired and owned handgun. He followed all the rules, save on: he did not have (or apply for) a carry permit.

This is a pure 2A case. This is not Chester - where some ******* beat his wife, kicked his daughter and then said "Gimme some guns!"


When it comes to that pesky permit, Halbrook dispenses with it here:

It is undisputed that Petitioner did not file an application for a handgun carry permit. He contended instead “that as a result of the regulatory scheme, ‘any such application would have been denied.’” The record does not disclose any documented threats, assaults or robberies against Petitioner that are a prerequisite to even potentially being able to obtain a carry permit for personal defense under the Maryland statutory scheme.

Of course, Maryland can try to argue that Williams should have applied for a permit before making this claim, but Maryland just argued in Woollard that absent any documentary evidence they can and will deny any and all who request it. That made the permit unattainable to Williams.

(My Argument/Point): Add to that the fact that even if he had applied, the process would have exceeded the time in which his arrest occurred. He was arrested barely two weeks after getting the gun from the dealer - Maryland routinely takes 90 days to rule on a permit.

None of that really matters, though. If the Court takes up this case, there are no arguments over little things like "standing". Simply put, if SCOTUS wants to take the case, it wil be all 2A all the way.

So let's get to the core argument Halbrook is making:

Instead of analyzing Heller in more detail, the Maryland court opined that Heller (and McDonald) only “address[ed] prohibitions against handgun possession in the home . . . .” Id. at 1176 & n.10 (string citing to cases). The court referred to “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 . . . . .’” Id. at 1177, quoting McDonald, 130 S.Ct. at 3044. The Maryland court continued:

"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."

The Maryland court concluded that the right to bear arms exists only in one’s home: “It is the exception permitting home possession in Section 4-203(b)(6) that takes the statutory scheme embodied in Section 4-203 outside of the scope of the Second Amendment, as articulated in Heller and McDonald.”

No fewer than ten state and federal courts have refused, relying on Heller, to recognize a constitutional right to bear arms outside the home. See Part II.B., below. Several have expressly acknowledged that they will not recognize such a right unless this Court does. The Fourth Circuit, relying on the Maryland Court of Appeals’ decision in the instant case, recently stated:

"On the question of Heller's applicability outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State,... ("If the Supreme Court, in [McDonald's] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.")"

United States v. Masciandaro,

Although this Court has specifically ruled only on the right to keep a handgun in the home, it is evident from the Court’s analyses and plain statements in Heller and McDonald that the right to bear arms exists outside the home. See Part I.B., below. Thus, the Maryland court’s decision and the other decisions limiting the scope of that right to the home (discussed in Part II.B.) have decided an important federal question in a way that conflicts with relevant decisions of this Court. If it should be contended that Heller and McDonald did not clearly establish that the Second Amendment applies outside the home, then this is an important question of federal law that has not been, but should be, settled by this Court.


The Big Question

"Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution."

Let's break it down:


"Whether peaceably carrying or transporting": only covers the good guys :thumbsup:


"a Registered Handgun": oops :( But what does "registered" mean other than "lawfully purchased", as some states will consider a 4473 enough? This is a smart move because it takes the question of registration off the table, if the court so chooses.


"outside the home": non-specific and leaves sensitive places (whatever that means) intact


"without a carry permit that is unobtainable by ordinary, law-abiding citizens": a way to work around the fact Williams didn't even try to get one, but leaves open the door that SCOTUS might prefer to leave permits as a required item for RKBA (smart move...plays this both ways)


"is outside the scope" of 2A: the big question.



Summary:

If the Court wants this case, they could take it. The only real reach here is the fact Williams never tried to get a permit, but the way Halbrook phrased the query, the court is not cornered into deciding that issue right now. They can answer the particular question over public RKBA and ignore whether a permit is even required. Or they can rule there, too.

This is a case of whether the right supersedes the state's willingness to recognize it.

Kharn
04-22-2011, 1:55 PM
I bet the MD AG is very annoyed state supreme court rulings are appealed directly to the Supreme Court. If cert is granted, I will be taking the day off and making the journey to 1 First St for the oral arguments.

Dreaded Claymore
04-22-2011, 2:02 PM
This looks very exciting.

dantodd
04-22-2011, 2:10 PM
It is undisputed that Petitioner did not file an application for a handgun carry permit. He contended instead “that as a result of the regulatory scheme, ‘any such application would have been denied.’” The record does not disclose any documented threats, assaults or robberies against Petitioner that are a prerequisite to even potentially being able to obtain a carry permit for personal defense under the Maryland statutory scheme.

Of course, Maryland can try to argue that Williams should have applied for a permit before making this claim, but Maryland just argued in Woollard that absent any documentary evidence they can and will deny any and all who request it. That made the permit unattainable to Williams.

(My Argument/Point): Add to that the fact that even if he had applied, the process would have exceeded the time in which his arrest occurred. He was arrested barely two weeks after getting the gun from the dealer - Maryland routinely takes 90 days to rule on a permit.


I think that their position in Wollard will prevent them from arguing Williams' standing since it clearly would have been a futile exercise to apply.

It seems that this is really well set up to simply argue "bear," as it relates to transport anyway. I think this is an excellent prelude to "real" bear cases regarding concealed/open carry beyond transport.

press1280
04-22-2011, 2:23 PM
When I first saw the thread title, I thought "oh no". While this case gets a huge boost by Halbrook as attorney, I'm wondering if the lack of permit application will spell doom. Will SCOTUS actually take up the issue of MD's restrictiveness on permits? After all, Gansler said over 90% of MD permit applications were approved;)

Patrick-2
04-22-2011, 2:26 PM
I bet the MD AG is very annoyed state supreme court rulings are appealed directly to the Supreme Court. If cert is granted, I will be taking the day off and making the journey to 1 First St for the oral arguments.

Yes. Especially considering the lightweight who fought for Williams the first time. I failed to give Gansler full credit on Woollard, but I am feeling good that he will be one on the hook here. NY/NJ's AG would be a much tougher fight, though I doubt Gansler is going to go it alone here. Expect a metric buttload of amicus briefs from every anti-gun AG in the nation, plus a few from shall-issue states that don't want the constitution shoved in their face.

I think that their position in Wollard will prevent them from arguing Williams' standing since it clearly would have been a futile exercise to apply.


Agree. Timing on this is excellent, considering the recent response by Gansler on the subjective permit system. Cannot help but think this was intentional and crafted to take advantage of his concession (that people like Williams will never get permits in Maryland under existing state law).

It seems that this is really well set up to simply argue "bear," as it relates to transport anyway. I think this is an excellent prelude to "real" bear cases regarding concealed/open carry beyond transport.

Respectfully disagree. Re-read the question posed by Hallbrook. It is not a set-up to the big question, it is the big question:

Whether peaceably carrying or transporting a
registered handgun outside the home, without a carry
permit that is unobtainable by ordinary, law-abiding
citizens, is outside of the scope of “the right of the
people to . . . bear arms” protected by the Second
Amendment to the United States Constitution.

Carry == Bear, according to Ginsburg and Heller. Also, note the use of the word "or".

Librarian
04-22-2011, 2:32 PM
I'll tell you, here's an argument I hope is taken up - from page 28 Officials may not ignore the plain text of the Constitution under the theory that no case on point has been decided by this Court to verify that the constitutional command must actually be obeyed.

N6ATF
04-22-2011, 2:34 PM
If SCOTUS takes this and doesn't rule the right to bear cannot be converted to a privilege by requiring a permit, looks like we're stuck with permits.

Window_Seat
04-22-2011, 2:35 PM
I bet the MD AG is very annoyed state supreme court rulings are appealed directly to the Supreme Court. If cert is granted, I will be taking the day off and making the journey to 1 First St for the oral arguments.

Likewise, but what was that case (was it this case?) where the lower court made critical statements to the effect that the USSC needs to define what is lawful & what isn't lawful outside the home more clearly (when talking about Heller & McDonald)?

Looks like it could be this one, and the court is effectively asking SCOTUS to grant cert by poking the Justices in the rear with this statement:

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.

:popcorn:

Erik.

safewaysecurity
04-22-2011, 2:35 PM
So this is basically a constitutional carry case?

Untamed1972
04-22-2011, 2:51 PM
Just curious what Maryland law is regarding transporting? What manner is proscirbed as to the legal manner for transportation? Locked container like CA?

mdimeo
04-22-2011, 2:59 PM
So this is basically a constitutional carry case?

If by constitutional carry you mean "no-permit-required, like in Vermont et al.," I would say no. The Court could rule that Maryland needs to issue permits to law-abiding citizens.

They could also rule permits are unconstitutional infringements, but they're not really being asked to.

mdimeo
04-22-2011, 3:02 PM
Second, this is about as good a criminal case as we will ever have to get to the Supreme Court.

Agreed. Strategically, though, I sure wish there was a noncriminal case first (i.e. a good guy arbitrarily denied a carry permit).

Glock22Fan
04-22-2011, 3:10 PM
It sounds as if a win here might (would?) force all sixty fifty states to have some form of carry, whether they like it or not.

Window_Seat
04-22-2011, 3:19 PM
If by constitutional carry you mean "no-permit-required, like in Vermont et al.," I would say no. The Court could rule that Maryland needs to issue permits to law-abiding citizens.

They could also rule permits are unconstitutional infringements, but they're not really being asked to.

But could they be asked, or could it be stated in later briefs that the incorporated fundamental and individual right is being infringed upon by way of a permit/licensing system, like from Calguns Foundation, SAF, NRA, State's AGs?

If sensitive places is more narrowly defined, then could it be asked or stated in later briefs whether or not a permit system would be constitutionally permissible for only sensitive places, and then we start seeing permits being issued on a shall issue basis for carry in places like schools & government buildings?

Erik.

Gray Peterson
04-22-2011, 3:22 PM
I'm sure Halbrook, in his reply brief to the state of Maryland, will point out their representations in Woollard.

Patrick-2
04-22-2011, 3:28 PM
If SCOTUS takes this and doesn't rule the right to bear cannot be converted to a privilege by requiring a permit, looks like we're stuck with permits.

If by constitutional carry you mean "no-permit-required, like in Vermont et al.," I would say no. The Court could rule that Maryland needs to issue permits to law-abiding citizens.

They could also rule permits are unconstitutional infringements, but they're not really being asked to.

Halbrook leaves that door open here:

Petitioner takes no position on whether the failure to apply for a permit would jeopardize the assertion of a Second Amendment claim in a prosecution for carrying a handgun without a permit in a state where, unlike Maryland, such a permit is required to be issued to law-abiding citizens.

He's written the question in a fairly restrictive way so as to ask only one question at a time. Permits - though he makes an argument that they might be unnecessary in the case where applying for one is a futile act - are still a future question.

Agreed. Strategically, though, I sure wish there was a noncriminal case first (i.e. a good guy arbitrarily denied a carry permit).

In this case we got a good guy convicted by an arbitrary denial of right, and nothing else. I think this is an excellent set of conditions - there are few better times to engage a court than those which free a man from prison for doing little more than exercising his fundamental rights.

Williams got caught with his legal gun on his lawful personage, going from one place to the other. Maryland denies him the right to carry, and he therefore got convicted and sent to prison. At the end of the day, Halbrook is arguing that Williams did nothing wrong; the wrong move was on Maryland imprisoning him for exercising a fundamental right.

Just curious what Maryland law is regarding transporting? What manner is proscirbed as to the legal manner for transportation? Locked container like CA?

Inaccessible and unloaded. It does not need to be locked. Generally we carry in the trunk, unloaded. You can have loaded mags with the gun.

Safe bet in central Maryland (especially PG County, where this case came to fruition) is to lock the case and keep ammo separate and out of sight if you get pulled over. Eliminate all cause for a search.

Keep in mind our AG just told a federal court in a Gura case that citizens can carry fully loaded AR-15s in public without a permit. We've already found several cases where people were arrested for much less (plastic guns on their way to an indoor "laser tag" type event...they were arrested for assault).

Likewise, but what was that case (was it this case?) where the lower court made critical statements to the effect that the USSC needs to define what is lawful & what isn't lawful outside the home more clearly (when talking about Heller & McDonald)?

All of them. Hallbrook points out the obvious state case here, but also points to the recent 4th Circuit finding in Masciandaro, where two out of three judges on the panel openly refused to place RKBA in or out of 2A protection until the Supreme Court told them what to do. I think he notes at least ten decisions that all say "The Second Amendment is restricted to the home until the Supreme Court tells us otherwise."


Overall, Halbrook paints a picture that says: "The lower courts are all messed up trying to figure out what Heller/McDonald meant. My client went to jail over this confusion. Respectfully, please step in and answer the burning question so we can all move on."

Untamed1972
04-22-2011, 3:34 PM
Inaccessible and unloaded. It does not need to be locked. Generally we carry in the trunk, unloaded. You can have loaded mags with the gun.

Safe bet in central Maryland (especially PG County, where this case came to fruition) is to lock the case and keep ammo separate and out of sight if you get pulled over. Eliminate all cause for a search.

Keep in mind our AG just told a federal court in a Gura case that citizens can carry fully loaded AR-15s in public without a permit. We've already found several cases where people were arrested for much less (plastic guns on their way to an indoor "laser tag" type event...they were arrested for assault).

So then how would a person not traveling by car.....like walking or taking a city bus legally transport? Locked container?

Patrick-2
04-22-2011, 3:36 PM
So then how would a person not traveling by car.....like walking or taking a city bus legally transport? Locked container?

Very carefully, or you end up like Williams.

Pat Riot
04-22-2011, 3:41 PM
So when can we expect a response from SCOTUS.

Untamed1972
04-22-2011, 3:47 PM
Very carefully, or you end up like Williams.

well that's what I'm gettin' at. Is the MD transport law so vague that a person isn't really sure how to legally transport w/o violating the law?

Or is that even though the you might be correctly transporting you still run the risk of getting busted because the COPs will just use some other excuse to arrest you?

Southwest Chuck
04-22-2011, 4:01 PM
This looks very exciting.

That doesn't even begin to describe how I'm feeling about it :rofl:

I'll tell you, here's an argument I hope is taken up - from page 28Officials may not ignore the plain text of the Constitution under the theory that no case on point has been decided by this Court to verify that the constitutional command must actually be obeyed.

I read that too. I hope USSC takes this case and REALLY puts a slap-down on the lower courts

Just curious what Maryland law is regarding transporting? What manner is proscirbed as to the legal manner for transportation? Locked container like CA?

How on earth did the guy legally transport it from the gun store when he picked it up? How do you transport it to the range? Is transport totally prohibited without a permit?

If by constitutional carry you mean "no-permit-required, like in Vermont et al.," I would say no. The Court could rule that Maryland needs to issue permits to law-abiding citizens.

I would add to that "for the core lawful purpose of self defense"

They could also rule permits are unconstitutional infringements, but they're not really being asked to.

Or they could rule MARYLAND's permit system is unconstitutional

Agreed. Strategically, though, I sure wish there was a noncriminal case first (i.e. a good guy arbitrarily denied a carry permit).

This is as clean a case you're going to get criminally. In fact, I like it. It's the criminality of the bearing/transport that is ultimately in question here, IMO

It sounds as if a win here might (would?) force all sixty fifty states to have some form of carry, whether they like it or not.

Hopefully it will be a permit-less and LOADED form of carry. ;)
I hope the Supreme Court is wise enough to head off the next ridiculous round of litigation. Take California. They could say ok, you can conceal (or open carry) but the Court never explicitly said we had to allow loaded carry. I can see a new acronim now CBC (concealed bullet-less carry) or OBO (open bullet-less carry):eek:

Looks like Patrick strikes again. I'm slow today... well, ok, most days :)

krucam
04-22-2011, 4:05 PM
well that's what I'm gettin' at. Is the MD transport law so vague that a person isn't really sure how to legally transport w/o violating the law?

Or is that even though the you might be correctly transporting you still run the risk of getting busted because the COPs will just use some other excuse to arrest you?

I want to say Mr Williams was legit for transport IF he had just kept it in his backpack (enclosed) and magazines separated (unloaded) AND he was on his way to/from Range, or Gun Shop, or special Military Event, or dog training (need to verify that last one).

One residence to another is not protected in MD Code with a handgun (unless you owned/leased both) without one of those unobtanium permits.

Just looked it up:
http://law.justia.com/codes/maryland/2005/gcr/4-203.html

4-203:
....(2) the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under Title 5, Subtitle 3 of the Public Safety Article;
(3) the carrying of a handgun on the person or in a vehicle while the person is transporting the handgun to or from the place of legal purchase or sale, or to or from a bona fide repair shop, or between bona fide residences of the person, or between the bona fide residence and place of business of the person, if the business is operated and owned substantially by the person if each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(4) the wearing, carrying, or transporting by a person of a handgun used in connection with an organized military activity, a target shoot, formal or informal target practice, sport shooting event, hunting, a Department of Natural Resources-sponsored firearms and hunter safety class, trapping, or a dog obedience training class or show, while the person is engaged in, on the way to, or returning from that activity if each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(5) the moving by a bona fide gun collector of part or all of the collector's gun collection from place to place for public or private exhibition if each handgun is unloaded and carried in an enclosed case or an enclosed holster;
(6) the wearing, carrying, or transporting of a handgun by a person on real estate that the person owns or leases or where the person resides or within the confines of a business establishment that the person owns or leases;
....

(6) allows you to move handguns between places you own/lease.
(3) & (4) cover most other normal events.

Tier One Arms
04-22-2011, 4:06 PM
How long can we expect before we hear if this is going to the Supreme Court?

Patrick-2
04-22-2011, 4:10 PM
Krucam: Good points. So if you come to my house to shoot dirt you are legal, but only because we shoot informally at a hill. If you went to another person's house with the gun - somewhere with no ability to kill earthworms - you'd be illegal. This is Maryland for you.


The more I think of this case, the more I like it.

This is effectively a challenge based on the permit being unavailable. It would require shall-issue or no-issue permitting. But the state could modify its permit practice if they wanted.

This question opens a few possible doors. First, what happens if a state takes too long to issue a permit and you are caught carrying between the time you buy the gun and time the state issues the permit? Halbrook is hinting the answer is they cannot touch you. This is a subtle effect if they answer this question his way.

press1280
04-22-2011, 4:13 PM
MD has transportation exceptions to/from range,gun store, home. Locked container I believe.

uyoga
04-22-2011, 4:33 PM
I agree this IS the BIG question.

Untamed1972
04-22-2011, 4:59 PM
Krucam: Good points. So if you come to my house to shoot dirt you are legal, but only because we shoot informally at a hill. If you went to another person's house with the gun - somewhere with no ability to kill earthworms - you'd be illegal. This is Maryland for you.


The more I think of this case, the more I like it.

This is effectively a challenge based on the permit being unavailable. It would require shall-issue or no-issue permitting. But the state could modify its permit practice if they wanted.

This question opens a few possible doors. First, what happens if a state takes too long to issue a permit and you are caught carrying between the time you buy the gun and time the state issues the permit? Halbrook is hinting the answer is they cannot touch you. This is a subtle effect if they answer this question his way.


Damn...MD is just as f-ed up as CA is. Looking forward to see where this goes.


What kills me is that a guy sitting on a bus bench waiting for a bus and shuffling thru a backpack is worthy of RS by the LEO for making a contact. Does he stop every woman he sees looking thru her purse for lipstick too?

dwtt
04-22-2011, 5:40 PM
Damn...MD is just as f-ed up as CA is. Looking forward to see where this goes.


What kills me is that a guy sitting on a bus bench waiting for a bus and shuffling thru a backpack is worthy of RS by the LEO for making a contact. Does he stop every woman he sees looking thru her purse for lipstick too?

Md, NY, NJ, CT, and MA are just as bad or worse than CA. So, be lucky that there are organizations like CGF to counter the antigun politicians in Sacramento. Also, be lucky that CA has Paul Payne and the local NRA members councils that keep on top of bad proposed legislation. We don't have anything like Paul or the member's councils here in the east coast.
As for transporting, it's legal to carry the unloaded pistol in a backpack. I picked up a S&W from our local FFL in Herndon, VA, and carried it back to my home in a back pack with no problems. Everything was legal and no children were hurt in the process. Unlike Md, across the river Virginia issues CCW to regular law abiding citizens and if a police officer were to stop me, I can show my CCW and I won't have to worry about being arrested. I hope this case makes Md more like VA. Well, except for the high cost of living. :)

Kharn
04-22-2011, 6:06 PM
MD does allow a "designated collector" (someone who informs the state they collect handguns or "assault rifles" in exchange for being exempt from the one-handgun-per-month rule) to transport unloaded handguns for a "private exhibition." Many MDShooters register as such so they can take a firearm to a friend's house without fear of a random traffic stop, my girlfriend knew that I was bringing a pistol to show her every evening I intended to spend the night.

MD also technically does not recognize traveling to a state where one can OC/CCW as a reason for having a pistol in the car, you need to articulate a valid exemption. I always know a gun store or friend across the state line I intend to visit while outside of MD.

navyinrwanda
04-22-2011, 8:56 PM
Good case for a GVR (http://en.wikipedia.org/wiki/GVR_Order)...

Librarian
04-22-2011, 9:12 PM
Two bits from Volokh on the case:

EV's comment on the High Court of MD opinion (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/).

Dave Kopel's comment on the petition for cert (http://volokh.com/2011/04/22/cert-petition-in-right-to-carry-case/).

N6ATF
04-23-2011, 1:15 AM
Good case for a GVR (http://en.wikipedia.org/wiki/GVR_Order)...

Can they GVR criminal cases from a state supreme court? Or do they actually have to go through all the arguments?

Dreaded Claymore
04-23-2011, 2:30 AM
Officials may not ignore the plain text of the Constitution under the theory that no case on point has been decided by this Court to verify that the constitutional command must actually be obeyed.

This. I hope Scalia's pimp hand is strong.

Kharn
04-23-2011, 3:04 AM
Can they GVR criminal cases from a state supreme court? Or do they actually have to go through all the arguments?

They can GVR any case, but it does not set the precident we need or the lower courts are requesting. GVR is used when there is a very similar case with sufficiently identical situation, see Raich and Stewart.

bwiese
04-23-2011, 4:02 AM
MD has transportation exceptions to/from range,gun store, home. Locked container I believe.

Yes, MD is generally "specific destination" for handgun transport.
Far worse than CA - we only have specific destination for AWs.

I believe people have been popped, in the past, for trivial side trips (gas? dinner?) on the way to/from the range - or some similar trivia.

Patrick-2
04-23-2011, 4:10 AM
Good case for a GVR (http://en.wikipedia.org/wiki/GVR_Order)...

Except the Maryland Court answered the question with full knowledge of Heller and McDonald. They just chose to ignore most of them. GVR is called for when something has changed post-decision.

The confusion here might be the timing of Williams' conviction: it actually came after our two big cases, although on first blush it looks like it was 2007-ish. The actual Maryland high court ruled on this just last year, post-McDonald. Outside of a few Maryland nerds, this is probably new info.


Assuming the Court takes Williams and answers it in our favor (big assumptions right now), GVR could come into play in the future for other petitioners.

For instance, you get arrested for possession in California today - when such is illegal in the state. The Supreme Court takes Williams and then sometime next year says "Wrong. Public carry is legal and when the state permit is illusory to the lawful applicant; they cannot be punished for exercising their right."

At that point you could appeal, and a GVR could be used to basically say to the California Court: "Read our ruling and apply it to this case. Now."

05FLHT
04-23-2011, 6:34 AM
Assuming the Court takes Williams and answers it in our favor (big assumptions right now), GVR could come into play in the future for other petitioners.

For instance, you get arrested for possession in California today - when such is illegal in the state. The Supreme Court takes Williams and then sometime next year says "Wrong. Public carry is legal and when the state permit is illusory to the lawful applicant; they cannot be punished for exercising their right."

At that point you could appeal, and a GVR could be used to basically say to the California Court: "Read our ruling and apply it to this case. Now."

This will also make things really interesting here in Illinois if a carry bill does not pass this year. The closest thing to carry that we have is unloaded and enclosed in a case. Unless you go to Chicago, then they want it broken down into a non-functioning state, unloaded, and enclosed in a locked case. Talk about a Heller flashback.

Gray Peterson
04-23-2011, 8:12 AM
This case is not appropriate for a GVR for the reasons enunciated by Patrick.

JRob
04-23-2011, 9:36 AM
I believe people have been popped, in the past, for trivial side trips (gas? dinner?) on the way to/from the range - or some similar trivia.

And, as a global issue, I'd like to eventually see those sort of citizens "pardoned" (in all states) en mass who only violated some BS gunowner harrassment law (ie, not a person otherwise convicted in the same action of a real criminal offense.

yellowfin
04-23-2011, 10:37 AM
I hope also in this case the Supreme Court will cease with this crumb by crumb nonsense and start feeding us whole slices of bread or even a slice of pizza at a time.

Kharn
04-23-2011, 12:06 PM
docket number is 10-1207; response due 5 May

wildhawker
04-23-2011, 1:02 PM
This case is not appropriate for a GVR for the reasons enunciated by Patrick.

That's only true if this remains the only case petitioned.

navyinrwanda
04-23-2011, 4:14 PM
Except the Maryland Court answered the question with full knowledge of Heller and McDonald. They just chose to ignore most of them. GVR is called for when something has changed post-decision.

Of course it would be a “GVR-in-light-of-nothing,” Youngblood v. West Virginia, 547 U.S. 867, 873, 126 S.Ct. 2188 (2006) (http://scholar.google.com/scholar_case?case=14620565204414956308).

But that doesn't mean it can't happen – or that a GVR would necessarily be a bad result. I can think of a lot of worse outcomes...

(For more discussion on the Court's use of GVR orders, see here (http://www.dwt.com/portalresource/lookup/wosid/intelliun-1501-10206/media.name=/SupremeCourtGVRs.pdf). And more specifically in light of Youngblood, see here (http://www.law.northwestern.edu/lawreview/v102/n1/383/LR102n1Ku.pdf).)

yellowfin
04-23-2011, 4:20 PM
According to the docket (as mentioned elsewhere), response is due May 5th.

kcbrown
04-23-2011, 4:51 PM
When it comes to that pesky permit, Halbrook dispenses with it here:


"Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution."


Let's break it down:


"Whether peaceably carrying or transporting": only covers the good guys :thumbsup:



I have a question about the wording of Halbrook's statement.

In mentions carrying or transporting.

My question is: if SCOTUS addresses transport but not carry, would that be sufficient to deal with this specific case?

If so, then would that not be what we would expect to happen here, since the Court tends to answer questions put before it in as narrow a manner as possible?


Quite clearly, an answer from SCOTUS that only deals with transport would get us little closer to our goal than where we already are. Furthermore, even if they do address carry, they'd have to specify carry of a functional firearm in order for it to have any real meat, since otherwise the Court would essentially be giving backing to the Peruta decision (which says that UOC is sufficient to meet the burden on government imposed by the 2nd Amendment).

Was Williams' firearm loaded? If not, then why would we expect the Supreme Court to address functional firearms in this case?

Kharn
04-23-2011, 5:05 PM
In MD, transportation is the same as carry for this situation.

Gray Peterson
04-23-2011, 5:28 PM
In MD, transportation is the same as carry for this situation.

This is correct. Besides the specific transport provisions and exclusions (home, busiiness) everything else is considered carry.

kcbrown
04-23-2011, 5:41 PM
Well, hopefully, then, SCOTUS makes it clear that carry of a functional firearm in public is a Constitutional Right, and that they explicitly define a "functional firearm" to include a firearm that requires no manipulation to fire other than pulling the trigger.

The lower courts seem to be intentionally obtuse when taking guidance from SCOTUS on 2A issues...

Kharn
04-23-2011, 5:44 PM
kcbrown,
Sorry, I missed your last point, in MD there is no loaded or unloaded, functional or disabled, open or concealed, there is only carrying of a handgun. It is equally illegal to have a loaded Glock .45 in your belt or a Ruger .22 locked in a case, without ammo or magazines, if you are not headed to an approved destination or do not have a permit.

N6ATF
04-23-2011, 6:18 PM
Well, hopefully, then, SCOTUS makes it clear that carry of a functional firearm in public is a Constitutional Right, and that they explicitly define a "functional firearm" to include a firearm that requires no manipulation to fire other than pulling the trigger.

The lower courts seem to be intentionally obtuse when taking guidance from SCOTUS on 2A issues...

They'll take that to mean only guns without manual safeties.

Dreaded Claymore
04-23-2011, 6:30 PM
They'll take that to mean only guns without manual safeties.

That would basically be the reverse of the CA Safe Handgun Roster wouldn't it?

N6ATF
04-23-2011, 6:40 PM
Which would set up a perfect remand on circuit appeal to further stall all our cases.

Patrick-2
04-24-2011, 5:28 AM
I have a question about the wording of Halbrook's statement.

In mentions carrying or transporting.

My question is: if SCOTUS addresses transport but not carry, would that be sufficient to deal with this specific case?

If so, then would that not be what we would expect to happen here, since the Court tends to answer questions put before it in as narrow a manner as possible?


Quite clearly, an answer from SCOTUS that only deals with transport would get us little closer to our goal than where we already are. Furthermore, even if they do address carry, they'd have to specify carry of a functional firearm in order for it to have any real meat, since otherwise the Court would essentially be giving backing to the Peruta decision (which says that UOC is sufficient to meet the burden on government imposed by the 2nd Amendment).

Was Williams' firearm loaded? If not, then why would we expect the Supreme Court to address functional firearms in this case?

This is a carry case. Kharn and Gray point out why.

As for functional or not, Kharn points out our way of viewing the world: a gun is a gun is a gun.

Only crazy California creates such an odd distinction when it comes to UOC. You guys always gotta be the oddballs in the room... :)

Suffice to say, the rest of the nation understands the difference. Nothing in this case talks about functional or not because it's not a factor out here. For a lot of reasons, Maryland is a perfect storm for gun-rights litigation. This is one of them.

kcbrown
04-24-2011, 6:23 AM
This is a carry case. Kharn and Gray point out why.

As for functional or not, Kharn points out our way of viewing the world: a gun is a gun is a gun.

Only crazy California creates such an odd distinction when it comes to UOC. You guys always gotta be the oddballs in the room... :)

Suffice to say, the rest of the nation understands the difference. Nothing in this case talks about functional or not because it's not a factor out here. For a lot of reasons, Maryland is a perfect storm for gun-rights litigation. This is one of them.

And yet, the fact that any jurisdiction can make the distinction in the law (California being an existence proof of this) means that it must be explicitly addressed one way or another in order for the right to be truly secure. Peruta proves that loud and clear.

If the Supreme Court doesn't explicitly come out and say that carry of a functional (i.e., loaded) firearm is Constitutionally protected, then at least some district courts (e.g., the one that Peruta was litigated under) will claim that because the Supreme Court didn't explicitly say that loaded carry is protected and it also said (perhaps not in so many words) that time, place, and manner restrictions are allowable, then prohibition of loaded carry is allowable as long as some form of unloaded carry is available -- and that if the Supreme Court wishes loaded carry to be the form of carry that is protected, "it will need to say so more plainly".

I cannot say whether or not the 9th Circuit will agree with that, but if courts in general tend towards reluctance to strike down laws without explicit direction from the Supreme Court, then it is reasonable to suppose that the 9th will do something similar to the Maryland Supreme Court, no?

I've mentioned this before, but I think it's appropriate to mention it again here. We're in essence dealing with a brand new right here, one which has never before been dealt with by the federal court system in this way. It's as if it came out of nowhere. In the face of that, I see no reason to expect the district and appellate courts to issue rulings based on Supreme Court dicta. That some have done so is pleasantly surprising, and I suspect those courts are likely to continue to do so. But that doesn't help us much in the face of a reluctant district or appellate court -- only explicit guidance from the Supreme Court does.

Kharn
04-24-2011, 6:48 AM
kcbrown,
I would not worry about it, an amicus or Halbrook could show Peruta to the Court so they will know to include the right words.

Funtimes
04-24-2011, 7:49 AM
Just wondering what we would do if SCOTUS denies cert -- considering they drop most of the cases who ask for relief, what the hell do we do then lol?

Kharn
04-24-2011, 7:56 AM
The status quo remains until they rule on a case.

Southwest Chuck
04-24-2011, 8:20 AM
The status quo remains until they rule on a case.

and Williams goes to jail. :mad:

boxcab
04-25-2011, 4:56 AM
Hoping for the best with this one.

Patrick-2
04-25-2011, 5:37 AM
kcbrown,

I hear you. Hopefully they would address it here again, but Heller already went through the whole "functional, loaded, available" with DC. As much as we'd like to think it possible, no one ruling will ever end all the games played by unfriendly courts. The fact is Peruta is wrong on that matter and it will be corrected at some time in the future. Unfortunately that may take longer given your predicament with the Ninth.

scarville
04-25-2011, 5:43 AM
and Williams goes to jail. :mad:
Yep. That's the American Way.

Kharn
04-28-2011, 9:52 AM
What do we have here, on the Williams docket: "Apr 20 2011 Waiver of right of respondent Maryland to respond filed"

MD just said "nope, we're not going to waste our time arguing this case, call us if SC grants cert and we will respond then."

yellowfin
04-28-2011, 10:23 AM
It might have occurred to them how stupid they'd look arguing against the very words they just spoke "...the Supreme Court...should say so more plainly."

POLICESTATE
04-28-2011, 10:39 AM
"without a carry permit that is unobtainable by ordinary, law-abiding citizens": a way to work around the fact Williams didn't even try to get one, but leaves open the door that SCOTUS might prefer to leave permits as a required item for RKBA (smart move...plays this both ways)



Would be interesting to see SCOTUS adopt the idea that to exercise a right outside of one's home that a permit can be required. After all, if the pen is mightier than the sword, we should be requiring permits for people to practice free speech/press outside of their homes.

putput
04-30-2011, 1:05 PM
In for May 5.:popcorn:

Maestro Pistolero
04-30-2011, 1:13 PM
It might have occurred to them how stupid they'd look arguing against the very words they just spoke "...the Supreme Court...should say so more plainly."

Good point!

Kharn
04-30-2011, 7:50 PM
Putput,
there will be no May 5 filing, MD waived their right to file a response (objection) to the SC hearing the case.

Purple K
04-30-2011, 11:10 PM
So now it's just up to SCOTUS to decide if they'll hear the case???

Maestro Pistolero
04-30-2011, 11:41 PM
If they don't grant cert on this, I don't know what it might take.

Gray Peterson
04-30-2011, 11:42 PM
If they don't grant cert on this, I don't know what it might take.

One of nearly a dozen civil cases coming up........

hoffmang
05-01-2011, 12:26 AM
If they don't grant cert on this, I don't know what it might take.

There is no circuit split and only loosely an arguable state split on this issue. We will have a circuit split in the coming 12 months - one way or another.

-Gene

Patrick-2
05-01-2011, 11:20 AM
I think they are going to take it. It's as clean a criminal case as you can find regarding "pure 2A" carry issues and Maryland made the permit a non-issue by conceding that regular schmucks cannot get one. The Court can rule on public carry and easily avoid permits and due process.

And if they don't take it, someone is going to prison for doing nothing wrong. That's the impetus and it has to count for something. This is not an academic/theoretical case. Williams' harm will be excessive compared to the other cases.

Maryland could have plead it down and avoided a real sentence - that would have made cert all but impossible. But nope...they went overboard. Again. Hope it comes back to bite them, finally.

I think it will be awhile before they act, though. As I understand it, Williams' sentence is delayed until appeals are exhausted. That alone should tell everyone something about how "dangerous" he is.

press1280
05-01-2011, 11:29 AM
Generally it seems SCOTUS gives an answer within 3 months. If we're looking at 6 months with no answer, my guess is that SCOTUS may sit on Williams, then take another carry case, and possibly rule on Williams after that other case is decided. Similiar to what happened with NRA v. Chicago in light of McDonald. Although some have indicated a GVR can't happen in this case:confused:

jnojr
05-01-2011, 12:52 PM
I think they are going to take it. It's as clean a criminal case as you can find regarding "pure 2A" carry issues and Maryland made the permit a non-issue by conceding that regular schmucks cannot get one. The Court can rule on public carry and easily avoid permits and due process.

And if they don't take it, someone is going to prison for doing nothing wrong.

I really doubt that bothers many people in authority. "The law is the law". This country has probably tens of thousands of people in prison and jail who broke a law, but ultimately did "nothing wrong".

Scarecrow Repair
05-01-2011, 4:29 PM
And if they don't take it, someone is going to prison for doing nothing wrong. That's the impetus and it has to count for something. This is not an academic/theoretical case. Williams' harm will be excessive compared to the other cases.

There was a death penalty case recently, where the simple fix would have been to order a re-analysis of old evidence, which had not been done for some nitpicky technicality, not even the kind of case where the prosecutor hid evidence. Death penalty, mind you ... much more harm than this case. The Supremes refused to order a rehearing, saying too late, missed your chance.

I forget many of the details, I apologize for that. But it was pretty clear that the effect of the case didn't bother them all that much.

krucam
05-04-2011, 9:45 AM
Two Weeks (and a day)!!!

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

Quote:
No. 10-1207
Title: Charles F. Williams, Jr., Petitioner
v.
Maryland

Docketed: April 5, 2011
Lower Ct: Court of Appeals of Maryland
Case Nos.: (16, September Term, 2010)
Decision Date: January 5, 2011

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 5 2011 Petition for a writ of certiorari filed. (Response due May 5, 2011)
Apr 20 2011 Waiver of right of respondent Maryland to respond filed.
May 3 2011 DISTRIBUTED for Conference of May 19, 2011.

Caladain
05-04-2011, 9:53 AM
Two Weeks (and a day)!!!

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

interesting. Does this mean they're gonna read it and discuss if they should take it up?

Gray Peterson
05-04-2011, 10:00 AM
interesting. Does this mean they're gonna read it and discuss if they should take it up?

Yep.

We'll know 7AM pacific May 23rd.

Patrick-2
05-04-2011, 10:06 AM
Yep.

We'll know 7AM pacific May 23rd.

Or not.

Many cases go to multiple conferences.

Southwest Chuck
05-04-2011, 10:41 AM
Keeping my fingers crossed on this one. If I was a betting man, I'd say they will jump on this. One question. Do a majority of the justices have to agree to take up the case or is there a lesser number that is required to grant cert.?

sandman21
05-04-2011, 11:04 AM
If I remember correctly they all have to agree to hear a case.

Caladain
05-04-2011, 11:07 AM
If I remember correctly they all have to agree to hear a case.

According to wikipedia, only 4 need to want to take a case. The Rule of Four.

Very dramatic..

sandman21
05-04-2011, 11:29 AM
According to wikipedia, only 4 need to want to take a case. The Rule of Four.

Very dramatic..

Good to know.

Crom
05-04-2011, 11:38 AM
It would sure be nice to get some justice here. I'm going to continue to hope as I know we know we have support here.

Blackhawk556
05-04-2011, 11:55 AM
Marked my calendar :)

triplestack3
05-04-2011, 2:43 PM
Damn...MD is just as f-ed up as CA is. Looking forward to see where this goes.


It's actually worse IMO

and PG County is a pretty rough place on top of that

press1280
05-04-2011, 2:46 PM
If this gets certiorari on the first try, I'd interpret that as SCOTUS is pissed and wants the lower court nonsense to stop IMMEDIATELY.

Southwest Chuck
05-04-2011, 3:43 PM
I think they are going to take it. .....(snip)...
I think it will be awhile before they act, though.

Two Weeks (and a day)!!!

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

Can we read anything into the speed in which they pulled it for "Conferencing"? Personally, I think that the Heller 5 are chomping at the bit to take this on especially after the MD Supreme's challenge and the 9th's obscene interpretation/gutting and/or perversion of Scalia's opinion in Nordyke.

:49:

Not to mention, Williams' freedom is at stake..... :(

J.D.Allen
05-04-2011, 3:53 PM
If this were a lower court I would not be optimistic. But being that it is SCOTUS I expect good things. this is not a "2A two step" court.

Kharn
05-04-2011, 3:57 PM
I guess the Court heard about the MD court saying to express themselves more plainly...

Caladain
05-04-2011, 4:01 PM
If this gets certiorari on the first try, I'd interpret that as SCOTUS is pissed and wants the lower court nonsense to stop IMMEDIATELY.

Agreed. If they take it first conference, i'd take it as a clear message that they are f'in pissed. At that point I grin and wait for the brilliant back-and-forth part of the theatre :D

Havoc70
05-04-2011, 4:29 PM
Oooh, conference on May 19, that's my birthday! Come on, SCOTUS, give me an AWESOME birthday present.

Funtimes
05-04-2011, 6:33 PM
I will certainly say a prayer for this! That would mean we would basically know in a year and half what the land of the law would be in regards to CCW.

This attorney has a very impressive record at SCOTUS and abroad -- I don't imagine we could get much better.

Caladain
05-04-2011, 6:45 PM
Has a lower court ever done the whole "mouth off to the SCOTUS" before?


How did it turn out?

Left Coast Conservative
05-04-2011, 10:25 PM
Can they GVR criminal cases from a state supreme court? Or do they actually have to go through all the arguments?

They are the Supreme Court. They can GVR any case to which they grant cert.

Patrick-2
05-05-2011, 5:21 AM
I guess the Court heard about the MD court saying to express themselves more plainly...

Don't leave out the fourth circuit, the ninth, about four federal district courts, who knows how many state courts and a legion of Internet legal commandos (present company included).

Of course, we have all the answers. ;) But I guess we need the court to make them obvious to everyone.


I want them to take this case. Then I want to see the community coalesce to make this case a priority and a reality. It won't solve all the issues we have - location based restrictions are the next big frontier - but it would blow a massive hole in the arguments on the other side.

Edit: let's not forget it would force shall issue in Maryland next summer and in California by next fall.

voiceofreason
05-05-2011, 1:25 PM
it would force shall issue in Maryland next summer and in California by next fall.

:hammer::hammer::hammer::hammer::hammer:

5 USSC Justices on the side of the United States Constitution...

C'mon!... you can do it!

wildhawker
05-05-2011, 3:13 PM
I have to admit that there are other options I'd prefer over Williams going first. However, should it be granted, I would hope that NRA would call in Clement to brief and argue the case.

-Brandon

Don't leave out the fourth circuit, the ninth, about four federal district courts, who knows how many state courts and a legion of Internet legal commandos (present company included).

Of course, we have all the answers. ;) But I guess we need the court to make them obvious to everyone.


I want them to take this case. Then I want to see the community coalesce to make this case a priority and a reality. It won't solve all the issues we have - location based restrictions are the next big frontier - but it would blow a massive hole in the arguments on the other side.

Edit: let's not forget it would force shall issue in Maryland next summer and in California by next fall.

Zak
05-06-2011, 9:08 AM
Would Williams be the best bear arms case to take to the SCOTUS? I did a little researching on the case, would the fact that he never tried to apply for a permit hurt his case? I want a bear arms case to reach the SCOTUS as much as anyone else on here, but it seems to me like the fact that Williams broke state law could be used against him (or is it irrelevant?)

Glock22Fan
05-06-2011, 9:14 AM
Would Williams be the best bear arms case to take to the SCOTUS? I did a little researching on the case, would the fact that he never tried to apply for a permit hurt his case? I want a bear arms case to reach the SCOTUS as much as anyone else on here, but it seems to me like the fact that Williams broke state law could be used against him (or is it irrelevant?)

Why don't you try reading Patrick-2's excellent analysis in post #4 in this thread? He explains the answer to your query, and other aspects of the case, in his usual erudite manner.

mdimeo
05-06-2011, 9:21 AM
Would Williams be the best bear arms case to take to the SCOTUS? I did a little researching on the case, would the fact that he never tried to apply for a permit hurt his case? I want a bear arms case to reach the SCOTUS as much as anyone else on here, but it seems to me like the fact that Williams broke state law could be used against him (or is it irrelevant?)

I'd prefer a well-designed gura civil case to a criminal case run by the NRA, but this is about as good as a criminal case can get. The main imperfection seems to me to be the one you point out - Williams may need to prove he would have been unreasonably denied a permit.

The argument will boil down to the impossibility of breaking an unconstitutional law.

Zak
05-06-2011, 9:22 AM
Why don't you try reading Patrick-2's excellent analysis in post #4 in this thread? He explains the answer to your query, and other aspects of the case, in his usual erudite manner.

I did, and I know he specifically addressed it here:

"without a carry permit that is unobtainable by ordinary, law-abiding citizens": a way to work around the fact Williams didn't even try to get one, but leaves open the door that SCOTUS might prefer to leave permits as a required item for RKBA (smart move...plays this both ways)

IANAL, but the words "work around the fact" make it sound like the fact he didn't apply for a permit is trying to be covered up, which is what I wanted clarification on.

yellowfin
05-06-2011, 10:43 AM
Would Williams be the best bear arms case to take to the SCOTUS? I did a little researching on the case, would the fact that he never tried to apply for a permit hurt his case? I want a bear arms case to reach the SCOTUS as much as anyone else on here, but it seems to me like the fact that Williams broke state law could be used against him (or is it irrelevant?)
The case of Scherr v. Handgun Permit Review Board in the 4th Circuit establishes that virtually no one gets a carry permit in MD, plus as Patrick mentioned the Attorney General submitted as part of the Woollard case that it is standard practice to deny them to 99.99% of the population.

Glock22Fan
05-06-2011, 11:35 AM
IANAL, but it seems to me that that would depend upon just how much SCOTUS is interested in responding to the challenge "If the SCOTUS wants this to apply outside the home, then they damn well have to say so" (slightly paraphrased).

My guess is that they are, so they won't try to wriggle out on technicalities.

krucam
05-06-2011, 12:13 PM
Can we read anything into the speed in which they pulled it for "Conferencing"? Personally, I think that the Heller 5 are chomping at the bit to take this on especially after the MD Supreme's challenge and the 9th's obscene interpretation/gutting and/or perversion of Scalia's opinion in Nordyke.

:49:

Not to mention, Williams' freedom is at stake..... :(

Agreed. If they take it first conference, i'd take it as a clear message that they are f'in pissed. At that point I grin and wait for the brilliant back-and-forth part of the theatre :D

Oooh, conference on May 19, that's my birthday! Come on, SCOTUS, give me an AWESOME birthday present.

I was exchanging thoughts (really, just pulling them) from a writer at SCOTUSblog yesterday.

The speed at which the Conference date came up was purely automatic and done so by the clerks after MD submitted their response waiver. Nothing more to be read there...

Given the issue at point here, the Justices will likely want and request (read: expect) a response before they will decide whether or not to grant cert. Since MD hasn't responded, what will likely come out of the 5/19 conference is a request for MD to respond. That request could also come out earlier, but that would erase the 5/19 date as they would be allowed time (30-60 days typically) to respond.

From some SCOTUSblog dude:
Since it takes four votes to grant review of a case, if the other side has waived its right to reply, and no member of the Court asks for a response (it only takes one Justice to do that), the Court operates on the assumption that there is no chance there will be four votes in favor of hearing the case. So the case is routinely denied.

So...we need one of our friendly 5 to say, "Hey, MD needs to file a response to this very worthy Question".

More from SCOTUSblog dude:
Cases are assigned to a conference when they are ready -- that is, when both sides have filed, or when one side has filed and the other has waived a response. This is done routinely by the clerk's office, not by the Court itself.

If one side has waived a response, and the Court then asks for a response, the case will drop off the conference and come up later. If, for example, a response is sought in the Williams case, it won't be considered on May 19, but will go over to a later meeting.

We should know, sometime in the next ten days or so, whether a response is going to be sought in Williams.

nicki
05-06-2011, 12:55 PM
IMHO, the US Supreme court did not want to just issue a blanket ruling that could have undone some legitimate gun laws that actually do promote public safety.

I am sure there are at least 1, maybe 2 laws out of the 20,000 plus gun laws that do promote some public safety:rolleyes:

4 of the justices get it, the problem is Justice Kennedy. He is coming along so far and if the lower courts keep being arrogant, he will stay the course.

I expect the US Supreme court to take at least 1 or more gun cases every term for the next few years until things are cleared up.

The original "Heller case" was very narrowly tailored, the US Supreme court could have issued a much more narrow ruling, instead IMO they actually issued a very expansive ruling on the second amendment.

I believe they will take the case, and I believe they will nail Maryland on numerous issues.

The Supreme court justices are not stupid, I bet they are keeping a eye on how the lower courts are ruling on gun cases and I expect they are eagerly waiting to hammer them.

Expect the ruling to be devastating and really clear because the SCOTUS will not and cannot put up with Lower courts in mutuny.

The Federal Court system in many ways shares a chain of command similar to the military and if that command structure falls apart, the whole system collapses.

Nicki

yellowfin
05-06-2011, 1:05 PM
It's going to be very entertaining reading the dissent from Ginsburg, Sotomayor, and Breyer.

Maestro Pistolero
05-06-2011, 3:14 PM
It's going to be very entertaining reading the dissent from Ginsburg, Sotomayor, and Breyer.And hopefully NOT from Kagan. Wouldn't that be refreshing, and academic who isn't too smart to understand the constitution? :rolleyes: (saying a prayer)

yellowfin
05-06-2011, 3:53 PM
I would have said blatantly corrupt, bigoted, immoral, and lacking conscience, but you can go with "too smart to understand" for simplicity sake.

yellowfin
05-11-2011, 3:53 PM
The briefs on this case might get VERY interesting. As in the other side saying "Oh you DIDN'T just go there, did you?!?" Oh yes, we will.

Window_Seat
05-11-2011, 4:23 PM
I have to admit that there are other options I'd prefer over Williams going first. However, should it be granted, I would hope that NRA would call in Clement to brief and argue the case.

-Brandon

Why not :gura:? Does he not argue criminal cases, and Clement might be the one for that sort of thing? Otherwise, anyone HAS TO BE BETTER than Mr. Hopewell, for starters...

Erik.

wildhawker
05-11-2011, 4:26 PM
Why not :gura:? Does he not argue criminal cases, and Clement might be the one for that sort of thing? Otherwise, anyone HAS TO BE BETTER than Mr. Hopewell, for starters...

Erik.

NRA does not/would not hire Gura. Of those they do, I would prefer Clement.

-Brandon

1JimMarch
05-11-2011, 5:28 PM
If this gets certiorari on the first try, I'd interpret that as SCOTUS is pissed and wants the lower court nonsense to stop IMMEDIATELY.

Well with any luck the Heller/McDonald Five realize that any one of 'em could get hit by a truck or whatever, so...yeah, there IS some urgency here!

Patrick-2
05-12-2011, 4:21 AM
Cert won't come next week.

We're looking to see if one of the Justices requests a response from Maryland. If that does not happen, the case will be dismissed for lack of interest by the justices.

The way it works (we - meaning Krucam - have learned) is that Maryland's waiver of response is normal for a state. They generally only respond if a justice on the court asks them to - this saves everyone (the Court and the states) a lot of time and effort.

So we are looking for some justice to ask Maryland for a response. Maryland will then get 60 days to do so (an automatic extension is normal). Then the response, the complaint and any potential amicus and supporting docs are distributed for a conference this summer. Then maybe we get cert.

If no single justice is even interested in seeing Maryland's view on the matter, that is taken a sign that nobody would vote for cert. The case is dismissed.

yellowfin
05-12-2011, 4:52 AM
What could Maryland possibly have to say?

krucam
05-12-2011, 6:08 AM
Expect them to "milk" their favorite Heller paragraph for all its worth:

Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on 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, or
laws imposing conditions and qualifications on the commercial sale of
arms.

Expect them to throw lots of figures that where there are guns, there are people that die from guns. This will get them nowhere...

Expect them to promote public safety as a complelling government interest. This will get some interest from the Justices, but will thankfully be swept away because the Fundamental right is supreme.

After that, I don't have a clue as to how they will respond to the big Court. They've been reliant on state rulings that used "the Second Amendment only restricts the Federal Government, not the States" and that argument is SOOOO pre-McDonald.

Fuggem'...

Patrick-2
05-12-2011, 8:30 AM
They won't dare throw Heller's words back at them. It can fool the lower courts, but not the same justices who wrote it. That would guarantee cert and a smack-down, because the justices will see the point as something requiring correction.

Nope. They will take the Stevens dissent, update it to fancy the Nordyke logic of "it ain't rational basis or interest balancing if we just happen to call it heightened scrutiny", and then toss in a metric buttload of drivel about how this is not a question for the court because Maryland secretly let's us all defend ourselves with arms. Somehow. And Baltimore is a dangerous place because they ban all handgun carry...or wait...because we don't. Or do we? *****, what was I just arguing again?


I would cry laughing if they tried using the open carry of long guns as an excuse to avoid cert. It is a phantom, but we just might have to arrange a number of random arrests sightings of AR-toting open carriers in downtown Baltimore - preferably reading the paper on the same street as the AGs office.

I'd do it, but cannot afford the arrest under any circumstances. Too much at stake for me right now.

EDIT: I do not want anyone thinking they should get arrested over this. I was speaking tongue in cheek, at best. Irresponsibly, at worst.

Southwest Chuck
05-12-2011, 8:52 AM
Cert won't come next week.

We're looking to see if one of the Justices requests a response from Maryland. If that does not happen, the case will be dismissed for lack of interest by the justices.

The way it works (we - meaning Krucam - have learned) is that Maryland's waiver of response is normal for a state. They generally only respond if a justice on the court asks them to - this saves everyone (the Court and the states) a lot of time and effort.

So we are looking for some justice to ask Maryland for a response. Maryland will then get 60 days to do so (an automatic extension is normal). Then the response, the complaint and any potential amicus and supporting docs are distributed for a conference this summer. Then maybe we get cert.

If no single justice is even interested in seeing Maryland's view on the matter, that is taken a sign that nobody would vote for cert. The case is dismissed.

I'm curious and have a question. I understand your explanation of how this normally works. However, has there ever been a case where a plaintiff files for cert. , and the defendant takes a pass (as in this case), then the justices say OK, we'll take that to mean that you (MD) will rely on the record as it stands, and then grants cert. based on that record, because they WANT too? I understand by doing this it would void the time/resource savings as you list above, but in all honestly, wouldn't this be a time/resource savings by the court and there-by are able to render a cert. decision in a more timely fashion?

krucam
05-12-2011, 9:10 AM
I'm curious and have a question. I understand your explanation of how this normally works. However, has there ever been a case where a plaintiff files for cert. , and the defendant takes a pass (as in this case), then the justices say OK, we'll take that to mean that you (MD) will rely on the record as it stands, and then grants cert. based on that record, because they WANT too?

Not to my knowledge. Certainly not for a case asking for clarification of an enumerated, fundamental right.

I understand by doing this it would void the time/resource savings as you list above, but in all honestly, wouldn't this be a time/resource savings by the court and there-by are able to render a cert. decision in a more timely fashion?

It only takes a couple hundered dollars to submit a petition. Any loose-cannon with too much time on their hands could waste a lot of time of some "important" people in very short order.

Thousands (5-7K) of petitions are submitted each session for a hundred-something hearings. This first stage effectively weeds out a lot of cases without tying up too many people with non-worthy petitions.

Respondents are "expected" to file a response when requested by a Justice. Bad policy to ignore a Justice....

krucam
05-12-2011, 9:24 AM
Below is a copy/paste/mild sanitize of the last email exchange with the individual at SCOTUSblog, from last week.

Mark: Since it takes four votes to grant review of a case, if the other side has waived its right to reply, and no member of the Court asks for a response (it only takes one Justice to do that), the Court operates on the assumption that there is no chance there will be four votes in favor of hearing the case. so the case is routinely denied.

Even though the party that appealed may feel very strongly about the case, the Court is not going to use what it considers its scarce judicial resources to examine a case that cannot attract the votes of four Justices to hear it.

The Conference on May 19 is a routinely scheduled private session of the Court. The Court holds such conferences throughout the term, usually twice a week when the Court is in argument sessions, once a week otherwise. Now that the arguments are done for the term, the Court is holding its conferences on Thursdays; during argument weeks, it holds them on Wednesdays and Fridays. From now until the end of the term, the conference will routinely be on a Thursday.

Cases are assigned to a conference when they are ready -- that is, when both sides have filed, or when one side has filed and the other has waived a response. This is done routinely by the clerk's office, not by the Court itself. If one side has waived a response, and the Court then asks for a response, the case will drop off the conference and come up later. If, for example, a response is sought in the Williams case, it won't be considered on May 19, but will go over to a later meeting.

We should know, sometime in the next ten days or so, whether a response is going to be sought in Williams.

Regards,
xxx

-----Original Message-----
From: Cxx, Mark A <mark.cxxx@navy.mil>

To: xxx@scotusblog.com
Sent: Thu, May 5, 2011 3:42 pm
Subject: RE: Williams v Maryland Petition

Lyle,

Perhaps I'm missing something (I'm just an engineer!), but why would the Petition be automatically dismissed because the Respondents waived their right to respond? Wouldn't the Justices just look at the Petitioners brief only at Conference?

Why is there a conference scheduled May 19th?

Again, thanks...

Mark C



-----Original Message-----

From: xxx@aol.com [mailto:xxx@aol.com <mailto:xxx@aol.com?> ]

Sent: Thursday, May 05, 2011 15:31

To: Cxxx Mark A

Subject: Re: Williams v Maryland Petition

Mark: As you probably know, the state of Maryland has waived a response to the Williams petition (docket 10-1207). Unless the Court asks for a response, the petition will be automatically dismissed. We should know within the next ten days or so whether a response is being request; it hasn't so far.

Thanks for the heads up, though.

xxx



-----Original Message-----

From: Cxx, Mark A <mark.cxxx.ctr@navy.mil>

To: xxx@scotusblog.com

Sent: Thu, May 5, 2011 3:05 pm

Subject: Williams v Maryland Petition
Good afternoon xxx,

Stephen Halbrook filed a petition for cert last month and there is now a conference scheduled on May 19th for Williams v Maryland. If granted, this will be the next big Second Amendment case, following Heller in '08 and McDonald in '10.

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

This case is seeking to clarify language from Heller/McDonald regarding the scope of Second Amendment rights of firearm possession outside the home. I think this would be a great one for your "Petitions to Watch" section.

Mr Halbrook's petition is here: http://www.stephenhalbrook.com/lawsuits/Petition_cert_Williams_FINAL.pdf

Take care and keep up the wonderful work!

dantodd
05-12-2011, 9:56 AM
Cert won't come next week.

We're looking to see if one of the Justices requests a response from Maryland. If that does not happen, the case will be dismissed for lack of interest by the justices.

The way it works (we - meaning Krucam - have learned) is that Maryland's waiver of response is normal for a state. They generally only respond if a justice on the court asks them to - this saves everyone (the Court and the states) a lot of time and effort.

So we are looking for some justice to ask Maryland for a response. Maryland will then get 60 days to do so (an automatic extension is normal). Then the response, the complaint and any potential amicus and supporting docs are distributed for a conference this summer. Then maybe we get cert.

If no single justice is even interested in seeing Maryland's view on the matter, that is taken a sign that nobody would vote for cert. The case is dismissed.

So, are you saying is that if no single justice is interested in MD's response and they DO grant cert immediately it would be exceptional and an omen of something significant?

Not that it is really possible. More likely the 4 justices we know are on the side of justice in this situation will be more than happy to grant cert immediately, who knows what Kennedy is thinking, and one of the other 4 will say "let's give MD a chance to respond before moving forward."

Super Spy
05-12-2011, 10:14 AM
I'm lovin the way CalGuns is turning into US Guns.....the more the merrier.

Caladain
05-12-2011, 11:47 AM
I'm lovin the way CalGuns is turning into US Guns.....the more the merrier.

Mainly because the other boards are below par (in my opinion only) and lack the community.. There is no New Hampshire equiv of this board, and North East Shooters doesn't compare :-(

Or maybe i got used to the wallpaper and smell here..

Window_Seat
05-12-2011, 11:50 AM
I'm lovin the way CalGuns is turning into US Guns.....the more the merrier.

Hmmmmm...

http://www.calguns.net/calgunforum/images/icons/icon3.gifhttp://www.calguns.net/calgunforum/images/icons/icon3.gifhttp://www.calguns.net/calgunforum/images/icons/icon3.gif

:laugh:

Patrick-2
05-12-2011, 4:38 PM
Mainly because the other boards are below par (in my opinion only) and lack the community.. There is no New Hampshire equiv of this board, and North East Shooters doesn't compare :-(

Or maybe i got used to the wallpaper and smell here..

Respectfully, you have not spent time on the MDShooters 2A related forums. We have a small cross-pollination of folks between our two states and forums on each other's boards for a reason.

But these are the two forums I comment on.

Patrick-2
05-12-2011, 4:48 PM
So, are you saying is that if no single justice is interested in MD's response and they DO grant cert immediately it would be exceptional and an omen of something significant?

Not that it is really possible. More likely the 4 justices we know are on the side of justice in this situation will be more than happy to grant cert immediately, who knows what Kennedy is thinking, and one of the other 4 will say "let's give MD a chance to respond before moving forward."

Not really. The official rules of the Supreme Court note that a waiver of response means you cannot later challenge statements made in the petition. But, the actual process lets the state waive response until asked, with no risk of losing their ability to challenge the petition.


The existing process is apparently an evolution that helps the court. Like Mark said, anyone with a few bucks and a pipe dream can file a cert petition. If every state defendant had to respond to all of them, the justices would need to read through everything, even when they could have quickly decided they have no interest. Also, the states would need to respond to everything. That is a lot of work.

So if the court granted cert without even asking Maryland for a response - after they waived the first time - it would be a real issue.

The process here will unwind the way it does for everyone else. If someone asks for a response, we'll have about 70 days from that date before we see a conference, then about a week to see if cert is granted.

krucam
05-12-2011, 5:15 PM
Respectfully, you have not spent time on the MDShooters 2A related forums. We have a small cross-pollination of folks between our two states and forums on each other's boards for a reason.

But these are the two forums I comment on.

Patrick (-2) is way too politically correct. This may in part be due to his CA roots. I have none...Midwest, Chicago, East Coast, USN, period.

We really don't envision any "cross pollination". Patrick is on his own there. I'd just as soon....oh never mind...

Kidding aside and speaking only for myself...I came to CGN for the info, I stayed for the fine 2A forum you have here, and more importantly, the FANTASTIC work that Calguns Foundation is doing in the fight we are all following.

I've contributed $ for the fight(s) out West with pleasure...along with SAF, Maryland Shall Issue, NRA and others. Don't forget my Pacer dues...

We need everybody to do their part from all parts of this country. We are on the offensive and we must not let up. The more we are all "in tune" with one another, the better these next few years will go for all of us. This is a fight that was a long time coming. We now have the advantage, the anti's and status-quo are rightfully on their heels.

Fuggem'. BTW, I like the Wall Paper, smell and funny tasting water here...

Kharn
05-12-2011, 5:40 PM
CA also has the nuttiest laws and a large number of legal challenges ongoing so there is always something new going on, vs other states where new filings may be months apart.

krucam
05-16-2011, 10:03 AM
As predicted, at LEAST one Justice found the the Question worthy of a response. Maryland is now on the hook to file a response by June 15th.

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

No. 10-1207
Title: Charles F. Williams, Jr., Petitioner
v.
Maryland

Docketed: April 5, 2011
Lower Ct: Court of Appeals of Maryland
Case Nos.: (16, September Term, 2010)
Decision Date: January 5, 2011

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 5 2011 Petition for a writ of certiorari filed. (Response due May 5, 2011)
Apr 20 2011 Waiver of right of respondent Maryland to respond filed.
May 3 2011 DISTRIBUTED for Conference of May 19, 2011.
May 16 2011 Response Requested . (Due June 15, 2011)

dantodd
05-16-2011, 10:10 AM
Does it strongly suggest cert will be granted if the request for a response was published even before the official conference?

If cert is granted I assume it will be heard this fall. Decision in time for a X-mas celebration?

Blackhawk556
05-16-2011, 10:12 AM
So there's no way of knowing how many justices requested a response?? I can't wait to hear their response :)

Blackhawk556
05-16-2011, 10:15 AM
I think if it's granted cert we will have a final answer by summer 2012. Am I wrong??

Kharn
05-16-2011, 10:23 AM
Decision would be released before 30 June 2012

krucam
05-16-2011, 10:39 AM
Does it strongly suggest cert will be granted if the request for a response was published even before the official conference?

If cert is granted I assume it will be heard this fall. Decision in time for a X-mas celebration?

It strongly suggest that the Question asked is worthy of a response. We've dodged the first chance of being put into the 'denied' pile.

MD is given a standard 30 days to respond. I'll bet money they'll request and get a 30 day extension, pushing the due date into July.

Guess what, Justices take the Summer off beginning July 1. So we won't get a conference and know if Cert is granted until they return in the Fall. No matter as long as Cert is granted, I guess.

I just want to hear what MD comes up with in their response and don't want to wait to hear it...

ccmc
05-16-2011, 1:45 PM
Md, NY, NJ, CT, and MA are just as bad or worse than CA.

You need to take CT off that list. CT is shall issue for non-residents who have a resident permit from their home state and have taken the NRA Basic Pistol Course. CT also shot down the mag cap limits that CA has when it was introduced there earlier this year. I got my non-resident permit earlier this year without having to set foot in CT. Took about 10 weeks. The CT permit is a permit to carry either concealed or open (although open will definitely get LE interested), and is valid for 5 years. Don't tell me CT is worse than CA. It most definitely is not.

I've head that MA will also issue to non-residents, but the process is more arduous and expensive, and has to be done in state. The permit has to be renewed annually which is a bummer.

MD, NJ and NY are about as bad as CA, although in NJ the mag cap limit is 15, and in MD it's 20 IIRC. NY is 10 like CA.

Kharn
05-16-2011, 1:55 PM
CT has an AWB that is quite annoying to work around.
MD's magazine ban is a joke, you can't buy >20rd mags in the state, but you can possess them and import the mags you bought in PA...

ccmc
05-16-2011, 2:08 PM
CT has an AWB that is quite annoying to work around.
MD's magazine ban is a joke, you can't buy >20rd mags in the state, but you can possess them and import the mags you bought in PA...

IIRC CT bans AKs in 7.62x39 but not in 5.56 caliber. What else is part of their AWB? For handgun carry permits CT is much better than CA where non-residents can't apply. I'd like to be able to get permits in MD, NJ, NY. I understand both MD and NJ allow non-residents to apply, but the process is very difficult and more likely a waste of time and money as denial is a virtual certainty. NY only allows non-residents with business interests in NY to apply, and that's also very difficult. The real bummer is you have to drive through MD, NJ and NY to get to New England from the south ie you have to disarm before you leave VA and transport under FOPA until you reach CT. New England is pretty good for handgun carry except MA and RI. Both CT and ME are shall issue for non-residents with home state resident permits, NH recognizes FL resident permits, and VT is constitutional carry. All way better than CA.

hoffmang
05-16-2011, 3:03 PM
I'd say this moves this to 50%-50% to grant cert. There are a couple of issues with the structure of this case that may not make it the best vehicle to answer the question. Those issues could leave the court to wait for a next or even subsequent petition so we shouldn't be pinning all hopes on this grant.

If granted, this case is not such that it will hurt though.

-Gene

krucam
05-16-2011, 3:28 PM
I'd say this moves this to 50%-50% to grant cert. There are a couple of issues with the structure of this case that may not make it the best vehicle to answer the question. Those issues could leave the court to wait for a next or even subsequent petition so we shouldn't be pinning all hopes on this grant.

If granted, this case is not such that it will hurt though.

-Gene

Thanks for chiming in Gene....

The other 'baker's dozen' Carry cases all revolve around permitting processes, or lack of them (IL). Even my own in MD (Woollard).

Where Williams differs is in the Question of the Petition. Nothing about Permits, discretionary issue, may/shall, pre-enforcement yada, yada, yada.

Does the Second Amendment protect a "non prohibited" person without an "unobtanium" permit outside the home? Paraphrasing Mr Halbrook's petition, but its close.

Whether Williams, Peruta or Peterson or....we're going to get there.

Kharn
05-16-2011, 6:15 PM
And Williams has an express-lane ticket, the other cases are years away (if ever, Palmer...)

Funtimes
05-16-2011, 6:42 PM
MD, NJ and NY are about as bad as CA, although in NJ the mag cap limit is 15, and in MD it's 20 IIRC. NY is 10 like CA.

Well with IL being sued, I am betting Hawaii will be the last state in the country, where in all counties, the right to self-defense is banned in its entirety.

N6ATF
05-16-2011, 6:56 PM
Give CA just a bit more time... 12 anti-victim bills for every anti-criminal victory we achieve here.

Caladain
05-16-2011, 8:48 PM
Respectfully, you have not spent time on the MDShooters 2A related forums. We have a small cross-pollination of folks between our two states and forums on each other's boards for a reason.

But these are the two forums I comment on.

I stand corrected. Work may be moving me to MD anywho..

yellowfin
05-16-2011, 9:44 PM
If you move to MD, look up Engage Armament, and print up some Form 4's.

hoffmang
05-16-2011, 10:07 PM
And Williams has an express-lane ticket, the other cases are years away (if ever, Palmer...)

Your estimate of how far the others are is overstated. The worst case is that most of the others get to the Court for the 12-13 term which means they're decided by 6/30/2013.

-Gene

kcbrown
05-16-2011, 10:37 PM
Your estimate of how far the others are is overstated. The worst case is that most of the others get to the Court for the 12-13 term which means they're decided by 6/30/2013.


How do you figure that's the worst case? Aren't you assuming a few things about how long the circuit courts will hold onto them? Admittedly, though, the evidence so far is that the circuit courts aren't playing games like that (thankfully), so I think you're probably right, but you are talking about the worst case here, are you not?

hoffmang
05-16-2011, 10:42 PM
How do you figure that's the worst case? Aren't you assuming a few things about how long the circuit courts will hold onto them? Admittedly, though, the evidence so far is that the circuit courts aren't playing games like that (thankfully), so I think you're probably right, but you are talking about the worst case here, are you not?

No. Circuits don't tend to hold cases on first appeal and there are too many of them for all of them to be held.

-Gene

kcbrown
05-16-2011, 11:00 PM
No. Circuits don't tend to hold cases on first appeal and there are too many of them for all of them to be held.


One of the advantages of a multi-pronged approach, no doubt. :43:

hoffmang
05-16-2011, 11:27 PM
One of the advantages of a multi-pronged approach, no doubt. :43:

Imagine. There might even be a strategy at work! :p

-Gene

wildhawker
05-16-2011, 11:37 PM
Imagine. There might even be a strategy at work! :p

-Gene

Whhaatt? Strategy? I thought we were just playing Bingham.

-Brandon

hoffmang
05-16-2011, 11:52 PM
Whhaatt? Strategy? I thought we were just playing Bingham.

Drink!

-Gene

kcbrown
05-16-2011, 11:55 PM
Imagine. There might even be a strategy at work! :p


The one thing that could make this interesting, and it's a low-probability thing, to be sure, is if the lower courts continue to defy the Supreme Court in various ways, by ruling against the explicit directions of the Supreme Court and letting the Supreme Court deal with the inevitable appeal, or by sitting on RKBA cases in front of them as long as they possibly can, or perhaps other judicial tactics that I'm not even aware of. Those tactics might even work to some degree if the composition of the Supreme Court changes during the whole process.

The only reason I even consider that a possibility is that we're talking about guns here. This isn't like the civil rights litigation of the 60s. That was just about skin color. People might be reluctant (even very reluctant) to act against their own prejudice, but guns are something they're genuinely afraid of. And people will go to great lengths to assuage their fears when they believe they have the power to do so. It is perhaps the most powerful driving force we humans experience.

So it won't surprise me at all if the highest court has to actually bust out the U.S. Marshalls to enforce its will.


But again, I do consider that a low probability event. It's higher than it would be for "normal" civil rights litigation, however, so I don't think the lessons of the past necessarily apply here.



There's also the problem of enforcement against LEAs and other agencies. Just because SCOTUS issues a ruling doesn't mean the lower courts (the district courts and, even, the circuit courts) are going to use their enforcement mechanisms against LEAs which are, after all, only acting the way the courts in question would want them to act were it not for that pesky Supreme Court. I can easily envision a lot of "wink, wink, nudge, nudge" judgments, where the courts play games by communicating through backdoor channels to the defendants that they're not really serious about the judgments in question.



Smacks of tinfoil-hattery, no doubt. But people do strange things when they act out of fear...


I think we might be in for some interesting times, indeed...

hoffmang
05-16-2011, 11:58 PM
So it won't surprise me at all if the highest court has to actually bust out the U.S. Marshalls to enforce its will.

As soon as Heller was ruled on everyone but Chicago ran screaming from any handgun ban in the home. History is not on your side on your worry.

-Gene

kcbrown
05-17-2011, 12:22 AM
As soon as Heller was ruled on everyone but Chicago ran screaming from any handgun ban in the home. History is not on your side on your worry.


Fair enough. How many such bans were there? If it was only DC then it's not that much history to rely on. :D

Somehow I suspect there were indeed others, but a cursory Google search isn't terribly revealing of them (as one would expect given the huge number of hits for DC and Chicago)...

hoffmang
05-17-2011, 12:29 AM
Fair enough. How many such bans were there? If it was only DC then it's not that much history to rely on. :D

Somehow I suspect there were indeed others, but a cursory Google search isn't terribly revealing of them (as one would expect given the huge number of hits for DC and Chicago)...

There was, at minimum, the San Francisco Public Housing ban and the Delaware Public Housing ban.

What was less seen is the 10's/100's/1000's of dogs that did not bark. I can think of one telling example. Husband 5150'ed. Wife changed the combo on the gun safe. DA screamed like hell to disarm them both. Judge looked at DA in chambers and said, "I will not create a test case - if she says he doesn't have access, then you better come to an agreement with her and drop this!"

-Gene

kcbrown
05-17-2011, 12:36 AM
As soon as Heller was ruled on everyone but Chicago ran screaming from any handgun ban in the home. History is not on your side on your worry.


Opponents like Chicago are the stuff of dreams for civil rights litigators, I'd wager (now that I understand a little more about the dynamics in such place). :43:

N6ATF
05-17-2011, 12:37 AM
As soon as Heller was ruled on everyone but Chicago ran screaming from any handgun ban in the home. History is not on your side on your worry.

-Gene

No, but after McDonald, Chicago just came up with more contempt of SCOTUS and human rights, even worse than a explicit re-ban (immediately enjoined)... to drag out Chicagoans' defenselessness another few years. I think kc and I are both expecting to see other cities flip the bird based on Chicago's example of how to do it without suffering termination with extreme prejudice. :p

hoffmang
05-17-2011, 12:39 AM
No, they just came up with something equally contemptuous, yet even worse than an explicit ban (which would have been immediately enjoined)... to drag out Chicagoans' defenselessness another few years.

And play right into our traps! Ezell is going to be such a fun #win!

-Gene

kcbrown
05-17-2011, 12:40 AM
No, they just came up with something equally contemptuous, yet even worse than an explicit ban (which would have been immediately enjoined)... to drag out Chicagoans' defenselessness another few years.

"The more you tighten your grip, Tarken, the more star systems will slip through your fingers"....


It is better for us if our opponents oppose us early and vigorously, for it means our victory will come that much sooner and it increases the chance of win for us, since it increases the chance that the Supreme Court with its current composition will get to hear the case.


So I say: bring it!

kcbrown
05-17-2011, 12:43 AM
What in the world happened to the old kcbrown?!? :eek:


What happened is that you're seeing more of my "normal" persona than before. This is what happens when I start to trust...

Patrick-2
05-17-2011, 4:37 AM
Does it strongly suggest cert will be granted if the request for a response was published even before the official conference?

If cert is granted I assume it will be heard this fall. Decision in time for a X-mas celebration?

So far everything about Williams has been typical. The request for response comes before the conference. As preys have noted, decision before June 2012.

I personally like the case. It omits 14th amendment arguments, for sure, but if the court takes it they are probably going to revise the question into a more "pure" form anyway. SCOTUS has never let the little details get in the way of truly big questions. Unless they want them to get in the way...

ccmc
05-17-2011, 5:33 AM
Well with IL being sued, I am betting Hawaii will be the last state in the country, where in all counties, the right to self-defense is banned in its entirety.

IL and WI don't allow CC, although there's a bill in WI which would legalize it as well as recognize other states' permits. A similar bill didn't get through the IL legislature. I didn't mention HI because I no longer travel by air. I understand permits are very tough to get there and they're only valid in the county where issued.

randian
05-17-2011, 3:47 PM
I understand permits are very tough to get there and they're only valid in the county where issued.
They aren't just tough, they're impossible. No law-abiding citizen applying for one has been issued one in 20 years. The chiefs of police of every (there are 4) county in HI have said they will not approve a carry license for anybody. A bill was introduced in 2006 to change the law to shall-issue, but it was defeated, in large part to lobbying by those same chiefs of police.

yellowfin
05-17-2011, 7:51 PM
This isn't like the civil rights litigation of the 60s. That was just about skin color. People might be reluctant (even very reluctant) to act against their own prejudice, but guns are something they're genuinely afraid of. If you really believe that the supposed fear is genuine. I don't for a single second. It's just a plausible lie to cover for the fact that it's cultural prejudice and symbolic hate. The anti gun ideology is a cheap fake substitute for morality and a convenient political voodoo doll.

kcbrown
05-17-2011, 8:16 PM
If you really believe that the supposed fear is genuine. I don't for a single second. It's just a plausible lie to cover for the fact that it's cultural prejudice and symbolic hate. The anti gun ideology is a cheap fake substitute for morality and a convenient political voodoo doll.

I don't believe all of it is genuine, certainly, but I believe enough of it is genuine to make the overall situation different from that of previous civil rights actions. But time will tell...

OleCuss
05-17-2011, 9:08 PM
.
.
.
The anti gun ideology is a cheap fake substitute for morality and a convenient political voodoo doll.

QFT.

One of the best summaries I've seen.

Southwest Chuck
05-17-2011, 9:17 PM
If you really believe that the supposed fear is genuine. I don't for a single second. It's just a plausible lie to cover for the fact that it's cultural prejudice and symbolic hate. The anti gun ideology is a cheap fake substitute for morality and a convenient political voodoo doll.

I don't believe all of it is genuine, certainly, but I believe enough of it is genuine to make the overall situation different from that of previous civil rights actions. But time will tell...

The question is though, is it a rational fear, or is it an irrational, morbid fear of guns- i.e. Hoplophobia.

kcbrown
05-17-2011, 9:42 PM
The question is though, is it a rational fear, or is it an irrational, morbid fear of guns- i.e. Hoplophobia.

Well, as it happens, that doesn't really matter. People act on their fears whether they are rational or not. And the greater the fear, the greater the propensity to act on it, regardless of how irrational it may be.

N6ATF
05-17-2011, 9:45 PM
If you really believe that the supposed fear is genuine. I don't for a single second. It's just a plausible lie to cover for the fact that it's cultural prejudice and symbolic hate. The anti gun ideology is a cheap fake substitute for morality and a convenient political voodoo doll.

Except being anti-gun is as immoral as you can get. They're effectively telling innocent victims: "GET MURDERED! GET RAPED! GET MAIMED!"

It makes just as much sense as killing babies immediately after they are born because you oppose abortion.

dantodd
05-17-2011, 10:10 PM
Except being anti-gun is as immoral as you can get. They're effectively telling innocent victims: "GET MURDERED! GET RAPED! GET MAIMED!"

And how many years did those same people say just that to rape victims? Just lie back and take it. It will be much worse if you fight.

N6ATF
05-17-2011, 10:19 PM
Yep. They have metric tons of rapists' bodily fluids on their hands in addition to murder victims' blood.

sighere
05-18-2011, 9:16 AM
There's talk of the supreme court issuing a request for a response from the state of MD re this case. Has anyone seen it? It's not on the SCOTUS website as any recent order. If anyone's got a link it would be greatly appreciated.

krucam
05-18-2011, 9:24 AM
There's talk of the supreme court issuing a request for a response from the state of MD re this case. Has anyone seen it? It's not on the SCOTUS website as any recent order. If anyone's got a link it would be greatly appreciated.

Its a few pages back, it was requested on Monday. Due 6/15.

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

Patrick-2
05-18-2011, 12:30 PM
And to refresh, the state will probably request (and be granted) a 30-day extension that will go past the court's last conference before the break. So it will be Fall before we hear anything one way or the other.

The time-line would probably stay the same if it was granted cert, though: decision in June 2012.

yellowfin
05-18-2011, 1:27 PM
A 2012 decision would be GREAT for having it applicable for the election instead of letting the current White House occupant conveniently dodge the issue as he did 3 years ago.

krucam
05-18-2011, 3:10 PM
Well crap...I knew it was coming, but c'mon man...

Monday, SCOTUS requested a response to the petition from State of MD. Due 6/15.

Today, just 2 days later, SCOTUS has granted them an extension (we knew that was probably coming as well) to July 15.

Yowza. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

This does not surprise me, being a MD resident....


No. 10-1207
Title: Charles F. Williams, Jr., Petitioner
v.
Maryland

Docketed: April 5, 2011
Lower Ct: Court of Appeals of Maryland
Case Nos.: (16, September Term, 2010)
Decision Date: January 5, 2011

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 5 2011 Petition for a writ of certiorari filed. (Response due May 5, 2011)
Apr 20 2011 Waiver of right of respondent Maryland to respond filed.
May 3 2011 DISTRIBUTED for Conference of May 19, 2011.
May 16 2011 Response Requested . (Due June 15, 2011)
May 18 2011 Order extending time to file response to petition to and including July 15, 2011.

N6ATF
05-18-2011, 3:41 PM
What crap. When the government's the defendant, it should be able to file for an extension on the deadline date only, and if it files neither a response nor extension, it has forfeited the privilege to continue violating civil rights. Judgment for the plaintiff.

yellowfin
05-18-2011, 3:48 PM
I suppose they figured they'd save the waste of time and useless gestures--only wish they'd have chosen to preemptively say no instead of yes.

socalblue
05-18-2011, 4:05 PM
Not unusual at all. Case would not be heard until the next session anyway (starting Oct 2011) so there really isn't a rush.

krucam
05-18-2011, 4:34 PM
Not unusual at all. Case would not be heard until the next session anyway (starting Oct 2011) so there really isn't a rush.

CORrect...there is a train of thought out there that the more this can be pushed right, the less chance of Williams being granted Cert and a bunch of Carry cases being put on Hold (stayed) pending resolution of Williams.

Just sayin'

Southwest Chuck
05-18-2011, 5:22 PM
Well crap...I knew it was coming, but c'mon man...

Monday, SCOTUS requested a response to the petition from State of MD. Due 6/15.

Today, just 2 days later, SCOTUS has granted them an extension (we knew that was probably coming as well) to July 15.

Yowza. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm

This does not surprise me, being a MD resident....

Does a respondent (or party to a cert.) normally get an automatic extension without requesting one or did MD request one? In other words, If MD had not yet requested an extension, is it still usual (or unusual) that SCOTUS would automatically issue an extension as they did, or was this a preemptive move by SCOTUS ultimately to save time?

Kharn
05-18-2011, 6:09 PM
States must request additional time, but it is almost always granted

Southwest Chuck
05-18-2011, 6:21 PM
States must request additional time, but it is almost always granted

I understand that, but I didn't see MD's request on the docket posted above and that's the reason I was asking and was basically asking if SCOTUS automatically entered an extension without MD even asking for one.

Peaceful John
05-19-2011, 9:04 AM
CORrect...there is a train of thought out there that the more this can be pushed right, the less chance of Williams being granted Cert and a bunch of Carry cases being put on Hold (stayed) pending resolution of Williams.

Just sayin'

Marc, I'm not cerain I understand the phrase "pushed right". Could you elaborate?

Cordially,
John

krucam
05-19-2011, 9:21 AM
Pushed Right = moving right on a timeline.

Many Carry cases are at the final stages in District Court...we're awaiting decisions....

Woollard (MD)
Muller (NJ)
Palmer (DC)

Nearly completed:
Kachalsky (NY)
Hightower (MA)

Pending Circuit:
Peruta (CA)
Peterson (CO)
Richards (CA)

If Williams were granted Cert TODAY, these cases and others would likely be put on hold (stayed) pending Williams. Look back at McDonald putting Nordyke on hold. Hell, look at the cases that were on hold pending Nordyke.

Williams moving into Sept/Oct timeframe is a good thing for these "Carry" cases. It won't be decided before 6/30/2012 no matter when its heard.

Patrick-2
05-20-2011, 5:42 AM
What crap. When the government's the defendant, it should be able to file for an extension on the deadline date only, and if it files neither a response nor extension, it has forfeited the privilege to continue violating civil rights. Judgment for the plaintiff.

A few points to help your blood pressure:

- Supreme Court rules allow the Clerk of the Court to allow as many as 60 days for a response. It is routinely used by defendants, government or otherwise. This is the Supreme Court, and many respondents are going to need to hire outside help. They ain't going before Judge Judy.

- The state waived the initial response as a pattern. The Supreme Court appears to prefer this method. Technically, the waiver means they concede the points of the petition, but in reality that would require every defendant to respond to every petition every time. It also means the Supreme Court would be duty-bound to read all those petitions and responses. Multiply that by 6-7000 petitions a year and it is too much. States waive their response until a justice signals they want to see it. Then they send it in, with no waiver or concession of any points. This saves a ton of time and money, overall.

Obviously, our AG knew he was going to need to respond. The rules say 60 days and that is all they get.

Like Mark said, waiting a little while is no harm and maybe some help. By then we might end up with a ruling in Woollard (MD Carry case) or some others. We expect a loss, obviously. But it does reinforce the argument that the Supreme Court needs to define a few more things, assuming they see things much like we do.


Overall, the decision date doesn't move one way or the other. When McDonald was decided, most everyone agreed it would be two years for a carry case to be decided by the Supreme Court - three on the outside. If Williams were heard, the decision would come two years - practically to the day - of McDonald. Right on time.

Mulay El Raisuli
05-20-2011, 10:12 AM
I just found about this case. This is just sooooooooo good!

I've always felt a criminal case is the best vehicle to more firmly establish the Right. They move quicker & "standing" isn't really an issue. The guy is facing (or in) jail & that's all the '"standing" one needs. The (really, quite trivial) problem is getting a 'clean' defendant. We have that in Mr. Williams, so this isn't a problem here.

What's best about this case, presuming it's actually heard, is all it needs to do is make clear that 'outside of the home' is what was meant before. There's a reason all the cases cited by the MD Supremes misquoted Heller to mean only inside the home. Its because they had to!

A fundamental, enumerated right can't be played with. Note that they don't even try to play games with inside the home. They know they'll be slapped down if they do. Once they get told (in no uncertain terms) that outside the home & inside the home are one & the same, expect the walls to come tumbling down.

This (overly?) optimistic assessment brought to you by a grant from the Lord of the Rif Foundation. :)


The Raisuli

Ike Arumba
05-21-2011, 9:44 PM
There's a reason all the cases cited by the MD Supremes misquoted Heller to mean only inside the home. Its because they had to!
They had to misquote the supreme court? I don't think I follow.

tabrisnet
05-21-2011, 10:07 PM
They had to misquote, in order to make their argument...

G60
05-21-2011, 10:33 PM
They had to misquote the supreme court? I don't think I follow.

read " 1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home."

, then begin on page 10 of the opinion of the court in DC v Heller, where they go into explicit detail what "bear" means.

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf


"such as" does not mean "limited to"

kcbrown
05-21-2011, 10:58 PM
They had to misquote the supreme court? I don't think I follow.

The MD supreme court had to misquote the U.S. Supreme Court because it was the only way the MD supreme court could possibly arrive at the answer they wanted to arrive at (which was the answer they did arrive at).


Many people assume that judges reach decisions based on the arguments before them, what the laws say, etc. I suspect that's a relative rarity (those more familiar with the actual rulings of the court system would be able to give you a better idea), most especially with respect to issues, such as guns, on which they are likely to hold a strong opinion. When they do hold a strong opinion, they will most certainly be very tempted to decide what results they wish to arrive at based on their own personal opinions, and then attempt to tailor their arguments after the fact to justify it. The MD supreme court gave in to that temptation.

It takes someone with a great deal of integrity to issue a ruling that goes against his own strongly-held personal belief. Such people are rare, and not just in the judicial system but in all walks of life. Integrity of that degree is a particularly hard thing for judges because the decisions they make have very long-lasting consequences, and they know that. To issue a ruling that contradicts their own strongly held personal belief in the face of that is immensely difficult, most especially when the shape of a right has yet to be defined, as is the case with respect to the 2nd Amendment.

Mulay El Raisuli
05-23-2011, 7:12 AM
They had to misquote the supreme court? I don't think I follow.


The others, but especially KCBrown, beat me to it.


The Raisuli

Mulay El Raisuli
06-08-2011, 6:47 AM
A thought recently came to me. Mr. Williams was arrested because he didn't have a permit. The hope around here seems to be that SCOTUS will order MD to start issuing permits on a "shall issue" basis.

But what if SCOTUS doesn't do that? What if SCOTUS applies all the cases that they cited so approvingly in Heller & McDonald? Cases such as Reid, Nunn, & all the others that state that LOC is the Protected Right, but that CCW is not? I.E., what if SCOTUS says Mr. Williams' arrest was invalid just because he didn't need a permit in the first place? What if they then go further & state (clearly & unambiguously) that LOC outside the home, but also outside of those yet-to-be-defined "sensitive places" is what they were talking about all along?

Or am I just too optimistic?


The Raisuli

yellowfin
06-08-2011, 7:47 AM
Brown v. Board of Education emphasized the right to be functional within modern society. Thus far, CCW is the best way to exercise bearing arms while being functional within society, now that there are employee parking lot protections in place in more and more states to make it practicable. If OC is what is to be guaranteed, then we're going to need more anti-discrimination lawsuits to prevent businesses, schools, etc. from excluding people because if a right cannot exist in practice of every day life, it is effectively nonexistent.

J.D.Allen
06-08-2011, 8:26 AM
Raisuli,

In short, yes you are being too optimistic.

But we can dream, can't we?

tabrisnet
06-08-2011, 8:31 AM
I fail to see that as being optimistic... Especially as I do agree with yellowfin in that LOC/UOC/Whatever-OC is practically useless right now, there are 2 few places I can go where I can legally do so. I live maybe a quarter mile from a school... at least one. I have to drive past it to go to work every day. And I'd rather not scare the mundanes.

I also can't carry open at work (according to their policy, can't carry period, but I don't think I could be worse than fired if they found out I was legally CC).

J.D.Allen
06-08-2011, 8:46 AM
You guys don't seem to be reading the fact that Raisuli said that in his overly optimistic dreamworld the decision would do away with GFSZ'S and redefine the sensitive places as the grounds of those places only.

What if they then go further & state (clearly & unambiguously) that LOC outside the home, but also outside of those yet-to-be-defined "sensitive places"


The Raisuli

hoffmang
06-08-2011, 4:51 PM
A thought recently came to me. Mr. Williams was arrested because he didn't have a permit. The hope around here seems to be that SCOTUS will order MD to start issuing permits on a "shall issue" basis.

But what if SCOTUS doesn't do that? What if SCOTUS applies all the cases that they cited so approvingly in Heller & McDonald? Cases such as Reid, Nunn, & all the others that state that LOC is the Protected Right, but that CCW is not?

Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene

kcbrown
06-08-2011, 5:10 PM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?


Fair point, but considering that this is the case where the MD supreme court threw the gauntlet in the face of SCOTUS in the form of a direct challenge to SCOTUS' stated intentions, how likely is it that SCOTUS would deny cert on the basis of some "technicality" like that?


I very much doubt this case will lead to unregulated open carry anywhere that doesn't already have it. As has been asked before, how could you possibly convince Justice Kennedy to get behind that?

Glock22Fan
06-08-2011, 5:16 PM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene

For the benefit of those who have forgotten the beginning of this thread, Patrick-2 deals with this question pretty well in post #4. IANAL, but it sounds pretty good to me.


When it comes to that pesky permit, Halbrook dispenses with it here:

It is undisputed that Petitioner did not file an application for a handgun carry permit. He contended instead “that as a result of the regulatory scheme, ‘any such application would have been denied.’” The record does not disclose any documented threats, assaults or robberies against Petitioner that are a prerequisite to even potentially being able to obtain a carry permit for personal defense under the Maryland statutory scheme.Of course, Maryland can try to argue that Williams should have applied for a permit before making this claim, but Maryland just argued in Woollard that absent any documentary evidence they can and will deny any and all who request it. That made the permit unattainable to Williams.

(My Argument/Point): Add to that the fact that even if he had applied, the process would have exceeded the time in which his arrest occurred. He was arrested barely two weeks after getting the gun from the dealer - Maryland routinely takes 90 days to rule on a permit.

None of that really matters, though. If the Court takes up this case, there are no arguments over little things like "standing". Simply put, if SCOTUS wants to take the case, it wil be all 2A all the way.

Quser.619
06-08-2011, 5:18 PM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene

Scary thought!

A legal owner of a fire arm should be allowed to transport it though. While he may not have applied, RKBA should allow a legal owner - read non-prohibited person - to transport his arms to & from location to location. He was arrested while transporting from location to location. That transport is what made him a criminal under the eyes of MD law.

Given that the SCOTUS in Heller/McDonald has narrowly defined their rulings to the confines of the case, I can see them stating that RKBA allows for transport & thus bypassing having to rule upon whether this follows under the Keep/Bear of the RKBA of the 2nd. Also, I'd imagine that they'll leave enough space for the states to define acceptable methods of transport.

Though a strong enough argument could be made that transporting is carrying. I'm not sure how they could split that hair, but my guess is that is what they'll do & another case or 2 or 6 will be required to define transport/carry outside of the home thoroughly enough to end this nonsense.

Liberty1
06-08-2011, 5:20 PM
A thought recently came to me. Mr. Williams was arrested because he didn't have a permit. The hope around here seems to be that SCOTUS will order MD to start issuing permits on a "shall issue" basis.

But what if SCOTUS doesn't do that? What if SCOTUS applies all the cases that they cited so approvingly in Heller & McDonald? Cases such as Reid, Nunn, & all the others that state that LOC is the Protected Right, but that CCW is not? I.E., what if SCOTUS says Mr. Williams' arrest was invalid just because he didn't need a permit in the first place? What if they then go further & state (clearly & unambiguously) that LOC outside the home, but also outside of those yet-to-be-defined "sensitive places" is what they were talking about all along?

Or am I just too optimistic?


The Raisuli

What is Williams prayer for relief? Not guilty because the law is unconstitutional = the law is struck and MD goes back to the drawing board OR I didn't apply because it was futile and now I want a license so I'm legal?

press1280
06-08-2011, 5:41 PM
A thought recently came to me. Mr. Williams was arrested because he didn't have a permit. The hope around here seems to be that SCOTUS will order MD to start issuing permits on a "shall issue" basis.

But what if SCOTUS doesn't do that? What if SCOTUS applies all the cases that they cited so approvingly in Heller & McDonald? Cases such as Reid, Nunn, & all the others that state that LOC is the Protected Right, but that CCW is not? I.E., what if SCOTUS says Mr. Williams' arrest was invalid just because he didn't need a permit in the first place? What if they then go further & state (clearly & unambiguously) that LOC outside the home, but also outside of those yet-to-be-defined "sensitive places" is what they were talking about all along?

Or am I just too optimistic?


The Raisuli

Halbrook isn't framing the case that way, so I'm doubting SCOTUS will extend the holding much beyond that. Williams was arrested for carrying w/o a permit-MD doesn't differentiate between the two. The issue will be if the 2A is protected outside the home in non-sensitive places. Halbrook is basically saying a permit system is OK if regular folks can get it, but a discretionary system is null and void.

press1280
06-08-2011, 5:43 PM
What is Williams prayer for relief? Not guilty because the law is unconstitutional = the law is struck and MD goes back to the drawing board OR I didn't apply because it was futile and now I want a license so I'm legal?

Both it seems to me. Law is unconstitutional, make it shall issue and next time someone does that you can take them to jail.

Liberty1
06-08-2011, 5:59 PM
http://www.google.com/m/url?client=ms-android-verizon&ei=2BjwTYCaIZCitwfO7fWNAw&gl=us&hl=en&q=http://www.courts.state.md.us/opinions/coa/2011/16a10.pdf&source=android-browser-type&ved=0CBYQFjAA&usg=AFQjCNEfV6RSm42yQgNPHS6W5YxAICYAFg

Ok good, it was loaded (supports carried for self defense purpose claim) and before placing it in the bushes it was concealed in a backpack. When asked by the officer what he put in the bushes he said my gun.

Liberty1
06-08-2011, 6:04 PM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene

Parker v DC became Heller v DC when Parker was denied standing. Perhaps because she never applied; a futile act in DC at the time. But then again she was not arrested.

ed bernay
06-08-2011, 6:49 PM
Parker v DC became Heller v DC when Parker was denied standing. Perhaps because she never applied; a futile act in DC at the time. But then again she was not arrested.

wasn't Williams arrested, charged and facing prison? Is that not reason enough for standing?

Kharn
06-08-2011, 7:09 PM
Williams is facing a year in jail (plus a suspended sentence for more time, this counts as a felony conviction) if the SCOTUS does not agree with Halbrook's stance that a permit must be available or a law requiring the permit is void.

In MD you cannot transport a handgun, except if you are going to/from your own home, the gun range, gun store, hunting or other activity from a very narrow list. You are not legally allowed to transport a gun from your girlfriend's house to your own if you do not have a CCW permit or are not on the lease at her house (or are a "genuine collector" traveling to/from a "private exhibition"; helps to have a C&R FFL and an MD Designated Collector form if you want to claim this).

Before she moved in, my GF knew that every night I planned to sleep over I was bringing my .45 with me and that I intended to show it to her that evening. She saw it every night when I put it on the night stand.

dantodd
06-08-2011, 7:09 PM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene

I think that when the Circuit directly called out the Heller 5 for being inadequately clear the argument that applying being a "futile act" got a lot stronger.

navyinrwanda
06-08-2011, 7:59 PM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene
And how would anyone know why the Court declined to hear a particular case?

Besides, the courts get fussy about standing mostly when the APA or DJA are being employed to enforce a particular outcome – not when someone's trying to stay out prison.

hoffmang
06-08-2011, 8:47 PM
And how would anyone know why the Court declined to hear a particular case?

Besides, the courts get fussy about standing mostly when the APA or DJA are being employed to enforce a particular outcome – not when someone's trying to stay out prison.

You would not know why it did not get granted but I just want everyone to realize that it's a real possibility. However, don't fret. There is a long line of much better cases right behind it that I do think get granted.

All our eggs are not in the Williams basket and that's a good thing.

-Gene

dantodd
06-08-2011, 9:48 PM
And how would anyone know why the Court declined to hear a particular case?

Besides, the courts get fussy about standing mostly when the APA or DJA are being employed to enforce a particular outcome – not when someone's trying to stay out prison.

If there is a justice who feels strongly that cert should have been granted he/she might write a dissent (not sure of the official name of the document) stating why the case wasn't but should have been granted cert. I believe that Ginsberg did this once this session.

navyinrwanda
06-09-2011, 2:22 AM
If there is a justice who feels strongly that cert should have been granted he/she might write a dissent (not sure of the official name of the document) stating why the case wasn't but should have been granted cert. I believe that Ginsberg did this once this session.
Dissents from denial of cert offer at best oblique evidence for the reason(s) that less that four justices want to hear a case. By definition, they lack any give-and-take that's typical of a full divided opinion (because there's neither a majority or a concurrence).

They're also pretty rare.

Williams is actually a pretty good case. The Court could write a strong opinion supporting a right to bear outside of the home, yet avoid delving into issues about licensing. Not necessarily great for California, but still nice for Mr. Williams.

press1280
06-09-2011, 3:37 AM
Dissents from denial of cert offer at best oblique evidence for the reason(s) that less that four justices want to hear a case. By definition, they lack any give-and-take that's typical of a full divided opinion (because there's neither a majority or a concurrence).

They're also pretty rare.

Williams is actually a pretty good case. The Court could write a strong opinion supporting a right to bear outside of the home, yet avoid delving into issues about licensing. Not necessarily great for California, but still nice for Mr. Williams.

It's good because the MD decision sums up why SCOTUS intervention is needed ASAP. No analysis of the 2A period, only stating that SCOTUS hasn't ruled on it yet. This kind of no-analysis decision is the norm in almost every post McDonald/Heller case.

Mulay El Raisuli
06-09-2011, 6:01 AM
Raisuli,

In short, yes you are being too optimistic.

But we can dream, can't we?


Yes we can!

(Because after all, BHO didn't patent the phrase) :)


I fail to see that as being optimistic... Especially as I do agree with yellowfin in that LOC/UOC/Whatever-OC is practically useless right now, there are 2 few places I can go where I can legally do so. I live maybe a quarter mile from a school... at least one. I have to drive past it to go to work every day. And I'd rather not scare the mundanes.

I also can't carry open at work (according to their policy, can't carry period, but I don't think I could be worse than fired if they found out I was legally CC).


Actually, I see all of these things as reasons in favor of LOC becoming the Right. Because then all the restrictions can be attacked on the basis of their infringement on an Enumerated Constitutional Right. Instead of a slow process of legislative work to overturn them, we can go after them using the much faster approach of getting Federal Court orders to strike them down.

Which will help you in your quest as well.

Which will speed up the return of the "gun culture" that our enemies fear so much. Lessening the number of the "mundanes" for you to worry about.

Which is a goal we here seek, isn't it?


The Raisuli

Mulay El Raisuli
06-09-2011, 6:36 AM
Fair point, but considering that this is the case where the MD supreme court threw the gauntlet in the face of SCOTUS in the form of a direct challenge to SCOTUS' stated intentions, how likely is it that SCOTUS would deny cert on the basis of some "technicality" like that?


Which is a different sort of "facial challenge," isn't it? :)


I very much doubt this case will lead to unregulated open carry anywhere that doesn't already have it. As has been asked before, how could you possibly convince Justice Kennedy to get behind that?


But, by signing on to the citation of Nunn, Reid & the others in Heller and McDonald, hasn't Kennedy already gotten behind that?


Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene


There is that. But, the MD Supremes didn't just get in the face of SCOTUS, there's also this:


wasn't Williams arrested, charged and facing prison? Is that not reason enough for standing?


Yes, it IS reason enough.

Put the two together & my bet is very much to SCOTUS granting cert.

As to whether my "optimistic dreamworld" (thanks, JD! LOL!) is the one that results is a tougher call. I'll keep dreaming, as opposed to laying actual odds, on that. But I wouldn't rule it out entirely just yet.


The Raisuli

Maestro Pistolero
06-09-2011, 9:47 AM
I think the UOC ban, while not welcome, presents a hastened opportunity to secure LOC in CA. As mentioned in this (http://www.calguns.net/calgunforum/showthread.php?t=442868) thread, UOC has already been referenced in case law as the means to satisfy the right in CA. OK, so let's get an injunction and then fix the unloaded part per Heller.

As CCW cases are already in the pipe line, they will likely beat LOC to the finish. Then, ideally, we would have both.

Blackhawk556
06-09-2011, 10:08 AM
^^^^^IF we get LOC, won't we be restricted to areas 1,000 feet away from schools?? if yes, LOC will be worthless.

tabrisnet
06-09-2011, 10:24 AM
Some people seem to think that that is acceptable. Or that we need to change the culture. Or change the law AFTER we get OC, to eliminate GFSZ. I see that as, among other things, the long way around.

Alternatively, we end up with those who wish OC to be a [political/freedom] statement... And don't CARE that it scares the mundanes. "The mundanes just need to get over it."

I fail to see that as working. Most likely the only way for the fear to go away is immersion therapy. Immersion therapy requires that EVERYWHERE they go, there is at least one visibly armed person who does not have a badge or military uniform. And that's a chicken/egg problem.

I like peace and quiet. I don't need my date to know I'm packing until the second or 3rd date... I don't need my employer to know I'm carrying either. I certainly don't need all of my fellow employees to know.

There just aren't enough gun manufacturer's for all of us to get jobs where LOC is SOP.

ccmc
06-09-2011, 10:46 AM
Counter thought. What if the fact that Mr. Williams never applied leads the court to not grant him Cert?

-Gene

That's a good point. His case would be much stronger if he had applied and was turned down IMHO. MD does have the reputation of being very difficult for average citizens to get permits which apparently discourages most from applying thus allowing MSP to claim they actually approve over 90 pct of all applications. People on MD Shooters seem to think shall issue is imminent. I wonder. I'd like to get permits from MD, NJ and NY myself, but haven't applied. Initial MD permit is only good for two years and renewals are not automatic ie you pretty much have to go through the same process every time and MSP apparently has discretion to deny your renewal just because.

BTW IIRC you once posted that anything is possible even getting a permit from a no issue county in CA like you yourself did. Is there a thread here about that?

kcbrown
06-09-2011, 1:06 PM
But, by signing on to the citation of Nunn, Reid & the others in Heller and McDonald, hasn't Kennedy already gotten behind that?


No. That indicates only that he got behind the notion that the state governments cannot foreclose all carry options, that the right to carry must remain a right even if regulated, not necessarily that there must be at least one unregulated option.

Wolverine
06-09-2011, 2:45 PM
^^^^^IF we get LOC, won't we be restricted to areas 1,000 feet away from schools?? if yes, LOC will be worthless.

Yes. Sensitive places like GFSZs would also need to be litigated. This would add significantly to the timeline. Thus, getting shall issue CCW is the quickest way to the goal of securing effective self defense for the general public.

kcbrown
06-09-2011, 3:02 PM
What I haven't yet figured out is how, if we get shall-issue CCW, we can ever get LOC.

dantodd
06-09-2011, 3:18 PM
What I haven't yet figured out is how, if we get shall-issue CCW, we can ever get LOC.

The CCW cases cited in Heller and McDonald were all cases where OC was legal buy CCW prohibited. While this has generally been interpreted to mean that EITHER is acceptable and EITHER can be prohibited this is not exactly clear. It is possible that SCOTUS will decide that Open Carry is the constitutionally guaranteed right as that is the only right widely accepted at the time of adoption. We simply won't know until they speak on the subject.

I believe that the interpretation that has been commonly held here, that SOME form of carry must be available but the state can choose between open or concealed. The court has certainly surprised me before so...

hoffmang
06-09-2011, 3:33 PM
What I haven't yet figured out is how, if we get shall-issue CCW, we can ever get LOC.

It's a lot easier to open up LOC after carry is common - which is partially about continuing to normalize.

In a world where carry (at minimum via permits and with restrictions to conceal) is a fundamental enumerated right, the case against AB-144 e.g. get's much stronger on the 1A side. There are a whole lot of angles that can be played after we get everyone able to actually defend themselves in public as a minimum matter.

But we aren't there yet.

-Gene

kcbrown
06-09-2011, 3:47 PM
The CCW cases cited in Heller and McDonald were all cases where OC was legal buy CCW prohibited. While this has generally been interpreted to mean that EITHER is acceptable and EITHER can be prohibited this is not exactly clear. It is possible that SCOTUS will decide that Open Carry is the constitutionally guaranteed right as that is the only right widely accepted at the time of adoption. We simply won't know until they speak on the subject.

I believe that the interpretation that has been commonly held here, that SOME form of carry must be available but the state can choose between open or concealed. The court has certainly surprised me before so...

Well, here's the thing: the Right People have a good, solid understanding of how SCOTUS thinks. They do, after all, tailor the arguments they put forth, in the cases they bring, towards SCOTUS and not necessarily the lower courts.

But that implies that the order in which they bring cases before the court is also tailored, as much as possible, towards SCOTUS. This means it is strategically more beneficial to first attempt to get shall-issue CCW rather than LOC. But for that to be true, it must be the case that there is a strong belief on the part of the Right People that SCOTUS will force shall-issue CCW where LOC is currently unavailable, for if that weren't the case then the current strategy would only serve to delay getting the only other form of carry available: LOC.


Based on the above, I do not see how we can possibly also get LOC, for if SCOTUS had intended to interpret RKBA as meaning that states could not regulate the manner of carry, they would not have cited Nunn in a favorable fashion.

kcbrown
06-09-2011, 3:54 PM
It's a lot easier to open up LOC after carry is common - which is partially about continuing to normalize.


But how? In California, especially?

There's no way you'll get it through the legislature. And concealed carry, by its very nature, will have no effect on making the population more comfortable with seeing firearms out in the open. That means politically, it simply won't be possible to get LOC.

And that means it has to happen through the courts. But if the courts rule, as we expect, that it's permissible for the state to regulate the manner of carry as long as at least one form of carry is available as a right, and CCW is that form (since it'll be shall-issue at that point), then what compelling argument could we possibly have left to fall back upon in the courts for forcing the availability of LOC as a right?


I do see one possible way, but it doesn't necessarily apply to all classes of firearms...


Oh, and for the record, I agree that we need to get meaningful self-defense taken care of first, and as swiftly as possible, and that CCW is the best way (by far) to do that. I just don't understand how that doesn't effectively foreclose LOC afterwards.

El Toro
06-09-2011, 5:25 PM
The SCOTUS will define 'bear' in terms that is least 'infringing' for the people while leaving it to the States to work out any regulatory scheme and 'wait and see' if those schemes infringe.

If they define 'bear' as CCW, the States will be forced to 'shall issue' and can't saddle the people with significant costs or other barriers to 'bear'. Any regulation will need to meet very strict standards and must not be an undue burden. Those Regs that are an undue burden (high costs, excessive training, etc.) will generate lawsuits but IMHO the lower courts will probably help us to prevail without a return to SCOTUS.

If they define 'bear' as LOC, I can see the SCOTUS reserving to the States and Fed to define 'reasonable' sensitive areas - probably by omission of what constitutes 'reasonable'. I see this option as the long road to a 'free RKBA' as the defination of sensitive areas will need to be challenged one-by-one. Nightmare for the people and good for the Libs.

I cannot see the SCOTUS defining 'bear' as UOC. It was alreading noted by SCOTUS in Heller that unloaded is pretty lame. That said, if a compromise is needed among the Justices, UOC doesn't really infringe on 'bear' and can still leave it up to govt to define sensitive areas. IMHO, UOC is the least liked option for all of us. The ONLY positive I can see is that the 'Mundanes', when confronted with a UOC may think, "Oh well, at least it's unloaded."

scarville
06-09-2011, 7:24 PM
If they define 'bear' as CCW, the States will be forced to 'shall issue' and can't saddle the people with significant costs or other barriers to 'bear'. Any regulation will need to meet very strict standards and must not be an undue burden. Those Regs that are an undue burden (high costs, excessive training, etc.) will generate lawsuits but IMHO the lower courts will probably help us to prevail without a return to SCOTUS.
There are still lots of ways to screw with gun owners. Since is it is a license to carry the legislature can treat it like they do drivers license. That means at least fees, testing, and training requirements. The gun(s) you carry can be treated like they already do your car with annual registration and PL/PD insurance. Maybe biannual safety inspections.

There are lots of ways the antis can hit back.

hoffmang
06-09-2011, 10:26 PM
But how? In California, especially?

Sometimes we need to make things normal for the judiciary - not the public or the legislature. A lot of judges are rationally ignorant of how 40 states handle carry.

-Gene

kcbrown
06-10-2011, 1:39 AM
Sometimes we need to make things normal for the judiciary - not the public or the legislature. A lot of judges are rationally ignorant of how 40 states handle carry.


Oh, my. This particular argument is so full of holes that I'm afraid I don't find it convincing in the least. Because:


Once the circuit courts are given sufficient explicit instruction from SCOTUS, they'll simply follow its lead. Until then, they won't do squat. Why in the world would they treat something as a right under conditions that SCOTUS implies it wouldn't? Like, say, open carry when shall-issue concealed carry is available?

This is the natural, logical consequence of SCOTUS' treatment of RKBA and the way they've cited Nunn. No, I see no relief there unless SCOTUS explicitly declares open carry to be protected due to historical precedence.

But let's say that SCOTUS does decide (ahead of time or otherwise) that open carry is the historically protected mode of carry and is therefore the mode of carry that it considers to be Constitutionally protected. Now we have a problem, because the the case that we will be bringing before SCOTUS, i.e. something like Peruta or Richards, will be dealing explicitly with a concealed carry scenario, and the court will be forced to deal with that specific situation as well as the more general question of whether or not bearing arms is a right. If SCOTUS is to explicitly protect open carry as a right and be consistent with their prior dicta, they will have to rule against the particular case before them (since it explicitly involves CCW) while at the same time issuing dicta that says that open carry must be available. In other words, they'll have to say that yes, bear is a right, but no, CCW is not a right because the Constitutionally-protected form of bear is open carry. Considering the current political and social climate, I just don't see that happening. Even if it did, the circuit courts will simply ignore the dicta just as they have been, and we'll be forced to wait for an open carry case to hit SCOTUS.

The only way SCOTUS can be consistent with their prior dicta and give us a favorable ruling on CCW is for them to rule against LOC as a right when shall-issue CCW is available. I see no way for the logic of their dicta to date to yield any other result. Why do you believe the circuit courts, especially the 9th Circuit, will treat LOC as a right when even SCOTUS won't in the face of shall-issue CCW availability? Remember, especially, that the 9th Circuit has already (in Nordyke) telegraphed its intentions to defer to the legislature to the maximum extent possible on 2A cases.
.
.
On the anti-gun side, the issue of guns isn't about pragmatism, it's about ideology. So the judges you refer to here must be the ones who are on the fence. But if that's the case:


California and Hawaii are the only states in the 9th Circuit that do not have shall-issue CCW. Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington are already shall-issue and have RKBA encoded into their constitutions. The judges are therefore already mostly familiar with CCW as a right, unless they harken from California or Hawaii. This pattern holds true for most of the other circuit courts as well, but for us the 9th is the one that counts.

You're talking about making open carry more palatable to judges though concealed carry. But out of sight, out of mind. Once shall-issue concealed carry is available in California and Hawaii, the vast majority of cases from those states that will appear before the circuit courts will be ones involving people who are either carrying openly or carrying concealed without a permit. Perhaps one or two cases involving people who actually have permits will wind up before them, but I fail to see how that will be any different than it already is.



So: exactly what experience do you think the judges at the circuit court level are going to gain once shall-issue CCW is in place in California and Hawaii that will somehow convince them that open carry should be treated as a right when shall-issue CCW is available, especially in the face of SCOTUS dicta (if not an outright ruling) to the contrary?

Maestro Pistolero
06-10-2011, 1:57 AM
I don't think we are going to see a scotus ruling against LOC. It's a little late in the day for that position after all the historical analysis of Heller and the referencing of presumptively constitutional laws against CCW.

But I can imagine a scenario where both are protected, but one is favored with stricter scrutiny than the other as decided by the states, and depending on environment and circumstances. The motivation would be to give the states regulatory latitude over bearing in terms of time, place, and manner, without denying the right to carry for the core purposes.

Example: Perhaps LOC isn't ok in banks or parks, but CCW is. In that way the right is satisfied and the states get to keep the OK corral in a relatively civilized condition, to their way of thinking. Some form of strictly protected carry would need to be available anywhere except for sensitive places (and private property, of course)

kcbrown
06-10-2011, 2:06 AM
I don't think we are going to see a scotus ruling against LOC. It's a little late in the day for that position after all the historical analysis of Heller and the referencing of presumptively constitutional laws against CCW.

But I can imagine a scenario where both are protected, but one is favored with stricter scrutiny than the other as decided by the states. The motivation would be to give the states regulatory latitude over bearing in terms of time, place, and manner.


But that would go directly against what Nunn concluded, which is that since open carry was available, CCW was not a right. And SCOTUS intentionally referenced Nunn in a favorable manner.

So: either SCOTUS says that only LOC is protected, or it says that one or the other is protected but not both at the same time. There's no other way to be consistent with their dicta to date.

Maestro Pistolero
06-10-2011, 2:25 AM
In Maryland, neither is available. If the states wish to ban or regulate OC out of existence, then CCW will have to fill in the gaps. In states that allow or license both, there would be more choices available to the legislature as to how, where, and when, but not whether the right is satisfied.

The court could say: License CCW if you wish, but banning LOC is off the table. Then the states would have great motivation to satisfy the right in a way other than LOC. I am imagining that the court would accept the reverse of Nunn, that if CCW is available to all non-prohibited persons, OC may be more regulated than would otherwise be constitutionally acceptable.

I feel strongly that LOC protection is good for the country and the future of our way of life. It gets the right out of the closet where it has been for far too long. Funny, and not so funny things happen to rights that are hidden away in dark places. They turn into scary things instead of something to cherish.

Open carry should stand boldly as a monument and constant reminder to all of the fact that we are a free people, self-ruled, beholden to no-one but our own collective goodness and honor, and to the constitution.

kcbrown
06-10-2011, 3:25 AM
In Maryland, neither is available. If the states wish to ban or regulate OC out of existence, then CCW will have to fill in the gaps. In states that allow or license both, there would be more choices available to the legislature as to how, where, and when, but not whether the right is satisfied.

The court could say: License CCW if you wish, but banning LOC is off the table. Then the states would have great motivation to satisfy the right in a way other than LOC. I am imagining that the court would accept the reverse of Nunn, that if CCW is available to all non-prohibited persons, OC may be more regulated than would otherwise be constitutionally acceptable.


Precisely. And that includes banning LOC entirely.

Put another way: if the court says that states can license CCW but that banning LOC is off the table, then that is a loss for us as regards CCW because it means that CCW can be licensed arbitrarily -- it would no longer be a right, but a privilege, just as it is in California right now. And that is exactly the scenario I referred to in my response to Gene.


And that means that if we get CCW as a right in a given state, we do not get LOC as a right. Gene is attempting to argue here that we'll get LOC as a right after we already have CCW as a right, and I cannot see how that is possible given the Heller dicta.



I feel strongly that LOC protection is good for the country and the future of our way of life. It gets the right out of the closet where it has been for far too long. Funny, and not so funny things happen to rights that are hidden away in dark places. They turn into scary things instead of something to cherish.


I agree. And that's why I don't think LOC is going to be protected except when CCW as a right is off the table. Because the fact of the matter is that it takes only one justice in the Heller 5 to find LOC disagreeable, or to believe that the state should have a say in which form of carry is available, to cause LOC to disappear as a right in and of itself. And from what I've read here, Kennedy is that justice.


Remember: time, place, and manner restrictions are permissible. A ban on a form of carry is a manner restriction.

boxcab
06-10-2011, 5:02 AM
kcbrown,

I think I understand where your going, but I disagree that the SCOTUS will shoot down LOC. They will make carrying in general a Right and allow the States to decide what form of carrying they prefer. It will be CA or MD that decide the format. These decisions will bring another round of legal battles to sort out whether LOC or CCW or???

Kharn
06-10-2011, 5:25 AM
kcbrown:
The SC does not even have to decide open vs concealed in Williams. MD one law to cover both: Carrying of a handgun without a permit, which includes LOC, CCW, UOC, LUCC and every other acronym used on CalGuns. The SC can easily say that a permit can not be required to bring your handgun from residence to residence and the law is void.

That would destroy MD's carry scheme (until an emergency session is called by the Governor and a new law crafted) but leave the other may-issue states wondering how their laws will fare and we would have to wait for Peruta, Richards or Palmer to make it to the SC to resolve the bigger question.

Scarecrow Repair
06-10-2011, 6:08 AM
Oh, my. This particular argument is so full of holes that I'm afraid I don't find it convincing in the least.

I get the distinct impression that you think judges are automatons who always think rationally. They don't. Their world view is *their* personal world view, and if they have been brought up by parents who hate guns and the circles they travel in have always just *known* that guns are evil, it will be inconceivable to them that carrying of any sort is good for public safety. They need to soak in the knowledge that 40 other states have awesome carry without it being a public bloodbath. It needs to be the kind of everyday knowledge that says even though McDonalds food is beneath their station in life, it is not toxic waste that kills half its patrons.

randian
06-10-2011, 9:07 AM
They will make carrying in general a Right and allow the States to decide what form of carrying they prefer. It will be CA or MD that decide the format.
Then expect you won't get functional carry in CA or MD. Their legislators may be evil, but they're not stupid. Anybody with half a brain understands the interaction between state/federal Gun Free School Zones and open carry. I'd expect them to choose open carry, but with gun-free zones making it functionally useless in urban and suburban areas. You could easily add things other than schools to the zones, like day care centers, hospitals, etc so that you can drastically expand the actual area covered by the zones without increasing their putative range (1000'). You can get near 100% coverage by adding but a few extra places to the list, just like some cities have done with sex-offender exclusion zones. I don't think anybody has successfully litigated the zones themselves, so that makes the bar to getting functional carry in CA that much harder.

Maestro Pistolero
06-10-2011, 9:27 AM
Precisely. And that includes banning LOC entirely. I don't think you can say that with certainty with the overwhelming deference given open carry by the court in dicta and in history. They have said open carry of a funcional firearm in case of confrontation is protected behavior. They have said that CCW is NOT protected. The path to the scenario you are suggesting is somewhat circuitous.
And that means that if we get CCW as a right in a given state, we do not get LOC as a right. Not necessarily.
If open carry continues to be the baseline of the right as SCOTUS has already indicated, then CCW will be a voluntary licensing scheme that would likely satisfy the right in situations where open carry is politically intolerable. In that case, CA would likely acquiesce to fair CCW licensing.

If there's one thing an anti-gunner hates more than knowing the populace is publicly armed and there's nothing they can do about it, it's having to actually LOOK at the damn things.

Gene is attempting to argue here that we'll get LOC as a right after we already have CCW as a right, and I cannot see how that is possible given the Heller dicta.I agree it's unlikely, but not because of Heller dicta. They never said either/or, exactly. They only said CCW could be banned if open carry was permitted. That's only halfway there. They may continue with the position that open carry is the historically protected form of the right, and cannot be banned, but there may be room for an alternative ways to satisfy the right (CCW).

ed bernay
06-10-2011, 9:35 AM
kcbrown,

I think I understand where your going, but I disagree that the SCOTUS will shoot down LOC. They will make carrying in general a Right and allow the States to decide what form of carrying they prefer. It will be CA or MD that decide the format. These decisions will bring another round of legal battles to sort out whether LOC or CCW or???

This is NOT directed at boxcab or anyone in particular, just an observation - I don't understand the argument that its either CCW or LOC but not both. I would argue that our right to bear starts with both CCW or LOC at the discretion of the citizen. Prohibiting either form would then place the burden on the government of why that prohibition is constitutional. For example if you substituted "carrying" with "speech" in the quote above, would that be constitutional; e.g. "They will make speech in general a Right and allow the States to decide what form of "speech" they prefer.

Maestro Pistolero
06-10-2011, 9:38 AM
Their legislators may be evil, but they're not stupid. Anybody with half a brain understands the interaction between state/federal Gun Free School Zones and open carry. I'd expect them to choose open carry, but with gun-free zones making it functionally useless in urban and suburban areas. You could easily add things other than schools to the zones, like day care centers, hospitals, etc
I think the GFSZ tactic will be effective, but for a short period of time. The more that the right in entrenched (and embraced) the less tolerance there will be for this nonsense. I don't think the SCOTUS is likely to agree that 80-90 percent of the area of most urban cities are sensitive places. It effectively guts the right. They're not stupid either.

Kharn
06-10-2011, 9:51 AM
The SCOTUS already struck down GFSZ once in US v Lopez (http://en.wikipedia.org/wiki/United_States_v._Lopez), Congress added a blurb about firearms that participated in interstate commerce and passed it again. The revised GFSZ law has been heard by a few Circuit Courts and found Constitutional each time, but the SC has not ruled on it.

boxcab
06-10-2011, 10:16 AM
This is NOT directed at boxcab or anyone in particular, just an observation - I don't understand the argument that its either CCW or LOC but not both. I would argue that our right to bear starts with both CCW or LOC at the discretion of the citizen. Prohibiting either form would then place the burden on the government of why that prohibition is constitutional. For example if you substituted "carrying" with "speech" in the quote above, would that be constitutional; e.g. "They will make speech in general a Right and allow the States to decide what form of "speech" they prefer.

"Both" could be an option, just like Va, PA and Az already do it. The States will decide if they have a preference or not, don't expect the SCOTUS to define it.

Then expect you won't get functional carry in CA or MD. Their legislators may be evil, but they're not stupid. Anybody with half a brain understands the interaction between state/federal Gun Free School Zones and open carry. I'd expect them to choose open carry, but with gun-free zones making it functionally useless in urban and suburban areas. You could easily add things other than schools to the zones, like day care centers, hospitals, etc so that you can drastically expand the actual area covered by the zones without increasing their putative range (1000'). You can get near 100% coverage by adding but a few extra places to the list, just like some cities have done with sex-offender exclusion zones. I don't think anybody has successfully litigated the zones themselves, so that makes the bar to getting functional carry in CA that much harder.

Heller/McDonald already addressed the "loaded and functional" aspect. If you are carrying for self defense, then loaded and ready is the only option.

Places will be wittled down on a case by case basis. The whole "fundamental right" and "strict reviews" will take care of those.

Fundamental Right and Outside the Home will be the corner stones that the foundation of the 2nd Amendment is built on.

Southwest Chuck
06-10-2011, 10:58 AM
IANAL, but if we get LOC as the right, then we, I believe, will then get shall issue CCW. Here is my reasoning: If LOC is established as a right but still restricted by buffer zones such as GFSZ's, the right is effectively denied in those zones except where allowed with a CCW permit such as CA. Therefore, the State must allow the right to exist within these zones if they grant ANY exceptions (like a CCW permit).

They cannot subjectively decide (via a may issue policy system) to use criteria such as "good cause" or "good moral character" . They will be forced to use a "Shall Issue" edict defined by being "not a prohibited person" criteria.
If they try to do away with the CCW exemption to forestall a shall issue system, then they unduly burden the right (LOC) in these zones and only make the argument stronger to do away with GFZ's, State-wide and Federally.
If they were struck down, then LOC would be viable for self defense throughout the State. The politicians nor the sheeple want to see guns on people's hip where ever they go, so they will enact a shall issue system to encourage people to conceal.

Stalling tactics aside, I believe we will eventually get Shall issue (predicated of course on SCOTUS ruling that Open Carry is the right).

Glock22Fan
06-10-2011, 11:30 AM
IANAL, but if we get LOC as the right, then we, I believe, will then get shall issue CCW. Here is my reasoning: If LOC is established as a right but still restricted by buffer zones such as GFSZ's, the right is effectively denied in those zones except where allowed with a CCW permit such as CA. Therefore, the State must allow the right to exist within these zones if they grant ANY exceptions (like a CCW permit).

They cannot subjectively decide (via a may issue policy system) to use criteria such as "good cause" or "good moral character" . They will be forced to use a "Shall Issue" edict defined by being "not a prohibited person" criteria.
If they try to do away with the CCW exemption to forestall a shall issue system, then they unduly burden the right (LOC) in these zones and only make the argument stronger to do away with GFZ's, State-wide and Federally.
If they were struck down, then LOC would be viable for self defense throughout the State. The politicians nor the sheeple want to see guns on people's hip where ever they go, so they will enact a shall issue system to encourage people to conceal.

Stalling tactics aside, I believe we will eventually get Shall issue (predicated of course on SCOTUS ruling that Open Carry is the right).

I guess, and this is a WAG, that if LOC is decided upon, but school zones are litigated against, then the legislature could always satisfy SCOTUS by doing a two tier LOC. Anyone qualified to own a firearm could openly carry a firearm except in restricted zones, such as school zones. If you want to LOC in restricted zones, then you could have a "shall issue" LOC permit that exempted you from those restrictions.

However, I am sure in my own mind that California, if it must allow firearms, would prefer the firearms to be out of sight. Therefore I see a ban on open carrying but a shall issue CCW permit. Rather like Texas has been, but I hope we can also (unlike Texas in the past) get a law that says that concealed is still concealed when a part of the firearm is accidently exposed.