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View Full Version : MARYLAND HANDGUN REGULATION STATUTE FOUND UNCONSTITUTIONAL (Woollard v Sheridan)


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HowardW56
03-05-2012, 6:19 AM
http://t.co/gl6eHmBq

GOOD READING.....

"Because the ―good and substantial reason requirement is not reasonably adapted to a substantial government interest, the Court finds this portion of the Maryland law to be unconstitutional. Woollard is entitled to summary judgment."

"A citizen may not be required to offer a ―good and substantial reason why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs."

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

krucam
03-05-2012, 6:48 AM
YessireeBob...

IV. CONCLUSION
The Court finds that Maryland‘s requirement of a ―good and substantial reason‖ for issuance of a handgun permit is insufficiently tailored to the State‘s interest in public safety and crime prevention. The law impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment. The Court will, by separate Order of even date, GRANT Woollard‘s Motion for Summary Judgment and DENY Defendants‘ Motion for Summary Judgment.
Dated this 2nd day of March, 2012
/s/

SanPedroShooter
03-05-2012, 6:57 AM
"A citizen may not be required to offer a ―good and substantial reason why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs"

How will this apply to so called 'good cause' here in California?

loather
03-05-2012, 7:00 AM
This is spectacular news - the ruling is great, but the fact that it was a ruling on MSJ is even better. That means that courts in more oppressive places are starting to "get it."

The dominoes. They have begun to fall.

CitaDeL
03-05-2012, 7:01 AM
YessireeBob...

IV. CONCLUSION
The Court finds that Maryland‘s requirement of a ―good and substantial reason‖ for issuance of a handgun permit is insufficiently tailored to the State‘s interest in public safety and crime prevention. The law impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment. The Court will, by separate Order of even date, GRANT Woollard‘s Motion for Summary Judgment and DENY Defendants‘ Motion for Summary Judgment.
Dated this 2nd day of March, 2012
/s/

Translation: Anticipate the legislature to tailor the requirement to the State's interest in public safety and crime prevention.

Superficially, i read this as 'good and substantial reason' = 'good cause' = enumerated right of self protection (that does not fall under the governements interest in public safety). Now, if we can get this to apply to California's 'good cause' requirement...

yellowfin
03-05-2012, 7:04 AM
Now the question will be as to whether Gansler will be arrogant/stupid enough to appeal it.

Kharn
03-05-2012, 7:13 AM
DC was told not to appeal Heller and they did it anyway, screwing NYC, Chicago, etc, I suspect AG Gansler will do the same.

Drivedabizness
03-05-2012, 7:15 AM
The findings on scrutiny (intermediate) and 14th amendment are somewhat troubling. I wonder if this ruling will be presented as additional information on any of the pending CA suits? (may not be relevant coming from a state court....)

hammerhead_77
03-05-2012, 7:15 AM
Since this was a district, rather than appeals court, ruling is it harder for us to import it into california?

Paging hoffmang to the podium...

safewaysecurity
03-05-2012, 7:17 AM
We won woolard? YES!! I expect briefs to be filed in every 2A case now citing this decision. This is the first REAL win for right to carry.

Southwest Chuck
03-05-2012, 7:17 AM
WOW! I'm literally speechless!

HisDivineShadow
03-05-2012, 7:19 AM
The findings on scrutiny (intermediate) and 14th amendment are somewhat troubling. I wonder if this ruling will be presented as additional information on any of the pending CA suits? (may not be relevant coming from a state court....)

This was US District Court. Helpful, but not binding precedent.

tiki
03-05-2012, 7:19 AM
"This reasoning is consistent with the Supreme Court's historical understanding of the right to keep and bear arms as ―an individual right protecting against both public and private violence. Heller, 554 U.S. at 594. In addition to self-defense, the right was also understood to allow for militia membership and hunting. See id. at 598. To secure these rights, the Second Amendment's protections must extend beyond the home: neither hunting nor militia training is a household activity, and ―self-defense has to take place wherever [a] person happens to be."

Nice!

Left Coast Conservative
03-05-2012, 7:20 AM
Now the question will be as to whether Gansler will be arrogant/stupid enough to appeal it.

Here's hoping he does. Wouldn't it be cool to be provided with one half of a circuit court split by an arrogant opponent?

ShootinMedic
03-05-2012, 7:25 AM
We.Are.Winning!

Just read the decision http://t.co/gl6eHmBq here. It's encouraging, because it sounds like their good cause requirement was just like ours. (I'm not up on other states laws)

I wonder how long until we get a similar ruling.

(IB4TwoWeeks)


Sent from my MB860 using Tapatalk

RSC
03-05-2012, 7:34 AM
Just amazing. I hope this one won't just fizzle away.

ElvenSoul
03-05-2012, 7:35 AM
This made my day! I hope we can build on this to get CCW's Issued?

Paladin
03-05-2012, 7:47 AM
Great news. Puts a big smile on my face on a Monday morning. :D

We won woolard? YES!! I expect briefs to be filed in every 2A case now citing this decision. This is the first REAL win for right to carry.Has anyone been keeping score of our loses (vs this one win)? If so, please post the number.

Southwest Chuck
03-05-2012, 7:49 AM
The findings on scrutiny (intermediate) and 14th amendment are somewhat troubling. I wonder if this ruling will be presented as additional information on any of the pending CA suits? (may not be relevant coming from a state court....)

Patrick (Patrick2 here) Says this over at MD Shooters....... (post 4394)
http://www.mdshooters.com/showthread.php?t=40649&page=220

Strict Scrutiny, For The Win!


Strict Scrutiny was applied:

Quote:
The Fourth Circuit is in accord. In Chester, the appellate court confronted the assertion of a Second Amendment right against indictment for the crime of firearms possession by domestic violence misdemeanants. “[W]econclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons,” because “his claim is not within the core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense.” Chester, 628 F.3d at __, 2010 U.S. App. LEXIS 26508 at *26 (emphasis in original). The individual plaintiffs in this action are law-abiding, responsible citizens. Accordingly, the State cannot classify them with respect to the exercise of their Second Amendment right to carry a handgun for self-defense in a manner that fails strict scrutiny.



“The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.” Niemotko v. Maryland, 340 U.S. 268, 272 (1951). Likewise, with the exercise of fundamental Second Amendment freedoms. Defendants’ whims and personal opinions as to who should enjoy Second Amendment rights impermissibly classifies individuals in the exercise of these rights in a completely arbitrary, standardless fashion.




The practice thus fails all aspects of strict scrutiny analysis. There is no compelling state interest in depriving people of the means of self-defense. The state may have an interest in reducing gun violence and accidents, but it cannot presume that the exercise of a constitutional right will cause the sort of harm it is allowed to curtail. Defendants cannot point to the impact of their practice – the deprivation of constitutional rights – as their interest. Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 120 (1991).


You all are reading too fast. Understandable.

Intermediate applies to those who are not law-abiding, per Chester. Because Ray is a law-abiding gentleman, his claims are elevated to strict scrutiny.
Patrick is offline Report Post Reply With Quote
...:D:mnl::hurray::party:

:gura:

:King:

safewaysecurity
03-05-2012, 7:52 AM
Just read the decision. Though this is our first real victory for right to carry I have to say I don't like much of the decision. I understand he's kind of had his hands tied due to Masciandaro but he went over and beyond to mention things like banning carry in places where violence is most acute... Isn't that where you would need your gun the most? /facepalm.

JDoe
03-05-2012, 7:56 AM
This made my day! I hope we can build on this to get CCW's LTC's Issued?

Fixed it for us. ;)

Goosebrown
03-05-2012, 8:24 AM
Nice. Good ruling, not as broad as one may hope, but explicit and poignant if it were to apply to California.

mdimeo
03-05-2012, 8:26 AM
Patrick (Patrick2 here) Says this over at MD Shooters....... (post 4394)
http://www.mdshooters.com/showthread.php?t=40649&page=220



... Patrick is quoting from gura's brief, I think, not the recent decision. The decision clearly used intermediate scrutiny.

morrcarr67
03-05-2012, 8:29 AM
:party::party:

And, that's all I have to say about that!

Crom
03-05-2012, 8:40 AM
I am very pleased to see this. It is a wonderful ruling.

:party:

Wollard was won squarely on the 2A merits.

Two fundamental questions were presented to the court:

This case requires the Court to answer two fundamental questions. The first asks whether the Second Amendment‘s protections extend beyond the home, ―where the need for defense of self, family, and property is most acute.‖ Heller, 554 U.S. at 628. This question was left unanswered in Heller, and has not been authoritatively addressed in the Fourth Circuit‘s post-Heller decisions. Second, if the right to bear arms does extend beyond the home, the Court must decide whether Maryland‘s requirement that a permit applicant demonstrate ―good and substantial reason to wear or carry a handgun passes constitutional muster.The first question's answer is yes they do. And the later questions was no it does not.

My only quibble with the ruling is that I think carry is part of the core 2A right and not ancillary. But I think only a higher court can make that determination once the historical and scholarly literature are presented and the court is fully briefed.

Something else I like is that Judge Niemeyer from the Masciandaro panel was quoted quite a bit in this Wollard decision. He was the judge who wanted to explore the 2A question in that case but was shut down by the other two judges on the panel. It would seem that Niemeyer's words due him great credit.

speedrrracer
03-05-2012, 8:44 AM
I am much happier for having read that decision

Happy Monday!

safewaysecurity
03-05-2012, 8:46 AM
Hopefully the supreme court recognizes the right outside the home as fundamental and at least strict scrutiny applies.

Big Ben
03-05-2012, 8:51 AM
... Patrick is quoting from gura's brief, I think, not the recent decision. The decision clearly used intermediate scrutiny.

Agreed. I'm not thrilled with the application of intermediate scrutiny, but I must say I'm surprised that we got a "win" at the district level.


ii. Intermediate Scrutiny
As stated, Maryland‘s permitting scheme, insofar as it requires a "good and substantial reason" for a law-abiding citizen to carry a firearm outside his home, is subject to intermediate scrutiny.

EDIT: However, I'm also pleased to see that the Court doesn't believe that "good and substantial reason" meets even intermediate scrutiny.

bulgron
03-05-2012, 8:51 AM
Note to self: send more money to SAF. They're kicking butt.

ojisan
03-05-2012, 8:53 AM
Woo Hoo!

safewaysecurity
03-05-2012, 8:59 AM
I also thought the denial of prior restraint argument was really weak. One of his arguments was literally that when the prior restraint doctrine was conceived that they never knew that it would apply to 2nd Amendment cases... that's such childish and ridiculous reasoning. Also if he was citing Chester why did he not apply Strict Scrutiny as this would only apply to law abiding citizens given that the CCW laws already prevent the non law-abiding from acquiring CCWs? But the longer I think about it, it could be better that this case was decided in our favor on intermediate scrutiny levels. Because the other courts have been using intermediate scrutiny and denying our rights while this one used IS and we won. So this could provide the frame work for lower court decisions and we can hopefully get Strict Scrutiny clarified at the Supreme Court level.

hoffmang
03-05-2012, 9:05 AM
This will be cited in every carry case currently pending in the US. What this portends is a likely circuit split, or worst case, a 4th Circuit reversal which would ripen Wollard for a direct appeal to SCOTUS. However, I think this will bolster Peterson v. Denver Sheriff as well as Denver's requirements are similar and a second oral argument is next Monday.

I pretty much assume MD will appeal. We're looking very good for a cert grant next SCOTUS term. What's not clear is whether we will get it heard before the end of June 2013 or the end of June 2014 but both are clearly possible.

-Gene

Coded-Dude
03-05-2012, 9:11 AM
Score one for the good guys! Awesome Monday morning news.

Crom
03-05-2012, 9:12 AM
Hopefully the supreme court recognizes the right outside the home as fundamental and at least strict scrutiny applies.

Here is something to chew on... If SCOTUS states that carry is part of the core right then this decision in Wollard regarding scrutiny is irrelevant.

I also thought the denial of prior restraint argument was really weak. One of his arguments was literally that when the prior restraint doctrine was conceived that they never knew that it would apply to 2nd Amendment cases... that's such childish and ridiculous reasoning. Also if he was citing Chester why did he not apply Strict Scrutiny as this would only apply to law abiding citizens given that the CCW laws already prevent the non law-abiding from acquiring CCWs? But the longer I think about it, it could be better that this case was decided in our favor on intermediate scrutiny levels. Because the other courts have been using intermediate scrutiny and denying our rights while this one used IS and we won. So this could provide the frame work for lower court decisions and we can hopefully get Strict Scrutiny clarified at the Supreme Court level.

It's water under the bridge... We won on the merits of the 2A claim and that is the real news here.

Peaceful John
03-05-2012, 9:31 AM
Has anyone been keeping score of our loses (vs this one win)? If so, please post the number.

The conflict consists of two battles. The first battle has been won. I know of no active cases contesting "in the home" or "individual right". We've taken that hill. Even the anti's accept their loss.

The second battle is "carry", and here it depends whether you are counting bottles or gallonage. If we use as our base the number of "on appeal" cases vs our "wons", the anti's are at the moment ahead. They have more bottles.

But if we base our position on the number of gallons won, we have Heller and McDonald, which are tanker trucks and are far more important than their bottles. Our tankers make possible litigation on "carry". Couldn't have "carry" unless we'd first earned "individual right". Imagine how paradigm-shifting the right to carry is to generations educated in public schools where even the sketching of a gun by a second grader is cause for suspension!

Heller. McDonald. Possible Hightower. Our tankers won't even notice the little plastic bottles crush beneath them.

Kharn
03-05-2012, 9:45 AM
Gene,
Don't forget, MD's current D governor is term-limited from office in 2.5 years, the current AG (an elected position in MD), also a D, is the favorite for the primary (and baring a R backlash/get-out-the-vote drive, he's the favorite for the general as well). MD's union members may ignore their unions' endorsements if the NRA tells everyone he appealed this ruling to deny their carry rights.

SanPedroShooter
03-05-2012, 9:47 AM
Offcial SAF press release.
http://saf.org/viewpr-new.asp?id=395

Gura strikes again.

:gura:

Sutcliffe
03-05-2012, 9:55 AM
I just wish justice operated a little faster.

guntrust
03-05-2012, 10:05 AM
Sheriff Hutchens, take note!

Uxi
03-05-2012, 10:06 AM
Beautiful. Definitely moving too slowly for my tastes. Acknowledge my natural right to self defense outside of my home, as well as in it, and either LOC or LTC in LA County (and preferably take the bullet buttons off).

Skullster
03-05-2012, 10:06 AM
Nice Monday news :)

smogcity
03-05-2012, 10:15 AM
Any possible short term impact on LA County policy?

Sgt Raven
03-05-2012, 10:25 AM
Any possible short term impact on LA County policy?

Nada, none, not one bit. :rolleyes:

Uxi
03-05-2012, 10:31 AM
Don't hold your breath anyway

warkaj
03-05-2012, 10:35 AM
My sentiments exactly.... if you think for one second the People's Democratic Republic of California cares about what happens in America you're crazy. The Supreme Court could come out and say that all state gun laws that restrict the free and open/concealed carry of firearms by a lawful citizen is unconstitutional... California would just ban having ammo on your person. The thing about libtards is they always find a way around laws and backdoor them so the right that USED TO exist... dies.

Main reason why I am on board with the moving to Ohio thread I saw on here earlier... that post brought joy to me, seeing a Californian leave the nest and enter the real world.

Gray Peterson
03-05-2012, 10:38 AM
Just a clarification:

As of now, there is no stay on the decision done by the judge or by the circuit court of appeals. As of now, Maryland is a shall-issue state.

1BigPea
03-05-2012, 10:44 AM
Just a clarification:

As of now, there is no stay on the decision done by the judge or by the circuit court of appeals. And now, California is a shall-issue state.

This is awesome! Would be even better when it reads ^

warkaj
03-05-2012, 10:46 AM
California used to be it's own Republic, it's own country... sure feels like it's one again. lol

I pray someday in the future CA becomes "shall issue" and the States all embrace the 2nd Amendment... I'm just not willing to place a $1.25 bet on it because I can at least buy a soda with that... betting on the other is just throwing away the money.

Jason P
03-05-2012, 10:51 AM
I'm excited, we're so going to kick their @sse$ soon. Lee Baca is going to be hating it when he has to legally acknowledge the rights of us lesser folks:)

Zimz
03-05-2012, 10:53 AM
This is the part of the ruling that would apply perfectly with our "good cause" BS.

A licensing or permitting scheme is unconstitutional when characterized by ―unbridled discretion‖ of a government official or agency, which exists ―when a licensing scheme does not impose adequate standards to guide the licensor‘s discretion.‖ Chesapeake B & M, Inc. v. Harford Cnty., 58 F.3d 1005, 1009 (4th Cir. 1995) (en banc). Standards governing prior restraints must be ―narrow, objective and definite.‖ Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969). If the scheme ―involves appraisal of facts, the exercise of judgment, and the formation of an opinion,‖ the danger of censorship is considered too great. Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 131 (1992) (quoting Cantwell v. Connecticut, 310 U.S. 296, 305 (1940)).

Paladin
03-05-2012, 10:57 AM
We're looking very good for a cert grant next SCOTUS term. What's not clear is whether we will get it heard before the end of June 2013 or the end of June 2014 but both are clearly possible.

-Gene
:mad:

Whenever I hear that things will take longer than we thought, I think of all the women who will be raped and law-abiding citizens who will be maimed, put in comas/PVS, or murdered all because of our urban CA sheriffs making the populous counties "victim disarmament zones."

Left Coast Conservative
03-05-2012, 11:00 AM
I'm excited, we're so going to kick their @sse$ soon. Lee Baca is going to be hating it when he has to legally acknowledge the rights of us lesser folks:)

I suppose that depends on your definition of "soon".

I think it will take civil lawsuits filed in California challenging California laws after a favorable Supreme Court decision on carry rights to even begin moving the establishment in the "shall-issue" direction. We're going to need a BIG lever to shift the establishment.

Connor P Price
03-05-2012, 11:03 AM
I suppose that depends on your definition of "soon".

I think it will take civil lawsuits filed in California challenging California laws after a favorable Supreme Court decision on carry rights to even begin moving the establishment in the "shall-issue" direction. We're going to need a BIG lever to shift the establishment.

The case has already been filed. Richards v. Harris is the civil case we need.

http://wiki.calgunsfoundation.org/Richards_v._Harris

Paladin
03-05-2012, 11:05 AM
The conflict consists of two battles. The first battle has been won. I know of no active cases contesting "in the home" or "individual right". We've taken that hill. Even the anti's accept their loss.

The second battle is "carry", and here it depends whether you are counting bottles or gallonage. If we use as our base the number of "on appeal" cases vs our "wons", the anti's are at the moment ahead. They have more bottles.

But if we base our position on the number of gallons won, we have Heller and McDonald, which are tanker trucks and are far more important than their bottles. Our tankers make possible litigation on "carry". Couldn't have "carry" unless we'd first earned "individual right". Imagine how paradigm-shifting the right to carry is to generations educated in public schools where even the sketching of a gun by a second grader is cause for suspension!

Heller. McDonald. Possible Hightower. Our tankers won't even notice the little plastic bottles crush beneath them.Heller and McDonald preceded both our carry wins (1) and losses (several).

If Obama (or another anti) gets to replace one of the "Heller 5" with another anti justice, we will probably NOT get a RKBA outside of the home, at least not one protected by strict scrutiny.

Obama has a HUGE war chest for this election. Gene now says SCOTUS may not make a decision until before 2014 July. Things are not looking as good as they were a year ago.... JMHO

Zimz
03-05-2012, 11:10 AM
Wow page 19 and 20 Is the best court opinion Ive read to date. Specifically this:
At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method. The showing, however, is always the Government‘s to make. A citizen may not be required to offer a ―good and substantial reason‖ why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

Wow....

dfletcher
03-05-2012, 11:16 AM
The decision is an interesting read and not being a lawyer actually a good read - not too challenging. I did find this:

"The Court wishes to emphasize the limits of this decision. While it finds Maryland‘s requirement that a permit applicant demonstrate ―good and substantial reason‖ to be unconstitutional, the Court does not address any of the State‘s other regulations relating to the possession and use of firearms, many of which would qualify as presumptively lawful. Nor does the Court speculate as to whether a law that required a ―good and substantial reason‖ only of law-abiding citizens who wish to carry a concealed handgun would be constitutional."

How is this to be interpreted?

Librarian
03-05-2012, 11:19 AM
This is the part of the ruling that would apply perfectly with our "good cause" BS.
Ah, no - that was part of the argument that the court rejected.The Court declines Woollard’s request to apply a prior restraint analysis to laws
challenged on Second Amendment grounds.
...
Even if a prior restraint inquiry were appropriate, the Court rejects Woollard’s assertion that Maryland’s permitting scheme vests officials with unbridled discretion as regards its application.

Mstrty
03-05-2012, 11:21 AM
A citizen may not be required to offer a ―good and substantial reason‖ why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

Music to my ears

Librarian
03-05-2012, 11:23 AM
The decision is an interesting read and not being a lawyer actually a good read - not too challenging. I did find this:

"The Court wishes to emphasize the limits of this decision. While it finds Maryland‘s requirement that a permit applicant demonstrate ―good and substantial reason‖ to be unconstitutional, the Court does not address any of the State‘s other regulations relating to the possession and use of firearms, many of which would qualify as presumptively lawful. Nor does the Court speculate as to whether a law that required a ―good and substantial reason‖ only of law-abiding citizens who wish to carry a concealed handgun would be constitutional."

How is this to be interpreted?

It means no such question was presented, and the judge is precluding speculation on whether this ruling applies to that condition: concealed carry vs open carry.

IOW, if Maryland wants to try that route, this opinion cannot be used to support it or oppose it - it will wind up in a proper court for resolution, should someone bring a challenge.

hoffmang
03-05-2012, 11:42 AM
It means no such question was presented, and the judge is precluding speculation on whether this ruling applies to that condition: concealed carry vs open carry.

IOW, if Maryland wants to try that route, this opinion cannot be used to support it or oppose it - it will wind up in a proper court for resolution, should someone bring a challenge.

Let me add a little for more clarity. The Court in Woolard is saying that if open carry (loaded) was allowed with a non discretionary permit or just allowed while a "good and substantial reason" was required of a concealed carry permit - that may be a lawful limitation. Don't worry much about this as I seriously doubt the land of Baltimore wants to see people LOC....

-Gene

Rossi357
03-05-2012, 11:45 AM
http://www.washingtonpost.com/local/apnewsbreak-federal-judge-finds-md-handgun-permit-law-infringes-2nd-amendment-rights/2012/03/05/gIQAY5UosR_story.html

The Second Amendment Foundation, which brought the suit on Woollard’s behalf, calls the ruling a major victory. The Brady Center to Prevent Gun Violence says it goes out of the norm and likely be reversed.

Crom
03-05-2012, 11:45 AM
The decision is an interesting read and not being a lawyer actually a good read - not too challenging. I did find this:

"The Court wishes to emphasize the limits of this decision. While it finds Maryland‘s requirement that a permit applicant demonstrate ―good and substantial reason‖ to be unconstitutional, the Court does not address any of the State‘s other regulations relating to the possession and use of firearms, many of which would qualify as presumptively lawful. Nor does the Court speculate as to whether a law that required a ―good and substantial reason‖ only of law-abiding citizens who wish to carry a concealed handgun would be constitutional."

How is this to be interpreted?

I will hazard a guess. According to the ruling "The state of Maryland prohibits the carrying of a handgun outside the home, openly or concealed, without a permit. See MD. CODE ANN., CRIM. LAW § 4-203; MD. CODE ANN., PUB. SAFETY § 5-303.3."

That law was found to be unconstitutional.

In my opinion, because there are no forms of carry available without a permit to law abiding citizens, the Judge ruled in our favor. If Maryland had a system of shall-issue, or no permit required for open carry to law-abiding citizens, it could presumably make lawful a restricted concealed permit system that would pass constitutional muster.

The court in the Wollard ruling was simply stating that it wasn't going speculate, and nor should it as that question was not before the court.

Jason P
03-05-2012, 11:46 AM
I suppose that depends on your definition of "soon".

I think it will take civil lawsuits filed in California challenging California laws after a favorable Supreme Court decision on carry rights to even begin moving the establishment in the "shall-issue" direction. We're going to need a BIG lever to shift the establishment.

I'm under 35, so my definition of soon and lots of other people's may be tremendously different. We could have SI by the time I'm 35, almost certainly by the time I'm 37. So, I hear ya'...

Jason P
03-05-2012, 11:47 AM
Let me add a little for more clarity. The Court in Woolard is saying that if open carry (loaded) was allowed with a non discretionary permit or just allowed while a "good and substantial reason" was required of a concealed carry permit - that may be a lawful limitation. Don't worry much about this as I seriously doubt the land of Baltimore wants to see people LOC....

-Gene

But seriously, how awesome would that be. I'm all for the days of LOC for all:)

fiddletown
03-05-2012, 11:51 AM
An excellent way to start the week.

Librarian
03-05-2012, 12:38 PM
Eugene Volokh (http://volokh.com/2012/03/05/federal-district-court-recognizes-right-to-carry-gun-outside-the-home-holds-unconstitutional-marylands-restrictive-carry-licensing-scheme/) and Dave Kopel (http://volokh.com/2012/03/05/right-to-carry-victory-in-maryland-woollard-v-sheridan/) discuss the case at Volokh Conspiracy.

Coded-Dude
03-05-2012, 12:41 PM
Eugene Volokh (http://volokh.com/2012/03/05/federal-district-court-recognizes-right-to-carry-gun-outside-the-home-holds-unconstitutional-marylands-restrictive-carry-licensing-scheme/) and Dave Kopel (http://volokh.com/2012/03/05/right-to-carry-victory-in-maryland-woollard-v-sheridan/) discuss the case at Volokh Conspiracy.


Thank you, I always find that blog interesting.

warkaj
03-05-2012, 12:41 PM
Honestly, does any of this matter? The real point of interest here is DOES OBAMA GET RE-ELECTED? If Obama is re-elected, forget it... he gets another 4 years he WILL nominate at minimum, 1 more SCOTUS Justice... GUARANTEED. 2 more perhaps in all actuality giving him 4 seats out of 9... 4 anti-gun, constitution hating SCOTUS Justices... all they need is 1 more and they have 5-4 decisions across the board essentially overruling the 2nd Amendment. You think it's a win but in reality we're not paying attention to the 800 lb gorilla in the room... November 2012.

Kennedy will be 77 next February
Breyer will be 75 next year
Ginsburg... she's about dead from age....

Hell that's 3 justices he can replace if they resign or die giving him a total of 5 Justices placed in the SCOTUS... and that my friends would be the nail in the coffin for the 2nd amendment.

BigDogatPlay
03-05-2012, 12:47 PM
Ginsburg and Breyer were both in the minority on Heller and McDonald. Replacing them means nothing.

The majority on those cases are what you need to be concerned with, relative to a presidential election.

On topic... this looks like a very big win for Mr. Gura. One would have to believe that the Maryland Attorney General is more interested in his state's narrow interests than he is playing chess over gun rights, and that is exactly to be expected. He'll appeal to the 4th Circuit, Mr. Gura will have the opportunity to lay the smack down once again. As Gene postulates, I think the worst case scenario is a circuit split and a fast track to SCOTUS.

There is a lot to like in the more strategic view.

Drivedabizness
03-05-2012, 12:54 PM
One of the points in the MD ruling was that the discretion was not unlimited. Those initially denied had a right to appeal and those appeals were subject to judicial review. Here the discretion runs from shall issue to "no, I don't think I feel like accepting any applications, thank you". Assuming this is not reversed on appeal it may help in some of the pending efforts in CA.

Connor P Price
03-05-2012, 12:54 PM
Ginsburg and Breyer were both in the minority on Heller and McDonald. Replacing them means nothing.

The majority on those cases are what you need to be concerned with, relative to a presidential election.


Exactly. The possibility of Kennedy being replaced during 4 more years of Obama is still scary though.

Uxi
03-05-2012, 12:56 PM
If Barry loses, Ginsburg stays till she dies. If he wins, she's the first to retire and get replaced, almost certainly with an ideological clone.

The biggest danger is a stroke or cosmic ray or accident to one of the Heller-5, most acutely Kennedy but any of them.

CCWFacts
03-05-2012, 1:08 PM
Just a clarification:

As of now, there is no stay on the decision done by the judge or by the circuit court of appeals. As of now, Maryland is a shall-issue state.

That is AWESOME! I hope there is a flood of applications right now. Once people have something they tend to try to protect it more aggressively than they fight for something they don't have. It's called loss aversion (http://en.wikipedia.org/wiki/Loss_aversion) and it's why it will be very hard for MD to go backwards even if some appeals court decides to stay or reverse it.

This also puts more pressure on DC. DC is going through a big political (demographic) change right now, so there is hope there too. Given that DC is sandwiched between VA and MD, I bet there will be a lot of FOPA test cases (mostly inadvertent) now.

resident-shooter
03-05-2012, 1:20 PM
Try defeating the word filter again and you're looking at a ban.

--CHS

J.S.Riesch
03-05-2012, 1:28 PM
Aww... the good news.

yakmon
03-05-2012, 1:36 PM
i just registered at mdshooters and congratulated them. how is :gura: not an alcoholic with all these wins?

yakmon
03-05-2012, 1:40 PM
i've seen some buzz about strict vs intermediate scrutiny in this decision. as i read it, the part about strict was in the part of the decision that wasn't decided in favor of the plaintiff, and the case was decided on intermediate scrutiny. is my reading correct? librarian, hoffmang?

Gray Peterson
03-05-2012, 1:41 PM
i've seen some buzz about strict vs intermediate scrutiny in this decision. as i read it, the part about strict was in the part of the decision that wasn't decided in favor of the plaintiff, and the case was decided on intermediate scrutiny. is my reading correct? librarian, hoffmang?

The less burdensome the regulation, the more scrutiny needed to declare the regulation unconstitutional.

hoffmang
03-05-2012, 1:43 PM
I will be buying Alan Gura drinks tonight. It just so happened we had dinner plans!

-Gene

yakmon
03-05-2012, 1:51 PM
The less burdensome the regulation, the more scrutiny needed to declare the regulation unconstitutional.

thanks for the reply, grey, but i don't understand this, can you explain further?

yakmon
03-05-2012, 1:52 PM
I will be buying Alan Gura drinks tonight. It just so happened we had dinner plans!

-Gene

i wish i could donate directly to the gura drink fund! but, then again, the taxpayers of Maryland got this tab, yea?

goldrush
03-05-2012, 1:53 PM
Since this was a district, rather than appeals court, ruling is it harder for us to import it into california?

Paging hoffmang to the podium...

It will be impossible to import this to California, since you have contrary appellate authority in your own circuit. Plus, District Courts are only weak primary authority.

This was not really a great win. Read the opinion, and see what, really, we won. Sadly, our wins are having an ever narrowing scope of success. This "favorable" ruling contains much adverse language.

Problems:

1. The Appellate Court in the 4th may reverse, though this is unlikely, since the holding is so weak.

2. If upheld by the S.C., at best, this may have swatted down some "shall issue," so look for states to sharpen their issue language or dump permits, altogether, and allow carry only to narrow statutory classes.

3. If the case never makes it to the S.C., look for other states to ignore it. Additionally, other states are unlikely to have 1:1 language with Maryland, so look for potentially affected states to claim their language is different, thus falling outside the holding.

4. The case is utterly silent on non-permit carry, even suggesting that permits are well and good for states to require. If this case becomes binding on MD, their absolute right to RKBA has not been recognized. Their right is subject to the state legislature first enacting a permit scheme.

5. Per the court, the MD legislature may merely alter its criteria slightly, leaving intact "shall-issue" and forcing another, likely unsuccessful, lawsuit.

6. The Court violently refused to place the First and Second Amendments on the same footing, citing no authority, merely cheapening the 2A by force.

7. "Intermediate scrutiny" is barely protection against overreach and encroachment.

8. We now have a disastrous doctrine of "core" and "non-core" Second Amendment exercise.

In Heller and McDonald, Gura fought a city. Fighting states will be far tougher, and the Federal courts are going to be extremely unwilling to trod underfoot state sovereignty.

We don't need more "favorable" rulings like this.

From Woollard v. Sheridan:

"[T]his Court is mindful of Judge Wilkinson‘s admonition that one should venture into the unmapped reaches of Second Amendment jurisprudence only upon necessity and only then by small degree."

"States have considerable latitude to channel the exercise of the right [to keep and bear arms] in ways that will minimize th[e] risk [of misuse]."

"If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method."

"Heller‘s definition of one of the Amendment‘s central terms, bear, further suggests that the right, though it may be subject to limitations, does not stop at one‘s front door."

"Finally, the Court does not speak to Maryland‘s ability to declare that a specific applicant is unfit for a permit because of some particular aspect of the applicant‘s character or history."

"[T]here are two ways of conceptualizing presumptively lawful restrictions. First, these restrictions may be so ingrained in our understanding of the Second Amendment that there is little doubt that they withstand the applicable level of heightened scrutiny. Alternatively, the right itself can be seen as failing to extend into areas where, historically, limitations were commonplace and well accepted."

"Woollard argues that, because the right to keep and bear arms is ―fundamental within the meaning of Fourteenth Amendment jurisprudence, the challenged law must be given the most exacting scrutiny. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Of course, to accept this theory would be to erase, in one broad stroke, the careful and sensible distinctions that the Fourth Circuit and other courts have drawn between core and non-core Second Amendment protections and to ignore the principle that differing levels of scrutiny are appropriate to each. The Court declines such an approach."

"Those courts that painstakingly developed and expounded the prior restraint analysis on which Woollard relies today surely did not have Second Amendment challenges in mind when they did so." - Because courts don't think all rights are equal.

"This Court shares that view. The Supreme Court‘s choice of phrasing connotes that the restrictions it termed presumptively lawful pass muster under a heightened standard of review." - How dictum becomes law. Thanks, Scalia.

Rossi357
03-05-2012, 2:07 PM
Does anyone seriously think SCOTUS will rule that.....The 2nd amendment....Malitia, hunting and self defense..... exists only in the home.
This may not be binding in Calif, but it will certainly be mentioned.
Just sayin.....

Sgt Raven
03-05-2012, 2:08 PM
thanks for the reply, grey, but i don't understand this, can you explain further?

Well for LTCs you have going up in level of scrutiny.

Shall issue. lowest
May issue- self defense/not prohibited.
May issue- discretionary.
No issue. highest

The harder they make it to comply with the law, the higher the level of scrutiny.

CCWFacts
03-05-2012, 2:12 PM
What's not clear is whether we will get it heard before the end of June 2013 or the end of June 2014 but both are clearly possible.

That's really worrisome. As Paladin points out, how many more rapes and robberies will there be in CA before our sheriffs are forced to comply with the constitution? I assume that even after SCOTUS makes a clear ruling on "bear", it will stay take months or years of followup litigation to force our sheriffs to comply. They will fight forever, and will not back down until a Federal court takes some extreme actions, like holding them in contempt, appointing a special master to issue LTCs, that kind of thing. From my understanding, it seems like it might not be until 2015 or 2016 before SF and LA residents can get LTCs.

And even worse, lots of unfortunate things could happen two some of our Five within the next 2 to 3 years.

Let's hope that Obama is a one-termer, otherwise we're heading for a lot of risks.

Paladin
03-05-2012, 2:13 PM
From Woollard v. Sheridan:

...

"States have considerable latitude to channel the exercise of the right [to keep and bear arms] in ways that will minimize th[e] risk [of misuse]."

"If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method."

...

"[T]here are two ways of conceptualizing presumptively lawful restrictions. First, these restrictions may be so ingrained in our understanding of the Second Amendment that there is little doubt that they withstand the applicable level of heightened scrutiny. Alternatively, the right itself can be seen as failing to extend into areas where, historically, limitations were commonplace and well accepted."

"Woollard argues that, because the right to keep and bear arms is ―fundamental within the meaning of Fourteenth Amendment jurisprudence, the challenged law must be given the most exacting scrutiny. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Of course, to accept this theory would be to erase, in one broad stroke, the careful and sensible distinctions that the Fourth Circuit and other courts have drawn between core and non-core Second Amendment protections and to ignore the principle that differing levels of scrutiny are appropriate to each. The Court declines such an approach."Funny, but my copy of the Bill of Rights does not have anything like this in the 2nd A. Instead it has something about how our RKBA "Shall Not Be Infringed." :rolleyes:

Purple K
03-05-2012, 2:17 PM
The Notices of Supplemental Authority will be flying of the printer

hoffmang
03-05-2012, 2:21 PM
It will be impossible to import this to California, since you have contrary appellate authority in your own circuit. Plus, District Courts are only weak primary authority.

Heh. I believe I can find posts of yours exclaiming how no District Court would rule positively on carry.

Not everyone is familiar with how the Federal and State Courts and Appellate Districts work together so it's probably wise for me to spend a moment on it.

In Federal District courts there have been about 6 rulings (2 of which were on California.) They have found various reasons to duck the right to bear arms. The goal of this nationwide litigation strategy is to get circuit splits (and/or splits with modern state supreme courts) to significantly increase the likelihood that SCOTUS takes a case and rules affirmatively that the right to bear arms is real and that, at least, may issue violates it.

This is the map of the Federal Appellate Courts:

http://upload.wikimedia.org/wikipedia/commons/thumb/d/df/US_Court_of_Appeals_and_District_Court_map.svg/620px-US_Court_of_Appeals_and_District_Court_map.svg.png

Hence we've got cases in CA-9 (Richards and Peruta), CA-10 (Peterson v. Denver Sheriff), CA-4 (This win in Woolard), CA-7 (Moore), CA-1 (Hightower), CA-2 and CA-3, and CA-DC. I'll leave folks to the litigation web page to figure out the rest as I'm running out of time before I land to list them all. CA = Court of Appeals.

We just won in District at MD. That means every other carry judge and 3 judge panel will have to contend with that. We also have very high hopes for Peterson v. Denver Sheriff. As such, we're building a potential split between Circuit courts. Such splits are almost automatic grants of cert from SCOTUS. Also, now all the judges that could rule against us have to say "but see Woolard." Those who agree with the right to bear arms can now cite Woolard with approval. This is winning.

Recall that McDonald went up after it was a split with Nordyke in CA-9 that incorporated the 2A against the states.

-Gene

goldrush
03-05-2012, 2:22 PM
Funny, but my copy of the Bill of Rights does not have anything like this in the 2nd A. Instead it has something about how our RKBA "Shall Not Be Infringed." :rolleyes:

Same here. I can't find the word "scrutiny" anywhere in my copy.

I had been waiting for this ruling, and I'm not pleased. This ruling is a shot right in our midships, and we're taking on water. Much of the strategy of those drafting lawsuits is sunk if the 1A and 2A do not stand on the same footing.

yakmon
03-05-2012, 2:23 PM
Well for LTCs you have going up in level of scrutiny.

Shall issue. lowest
May issue- self defense/not prohibited.
May issue- discretionary.
No issue. highest

The harder they make it to comply with the law, the higher the level of scrutiny.

outstanding, thanks raven.

my other bit of not understanding, is that this is in MD state appeals court, and not 4th circuit court of appeals in US. let me check the opinion again, comment at your will.

SanPedroShooter
03-05-2012, 2:25 PM
I am inclined to take Gene, Gura and SAF at their word....

goldrush
03-05-2012, 2:26 PM
Heh. I believe I can find posts of yours exclaiming how no District Court would rule positively on carry.


Post a quote, and we'll discuss it, though hopefully in an on-topic thread.

This ruling came far from granting carry. Read my analysis, not just the first line.

hoffmang
03-05-2012, 2:28 PM
outstanding, thanks raven.

my other bit of not understanding, is that this is in MD state appeals court, and not 4th circuit court of appeals in US. let me check the opinion again, comment at your will.

No. This is in Federal District Court. There are two parallel court systems that have little to do with each other - State v. Federal.

Should Maryland appeal this, it would go to the Fourth Circuit Court of Appeals and next be heard by a three judge panel there. I expect Maryland to appeal.

There will be no state court involvement in the Woolard case.

-Gene

hoffmang
03-05-2012, 2:29 PM
This ruling came far from granting carry. Read my analysis, not just the first line.
Except the whole part where residents of Maryland are able to apply for and receive a license to carry in Maryland as of today.

Rumors are that the licensing authority hang up on you when you mention the case... :43:

-Gene

krucam
03-05-2012, 2:54 PM
No. This is in Federal District Court. There are two parallel court systems that have little to do with each other - State v. Federal.

Should Maryland appeal this, it would go to the Fourth Circuit Court of Appeals and next be heard by a three judge panel there. I expect Maryland to appeal.

There will be no state court involvement in the Woolard case.

-Gene

Gene,

There's no "should MD appeal", at least in front of a microphone.
http://www.wtop.com/?nid=46&sid=2773265

The lawsuit names the state police superintendent and members of the Handgun Permit Review Board.

"We disagree with this ruling," Assistant Attorney General Matthew Fader said in a statement. "In light of the very important implications of the ruling for public safety, the defendants will be appealing to the 4th Circuit Court of Appeals. The defendants will also be seeking a stay of the ruling pending appeal."

PLEASE buy one for Alan on behalf of MD gun owners. Donations are flying to SAF and MD Shall Issue. Hell, get one for yourself....we'll buy when we meet in DC, sometime around next Spring...

oldsmoboat
03-05-2012, 2:56 PM
...
Main reason why I am on board with the moving to Ohio thread I saw on here earlier... that post brought joy to me, seeing a Californian leave the nest and enter the real world.
Link to thread?
TIA

nicki
03-05-2012, 2:59 PM
How long does Maryland have to file an appeal. It is possible though unlikely not appeal.

Nick I.

Knuckle Dragger
03-05-2012, 3:01 PM
Count me as one who did not expect a district court to rule in our favor on any RTC case. I fully admit that my expectations were low as I fully expected that Mr. Gura would lose at the district level in all of these cases. So, this decision is a delightful and unexpected surprise that give us an unexpected shot in the arm as we kick off appellate rounds for cases like Peterson and Hightower.

Kharn
03-05-2012, 3:04 PM
nicki:
A notice of appeal must be filed within 30 day, the AG's office has announced to local media that the AG will be seeking review by the 4th Circuit.

Gray Peterson
03-05-2012, 3:09 PM
It is highly unlikely a stay will be granted in this case. A stay is not a matter of right for the government. The Perry case has been used as an example (please don't drag this into a gay rights fight, folks). However, there are numerous differences between marriage licenses and carry licenses. Carry licenses only allow someone to carry a firearm, whereas a marriage license has numerous tax consequences along with other numerous rights involved here. The state can point out numerous consequences to it's governmental operations if marriages were to be allowed and then revoked by a higher court ruling. The plaintiffs also face having to amend state tax returns along with other things they had relied on detrimentally.

They cannot point the same thing out in Woollard.

Kharn
03-05-2012, 3:15 PM
Plus, they can easily revoke all of the permits granted after today if they should win on appeal. Now, imagine how many pissed off taxpayers there would be if they issued permits this month, then cancelled those permits after a 4th Circuit loss, only for everyone to reapply (and pay another $112) after a SCOTUS win.

Databyter
03-05-2012, 3:17 PM
http://t.co/gl6eHmBq

GOOD READING.....





UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Woohoo!

It makes me happy.

chiselchst
03-05-2012, 3:27 PM
Wow, that's what I'm talking about!

Day by day, one rock at a time, the "anti's" wall WILL be taken down. It's simply a matter of time...

:party:

bulgron
03-05-2012, 3:29 PM
It is highly unlikely a stay will be granted in this case. A stay is not a matter of right for the government. The Perry case has been used as an example (please don't drag this into a gay rights fight, folks). However, there are numerous differences between marriage licenses and carry licenses. Carry licenses only allow someone to carry a firearm, whereas a marriage license has numerous tax consequences along with other numerous rights involved here. The state can point out numerous consequences to it's governmental operations if marriages were to be allowed and then revoked by a higher court ruling. The plaintiffs also face having to amend state tax returns along with other things they had relied on detrimentally.

They cannot point the same thing out in Woollard.

B-b-but THINK OF THE CHILDREN!!!

On that basis alone, I expect a stay.

Gray Peterson
03-05-2012, 3:30 PM
B-b-but THINK OF THE CHILDREN!!!

On that basis alone, I expect a stay.

And stays are immediately review-able by both the Circuit Justice (In this case, it's Chief Justice Roberts) and by the full SCOTUS court.

CCWFacts
03-05-2012, 3:33 PM
And stays are immediately review-able by both the Circuit Justice (In this case, it's Chief Justice Roberts) and by the full SCOTUS court.

I didn't realize. In that case, a stay would be a major win for us, right?

Window_Seat
03-05-2012, 3:40 PM
Heh. I believe I can find posts of yours exclaiming how no District Court would rule positively on carry.

Not everyone is familiar with how the Federal and State Courts and Appellate Districts work together so it's probably wise for me to spend a moment on it.

In Federal District courts there have been about 6 rulings (2 of which were on California.) They have found various reasons to duck the right to bear arms. The goal of this nationwide litigation strategy is to get circuit splits (and/or splits with modern state supreme courts) to significantly increase the likelihood that SCOTUS takes a case and rules affirmatively that the right to bear arms is real and that, at least, may issue violates it.

This is the map of the Federal Appellate Courts:

http://upload.wikimedia.org/wikipedia/commons/thumb/d/df/US_Court_of_Appeals_and_District_Court_map.svg/620px-US_Court_of_Appeals_and_District_Court_map.svg.png

Hence we've got cases in CA-9 (Richards and Peruta), CA-10 (Peterson v. Denver Sheriff), CA-4 (This win in Woolard), CA-7 (Moore), CA-1 (Hightower), CA-2 and CA-3, and CA-DC. I'll leave folks to the litigation web page to figure out the rest as I'm running out of time before I land to list them all. CA = Court of Appeals.

We just won in District at MD. That means every other carry judge and 3 judge panel will have to contend with that. We also have very high hopes for Peterson v. Denver Sheriff. As such, we're building a potential split between Circuit courts. Such splits are almost automatic grants of cert from SCOTUS. Also, now all the judges that could rule against us have to say "but see Woolard." Those who agree with the right to bear arms can now cite Woolard with approval. This is winning.

Recall that McDonald went up after it was a split with Nordyke in CA-9 that incorporated the 2A against the states.

-Gene

And not to forget about the fact that Ezell (CA-7) makes the Second Amendment applicable to outside the home?

Erik.

bulgron
03-05-2012, 3:41 PM
I didn't realize. In that case, a stay would be a major win for us, right?

"Would lead to a major win...." is probably the better phrasing.

Gray Peterson
03-05-2012, 3:44 PM
I didn't realize. In that case, a stay would be a major win for us, right?

Not really. A stay means the circuit court along with the SCOTUS would have to determine the appropriateness of the stay in the context of the case. The issuance of stays have their own case law, and must be decided in the context of said case law.

PsychGuy274
03-05-2012, 3:44 PM
Translation: Anticipate the legislature to tailor the requirement to the State's interest in public safety and crime prevention.


I wouldn't be surprised if they did they same thing that happened with the GFSZ act. It was found unconstitutional because there was no effect on interstate commerce so they just copy-pasted the whole thing and pretty much put "P.S. This affects interstate commerce."

htjyang
03-05-2012, 3:47 PM
Naturally, I'm as delighted as everyone else by the court's decision, though I think hopes that the 4th Circuit will uphold the decision are probably misplaced. Obama placed an astonishing five judges on that court. That said, strictly speaking, there wasn't a circuit split for incorporation, either (as Nordyke went en banc at the time) and the Supreme Court took it anyway. Furthermore, I think it is possible that the 10th Circuit will render a favorable opinion. Obama has only placed one judge on that court.

I think goldrush is misguided in blaming Justice Scalia for mere dicta. Leaving aside the possibility that it was necessary to sustain a majority in that case, I read that dicta narrowly, meaning that courts already presume all laws are constitutional unless they conclude otherwise. Just because lower courts might abuse the dicta does not mean that the dicta was wrong.

As for his point about the constitutional basis of scrutiny, interestingly enough, the former Justice Stevens (Ah, how good it feels to add "former" in front of his title! :D) once made a similar point. I haven't thought through the full implications of abolishing the three-tier scrutiny system. My guess is that if it happens, the system becomes a simple binary rational basis (anything goes) v. strict scrutiny (do not pass Go, just pay Alan Gura) system. From a practical perspective, this can be made to work as I think intermediate scrutiny mostly covers some gender inequality cases. But from the perspective of the Supreme Court, I suspect that the three-tier system is about as entrenched as Slaughterhouse (The "wrong, but old, so still constitutionality valid" case) and is unlikely to change.

Gray Peterson
03-05-2012, 3:48 PM
I wouldn't be surprised if they did they same thing that happened with the GFSZ act. It was found unconstitutional because there was no effect on interstate commerce so they just copy-pasted the whole thing and pretty much put "P.S. This affects interstate commerce."

Our troops on the ground in Maryland are telling us that this will not happen.

Kharn
03-05-2012, 3:50 PM
MD's legislature only meets for 90 days each year, beginning in January. They have already passed the "no new bills" deadline for the year so the earliest post-Woollard revision would be 2013 unless they pass a bill that has been previously submitted and is languishing in a desk-drawer veto somewhere. The Chairman of the House Rules Committee (who would have to authorize any deviation from the deadline) campaigned on a pro-2A platform, so he can deny any new anti-gun bills that the Senate tries to force on the House.

vincewarde
03-05-2012, 3:56 PM
Translation: Anticipate the legislature to tailor the requirement to the State's interest in public safety and crime prevention.

Superficially, i read this as 'good and substantial reason' = 'good cause' = enumerated right of self protection (that does not fall under the governements interest in public safety). Now, if we can get this to apply to California's 'good cause' requirement...

Not likely to work with this judge. If he was going to by into that line, he would have heard evidence that the current law served a legit public safety purpose. My guess is the most they will get out of him is a ruling that a public safety requirement is served by requiring a permit with training etc.

Sgt Raven
03-05-2012, 4:02 PM
outstanding, thanks raven.

my other bit of not understanding, is that this is in MD state appeals court, and not 4th circuit court of appeals in US. let me check the opinion again, comment at your will.

I should have added INAL but as no one has disagreed I think I got it right. :eek: :oji:

goldrush
03-05-2012, 4:34 PM
Uh-oh, Maryland has no permit issuance deadline. Permits can hang in the system forever while this all gets sorted out.

5–306
(a) Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds...

Also, I'd be glad to hear it, but I have to wonder: Did Judge Legg just invalidate every "good cause" permit in the State of Maryland and in the entire U.S.?

CCWFacts
03-05-2012, 4:35 PM
Not really. A stay means the circuit court along with the SCOTUS would have to determine the appropriateness of the stay in the context of the case. The issuance of stays have their own case law, and must be decided in the context of said case law.

Ok, it shows what little I know. I learn a lot from these threads and from reading the various briefs. I know enough to know that I don't know much.

Kharn
03-05-2012, 5:09 PM
Uh-oh, Maryland has no permit issuance deadline. Permits can hang in the system forever while this all gets sorted out.

5–306
(a) Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds...

Also, I'd be glad to hear it, but I have to wonder: Did Judge Legg just invalidate every "good cause" permit in the State of Maryland and in the entire U.S.?"A reasonable time" can be sued over, the State Police would have a hard time explaining to a judge why they could deny people in (for example) 8 weeks, but once required to accept any GC they need 6+ months to process permits. They also can't claim lack of investigators, your permit interview is with a random trooper from your local barracks, he interviews your references, verifies your cash receipts, etc, and writes a report to send back to the handgun permit section who approve/deny your application.

Funtimes
03-05-2012, 5:29 PM
Uh-oh, Maryland has no permit issuance deadline. Permits can hang in the system forever while this all gets sorted out.

5–306
(a) Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds...

Also, I'd be glad to hear it, but I have to wonder: Did Judge Legg just invalidate every "good cause" permit in the State of Maryland and in the entire U.S.?

Should be the case for MD, but not US. No?

taperxz
03-05-2012, 5:30 PM
Uh-oh, Maryland has no permit issuance deadline. Permits can hang in the system forever while this all gets sorted out.

5–306
(a) Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds...

Also, I'd be glad to hear it, but I have to wonder: Did Judge Legg just invalidate every "good cause" permit in the State of Maryland and in the entire U.S.?

Your views on how the sky is falling is akin to telling people who won the lottery that their lives will now be ruined because they won't know what to do with the money and how to handle it.:rolleyes:

taperxz
03-05-2012, 5:31 PM
Should be the case for MD, but not US. No?

I can certainly see where this victory will help you guys on the islands!

Southwest Chuck
03-05-2012, 5:32 PM
The last line of Eugene Volokh's article on the case worries me.... a lot !

If the Fourth Circuit reverses the district court, and rejects the Second Amendment claim, then the Supreme Court will be quite unlikely to grant review.)

The Volokh Conspiracy (http://volokh.com/2012/03/05/federal-district-court-recognizes-right-to-carry-gun-outside-the-home-holds-unconstitutional-marylands-restrictive-carry-licensing-scheme/)


...

Connor P Price
03-05-2012, 5:39 PM
The last line of Eugene Volokh's article on the case worries me.... a lot !



The Volokh Conspiracy (http://volokh.com/2012/03/05/federal-district-court-recognizes-right-to-carry-gun-outside-the-home-holds-unconstitutional-marylands-restrictive-carry-licensing-scheme/)


...

That's why there are carry cases making their way up to so many different circuits. They are much more likely to take a case once there is a circuit split even if they might not grant cert. otherwise.

Sent from my SGH-T959 using Tapatalk

Kharn
03-05-2012, 6:16 PM
The last line of Eugene Volokh's article on the case worries me.... a lot !



The Volokh Conspiracy (http://volokh.com/2012/03/05/federal-district-court-recognizes-right-to-carry-gun-outside-the-home-holds-unconstitutional-marylands-restrictive-carry-licensing-scheme/)


...

You'll notice Judge Legg cited 4th Circuit and SC cases extensively. The 4th would have to overturn Chester to stop Woollard now, and that isn't likely to survive en banc.

Andy Taylor
03-05-2012, 6:33 PM
I'm no legal eagle, but this is good news.

:party: :kilt:

mosinnagantm9130
03-05-2012, 6:34 PM
Winning! :D

Ezliving
03-05-2012, 6:36 PM
For the first time in my adult life, I'm proud to be a Marylander.

Handgun permit ruling poll:

A federal judge ruled that Maryland's law requiring applicants for permits to carry a handgun to demonstrate "good and substantial reason" violates the Second Amendment. Do you agree?

http://www.baltimoresun.com/news/opinion/bal-ed-poll0305,0,3940322,post.poll

Hit it hard.

nicki
03-05-2012, 6:42 PM
nicki:
A notice of appeal must be filed within 30 day, the AG's office has announced to local media that the AG will be seeking review by the 4th Circuit.

Thanks for the update, I guess the AG is "selective about which constitutional rights" they support.

Even though this is a 2nd amendment case, since the AG wants to pursue this case, I would bring up equal rights, at least from a public relations point of view.

Nicki

Cobrafreak
03-05-2012, 6:43 PM
Any victory on this level is excellent! We need to take care of our business so our Grandchildren don't need to worry about such things when they are our age.

Patrick-2
03-05-2012, 6:47 PM
Patrick (Patrick2 here) Says this over at MD Shooters....... (post 4394)
http://www.mdshooters.com/showthread.php?t=40649&page=220


...:D:mnl::hurray::party:

:gura:

:King:

I was wrong on that count. Someone sent me a link to little phone in my hand and it was to the proposed order from Gura - not the actual judges memo. The judge avoided the EP argument entirely.

My bad. That's what you get for trying to cite from a screen smaller than your hand. Sorry.

That said, it is still a good win.

Patrick-2
03-05-2012, 6:56 PM
Except the whole part where residents of Maryland are able to apply for and receive a license to carry in Maryland as of today.

Rumors are that the licensing authority hang up on you when you mention the case... :43:

-Gene

That is true. It gets better...people can be fingerprinted at the State Police barracks for a variety of things (we got a lot of people who need fingerprinting for background investigations with the USG, etc.).

We're getting reports that the poor troopers assigned desk duty are sometimes hanging up on folks asking to get their fingerprints done. It's not widespread, but it's happening. Probably a case of "I don't want to answer this for the umpteenth time this hour."

Patrick-2
03-05-2012, 7:03 PM
MD's legislature only meets for 90 days each year, beginning in January. They have already passed the "no new bills" deadline for the year so the earliest post-Woollard revision would be 2013 unless they pass a bill that has been previously submitted and is languishing in a desk-drawer veto somewhere. The Chairman of the House Rules Committee (who would have to authorize any deviation from the deadline) campaigned on a pro-2A platform, so he can deny any new anti-gun bills that the Senate tries to force on the House.

They can suspend the rules to put new bills on the floor. It's not hard when the chiefs want it done. They have passed taxes in the past using the same technique. We expect some fun stuff from them. We have a list. We're working it.


This was a good win. We appreciate the work of SAF, Gura, Hansel and everyone else who made this happen. We're waiting to see exactly what MD wants to stay - we didn't see a final order from the judge referencing any relief. Only that he was granting the plaintiff's summary judgement. Not sure if that entails the entire prayer for relief or not...

Patrick, President
Maryland Shall Issue (new position)

CCWFacts
03-05-2012, 7:19 PM
Question: what about MD non-residents? I visit MD fairly often and if I can I would be eager to get a LTC there. My vague memory is they do offer non-res LTCs, so this ruling should apply to those also?

I'm ready to apply! If it's a good idea, of course.

yellowfin
03-05-2012, 7:24 PM
If Barry loses, Ginsburg stays till she dies. If he wins, she's the first to retire and get replaced, almost certainly with an ideological clone.

The biggest danger is a stroke or cosmic ray or accident to one of the Heller-5, most acutely Kennedy but any of them.
Wrong. The biggest danger is the entire Heller 5 not lasting 5-20+ years to where ANY of them get changed out by a less than wholesome and suitable replacement. The notion that the 2 new ones getting put in made no difference is, while sadly commonly held among many intelligent people who should know far better, is egregiously stupid and short sighted and it needs to cease now. What having Souter and Stevens swapped out means two blown chances at putting fresh GOOD judges in to lessen the burden on the good 5 from having to wait around until we get a good president again. Putting a fresh Ginsberg in means three new evils that have to be outlasted by 5 good ones until Breyer or any of the new 2 or 3 are gone--the odds aren't comfortable.

Maybe this "Oh it doesn't matter, we've still got 5" is a shallow placating pitch to comfort people from worrying about the reality that maybe is needed to keep our camp happy--sorry, but perhaps like kcbrown I prefer to look at the reality and the long run picture and not dwell in a false sense of security.

taperxz
03-05-2012, 7:32 PM
Question: what about MD non-residents? I visit MD fairly often and if I can I would be eager to get a LTC there. My vague memory is they do offer non-res LTCs, so this ruling should apply to those also?

I'm ready to apply! If it's a good idea, of course.


I would have to think Peterson v. Denver sheriff would help your concerns.

Gray Peterson
03-05-2012, 7:50 PM
Question: what about MD non-residents? I visit MD fairly often and if I can I would be eager to get a LTC there. My vague memory is they do offer non-res LTCs, so this ruling should apply to those also?

I'm ready to apply! If it's a good idea, of course.

The ruling would apply to non-residents.

Besides applicants from VA, PA, DE, & WV, I have been filling out my app. The app requires references. I'm waiting to see what the AG's office is doing with the stay thing (it's not mandatory that the court issue them), and I sent in an email for fingerprint cards (since I'm not sure if they take regular FBI fingerprinting cards), so I'm avoiding the whole "hang up" thing. Emails are easily trackable.

yellowfin
03-05-2012, 7:55 PM
Hmm thanks for the reminder, Gray, I need to apply too since I'm only 4 hours from MD myself and may be moving much closer.

Gray Peterson
03-05-2012, 7:59 PM
Hmm thanks for the reminder, Gray, I need to apply too since I'm only 4 hours from MD myself and may be moving much closer.

I already have someone in mind for Reference #1....

CCWFacts
03-05-2012, 8:00 PM
The ruling would apply to non-residents.

That's what I thought, given that they do offer non-res permits.

I sent in an email for fingerprint cards (since I'm not sure if they take regular FBI fingerprinting cards), so I'm avoiding the whole "hang up" thing. Emails are easily trackable.

Should I apply? Let me know what I should do at this point. I'm happy to go through the process if it will help in any way. It would benefit me as I do go there occasionally.

This whole thing is really great. DC is now an isolated little speck. There are, what, six non-CCW states left? (I could CT and RI as nearly-shall-issue.) As there are only six non-CCW states remaining, all the "blood on the streets" and "shootouts over parking spaces" arguments become more and more absurd. Show us some blood already!

Gray Peterson
03-05-2012, 8:04 PM
That's what I thought, given that they do offer non-res permits.



Should I apply? Let me know what I should do at this point. I'm happy to go through the process if it will help in any way. It would benefit me as I do go there occasionally.

This whole thing is really great. DC is now an isolated little speck. There are, what, six non-CCW states left? (I could CT and RI as nearly-shall-issue.) As there are only six non-CCW states remaining, all the "blood on the streets" and "shootouts over parking spaces" arguments become more and more absurd. Show us some blood already!

Send in an email request for the fingerprint cards now, but I'm currently in a holding pattern to figure out what the state is doing with a stay. Maryland is shall-issue today because of the ruling. A stay would suspend that particular ruling.

Fingerprint cards first. Once we get that, we'll review.

Gray Peterson
03-05-2012, 8:32 PM
It will be impossible to import this to California, since you have contrary appellate authority in your own circuit. Plus, District Courts are only weak primary authority.

This was not really a great win. Read the opinion, and see what, really, we won. Sadly, our wins are having an ever narrowing scope of success. This "favorable" ruling contains much adverse language.


I should have figured at some point you'd be slithering into this thread like a snake like you did before, crapping in the thread and dogging me, Gene and others continually until you had your hands slapped by Kestryll.

Btw, this entire thread posting is apparently copied that you made without attribution to the source author. See this TTAG Posting crapping all over Woollard (http://www.thetruthaboutguns.com/2012/03/robert-farago/scotth-woolard-v-sheridan-not-such-a-big-win/)

So, "Goldrush", is your name Scott, or did you, as I highly suspect given your apparent lack of ethics towards me and Gene, copy/pasted the work? Oh, and just in case you're tempted to delete either your post here on CGN or ask Robert to delete the post since it gives your first name, remember, screenshots are forever.

EDIT/UPDATE: It's also possible ScottH may have copied you. Regardless, I'm going to call you Scott until you stop hiding.

hoffmang
03-05-2012, 8:35 PM
A stay would not be uncommon in this sort of situation, but there is no stay in place yet.

-Gene

notme92069
03-05-2012, 8:40 PM
I'm excited, we're so going to kick their @sse$ soon. Lee Baca is going to be hating it when he has to legally acknowledge the rights of us lesser folks:)

And the same for our good buddy Gore

Tarn_Helm
03-05-2012, 8:57 PM
"A citizen may not be required to offer a ―good and substantial reason why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs"

How will this apply to so called 'good cause' here in California?

Q: "How will this apply to so called 'good cause' here in California?"

A: In about 200 years, we'll have "shall-issue" CCW here in CA.
:facepalm:

huntercf
03-05-2012, 9:24 PM
"A citizen may not be required to offer a ―good and substantial reason why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs"

How will this apply to so called 'good cause' here in California?

That is my favorite part, if only that applied to all the citizens of the U.S.:confused:

Mute
03-05-2012, 9:53 PM
Holy crap! Do I get to break out this photo:

http://blogs-images.forbes.com/ericsavitz/files/2011/03/hell-freezes-over.jpg

warkaj
03-05-2012, 9:56 PM
Any victory on this level is excellent! We need to take care of our business so our Grandchildren don't need to worry about such things when they are our age.

I believe our grandchildren will be shooting by the time they reach our age... and I don't mean at ranges.... think Thomas Jefferson.

Gray Peterson
03-05-2012, 10:12 PM
Q: "How will this apply to so called 'good cause' here in California?"

A: In about 200 years, we'll have "shall-issue" CCW here in CA.
:facepalm:

Is it me, or am I sensing a disturbing pattern of crapping all over the threads with this negativity? It's not good for your physical or emotional health. This isn't being realistic, this is despair talking.

Window_Seat
03-05-2012, 11:18 PM
OK... Where do we apply?

Erik.

Gray Peterson
03-05-2012, 11:32 PM
OK... Where do we apply?

Erik.

Maryland State Police. I'm asking for a fingerprint card from state police but it appears that the actual fingerprinting processing is being done by the Maryland Department of Public Safety and Corrections Services, and we may be able to bifurcate the process.

Again, the stay question puts it up there.

-Gray

kcbrown
03-06-2012, 12:23 AM
It will be impossible to import this to California, since you have contrary appellate authority in your own circuit. Plus, District Courts are only weak primary authority.


I was under the impression that this would be persuasive but not binding to other district courts in the same circuit, and not persuasive (more precisely, not any more or less persuasive than any other fact that might be put on the table) at all to any courts outside of the 4th Circuit.

I'll be surprised if this is more applicable than that. I understand we can point at this in our arguments, but I fail to see how it could possibly make any difference to an anti-gun district court.

Generally, it seems to me that on polarizing issues like this where new jurisprudence is being forged, courts make up their minds first without seeing any of the arguments, and then tailor their ruling (by cherry-picking citations and references as necessary, and crafting "logic" as necessary) to fit the predetermined outcome. So, generally, either a court will be pro-gun, in which case citing a case such as this will prove unnecessary, or it will be anti-gun, in which case citing a case such as this will prove useless. Very rarely will the court actually be neutral on such an issue, such that it would actually take the time to consider the arguments before it in such a way as to be persuaded by them based on their quality (as opposed to their preconceived notions of what the outcome should be). Regardless, it seems to me that citing the case will generally be of no use when talking to a district court or a circuit court, and will also be useless when talking to the Supreme Court (since that argument will clearly be about original public meaning in order to be consistent with Heller and McDonald).



This was not really a great win. Read the opinion, and see what, really, we won. Sadly, our wins are having an ever narrowing scope of success. This "favorable" ruling contains much adverse language.


This is true as far as it goes, but one must be careful here. This is just a ruling of a district court. Higher courts are not bound by its reasoning. That can cut both ways, of course.



1. The Appellate Court in the 4th may reverse, though this is unlikely, since the holding is so weak.


Weak as it is, it strikes down the "may-issue" aspect of the law. That is a surprisingly strong outcome considering the relatively weak form of analysis that was used (intermediate scrutiny).



2. If upheld by the S.C., at best, this may have swatted down some "shall issue," so look for states to sharpen their issue language or dump permits, altogether, and allow carry only to narrow statutory classes.


No, this is more fundamental than that: it acknowledges the existence of the right to keep and bear arms outside the home.



3. If the case never makes it to the S.C., look for other states to ignore it.


And thus set up a circuit split. This is bad how, again?



4. The case is utterly silent on non-permit carry, even suggesting that permits are well and good for states to require. If this case becomes binding on MD, their absolute right to RKBA has not been recognized. Their right is subject to the state legislature first enacting a permit scheme.


I fully expect that the entirety of the right to keep and bear arms will be controlled through permit schemes (where not prohibited outright), and that the Supreme Court will uphold all of that. Honestly, are you really expecting anything more than that? On what basis? Wishful thinking doesn't get you results any different than does realism.

I am not happy at all about the notion of the entirety of the right being controlled through government permit schemes, but I see no possible way it will turn out any different (given the fact that the Supreme Court had the opportunity to knock down the requirement for a permit to keep and bear in the home and, indeed, would have had to do precisely that in order to satisfy the original prayer for relief, and didn't -- so quite clearly, the Supreme Court considers such a thing something other than a blatant affront to the Constitution, and therefore will be quite content with permit schemes governing anything else, since keep and bear in the home is where the need for the right is, in its own words, "most acute").



5. Per the court, the MD legislature may merely alter its criteria slightly, leaving intact "shall-issue" and forcing another, likely unsuccessful, lawsuit.


If "shall-issue" remains intact, then whether or not that turns out to be a problem is dependent upon the alterations in question.



6. The Court violently refused to place the First and Second Amendments on the same footing, citing no authority, merely cheapening the 2A by force.


On this I agree. See below.



7. "Intermediate scrutiny" is barely protection against overreach and encroachment.


Yes. But the problems are more acute than that.



8. We now have a disastrous doctrine of "core" and "non-core" Second Amendment exercise.


Right. The real problem with this ruling is the fact that self-defense outside the home is, according to this court not core to the right: "Woollard‘s asserted right falls within this same category of non-core Second Amendment protection".

There are all sorts of hugely bad implications of that logic if it is allowed to persist.

Fortunately, as I said, higher courts can and often do disagree with the logic used by the district courts to arrive at a conclusion.



In Heller and McDonald, Gura fought a city. Fighting states will be far tougher, and the Federal courts are going to be extremely unwilling to trod underfoot state sovereignty.


That may be, but what the Supreme Court thinks is what counts. It seems you keep ignoring that fundamental truth.



We don't need more "favorable" rulings like this.


I'll happily take rulings like this at the district level. I will be very unhappy with such rulings at the Supreme Court level. If the Supreme Court agrees with this district court about self-defense outside the home falling outside the core of the right, we are in huge trouble.

bulgron
03-06-2012, 1:31 AM
I was under the impression that this would be persuasive but not binding to other district courts in the same circuit, and not persuasive (more precisely, not any more or less persuasive than any other fact that might be put on the table) at all to any courts outside of the 4th Circuit.

I'll be surprised if this is more applicable than that. I understand we can point at this in our arguments, but I fail to see how it could possibly make any difference to an anti-gun district court.



I think that you're right insofar as it comes to changing the mind of an anti or pro court. However, this opinion has enormous value for Maryland's shooters (of course). Following that, it has tactical value to us in an attempt to create a circuit split so that SCOTUS will hear a carry case. Finally, this has enormous propaganda value in the court of public opinion. If nothing else, it's demoralizing for the anti's. Sucks to be the losers. Sucks even harder to be the loser when you need to convince people to donate money to pay for your attorney's fees.

Of course, the interesting thing is what will a three judge panel do with this? I have no read on how the 4th circuit leans wrt firearms. We could still end up the losers, so it's best not to get too overly excited about this decision. Still, it is nice to have a win on a carry case. Finally.

Kharn
03-06-2012, 1:49 AM
I like the Judge's hint that no-permit or shall-issue OC permits while requiring GC/may-issue for CC might survive scrutiny. Of course, MD would never take that bait.

kcbrown
03-06-2012, 1:59 AM
I think that you're right insofar as it comes to changing the mind of an anti or pro court. However, this opinion has enormous value for Maryland's shooters (of course). Following that, it has tactical value to us in an attempt to create a circuit split so that SCOTUS will hear a carry case.


I fail to see how it has such tactical value. The 4th Circuit will rule how it wants, independently of how this district court has ruled. Whether we win this one or lose it is irrelevant to that. That was really the point in my previous when I discussed how courts deal with issues such as this. Of course, it's possible that we'll get a rational, logical 4th Circuit panel that actually listens to and properly considers the arguments in front of it and allows itself to be swayed by those arguments, but I believe that to be extremely unlikely. Judges are used to wielding power through their rulings, and that means they're used to getting their way by telling people what to do, not allowing people to persuade them of what to do.

I fully agree this ruling may have value to Maryland (at least for a period of time, however short or long it may be), and that is cause for celebration in its own right. Whether it has real value depends entirely on whether or not the Maryland bureaucratic machinery will get away with its efforts to defy the court's intent. I think there's a very good chance it will. But regardless, I fail to see how it has any real value beyond that, except perhaps to give us something to point to and say "See? Not every court disagrees with us on this." Of course, we can say that about Ezell as well, and say so more strongly because of the strength of that ruling and the fact that it was a circuit court, and not a district court, that issued it.



Finally, this has enormous propaganda value in the court of public opinion. If nothing else, it's demoralizing for the anti's. Sucks to be the losers. Sucks even harder to be the loser when you need to convince people to donate money to pay for your attorney's fees.


Yep, I completely agree.



Of course, the interesting thing is what will a three judge panel do with this? I have no read on how the 4th circuit leans wrt firearms. We could still end up the losers, so it's best not to get too overly excited about this decision. Still, it is nice to have a win on a carry case. Finally.

Yep. It's a very refreshing change from the usual fare we get from the courts.


I really don't like to diminish the value of this ruling in any way, but I must remain a staunch realist. I will be overjoyed if it produces real change in Maryland. At least now there's a chance of that, whereas before there was none. That alone is worth something, independent of anything else.

Kavey
03-06-2012, 2:07 AM
Is it me, or am I sensing a disturbing pattern of crapping all over the threads with this negativity? It's not good for your physical or emotional health. This isn't being realistic, this is despair talking.

Mr. Peterson, thanks for slapping down the negativity. We have a victory here and it's OK for us to feel good about it.

I've been fighting for our gun rights since the early 80's, remember Proposition 15 (the handgun ban initiative of 1982)? Someday, I'll post more about my past, but for now, I'm not that interesting a subject.

One element from my past that I would like to mention, however, is the most difficult and painful thing that I have had to deal with during the past 30 years of opposing the assaults on our Second Amendment Rights. I'm talking about the negative gun owners who seem determined to find only despair, discouragement and no hope in any effort undertaken by the likes of Calguns, NRA, CRPA, SAF, and so on. I think you know the type of individual I'm talking about. Unlike most people who look at a glass and see it as either half full or half empty, he only sees a cracked dirty glass with no content at all.

Like that famous character from Saturday Night Live, Debbie Downer, these perpetually negative gun owners seem to gain some kind of sick pleasure out of deflating our balloon whenever there is a legitimate reason to feel uplifted over a true pro-gun victory.

I hate to say it, but over the years I've come to loathe these failure loving negative types more than the anti-gunners. I say this because the anti-gunners really can't destroy our movement, but the negative gun owners can. If you always expect failure, you will eventually stop seeking success. This is how a movement dies. The negative crowd has been a part of the pro-gun movement ever since I became involved three decades ago and it is, unfortunately, still around and can be found here on this forum.

Please understand I'm not talking about objective analysis and expectations tempered by a realistic understanding of the facts. I talking about people who "always" expect failure no matter what the facts or circumstances may indicate. It's a personality type. More precisely, it's a personality disorder, one I can no longer tolerate being around.

Patrick-2
03-06-2012, 3:14 AM
I already have someone in mind for Reference #1....

Anytime, brother.

goldrush
03-06-2012, 3:18 AM
I should have figured at some point you'd be slithering into this thread like a snake like you did before, crapping in the thread and dogging me, Gene and others continually until you had your hands slapped by Kestryll.

If a man facing the barrel of a gun is forced to answer that 2+2=5, 2+2 yet equals four.

Btw, this entire thread posting is apparently copied that you made without attribution to the source author. See this TTAG Posting crapping all over Woollard (http://www.thetruthaboutguns.com/2012/03/robert-farago/scotth-woolard-v-sheridan-not-such-a-big-win/)

How, exactly, did you draw the conclusion that I posted another's work? I'm only somewhat keen to know the logic you employed, so you can take a millennium in responding to that query.

Know this: with a multitude of threads to use in examining the impact of the ruling, another author thought my analysis illuminating. I'm flattered and honored. In a free marketplace of ideas, the best ideas are reviewed by peers and advanced. Forced cheerleading at the barrel of a gun is best left to North Korea and its ilk, as compulsory adherence to a viewpoint will only produce the right outcome by chance.

That other website should know that I give it, and all websites, full permission to cite to any of my analyses here, as advancement of our cause needs the broadest possible audience to ensure that the best minds in our field of civil rights advocacy can direct our course.

So, "Goldrush", is your name Scott, or did you, as I highly suspect given your apparent lack of ethics towards me and Gene, copy/pasted the work? Oh, and just in case you're tempted to delete either your post here on CGN or ask Robert to delete the post since it gives your first name, remember, screenshots are forever.


I can't understand a word in this paragraph.

Patrick-2
03-06-2012, 3:20 AM
Q: "How will this apply to so called 'good cause' here in California?"

A: In about 200 years, we'll have "shall-issue" CCW here in CA.
:facepalm:

Maryland is far from where we need to be, and this ruling is a big step. We're going to need to hold onto our armchairs until the courts have all had their chance to weigh in.

That said, I was dealing with people in Maryland over the weekend that said what you just did about California. Even though the fight is far from over, they are now seeing that victory can be had. You should take solace in the fact that the people fighting in Maryland are the people fighting in California. And New York. And Illinois. And...

The SAF did not file suit on behalf of just Maryland people. They did it for everyone. Consider this first victory yesterday your own. Or keep feeling despondent because your local skirmish hasn't gone the way you want. Yet.

The end game matters. You are a step closer today than you were Sunday.

Patrick-2
03-06-2012, 4:00 AM
I feel a need to step on some nay-sayers. Gently.

A couple of points on the judge's ruling:

He knew it was going to be appealed. He talked about that during the hearing last year. He also made clear that he wanted to start the constitutional conversation. He did that.

He avoided the Equal Protection and 1A parallels, true. But the ruling cannot be evaluated in a vacuum. He has to work within the boundaries of the 4th Circuit, who so far have placed outside the home in intermediate scrutiny territory. As much as you would have liked to see "strict" from Judge Legg, the simple fact is that would have put the state in a good place during an appeal - his ruling would have been counter to his circuit's law. Likewise the 1A parallels.

This opinion is tight and crafted for the appeal. It uses the law we have in the 4th and broaches a topic that requires further evaluation and decision. I am perfectly happy with it, as is, because we are now going to have a moderate circuit court forced to evaluate nothing more than whether the right exists outside your home. Maryland will fight tooth and nail to make this about anything but that question. They will attack the parts of the ruling that use 4th Circuit precedent, but they will assiduously avoid (as much as possible) the actual outside-the-home inquiry. The thing is...this ruling makes it really hard for them to do so. The only "new" thing is the finding that the right extends beyond my doorstep.

Please go back and read the many rulings nationwide that have avoided this question. Courts usually follow a similar pattern: find something - anything - that can be used to deny the right without ever really denying the right exists: standing, 1A, EP, etc.

Judge Legg wrote an opinion with a finding that cannot be avoided. The 4th cannot simply say, "Judge Legg's reasoning under EP is wrong, and we find for the state on that count. Because of this, we need not inquire into the 2A question at this time."

How many flipping times have we read that same statement, "because of X, we need not inquire further into the outside-the-home question."

The court and the state cannot avoid the 2A question in this case. It is the only question before them.

Think bigger than a single piece of paper. This decision sets up the question in a way that cannot be avoided. To that end, it is an excellent ruling.

goldrush
03-06-2012, 4:01 AM
I really don't like to diminish the value of this ruling in any way, but I must remain a staunch realist. I will be overjoyed if it produces real change in Maryland. At least now there's a chance of that, whereas before there was none. That alone is worth something, independent of anything else.

You are correct in saying that this ruling will produce at least some change in Maryland, as the legislature now has to act to clean up its Code.

This case is best seen as an opportunity, a moment. In a rare circumstance, the legislature will soon meet for the express purpose of discussing gun rights and gun permits, knowing that they must begin the debate with a favorable presumption of this civil right. This is our moment. This is now our best hope for real success.

The legislature is currently faced with two major paths:

1. Keep "may issue," and clean up the Code to remove the discretionary and supplicating bits. This course is easily accomplished.

2. Dump "may issue," and adopt a "shall issue" scheme.

The legislature will consider dumping permits, altogether, but it has various interest groups whom it likes to favor with such permits, so I don't expect permits to be categorically repealed.

Obviously, we'd all be thrilled if the legislature seized this moment to revisit its entire carry scheme, but what are we doing to get the legislature to see it our way? I have frequently argued here that judicial victories are all-too-often hollow, particularly so if unaccompanied by political influence and statutory change.

Courts don't want to suppress the will of the People. If a state has said it doesn't want one and all with a gun on the street, a court is going to give the People's will great deference.

What we urgently need, this very instant, is for a major lobbying campaign to be undertaken with every member of the Maryland General Assembly. We need to inform them that guns lower crime, that gun permits raise state revenues, that permit-holders have a low propensity to commit crimes, that any member, Democrat or Republican, who supports "shall issue" permits will have the strong support of gun owners in November.

SAF is barred from being political, but court victories will never have the success, sweep and reach of a political victory. We can't just win in court and think the battle won. I worry, though, that we may have missed our window, as the initial lobbying should have been initiated while this case was pending. Further, gloating about how Liberals lost may annoy the legislators we dearly need to secure real success.

The legislature will be quickly convening its committees to discuss its next course. Equal with worrying about appeals courts, we should be in their halls and committee rooms trying to get a solution to the permit question that would be in the best interest of Maryland citizens and legislators, alike.

This court opinion opened the door. If there are true friends in Maryland to this cause, let Annapolis be congested with calls and visits. Arrive with draft legislation in hand. Copy the permit scheme of a more accommodating state, perhaps neighboring Pennsylvania, and insert it into a sponsor-ready draft bill that the legislator can deliver to the Speaker and introduce.

Show your Assemblymen the benefits of "shall issue" permits, and pledge the support of yourself, your friends, your club and your range to any member who casts a favorable vote on this measure.

Political change wins this day.

Tarn_Helm
03-06-2012, 5:00 AM
Is it me, or am I sensing a disturbing pattern of crapping all over the threads with this negativity? It's not good for your physical or emotional health. This isn't being realistic, this is despair talking.

Is it me or am I sensing a rehash of the entire "It's a right but not really a right" problem in the Woollard v. Sheridan distinction between "core" and "non-core" Second Amendment interests?

If anything actually changes for the better, I'm happy for them.

But I think I will pop the champagne cork only after I see news stories about people clogging up Maryland's CCW system with hundreds of new applications for shall-issue CCWs.

Just being pragmatic and realistic.

By the way, the infringement of the Second Amendment rights of a huge chunk of the population of the U.S. is still occurring in the states which do not already have shall-issue CCW.

Just because about 40 states do already have shall-issue CCW does not mean that 80% of America is shall-issue per capita.

And despite the dampness of my reaction, I continue to support the cause fanatically.

So just let me be.

I am a curmudgeon not a cheerleader.

That being said, I think everyone here who wants to celebrate prematurely is going to do so whether I join them or not.

Fortunately, we still live in a country that is free (mostly).

The beginning of the end, however, will arrive with the emergence of secret police who engage in campaigns of character assassination.

First you're publicly denounced for not following the party line; then you are exiled to Siberia (or, in the case of certain settings, "banned").

Please don't act like a member of the "mood police" and encourage people to shark onto me in a feeding frenzy of rejection here in this forum. (You might think you're subtle but you're not.)

My mood is generally dour.

It is genetic but has not stopped my success in life nor in my support of my causes--nor will it stop yours.

Try to be tolerant of others who are different from you, sir.
:cool:

Back to our regularly scheduled programming.
:facepalm:

Robert Farago
03-06-2012, 5:06 AM
The post from ScottH on www.thetruthaboutguns.com started as a comment on TTAG. There was no indication that it had been scraped from another site. I turned it into a post and emailed ScottH with a heads-up. Early this morning, ScottH emailed to tell me he was not the author of the comment. I asked him to direct me to the person who wrote the material. He directed me here.

The information in the post is well-researched and extremely important. But I realize that Fair Use provision do not apply in this instance. Much to my regret, I am taking the post off-line until I receive the author's permission. Please ping guntruth@me.com if you will be so kind as to give me that permission.

Otherwise and in any case, I apologize for this breach of our standard editorial policy. ScottH has been banned from commenting on TTAG.

Kharn
03-06-2012, 5:07 AM
Goldrush,
You need to read up on MD politics. Our legislature allows desk drawer vetos by committee chairs, the public safety committee chairman in the Senate is a personal injury lawyer who has gone on TV saying gun owners are "nuts." The Senate President has the Senate building named after him, and he's not dead or dying, the Governor practically kisses his ring every time they meet. He, not the Governor, is the most powerful person in MD politics, and he is antigun.

The MD legislature will never reduce the restrictions on handgun permits due to those two individuals, only the courts will help us.

Tarn_Helm
03-06-2012, 5:23 AM
. . . I'll happily take rulings like this at the district level. I will be very unhappy with such rulings at the Supreme Court level. If the Supreme Court agrees with this district court about self-defense outside the home falling outside the core of the right, we are in huge trouble.

Nice post.

It is very difficult for me to be "happy" about rulings like this at the district level.

Rulings like this at the district level might effectively increase the ability to exercise a right more freely and fully with a certain locale.

However, the anti-Second-Amendment "justices"--Breyer, Ginsburg, Sotomayor and Kagan--use every new piece of casuistic ammunition they are handed.

Look at Stevens!

Till the bitter end he stood his ground on the old canard that the Second Amendment supposedly guaranteed a state the right to have an armed militia!

And he claimed that the historical record backed him up!

As you so aptly put it, "If the Supreme Court agrees with this district court about self-defense outside the home falling outside the core of the right, we are in huge trouble."

What we need to do here right now is not focus on "little victories" like this but begin rallying the troops for the huge battle over who will be the next POTUS, because the next POTUS will likely be the one to appoint two more SCOTUS judges.

We don't need to worry about the SCOTUS damaging other important, personal rights (Kagan will effectively speak out against attempts to rule in directions opposite Lawrence v. Texas, 539 U.S. 558 [2003]).

We need to convince people of the importance of engaging in single-issue decision-making when it comes to voting for our next POTUS in 2012.

Woollard v. Sheridan is a sideshow.

An interesting one.

But still only a sideswhow.

The real focus needs to be on the election of the POTUS, because he will appoint our next two SCOTUS judges.
:hammer:

Tarn_Helm
03-06-2012, 5:30 AM
Goldrush,
You need to read up on MD politics. Our legislature allows desk drawer vetos by committee chairs, the public safety committee chairman in the Senate is a personal injury lawyer who has gone on TV saying gun owners are "nuts." The Senate President has the Senate building named after him, and he's not dead or dying, the Governor practically kisses his ring every time they meet. He, not the Governor, is the most powerful person in MD politics, and he is antigun.

The MD legislature will never reduce the restrictions on handgun permits due to those two individuals, only the courts will help us.

Thank you for your insight into how the battle there looks from a bird's eye view.

Some folks here imagine that one seemingly favorable ruling amounts to cause for celebration.

Things are obviously more complex in reality than in their idealist view of it.

So keep up the fight back there!

And thanks again for letting us know how things look from your perspective!
:clap:

goldrush
03-06-2012, 5:33 AM
Goldrush,
You need to read up on MD politics. Our legislature allows desk drawer vetos by committee chairs, the public safety committee chairman in the Senate is a personal injury lawyer who has gone on TV saying gun owners are "nuts." The Senate President has the Senate building named after him, and he's not dead or dying, the Governor practically kisses his ring every time they meet. He, not the Governor, is the most powerful person in MD politics, and he is antigun.

The MD legislature will never reduce the restrictions on handgun permits due to those two individuals, only the courts will help us.

Perhaps you don't understand that the courts can't really help you. Meaningful help can only come from your legislature. There are a thousand intricacies in managing and enforcing firearms permits. The federal court isn't going to take over management of state government.

Without the legislature on your side, you'll only get a law written to the letter of the court ruling, ultimately expanding the right very little.

Kharn
03-06-2012, 5:42 AM
Goldrush:
Read the MD handgun permit law, the "good and substantial reason" line is the only part that makes the state may-issue. The superindentent is legally required to issue the permits to those with a G&S reason, with personal protection as G&S, MD is a shall issue state.

goldrush
03-06-2012, 6:04 AM
The post from ScottH on www.thetruthaboutguns.com started as a comment on TTAG. There was no indication that it had been scraped from another site. I turned it into a post and emailed ScottH with a heads-up. Early this morning, ScottH emailed to tell me he was not the author of the comment. I asked him to direct me to the person who wrote the material. He directed me here.

The information in the post is well-researched and extremely important. But I realize that Fair Use provision do not apply in this instance. Much to my regret, I am taking the post off-line until I receive the author's permission. Please ping guntruth@me.com if you will be so kind as to give me that permission.

Otherwise and in any case, I apologize for this breach of our standard editorial policy. ScottH has been banned from commenting on TTAG.

I PM'ed you. Permission thoroughly granted. Why did you ban Scott? That seems excessive. This isn't MLA, and he didn't post for commercial gain. It doesn't really matter to the reaches of the aether that he posted something in an internet forum without attribution.

Sociologically, I am continually disturbed by the reflexive authoritarianism and hair-trigger violence amongst conservatives. Censorship and silencing are among the worst forms of violence, as they outright void one's personhood. Silencing another is no less a sin when performed by a private actor instead of a public employee. The act is merely more actionable in one case than the other, but the sin is equal.

One of the reasons why Democrats continue to enjoy great success is that they are seen as nice, tolerant people who seek and embrace beauty and kindness. When the people look at gun owners, they often see a mean, cruel, bitter, authoritarian, superstitious, martial, rude lot of hateful bullies. The observer then concludes that putting guns in the hands of such angry and retributive people is likely to be a very bad idea. We have a public image problem.

I strenuously counsel gun owners to be a more Bohemian lot. Be nicer, more patient and more tolerant of your fellow man. Embrace art, music, literature. Read well; speak well, and be nice to your political foes.

Perhaps most importantly, never take your own friends for granted. Be endlessly patient with fellow gun owners, because current conservatives are running off the base. Many gun owners will be voting for Obama, largely because they're terrified of what conservatives have become. Many estranged Republicans now see the Democrats as the lesser of two evils. These sojourners are on hiatus from the Republican Party until it returns to being a college of intelligent, curious, refined gentlemen.

So don't ban Scott. Don't ban anyone. Let it be said of gun owners: "They sure are a lively and conversational lot. If you want to get up a good chat, seek out some gun owners."

Again, repost at will. As an editor, you may correct an error in attribution, if you wish, but our primary purpose as intellectuals in the gun community is to advance the discussion.

goldrush
03-06-2012, 6:06 AM
Goldrush:
Read the MD handgun permit law, the "good and substantial reason" line is the only part that makes the state may-issue. The superindentent is legally required to issue the permits to those with a G&S reason, with personal protection as G&S, MD is a shall issue state.

But the ruling didn't go so far as to make personal protection G&S. The ruling only knocked out the G&S language. Right now, it can be argued that Maryland might not have any permit law, at all.

Kharn
03-06-2012, 6:09 AM
A permit is the defense against arrest for carrying a handgun, so how about you try performing citizen's arrests on every armed security guard in MD? Without a permit law, they're all violating the ban on carrying.

avneet
03-06-2012, 6:10 AM
This is great news!

goldrush
03-06-2012, 6:34 AM
A permit is the defense against arrest for carrying a handgun, so how about you try performing citizen's arrests on every armed security guard in MD? Without a permit law, they're all violating the ban on carrying.

You misunderstand. Already issued permits will be presumptively valid, and no state agency could void a permit without first providing due process of law. Going forward will be a snare.

I anticipate the request for a stay will be filed today, seeking to allow MD to issue permits under the existing scheme until the matter is resolved above. If the court does not grant the stay, MD might very well argue that the law cannot be read coherently in absence of the stricken language, so no permits will be issued until the legislature clarifies the law.

taperxz
03-06-2012, 6:41 AM
Perhaps you don't understand that the courts can't really help you. Meaningful help can only come from your legislature. There are a thousand intricacies in managing and enforcing firearms permits. The federal court isn't going to take over management of state government.

Without the legislature on your side, you'll only get a law written to the letter of the court ruling, ultimately expanding the right very little.

Prove this^^^. All your doing now is typing to see your own words.

NOTHING you type here is correct or accurate. Please stop. It's like a Nat buzzing around your nose when your driving.

Gray Peterson
03-06-2012, 7:36 AM
You misunderstand. Already issued permits will be presumptively valid, and no state agency could void a permit without first providing due process of law. Going forward will be a snare.

I anticipate the request for a stay will be filed today, seeking to allow MD to issue permits under the existing scheme until the matter is resolved above. If the court does not grant the stay, MD might very well argue that the law cannot be read coherently in absence of the stricken language, so no permits will be issued until the legislature clarifies the law.

None of the above is correct.

Here is the law as it existed previous to Woollard:

§ 5-306. Qualifications for permit

(a) In general. -- Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds:
(1) is an adult;
(2) (i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or
(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c);
(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;
(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction; and
(5) based on an investigation:
(i) has not exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another; and
(ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.
(b) Applicant under age of 30 years. -- An applicant under the age of 30 years is qualified only if the Secretary finds that the applicant has not been:
(1) committed to a detention, training, or correctional institution for juveniles for longer than 1 year after an adjudication of delinquency by a juvenile court; or
(2) adjudicated delinquent by a juvenile court for:
(i) an act that would be a crime of violence if committed by an adult;
(ii) an act that would be a felony in this State if committed by an adult; or
(iii) an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed by an adult.

This is the law as it exists today:

§ 5-306. Qualifications for permit

(a) In general. -- Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds:
(1) is an adult;
(2) (i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or
(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c);
(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;
(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction; and
(5) based on an investigation:
(i) has not exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another; and
(ii) Removed by Woollard.
(b) Applicant under age of 30 years. -- An applicant under the age of 30 years is qualified only if the Secretary finds that the applicant has not been:
(1) committed to a detention, training, or correctional institution for juveniles for longer than 1 year after an adjudication of delinquency by a juvenile court; or
(2) adjudicated delinquent by a juvenile court for:
(i) an act that would be a crime of violence if committed by an adult;
(ii) an act that would be a felony in this State if committed by an adult; or
(iii) an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed by an adult.

The efforts for "shall-issue" in the Maryland General Assembly involved deleting (ii) in it's entirety and deleting (i) from it so it merely becomes part of (5). This was stated so by House Judiciary Committee staff lawyers, if G&S was struck by either legislative enactment or court action, which it was by Woollard, Maryland would be a "shall-issue" state. This is also the position of MSI (Maryland Shall-Issue) as well as numerous people on the ground in Maryland who know Maryland law structure.

The Legislature does NOT actually need to do anything here. The Maryland State Police can no longer require a reason for the issuance of a license, at all. Maryland could deny due to violence or instability, but this is similar language that exists in 25 states, including known shall-issue states such as Indiana, Michigan, Oregon, etc etc.

As for Maryland refusing to issue any licenses in absence of a stay, I do believe that is would result in a contempt motion.

curtisfong
03-06-2012, 7:56 AM
Perhaps you don't understand that the courts can't really help you. Meaningful help can only come from your legislature.

You're wrong. The legislature CANNOT help you advance an unpopular civil right. They are going to resist tooth and nail.

Kharn
03-06-2012, 7:58 AM
Gray,
It would be a writ of mandamus IIRC

M. D. Van Norman
03-06-2012, 8:38 AM
As far as any negativity goes, what we have to recognize is that we have come to a historical nexus. The civil right to arms will be won here and now, or it will be lost altogether. That middle ground where the opponents effectively ignored each other for decades on end is no longer tenable.

Gray Peterson
03-06-2012, 9:21 AM
Gray,
It would be a writ of mandamus IIRC

Wouldn't be for the purpose of the lawsuit itself. Mandamus or write of mandate cannot be asserted by the plaintiffs. They must use contempt.

Dreaded Claymore
03-06-2012, 10:05 AM
This is the type of thread on Calguns that I love the most. Celebration of a victory, and a war council on how to achieve the next one, is awesome to read.
http://i845.photobucket.com/albums/ab17/DreadedClaymore/lovethisthread.jpg

510dat
03-06-2012, 10:23 AM
The civil right to arms will be won here and now, or it will be lost altogether. That middle ground where the opponents effectively ignored each other for decades on end is no longer tenable.

That's quotable.

disintelligentsia
03-06-2012, 11:10 AM
In our adversarial system, all facts which support a case are supposed to be submitted and proven by evidence. However, the courts have been "finding" facts sua-sponte without briefing or evidence presented by either side because they seem to think them self-evident. This is sloppy thinking and creates law by judicial fiat based on a reality that exists only in their minds.

A prime example of this is what Scalia did in Heller with his pontificating that the right to self-defense was most acute in the home. It was basically a pull-it-out-of-his-sphincter finding of fact on an issue that was not presented or briefed which has provided a hook for the lower courts to strip us of our rights.

The right to self-defense is most acute WHEREVER you are. Approximately nine out of ten (87%) violent crimes occur outside the home. U.S. Dept. of Justice, Bureau of Justice Statistics, Criminal Victimization in the United States, 1991, at 75 (1992). If the need for armed self defense is acute in the home, where only 13% of all violent crime occurs, then what the hell is it outside the home?

While I agree with most here that this decision is about the best we can expect from a federal court in Maryland, the decision to give it intermediate scrutiny was based directly off of the Masciandaro decision from the 4th circuit court of appeals, which itself was based off of Scalia's ignorant pontificating, oh I mean finding of fact, that the right to self-defense is most acute in the home (in Masciandaro, the defendant was convicted of carrying a firearm in his car in a national park - his defense was that he had a fundamental right to do so under the 2nd amendment and that it should receive strict scrutiny and the court affirmed his conviction stating that the core of the second amendment was self-defense at home (ala Scalia's statement in Heller) and therefore anything outside the home received intermediate scrutiny and the state's important interest in securing public safety outweighed the defendant's right to defend himself when away from home).

The Court in Masciandaro stated:
As we observe that any law regulating the content of speech is subject to strict scrutiny, we assume that any law that would burden the “fundamental,” core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.

Scalia would have done us all a favor by not trying to be self-important and kept his decision narrow and only address those facts which had been briefed to the Court. His going on about questions that had not been briefed or presented to the Court has only served to embolden enemies of our freedoms.

Another finding you will often find that never gets briefed but is always "found" by courts in decisions like these is that 1. the government has an important interest in securing public safety (although the police have no obligation to protect any member of the public) and 2. that said purpose is served by restricting the public from having arms by which they can protect themselves (although it's usually framed through the universal (and demonstrably false) anti-gun claim of "fewer guns=fewer crimes" mantra).

Somehow, despite all the research that has gone into the question, every court seems to "find", without briefing on the facts or merits, that by taking guns out of the hands of the public that fewer violent crimes will result. How? On what evidence do they base this finding? They just pull that "fact" out of the ether or their omniscience! I haven't seen one court actually look at the research on the matter. Not once. They just state it as a self-evident fact and then move on to use this to support their decision.

Under the rules of evidence in every jurisdiction, even facts that are "self-evident" to the everyday man can only be recognized by the court through a request that the fact be given "judicial notice." In that instance, the opposition can oppose that request and ask that the matter be fully briefed. Recognizing "facts" without adequate briefing in our adversarial judicial system is antithetical to the rule of law.

Although these two "facts" are not usually directly at issue before trial level courts, because the courts have been making "findings" on these two issues anyways, it would behoove Gura and company to brief these factual issues so that there is a record on appeal otherwise the appellate court will just give unbridled deference to the lower court's findings and/or say that the issue cannot be raised the first time on appeal. Of course, the counter argument on appeal is that since the "fact" was raised for the first time in the trial court's opinion, the parties should still have the opportunity to address it on appeal because the lower court denied the parties the right to address it below.

If a court's decision rests on a question of fact that has not been briefed, it should ask the parties to submit briefs and evidence on the question before coming to a conclusion about the answer to that question. However, it's a sad reality that most of the time judges don't give a flip about the rule of law or giving unbiased decisions (or as Roberts would put it, being a referee who calls strikes and balls in an unprejudiced manner). The determination was made before the first argument was made and the decision is simply an ad-hoc rationalization to their a priori conclusion.

kcbrown
03-06-2012, 11:43 AM
Perhaps you don't understand that the courts can't really help you. Meaningful help can only come from your legislature.


Because, after all, the civil rights movement got nowhere until the legislatures went into action. The court cases didn't help one bit. :rolleyes:

We must learn from history, yes?

:facepalm:

IGOTDIRT4U
03-06-2012, 11:43 AM
Nice!

Yeah, I liked that, too. Gee, let's just use the logic already provided for us in the 2A.

Militia, check. Keep and Bear, check. Hunting an approved activity, check. Case is about fundamental right to carry outside the home, see 1-3, check.

kcbrown
03-06-2012, 12:09 PM
The legislature is currently faced with two major paths:

1. Keep "may issue," and clean up the Code to remove the discretionary and supplicating bits. This course is easily accomplished.


This is a non-sequitur. "May issue" means discretionary issue. If you remove discretionary issue, then by definition you are removing "may issue".

If you mean by this that they will create "protected classes" and set up the system so that it is "shall-issue" to those classes, then I agree that they can (and may well try to) do that, but that is an equal protection suit waiting to happen.

curtisfong
03-06-2012, 12:17 PM
Somehow, despite all the research that has gone into the question, every court seems to "find", without briefing on the facts or merits, that by taking guns out of the hands of the public that fewer violent crimes will result. How? On what evidence do they base this finding? They just pull that "fact" out of the ether or their omniscience! I haven't seen one court actually look at the research on the matter. Not once. They just state it as a self-evident fact and then move on to use this to support their decision.


This astounds me as well.

BTW your entire post is excellent reading.

Maestro Pistolero
03-06-2012, 12:20 PM
Originally Posted by goldrush:
The legislature is currently faced with two major paths:

1. Keep "may issue," and clean up the Code to remove the discretionary and supplicating bits. This course is easily accomplished.

2. Dump "may issue," and adopt a "shall issue" scheme.

When the court struck discretionary issuance from the licensing policy, they left the state with 'shall issue' (which actual language already conveniently appears in the statute).

There is no longer any 'MAY ISSUE' to keep or not keep. :confused:

vincewarde
03-06-2012, 12:29 PM
IHMO, this ruling is huge because:

1) It is the first case involving a "may issue" state's law being ruled unconstitutional.

2) The was a summary judgement - this is huge because it indicates that the cases against "may issue" CCW (or "no issue") is extremely strong.

At this point, the antis on the other side of this case have indicated that they are going to appeal - which is EXACTLY WHAT WE WANT. WE WANT THIS CASE TO GO ALL THE WAY TO SCOTUS!

We want a nationwide precedent - and they appear likely to provide it for us. My guess is that the Court of Appeals will kick this back down to the original Federal Court for a full trial. Trial will be held and the result will be the same. It will then go back to the Court of Appeals, from which it will probably be appealed to the Supreme Court. In fact, an adverse ruling at the Court of Appeals would be to our advantage since it allows us to appeal to SCOTUS. If we win at the Applet Court, Maryland might learn from from Heller and limit the "damage" by failing to appeal - forcing us to come up with another case to establish a nationwide precedent.

In any case, this is very good news because it indicates that the case for the 2nd Amendment right extending beyond the home is very strong.

OleCuss
03-06-2012, 12:40 PM
In our adversarial system, all facts which support a case are supposed to be submitted and proven by evidence.
.
.
.
If a court's decision rests on a question of fact that has not been briefed, it should ask the parties to submit briefs and evidence on the question before coming to a conclusion about the answer to that question. However, it's a sad reality that most of the time judges don't give a flip about the rule of law or giving unbiased decisions (or as Roberts would put it, being a referee who calls strikes and balls in an unprejudiced manner). The determination was made before the first argument was made and the decision is simply an ad-hoc rationalization to their a priori conclusion.

Four posts total at this time and you are putting out a post like this?!!! I have great expectations for you!! Keep up the good work.

Not sure I entirely agree with you on what Scalia did, but it'd mostly be quibbling because overall your point is a pretty good one. But I wonder if some of Scalia's verbiage wasn't trying to work the politics of the court in order to get enough justices to agree/concur/whatever.

Of course, I've also kind of wondered if Scalia didn't become overly enamored with the magnificence of his thinking and just pontificate a bit more than necessary or advisable.

But IANAL, so I may have it very wrong.

goldrush
03-06-2012, 12:41 PM
This is a non-sequitur. "May issue" means discretionary issue. If you remove discretionary issue, then by definition you are removing "may issue".
If you mean by this that they will create "protected classes" and set up the system so that it is "shall-issue" to those classes, then I agree that they can (and may well try to) do that, but that is an equal protection suit waiting to happen.

No time for pedantry, today. You've repeated the exact outcome I outlined in my first post in this thread. ~(shall issue) is inelegant and will likely confuse the reader. For this discussion, operationally, there are two classes of licenses.

Because, after all, the civil rights movement got nowhere until the legislatures went into action. The court cases didn't help one bit. :rolleyes:

We must learn from history, yes?

:facepalm:

When you find gun owners getting hosed off their feet by Southern sheriffs, when you find the buses of gun owners being set on fire, when you find gun owners being lynched, you'll have an analogy. In the 60's, the Northern elites opposed conservatives and changed the country. On which side of this discussion are the Northern elites today aligned? The media and the populace doesn't view us as oppressed or victims. If you can create a video that shows our woeful plight, stirring all citizens to our defense, you'll be more revered than Gura. Remember that image problem I discussed earlier?

disintelligentsia
03-06-2012, 1:01 PM
This astounds me as well.

BTW your entire post is excellent reading.

Thanks. I wasn't at the keyboard much yesterday so I wasn't able to get my thoughts down when the decision came down.

goldrush
03-06-2012, 1:04 PM
As I dwell on this, I think the chances are high that the 4th Circuit will reverse. This case is too close to being everything we've wanted. Assume what writers have said here comes to pass: Maryland is a shall-issue state. That victory will prompt an immediate attack in New York City, employing the exact rationale.

If a discretionary issue state is forced to become mandatory issue, then they're carrying guns on Wall Street, in Times Square, in front of investment banks and past the U.N. Building. So also it goes for Washington and Chicago.

New York City is 150 miles away and resides within a discretionary issue state. The judges know that their highest calling is to keep guns out of the pockets of those walking the streets of New York City and Washington.

No one will be happier than me to carry a gun on Fifth Avenue, and I would strap on a Desert Eagle for that stroll, but I just don't see the courts allowing New York to have that liberty. They're too worried about the impact of guns on foreign dignitaries, business executives, government figures, entertainers, tourists, and they recognize the potential for any incident in New York to have an immediate and profound impact on world politics and our economy. I think they'll look to New York as the end game and will reverse-engineer their ruling.

Gura is to be highly commended for giving Bloomberg a very bad night's sleep.

As always, we'll see.

navyrifleshooter
03-06-2012, 1:23 PM
No one will be happier than me to carry a gun on Fifth Avenue, and I would strap on a Desert Eagle for that stroll, but I just don't see the courts allowing New York to have that liberty. They're too worried about the impact of guns on foreign dignitaries, business executives, government figures, entertainers, tourists, and they recognize the potential for any incident in New York to have an immediate and profound impact on world politics and our economy. I think they'll look to New York as the end game and will reverse-engineer their ruling.




When has a law stopped someone from breaking it. A person set on using a gun to hurt anyone that you mentioned will not be stopped by any law.

Crom
03-06-2012, 1:26 PM
As I dwell on this, I think the chances are high that the 4th Circuit will reverse. This case is too close to being everything we've wanted. Assume what writers have said here comes to pass: Maryland is a shall-issue state. That victory will prompt an immediate attack in New York City, employing the exact rationale.


:facepalm:

Do you live under a rock? You obviously don't know what you're talking about.

The New York City case is Kachalsky v. Cacace (http://archive.recapthelaw.org/nysd/365487/) [a Gura case ] and is already on appeal to the Second Circuit as of September 2011!

disintelligentsia
03-06-2012, 1:33 PM
but I do sense that some of it was just Scalia being Scalia. He does have something of an ego about him and gets into flame wars with the other justices when he dissents (and often times when he is in the majority!) It's something I oftentimes enjoy when reading his decisions, but it can get the better of him sometimes. :facepalm: His fire in his decisions are fine, but when he or any judge go outside the face of the issues presented they can tread on dangerous ground.

Judges are by nature generalists - they are not constitutional lawyers, bankruptcy lawyers, criminal lawyers, corporate lawyers, family law lawyers, etc. They have to be all of the above. This can lead to the dangerous delusion that they "know it all." When they believe they "know it all" then they believe every assumption they have is reality (it's a fact in their mind) and then they make decisions based on those assumptions. That's where lawyers are supposed to come in - they challenge the assumptions and can correct flaws in reasoning. However, when you have the highest court in the land making the assumptions (such as self defense is more critically needed at home then outside the home) then there's no one else to appeal to in order to correct the flawed assumption. This is why all issues that go into a decision should be fully presented to the parties and they should have the opportunity to brief the court and present all available evidence on the issue. Judges simply do not know it all and a judge who thinks he does is dangerous to our way of government. Further, a judges who rules based on his/her political leanings is no longer a judge but is rather an ideologue who has become dangerous because of the power he wields. That, in essence is why people hate "judge made law" - it's viewed as an arrogant usurpation and illegitimate because, being extraconstitutional, their decision does not flow from the grant of authority given by the People through the Constitution.

BTW, IAL. Sometimes when I write this stuff I'm not very "judicious" in my choice of words but it's only because I care so much about the rule of law (and not men). Our system of government only works if the actors "stick to their roles." When judges don't "play by the rules" then their orders are no longer viewed as legitimate. In our system process (procedural law) protects substance (substantive law). If you no longer follow the process (e.g. don't require briefs on points at issue but decide contested matters sua sponte, etc.) then the substance of the decisions will almost certainly be flawed and, and the very least be viewed as illegitimate.


Four posts total at this time and you are putting out a post like this?!!! I have great expectations for you!! Keep up the good work.

Not sure I entirely agree with you on what Scalia did, but it'd mostly be quibbling because overall your point is a pretty good one. But I wonder if some of Scalia's verbiage wasn't trying to work the politics of the court in order to get enough justices to agree/concur/whatever.

Of course, I've also kind of wondered if Scalia didn't become overly enamored with the magnificence of his thinking and just pontificate a bit more than necessary or advisable.

But IANAL, so I may have it very wrong.

1859sharps
03-06-2012, 2:03 PM
Some folks here imagine that one seemingly favorable ruling amounts to cause for celebration.

I might be misunderstanding what your getting at, but how can any favorable ruling that allows the building of additional favorable rulings, be anything but a cause for celebration.

As I understand how the "system" works, courts do not like broad all encompassing rulings. may gunnies want that because it's quick. But I don't believe it will ever happen. heck I am not even it's a good idea to have a single all encompassing ruling.

we got to the place we are by small incremental infringements building up over time. we are going to get out of it by small incremental wins that in the end total up to achieve what we need to regain our rights.

So no victory is too small to not celebrate, as long as it is a victory. Victory would be defined as either overturning a bad law or laying down case law to repeal a bad law.

OleCuss
03-06-2012, 2:11 PM
but I do sense that some of it was just Scalia being Scalia. He does have something of an ego about him and gets into flame wars with the other justices when he dissents (and often times when he is in the majority!) It's something I oftentimes enjoy when reading his decisions, but it can get the better of him sometimes. :facepalm: His fire in his decisions are fine, but when he or any judge go outside the face of the issues presented they can tread on dangerous ground.
.
.
.

Thank you. Appreciated the insights.

kcbrown
03-06-2012, 2:12 PM
When you find gun owners getting hosed off their feet by Southern sheriffs, when you find the buses of gun owners being set on fire, when you find gun owners being lynched, you'll have an analogy. In the 60's, the Northern elites opposed conservatives and changed the country. On which side of this discussion are the Northern elites today aligned? The media and the populace doesn't view us as oppressed or victims. If you can create a video that shows our woeful plight, stirring all citizens to our defense, you'll be more revered than Gura. Remember that image problem I discussed earlier?

You're killing your own argument here.

The media and the populace viewed blacks as oppressed victims and it still took judicial action to clean up the mess. State and local governments were insistent on maintaining their evil ways despite all that popular opposition. Why do you think the court action took place at all, if not to deal with precisely that?

Our situation is one where we don't even have the advantages of the kind of public support the civil rights movement had and yet you still think legislative action is how we're going to win when it didn't even work for them?

Sorry, dude, your argument on this front has absolutely no logical support whatsoever. It is fantasy to think that we can somehow win through legislation when we lack the level of support that the civil rights movement had, which even for them was insufficient for their needs. That leaves action through the courts as the only viable option.

If that doesn't work then we're down to a Constitutional convention. And if that doesn't work, then ... well, I've already said what needs to be said about that.

Patrick-2
03-06-2012, 2:20 PM
Good commentary. Thanks for wishing us well. I'd like to see some opinions on the judge's lack of interest in pursuing 1A parallels/14A claims.

The way I read it, the judge set up an argument for appeal that is solely about "outside the home." Intermediate was already decided by the 4th for felons, so not an issue. Masciandaro and Chester both carefully applied, so not an issue.

Word is that the AG's office is freaking right now and MSP has gone to their internal happy place.

The way I see it, this ruling (declaratory judgement?) is pretty much about nothing but the right existing outside the home. Everything else has been settled by the 4th or is not a controversy.

This would explain the panic. Maryland is forced to argue 2A on originalist terms (14A was not broached) circa 1789, when the right was understood to exist wherever you were. They cannot fight that. Heller says 'social science and statistics need not apply', but even those go our way.

This judge was smart. The only argument left on the table is 'outside the home'. We won't be reading any of this 'because of deficiency X, we end our inquiry here. We need not delve into the 2A argument."

This is what we wanted all along. Go Gura.

curtisfong
03-06-2012, 2:47 PM
Word is that the AG's office is freaking right now and MSP has gone to their internal happy place.

Somebody needs to remind them that this ruling doesn't hurt them. It is absolutely ridiculous that the AG and the police feel threatened by gun rights.

htjyang
03-06-2012, 2:48 PM
disintelligentsia's post is such an irony in so many ways. Let me count them.

First, disintelligentsia criticizes the Heller majority opinion as "ignorant pontificating." He seems to be unaware of the analytical method behind the majority opinion. The opinion is based upon original public understanding, a concept, that, interestingly enough, disintelligentsia fails to even mention in his self-important post. The method is important in not only defending the opinion from the ahistorical views of the minority, it is also a defense of the heritage of the 2nd Amendment.

How could it have escaped disintelligentsia that the majority opinion specifically stated that: "The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute." was in turn based on the ancient view that a man's home is his castle, a view that the opinion referred to:

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation "were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

I find it curious that the same 2A supporters who chide liberals for failing to understand the heritage of the right to bear arms would give so little weight when an opinion that upheld 2A does just that.

Even worse, disintelligentsia based his post on statistics. In so doing, disintelligentsia falls into the trap set by liberals. After all, the Bradyites have their statistics, too. disintelligentsia seems unaware that it is not the job of the judiciary to adjudicate statistical analyses for two reasons:

i. Is disintelligentsia seriously implying that if the numbers change, the right should change with it? Isn't that the very living constitutionalism espoused by the minority?

ii. The judiciary serves a very different function from the legislature. The finding of facts that disintelligentsia thinks is so necessary is not the responsibility of an appellate court. That is, at most, for the trial court. (See, for example, Cavazos v. Smith where the Supreme Court slapped the 9th Circus down for failing to respect the verdict of the trial court.) Nor is Heller the only case where this has happened. For example, see another Scalia opinion, Brown v. Entertainment Merchants Association, where he subtly ridiculed Alito's concurrence for doing his own fact-finding to try to create a government power to censor video games. I remember at least one other case where Scalia also ridiculed Justice Breyer for doing his own fact-finding. Here, disintelligentsia simply seems unaware of the division of responsibilities in the judiciary.

Heller has already come under heavy and mostly undeserved criticism by too many ignorant people. The last thing that it needs is to come under similar criticism from those who should be its proponents. I can understand people's frustration with the lower court's cautiousness or even ill will in misinterpreting Heller. Why that should be blamed on the Supreme Court is a mystery to me. In fact, the opinion specifically stated:

But since this case represents this Court’s first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

Heller was primarily meant to clarify the historical foundation of 2A. Hence its direct impact was very limited. The law suit did not deal with carry outside the home. Hence the majority spent little time dealing with it. Just as a house without a foundation can't stand for long, the development of 2A jurisprudence also requires a strong foundation. Heller served that function. The construction of the rest of the 2A body of law will be left to future cases.

curtisfong
03-06-2012, 2:50 PM
Feel free to add to this hilarious discussion

http://discussions.baltimoresun.com/20/balnews/bs-ed-gun-permits-20120306/10

OleCuss
03-06-2012, 3:04 PM
htjyang:

I think you might be just a wee bit harsh on disintelligentsia. Do remember that whatever his/her credentials are he/she is rather new (at least in number of posts) to this board - and likely to some of the arguments that have been hashed over here before.

I thought his point about assuming facts which had not been argued and for which judicial notice had not been given was (at least from a non-lawyer POV) a useful one. And since the arguments for the assumptions would likely be statistically based I thought his statistical approach was appropriate. I don't recall DI arguing that our rights are based on statistics (but my memory is not perfect).

I thought his comments on Scalia fit pretty well with what some very learned and respected people have noted. In fact, I've read some pretty credible people on the topic saying that to some degree Scalia actually abandoned the originalist approach in Heller (perhaps to our benefit).

I am looking forward to reading more of what DI writes. I'm sure I won't agree with it all, but the perspective is useful, I will learn, and I will be better.

I see no point in attacking him/her.

Maestro Pistolero
03-06-2012, 3:19 PM
Somebody needs to remind them that this ruling doesn't hurt them. It is absolutely ridiculous that the AG and the police feel threatened by gun rights.

Without a doubt, the shifting sands of 2A rights in this country present unique challenges to law enforcement.

LE training is woefully out of date vis a vi LE dealing with the lawfully-armed citizen. Their training is designed to promote quick, unconfused responses to armed citizens that generally assume ill will on the part of the armed.

"Gun equals bad-guy" approach to training might seem reasonable in a world where only bad guys carry. But even in that hypothetical world, undercover and off-duty officers are caught in 'friendly fire' all too often.

The realities of a lawfully armed populace complicate LE protocol when dealing with armed citizens, and requires a degree of judgment and subtlety on the part of officers that may or may not be within the easy reach of every officer.

New training and new protocol must be developed that help keep both citizens and officers safe from tragic mistakes, while allowing officers to act without hesitation when deadly force is in order.

AZ, Vermont, etc, seem to do just fine when encountering lawfully armed citizens. Studying how agencies do it in the areas that have long had 2A protection might be a good place to start.

M. D. Van Norman
03-06-2012, 3:22 PM
And that will be the unintended benefit of a normalized right to arms. ;)

Crom
03-06-2012, 3:54 PM
...
A prime example of this is what Scalia did in Heller with his pontificating that the right to self-defense was most acute in the home. It was basically a pull-it-out-of-his-sphincter finding of fact on an issue that was not presented or briefed which has provided a hook for the lower courts to strip us of our rights.

There are plenty of scathing reviews of Scalia from Heller floating around the Internet, but in all fairness the Heller decision was regarding self-defense and in the home.

Don't you think that most people would agree that the home is a very sacred place? Isn't the home where free men stored their arms? If we can't use handguns to defend our selves at home, then what good is the right at all? It makes sense to me that the right be strongest for the home. A man's home is his castle.

Also, if Justice Scalia was wrong then so was Justice Alito when he wrote this in McDonald: "Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.

This discussion reminds me of this historical quote from McDonald
In debating the Fourteenth Amendment (http://www.law.cornell.edu/supct-cgi/get-const?amendmentxiv) , the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms: “Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid .


...
The right to self-defense is most acute WHEREVER you are. Approximately nine out of ten (87%) violent crimes occur outside the home. U.S. Dept. of Justice, Bureau of Justice Statistics, Criminal Victimization in the United States, 1991, at 75 (1992). If the need for armed self defense is acute in the home, where only 13% of all violent crime occurs, then what the hell is it outside the home?

It is difficult to argue with the place point. I happen to agree with that. But it does not change the fact that our homes are sacred places. I would hope that carry would be subject to the same protections as in the home. Who knows, maybe the Supreme Court will find that carry is indeed part of the core right, subject to the identical protections as in the home? Wouldn't that be something?


Judges are by nature generalists - they are not constitutional lawyers, bankruptcy lawyers, criminal lawyers, corporate lawyers, family law lawyers, etc. They have to be all of the above. This can lead to the dangerous delusion that they "know it all." When they believe they "know it all" then they believe every assumption they have is reality (it's a fact in their mind) and then they make decisions based on those assumptions. That's where lawyers are supposed to come in - they challenge the assumptions and can correct flaws in reasoning. However, when you have the highest court in the land making the assumptions (such as self defense is more critically needed at home then outside the home) then there's no one else to appeal to in order to correct the flawed assumption.

Your comment that Judges are generalists reminds me of a discussion from last year at Volokh.com titled "Supreme Court Justices are Generalists (http://volokh.com/2011/06/20/supreme-court-justices-are-generalists/) which basically states something very similar.

disintelligentsia
03-06-2012, 3:58 PM
disintelligentsia's post is such an irony in so many ways. Let me count them.

First, disintelligentsia criticizes the Heller majority opinion as "ignorant pontificating." He seems to be unaware of the analytical method behind the majority opinion. The opinion is based upon original public understanding, a concept, that, interestingly enough, disintelligentsia fails to even mention in his self-important post. The method is important in not only defending the opinion from the ahistorical views of the minority, it is also a defense of the heritage of the 2nd Amendment.

How could it have escaped disintelligentsia that the majority opinion specifically stated that: "The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute." was in turn based on the ancient view that a man's home is his castle, a view that the opinion referred to:

I admit to not having the Heller decision in front of me when I drafted the post and may have been a little hard on Scalia. I in turn erred by quoting from the Masciandaro decision's interpretation of what Scalia said (and indeed what other courts have done in misreading Scalia). Basically, Scalia said that self-defense is the core of the right and that the need to be armed is most acute in the home because there you are guarding home, property and family. What Masciandaro and other lower court decisions have gone and done is take that word "acute" and read that to mean that the core of the right is in the home, which is not what Scalia said - he said the core is self-defense. He did not say that the core is self-defense when at home. The lower courts are abusing the reading of Heller to obtain the result they want much as they did with the Miller decision. So, my apologies to Justice Scalia.

As for the rest of the post, it stands scrutiny. Let me discuss your statements:

Even worse, disintelligentsia based his post on statistics. In so doing, disintelligentsia falls into the trap set by liberals. After all, the Bradyites have their statistics, too. disintelligentsia seems unaware that it is not the job of the judiciary to adjudicate statistical analyses for two reasons:

i. Is disintelligentsia seriously implying that if the numbers change, the right should change with it? Isn't that the very living constitutionalism espoused by the minority?

ii. The judiciary serves a very different function from the legislature. The finding of facts that disintelligentsia thinks is so necessary is not the responsibility of an appellate court. That is, at most, for the trial court. (See, for example, Cavazos v. Smith where the Supreme Court slapped the 9th Circus down for failing to respect the verdict of the trial court.) Nor is Heller the only case where this has happened. For example, see another Scalia opinion, Brown v. Entertainment Merchants Association, where he subtly ridiculed Alito's concurrence for doing his own fact-finding to try to create a government power to censor video games. I remember at least one other case where Scalia also ridiculed Justice Breyer for doing his own fact-finding. Here, disintelligentsia simply seems unaware of the division of responsibilities in the judiciary.

I concur that rights should not depend on statistics. My argument is with a judge stating as a fact that the need for self-defense is most acute in the home and misreading Heller as stating that self-defense in the home is therefore the core of the second amendment. However, Bradyite "statistics" have been out there in the "court of public opinion" and have been refuted by John Lott and other researchers. I have no fear of the facts or of public discourse. The left usually is afraid of public discourse because their views are not based in reality.

I am well aware of the distinction between the judiciary and the legislature and indeed between appellate and trial courts. That's why I stated over and over that these issues should be briefed at the district court/trial court level (which is what the Woolard decision is). Appellate courts are not supposed to engage in fact finding. However where, as here, the trial court has made findings of fact without letting the parties brief the issue and the holdings of the lower court hang largely on that finding, then it should either send the case back down so the facts can be further developed or permit the parties to brief the appellate court on the issue.

I agree that statistics are something that the left misuse and usually misrepresent on a regular basis to effect the change they desire. It was often represented to the public and to the courts that 10% of the public was homosexual. However, every study in the last 40 years indicate a level of approximately 1.5% male and 2% female homosexual population. Lies have often been made about the number of deaths and crimes involving guns. The left uses "x number of children die every year from gun violence" but fail to let the reader know that most of that is gang fighting with the "children" being 16-21 year old criminals. Lies are made about domestic violence and rape and men's rights suffer because of those lies.

Rights don't change with statistics. However, if the courts are inclined to make stuff up - turn their assumptions into facts, then those issues will need to briefed at the trial level so that the true facts are preserved for appeal. The Masciandaro and, consequently, the Woolard decisions stated that intermediate scrutiny applied because they believed that the right to self-defense was no longer core to the second amendment when one travelled outside his or her home. That belief was based on the false assumption that the need for self-defense was most acute in the home.

While it is true that when you're in your home you are protecting your "castle" and property and possibly your family, that has little bearing on when the right should be deemed "most acute." Your family can be with you any time of the day and at any place. Should the right to defend your family be less acute when they are with you and you're outside the home where most violent attacks occur? Should protecting my car or my wallet be make my right to self defense less acute than protecting my possessions at home? What about my most cherished and the most fundamental right and possession - my life. Should the urgency to protect it be deemed less acute away from the home - again, where close to 90% of attacks occur?

My primary point is that judicial fact finding should be based within the constraints of legal process - our system is adversarial and the adversaries need the right to address any facts or arguments which represent questions before the court. A court, ANY court, whether it be a trial court or the Supreme Court, should not engage in judicial notice of facts sua sponte. Each "fact" which a court bases it's decisions on should be fully briefed by each opposing side. Judges are generalists and they need to be given all the facts and evidence if they are to make fully informed and rational decisions.

htjyang
03-06-2012, 4:00 PM
htjyang:

I think you might be just a wee bit harsh on disintelligentsia. Do remember that whatever his/her credentials are he/she is rather new (at least in number of posts) to this board - and likely to some of the arguments that have been hashed over here before.

I thought his point about assuming facts which had not been argued and for which judicial notice had not been given was (at least from a non-lawyer POV) a useful one. And since the arguments for the assumptions would likely be statistically based I thought his statistical approach was appropriate. I don't recall DI arguing that our rights are based on statistics (but my memory is not perfect).

I thought his comments on Scalia fit pretty well with what some very learned and respected people have noted. In fact, I've read some pretty credible people on the topic saying that to some degree Scalia actually abandoned the originalist approach in Heller (perhaps to our benefit).

I am looking forward to reading more of what DI writes. I'm sure I won't agree with it all, but the perspective is useful, I will learn, and I will be better.

I see no point in attacking him/her.

Please note that those supposedly harsh words of mine actually all came from him. I simply used his words. Are you telling me that he could dish it out but he couldn't take it? Or that just because the Heller majority don't post on this forum that they don't deserve a defense at least as vigorous as the offense? Especially when, as it seems quite clear to me, disintelligentsia doesn't really understand judicial processes and the thinking behind the majority opinion.

As for disintelligentsia, he complained about the majority's view of the self-defense right being strongest in the home. He claimed that this was fact-finding and then proceeded to talk about statistics. What am I to make of this other than that he considered fact-finding to be the responsibility of the Supreme Court (when it isn't) and that statistics should form part of that process?

I'm quite aware of plenty of criticism of the majority and, with a few rare exceptions, they tend to make the same mistakes that I criticized in my post. I can't help but notice that you certainly didn't respond to the substantive points I made. In fact, you made the very mistake that I criticized in my post by stating: "since the arguments for the assumptions would likely be statistically based...."

That's exactly what conservatives are challenging. Arguments about the constitution should have nothing to do with statistics. After all, if the statistics change, does that mean the right changes as well?

Our answer is no. That is why our approach is based upon original public understanding. The practicality of legislation should be left to the legislature. The judiciary's role is to discern whether such legislation is constitutional and the way to do that is to study the historical record, not launch into a duel on statistics.

htjyang
03-06-2012, 4:11 PM
disintelligentsia,

If my prior post directed to you was a bit harsh, then I hope you noticed that the sharper language all came from your post. I did it to make a point: Just because your target is not here to defend himself doesn't mean that such language is appropriate. If you choose to use such language, then you should expect similar language in return. It seems to me that people who are capable of expressing themselves in that way should also be capable of taking it.

As I noted in my post, the interpretive method of the majority opinion is original public understanding. That alone should repudiate any statistics. Findings of facts should be left to the legislature or, at most, the trial court. The Supreme Court should not engage in such a duel. To do so is not only to degrade itself to a lower position, it is also a usurpation of the roles of others. The parallel to such usurpation is the liberal attempt to substitute their own preferences for the Framers' intent. That is one of the things the Heller majority criticized. How can it condemn one usurpation while engaging in another usurpation?

hoffmang
03-06-2012, 5:49 PM
As I said on TTAG, the absolute minimum impact of Woolard is that no other Federal Judge at any level will have to be the first to strike down a carry law.

Goldrush is either way too focused on the trees to see the forest or he's a partisan who doesn't like that it's not his team who is winning. At least on the latter point he attends the other side's (who keep getting the court victories) events...

Goldrush also suffers from something a lot of gun owners do too. The political tin ear for how politics actually work is strong in this one. Maryland doesn't have room between the Woolard decision and shall issue and the legislature will lift no fingers here.

-Gene

Tarn_Helm
03-06-2012, 6:01 PM
I might be misunderstanding what your getting at, but how can any favorable ruling that allows the building of additional favorable rulings, be anything but a cause for celebration.

As I understand how the "system" works, courts do not like broad all encompassing rulings. may gunnies want that because it's quick. But I don't believe it will ever happen. heck I am not even it's a good idea to have a single all encompassing ruling.

we got to the place we are by small incremental infringements building up over time. we are going to get out of it by small incremental wins that in the end total up to achieve what we need to regain our rights.

So no victory is too small to not celebrate, as long as it is a victory. Victory would be defined as either overturning a bad law or laying down case law to repeal a bad law.

There are many people who believe that the Second Amendment, DC v. Heller (http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller), and McDonald v. Chicago (http://en.wikipedia.org/wiki/McDonald_v._Chicago) are safe.

I don't believe that.

I believe that those rulings will only remain safe if we prevent a POTUS from getting elected or re-elected who would put anti-Second-Amendment judges on the SCOTUS.

There are many people here who are not single-issue voters.

They say they support the Second Amendment, but they seem perfectly willing to vote for officials who will take steps to endanger our rights.

So celebrating a lower court victory in a state where the current POTUS won with 62% does not seem rational to me. (http://elections.nytimes.com/2008/results/president/map.html)

Maybe I am unduly uncheerful.

So sue me.

Maryland, the same state which the current POTUS took with 62% of the voters, might very well vote for him again, now that it has apparently won shall-issue CCW.

The danger is that Marylanders may now short-sightedly decide to vote for the current POTUS again because they are feeling like the Second Amendment is safe in their state, ignoring what could happen if two of the Heller Five are replaced by SCOTUS appointees who reject civilian right to personal arms for self-defense in the home (and other aspects of RKBA which exist in the form of obiter dicta in the two cases mentioned and others).

The POINT is that the POTUS can appoint a SCOTUS that will SQUASH RKBA.

Is that clear enough?

So dancing around joyously after one little shall-issue battle is not something I will be in the mood for until after the current POTUS is voted out of office.

Unfortunately, I suspect that there are not enough single-issue RKBA voters to prevent the current POTUS from getting re-elected.

Part of the reason for this is that folks celebrate prematurely and lose sight of the larger picture.

Woollard v. Sheridan (http://wiki.calgunsfoundation.org/index.php/Woolard_v._Sheridan)is nice, but will everyone celebrating it here and now continue to celebrate if the current POTUS gets re-elected and then appoints two more anti-RKBA SCOTUS members during the next presidential term?

We already saw him appoint Sotomayor and Kagan--both are anti-RKBA.

Can we really afford two more who will think about, and decide, RKBA cases the way they do?

No.

The current strength of RKBA in America can crumble to pieces if we get two more anti-RKBA SCOTUS appointees who are willing to delete the Second Amendment by means of creative interpretation of our allegedly "Living Constitution."

Consider Ginsburg's view of our Consitution:

Many Americans would presumably describe their own Constitution in similarly glowing terms. However, Ginsburg’s views, which she didn’t choose to express at her confirmation hearings, help explain why she has felt so free over the years to read foreign law into our own Constitution, using it to bind our elected representatives and force them to adopt policies more to her liking. More broadly, her comments help to explain why it’s necessary, in her mind, to view our Constitution as a “living” document; why unelected judges must be the ones to breathe continued life into that document; and why — in the words of the late Justice William Brennan, himself a leading “living constitutionalist” — judges must actually “give meaning” to the Constitution. The reason for all of this, so plainly stated by Ginsburg, is that the old document — written by the Founders and amended by later generations — simply wouldn’t be worth “looking to” today if one could help it. Therefore, it must be modified from the bench. (http://www.weeklystandard.com/blogs/exposing-living-constitution-view_629961.html)

I cannot celebrate Woollard v. Sheridan (http://wiki.calgunsfoundation.org/index.php/Woolard_v._Sheridan) until I know that we will not have two more "Living Constitutionalists" on the SCOTUS.

Hillary Clinton, appointed by the current POTUS, has already brought the U.S. at least step closer to coming under the influence of foreign law. (http://www.state.gov/secretary/rm/2009a/10/130573.htm)
This foreign law includes law that would infringe the Second Amendment.

See what I mean now?
:beatdeadhorse5:

smn
03-06-2012, 6:02 PM
And speaking of statistics in SCOTUS opinions... Dr. John R. Lott has written this piece:
http://www.constitutingamerica.org/blog/blog/2012/03/05/march-6-2012-the-right-of-the-people-to-keep-bear-arms-shall-not-be-infringed-guest-essayist-dr-john-lott-author-of-more-guns-less-crime-university-of-chicago-press-third-edition-2010/
The third paragraph is the following:
But a simple word count shows how Breyer’s fear over letting law-abiding Americans own guns fills his dissent. Just the words “crime,” “criminal,” “criminologist,” “death,” “homicide,” “murder,” “life-threatening,” “injury,” “rape,” “robbery,” “assault,” “safety,” and “victim” were used a total of 163 times in 44 pages. The terms ”accidents” and “suicide” by themselves were mentioned an additional 13 times each. While other words could be included, these words alone averaged 4.3 per page of his dissent.
Enjoy the read.

vincewarde
03-06-2012, 6:39 PM
As I said on TTAG, the absolute minimum impact of Woolard is that no other Federal Judge at any level will have to be the first to strike down a carry law.

That is a VERY good point. These judges know full well how they should rule in light of the law - but I am sure none of them wanted to be the first.

Maryland doesn't have room between the Woolard decision and shall issue and the legislature will lift no fingers here.

Exactly. What are they going to do? With the "good cause" provision struck down, the state is effectively shall issue. The most they may do - after the current case is completely over - is to increase training requirements. Even with this, they will need to be careful not to go too far.

Tarn_Helm
03-06-2012, 7:17 PM
That is a VERY good point. These judges know full well how they should rule in light of the law - but I am sure none of them wanted to be the first.



Exactly. What are they going to do? With the "good cause" provision struck down, the state is effectively shall issue. The most they may do - after the current case is completely over - is to increase training requirements. Even with this, they will need to be careful not to go too far.

"What are they going to do?" you ask.

How about requiring a "psych eval"?

SAMPLE QUESTION:

"Since you are a gun owner who believes that your right to carry a concealed weapon for self-defense even includes self-defense against the government, under what circumstances would you draw your weapon to defend yourself against an armed government employee attempting to disarm for reasons you believe to be unwarranted by law?"

:eek:

Hm.

I guess I am less trusting and better able to think of all the different ways anti-RKBA folks can sabotage us.

We are not out of the woods yet.

And there is always another dragon to slay.

The price of freedom is eternal vigilance.
:cool:

radioman
03-06-2012, 7:23 PM
I would think now that the cheery has been popped, so to speak, it will keep going. the 9th may get to do it next, and best of all is that part of the 9th is shall or cc. It can only get better from here.

SWalt
03-06-2012, 8:37 PM
Lots of good reading here in this thread. It is a great victory. We will see what else this ruling will bring.

doug-y-doug
03-06-2012, 10:14 PM
Lawyers say gun ruling likely to withstand appeal: http://www.baltimoresun.com/news/maryland/bs-md-gun-law-appeal-20120306,0,6673248.story

Even an anti-gun law professor agreed.

press1280
03-07-2012, 12:39 AM
That is a VERY good point. These judges know full well how they should rule in light of the law - but I am sure none of them wanted to be the first.



Exactly. What are they going to do? With the "good cause" provision struck down, the state is effectively shall issue. The most they may do - after the current case is completely over - is to increase training requirements. Even with this, they will need to be careful not to go too far.

They'll have to pass a bill(a shall-issue one no less) with a training requirement. I believe the current requirements, now with "cause" struck down, are closest to Washington State-fingerprints are taken, but no training requirement.
They do have a shall-issue bill (and a bill recognizing all bordering states licenses) in committee right now. It's always desk drawered year after year but it may pass just because of the court ruling and the extra pressure that comes with it.

Kharn
03-07-2012, 1:40 AM
press1280:
That is HB45, currently it is being reviewed and our local RKBA groups may advise its sponsor to pull it if it could nullify Woollard.

goldrush
03-07-2012, 3:22 AM
As I said on TTAG, the absolute minimum impact of Woolard is that no other Federal Judge at any level will have to be the first to strike down a carry law.

A "carry law" wasn't really struck down here. The Maryland legislature enacted a robust carry law, but limited its application. Legg removed a restriction, arguably giving an existing carry law greater application. If a judge in the 7 Cir. strikes down a ban on carrying in Illinois, that will be the first judge to strike down a carry law.

If the 4th Cir. reverse Legg, he'll also have been the first judge to have been embarrassed by his higher court. We'll see if any other judge will be so bold if Legg is reversed, particularly if the appellate opinion is unkind and insulting to his analysis.

Goldrush is either way too focused on the trees to see the forest or he's a partisan who doesn't like that it's not his team who is winning.

It's disappointing to see gun owners lose case after case, and it's disappointing to see our rare "wins" have so much anti-gun language in them.

P.S. Woollard gets better the more I read it, but the more I read it, the more I worry that the higher court will find he went too far.

goldrush
03-07-2012, 7:18 AM
:facepalm:

Do you live under a rock? You obviously don't know what you're talking about.

The New York City case is Kachalsky v. Cacace (http://archive.recapthelaw.org/nysd/365487/) [a Gura case ] and is already on appeal to the Second Circuit as of September 2011!

Thanks for that link. I crawled out from under my rock and read it.

Ouch. That was painful. I don't think I've ever seen an attorney get as abused as Gura did in that case. A sua sponte granting of an unfiled cross-motion for summary judgment? That sort of harsh treatment doesn't happen every day.

It looks like Gura's bringing the same three claims in every case, and it looks like judges go whichever way they want, finding caselaw to say whatever they want it to say.

This is probably the best passage in Woollard:

"A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered reasonably adapted to a government interest, no matter how substantial that interest may be."

Contrasted with that other case:

"I also hold that Section 400.00(2)(f) is substantially related to that important government interest. The statute does not function as an outright ban on concealed carry, but rather calls for individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable—rather than merely speculative, potential, or even specious—need for self-defense."

I've never heard anyone before say that the natural law right to self defense can somehow be "specious."

Here's language that will be very problematic, should Maryland use it in their appeal:

"Surely, the legislature cannot be expected to enumerate every profession or circumstance that might give rise to an articulable need for self-defense, and so Section 400.00(2)(f) vests the responsibility for discerning such need in the capable hands of the state’s neutral and detached licensing officers."

I really wonder how this is going to play out. The fight is for New York and, perhaps equally, Washington. Chicago and L.A. are lesser considerations. It's almost assured that courts will commit whatever intellectual violence is necessary to keep guns out of Manhattan.

Mulay El Raisuli
03-07-2012, 7:21 AM
(Quoting Wollard v. Sheridan) "If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method."


You really are too pessimistic. :) The comment is true enough as far as it goes. Rights aren't absolute. They can be "burdened" when justification can be shown. But, what makes this good Ruling for us is that now justification MUST be shown. Not alleged. Not just assumed to be true. JUSTIFIED. This is something new in the game. Further, reality is that the antis CANNOT justify their claims. Reality is that grabbing guns does NOT reduce crime. Never has, never will. While I too would like to see Strict Scrutiny applied (and I believe we will eventually) the fact that we can win even with Intermediate Scrutiny is great news.


"This Court shares that view. The Supreme Court‘s choice of phrasing connotes that the restrictions it termed presumptively lawful pass muster under a heightened standard of review." - How dictum becomes law. Thanks, Scalia.


On this, I agree. Allowing that he may have done this for "political" (inside SCOTUS politics) reasons, & even though the lower courts didn't have to mis-read this part, the fact remains that lower courts HAVE mis-read this. Which has done us no favors.


I feel a need to step on some nay-sayers. Gently.

A couple of points on the judge's ruling:

He knew it was going to be appealed. He talked about that during the hearing last year. He also made clear that he wanted to start the constitutional conversation. He did that.

He avoided the Equal Protection and 1A parallels, true. But the ruling cannot be evaluated in a vacuum. He has to work within the boundaries of the 4th Circuit, who so far have placed outside the home in intermediate scrutiny territory. As much as you would have liked to see "strict" from Judge Legg, the simple fact is that would have put the state in a good place during an appeal - his ruling would have been counter to his circuit's law. Likewise the 1A parallels.

This opinion is tight and crafted for the appeal. It uses the law we have in the 4th and broaches a topic that requires further evaluation and decision. I am perfectly happy with it, as is, because we are now going to have a moderate circuit court forced to evaluate nothing more than whether the right exists outside your home. Maryland will fight tooth and nail to make this about anything but that question. They will attack the parts of the ruling that use 4th Circuit precedent, but they will assiduously avoid (as much as possible) the actual outside-the-home inquiry. The thing is...this ruling makes it really hard for them to do so. The only "new" thing is the finding that the right extends beyond my doorstep.

Please go back and read the many rulings nationwide that have avoided this question. Courts usually follow a similar pattern: find something - anything - that can be used to deny the right without ever really denying the right exists: standing, 1A, EP, etc.

Judge Legg wrote an opinion with a finding that cannot be avoided. The 4th cannot simply say, "Judge Legg's reasoning under EP is wrong, and we find for the state on that count. Because of this, we need not inquire into the 2A question at this time."

How many flipping times have we read that same statement, "because of X, we need not inquire further into the outside-the-home question."

The court and the state cannot avoid the 2A question in this case. It is the only question before them.

Think bigger than a single piece of paper. This decision sets up the question in a way that cannot be avoided. To that end, it is an excellent ruling.


YES! YES! YES! (OMG! I'm channeling Meg Ryan!)


Thanks. I wasn't at the keyboard much yesterday so I wasn't able to get my thoughts down when the decision came down.


It's a good thing you waited. All that I've seen from you is really quite good.


My sentiments exactly.... if you think for one second the People's Democratic Republic of California cares about what happens in America you're crazy. The Supreme Court could come out and say that all state gun laws that restrict the free and open/concealed carry of firearms by a lawful citizen is unconstitutional... California would just ban having ammo on your person. The thing about libtards is they always find a way around laws and backdoor them so the right that USED TO exist... dies.


You're just too pessimistic. Precedent already exists to prevent this from happening.


But seriously, how awesome would that be. I'm all for the days of LOC for all:)


Oh, thank God. I'm not the only one.


Eugene Volokh (http://volokh.com/2012/03/05/federal-district-court-recognizes-right-to-carry-gun-outside-the-home-holds-unconstitutional-marylands-restrictive-carry-licensing-scheme/) and Dave Kopel (http://volokh.com/2012/03/05/right-to-carry-victory-in-maryland-woollard-v-sheridan/) discuss the case at Volokh Conspiracy.


And of course, the part I like best is where Volokh cites the cases showing that it is LOC that is the protected Right.


The Raisuli

curtisfong
03-07-2012, 7:53 AM
it looks like judges go whichever way they want, finding caselaw to say whatever they want it to say.

This is probably the best passage in Woollard:

"A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered reasonably adapted to a government interest, no matter how substantial that interest may be."

Contrasted with that other case:

"I also hold that Section 400.00(2)(f) is substantially related to that important government interest. The statute does not function as an outright ban on concealed carry, but rather calls for individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable—rather than merely speculative, potential, or even specious—need for self-defense."

It is precisely this sort of ridiculous behavior from "wise" judges that typically gets the attention of SCOTUS, since this is what causes circuit splits.

SWalt
03-07-2012, 9:09 AM
When applying intermediate scrutiny,

"At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method. The showing, however, is always the Government‘s to make. A citizen may not be required to offer a ―good and substantial reason‖ why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs."

Just the facts ma'am.

I'll take it! Wish the judge had big enough ones to make the leap to strict scrutiny and call BS on its superior though. We need our own case law and precedence instead of "its kinda sorta like 1A protections, but we really don't know since Heller and others gave no guidance and 1A isn't really similarly situated" Poking around in the darkness isn't good, turn the light on!

POLICESTATE
03-07-2012, 9:31 AM
"What are they going to do?" you ask.

How about requiring a "psych eval"?

SAMPLE QUESTION:

"Since you are a gun owner who believes that your right to carry a concealed weapon for self-defense even includes self-defense against the government, under what circumstances would you draw your weapon to defend yourself against an armed government employee attempting to disarm for reasons you believe to be unwarranted by law?"


Answer: It's not up to me to decide what actions by any government official are unwarranted, that is for the courts to decide. Therefore under no circumstances would I draw my weapon to defend myself against an armed government employee attempting to disarm me for any reason. Furthermore I don't believe that I have a right to self-defense against the government as you put it. I believe in self-defense in preservation of life and limb. I don't see the government going out and killing folks do you?

Uxi
03-07-2012, 9:45 AM
If my prior post directed to you was a bit harsh, then I hope you noticed that the sharper language all came from your post. I did it to make a point: Just because your target is not here to defend himself doesn't mean that such language is appropriate. If you choose to use such language, then you should expect similar language in return. It seems to me that people who are capable of expressing themselves in that way should also be capable of taking it.

Agreed. The 'pontificating' claim almost discredits what was an otherwise effective analysis, though I disagree with the conclusion. Heller never intended to address "bear" just "keep" and that needs to be kept in mind when criticizing it. Maybe they should have been more broad in the ruling... I'm wondering if they would have lost Kennedy or if they just didn't want to stray from their ample focus.




I really wonder how this is going to play out. The fight is for New York and, perhaps equally, Washington. Chicago and L.A. are lesser considerations. It's almost assured that courts will commit whatever intellectual violence is necessary to keep guns out of Manhattan.

We need the larger argument to be precisely that. The core of the right is based on three concepts: self defense, hunting/sporting, and the resistance to tyranny.

Why should Manhattan and DC be excluded from any of those principles? One could make an argument there's no game to hunt in either, certainly. But as Emily Miller notes, there is no range she can use as a civilian in the District. We can certainly posit that negligent (much less criminal) discharge can and should be forbidden and suitably punished but people should not be forced to relinquish their right to safety by going in there unless the State can offer a suitable guarantee of safety (and otherwise void Castle Rock vs Gonzalez)

Rossi357
03-07-2012, 11:27 AM
It finally happened.

krucam
03-08-2012, 4:43 AM
As expected, MD has requested a Stay of the Monday ruling, pending Appeal to the 4th Circuit.

http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.54.0.pdf

It has not been "granted" yet...so far, all is "as expected" and from the play book...

OleCuss
03-08-2012, 5:20 AM
Thank you for the update.

While it is a small hope, I actually have a little hope that the court will not grant the stay. It sounds like the court was pretty certain about the violation of rights and it is not clear to me that the court will think that a stay is acceptable.

goldrush
03-08-2012, 6:04 AM
As expected, MD has requested a Stay of the Monday ruling, pending Appeal to the 4th Circuit.

http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.54.0.pdf

It has not been "granted" yet...so far, all is "as expected" and from the play book...

Good writing in their motion. The judge is going to have to grant it, as the state notes a huge hole in the Order. Immediately going to "shall issue" gives the state no ability to determine whether it wants open or concealed carry as its form of shall issue. This judge isn't ready to say that open and concealed carry stand equally and are equally protected. Denying the stay would presently be overreach and would turn the judge into the Maryland legislature.

spiderpigs
03-08-2012, 6:50 AM
Without a doubt, the shifting sands of 2A rights in this country present unique challenges to law enforcement.

LE training is woefully out of date vis a vi LE dealing with the lawfully-armed citizen. Their training is designed to promote quick, unconfused responses to armed citizens that generally assume ill will on the part of the armed.

"Gun equals bad-guy" approach to training might seem reasonable in a world where only bad guys carry. But even in that hypothetical world, undercover and off-duty officers are caught in 'friendly fire' all too often.

The realities of a lawfully armed populace complicate LE protocol when dealing with armed citizens, and requires a degree of judgment and subtlety on the part of officers that may or may not be within the easy reach of every officer.

New training and new protocol must be developed that help keep both citizens and officers safe from tragic mistakes, while allowing officers to act without hesitation when deadly force is in order.

AZ, Vermont, etc, seem to do just fine when encountering lawfully armed citizens. Studying how agencies do it in the areas that have long had 2A protection might be a good place to start.

I dont see any of this as a bad thing, true, short term there may be issues but honestly, police in general need to be knocked down a rung in their interactions with the general populace.

goldrush
03-08-2012, 7:00 AM
I dont see any of this as a bad thing, true, short term there may be issues but honestly, police in general need to be knocked down a rung in their interactions with the general populace.

'Bout time all people start saying this.

Uxi
03-08-2012, 7:22 AM
Good writing in their motion. The judge is going to have to grant it, as the state notes a huge hole in the Order. Immediately going to "shall issue" gives the state no ability to determine whether it wants open or concealed carry as its form of shall issue. This judge isn't ready to say that open and concealed carry stand equally and are equally protected. Denying the stay would presently be overreach and would turn the judge into the Maryland legislature.

Could he give them a short stay? Say, a week? They should be in session, after all, no?

Gray Peterson
03-08-2012, 7:54 AM
Good writing in their motion. The judge is going to have to grant it, as the state notes a huge hole in the Order. Immediately going to "shall issue" gives the state no ability to determine whether it wants open or concealed carry as its form of shall issue. This judge isn't ready to say that open and concealed carry stand equally and are equally protected. Denying the stay would presently be overreach and would turn the judge into the Maryland legislature.

MDSP can restrict the circumstances the license is valid, see 5-307. The politics of Maryland will not allow open carry, & it's clear that the judge would have decided in our favor if Maryland only allowed concealed carry in a manner similar to Texas. They (state police or Maryland Legislature) will choose concealed carry as a manner restriction.

Kharn
03-08-2012, 8:02 AM
Good writing in their motion. The judge is going to have to grant it, as the state notes a huge hole in the Order. Immediately going to "shall issue" gives the state no ability to determine whether it wants open or concealed carry as its form of shall issue. This judge isn't ready to say that open and concealed carry stand equally and are equally protected. Denying the stay would presently be overreach and would turn the judge into the Maryland legislature.The current program permit allows the licensee to choose the method of carry, with the unspoken thread of losing your permit if you OC out of uniform. The State Police can't just pick one or the other and apply it to all applicants because the same permit is used for personal protection and security guards. Effectively, the legislature screwed themselves by trying to have one law for both fields.

Gray Peterson
03-08-2012, 8:04 AM
The current program permit allows the licensee to choose the method of carry, with the unspoken thread of losing your permit if you OC out of uniform.

It's not unspoken, it's right in the COMAR regs.

J.D.Allen
03-08-2012, 8:38 AM
So...what's happening on the ground right now in MD? Are people applying in droves?

Rossi357
03-08-2012, 8:47 AM
So...what's happening on the ground right now in MD? Are people applying in droves?

Check out this link. It's pretty busy there.
http://www.mdshooters.com/showthread.php?t=40649

hvengel
03-08-2012, 10:20 AM
Check out this link. It's pretty busy there.
http://www.mdshooters.com/showthread.php?t=40649

I guess. The thread is currently 256 pages long!

Al Norris
03-08-2012, 10:29 AM
Um, it's currently at 288 (20 post) pages (the default).

Rossi357
03-08-2012, 10:41 AM
It took me two days to read up from the date of the decision.
Even though this decision is not binding, it will be ringing in the ears of all the Judges hearing gun rights cases. :gura:

goldrush
03-08-2012, 10:45 AM
If this case holds that "good cause" or "may issue" permits are invalidated, and if Grey wins his case that states have to issue permits to out-of-state travelers, then I'm just a couple of court orders from having a New York State permit that I can use to strap on a Desert Eagle and walk though Times Square locked and loaded.

Almost there.

notme92069
03-08-2012, 12:47 PM
If this is upheld on appeal, does this case present a circuit split with Nordyke in regards to scrutiny? (assuming nothing changes with Nordyke) And if it does, will SCOTUS care?

Gray Peterson
03-08-2012, 1:06 PM
If this case holds that "good cause" or "may issue" permits are invalidated, and if Grey wins his case that states have to issue permits to out-of-state travelers, then I'm just a couple of court orders from having a New York State permit that I can use to strap on a Desert Eagle and walk though Times Square locked and loaded.

Almost there.

:eek: :thumbup: :D

goldrush
03-08-2012, 1:28 PM
:eek: :thumbup: :D

I'll have to walk up to Mikey and ask "Hey, Mike, me and my gun want to know where we can get a good hot dog around here?" I'll probably be stuck with pushcarts, since every business will likely slap a "no handguns" sign on their door.

press1280
03-08-2012, 1:29 PM
If this is upheld on appeal, does this case present a circuit split with Nordyke in regards to scrutiny? (assuming nothing changes with Nordyke) And if it does, will SCOTUS care?

I'm guessing both courts would say intermediate scrutiny outside the home. The problem is that one court will treat it as intermediate scrutiny and one will treat it as rational basis. Not sure if that'll be treated as a split or not.

The split will be over the carry permits and not so much differing scrutiny IMO.

Rossi357
03-08-2012, 1:41 PM
Will someone please let me know when it's time to HAPPY DANCE? My feet are twitching now.

Maestro Pistolero
03-08-2012, 2:09 PM
The defining of intermediate scrutiny as it pertains to public carry by this court may one of the most useful aspects of this decision going forward. Judge Legg grabbed the bull of scrutiny by the horns and wrestled it into submission.

htjyang
03-08-2012, 6:14 PM
The defining of intermediate scrutiny as it pertains to public carry by this court may one of the most useful aspects of this decision going forward. Judge Legg grabbed the bull of scrutiny by the horns and wrestled it into submission.

I'm still hoping for strict scrutiny.

It's rather annoying to see that after Heller ruled out rational basis and Justice Breyer's "The Constitution is whatever I say it is" test, judges immediately go for intermediate scrutiny rather than strict scrutiny even though there are numerous instances where the Court equated 2A with 1A. Obviously the "2A as constitutional red-headed step-child" meme, though somewhat diminished by Heller-McDonald, is still around.

Somebody send the Court a wooden stake. This vampire needs to be killed once and for all.

hoffmang
03-08-2012, 7:03 PM
If this case holds that "good cause" or "may issue" permits are invalidated, and if Grey wins his case that states have to issue permits to out-of-state travelers, then I'm just a couple of court orders from having a New York State permit that I can use to strap on a Desert Eagle and walk though Times Square locked and loaded.

Almost there.

Locked and loaded on MADISON Avenue is the goal. I expect SCOTUS to say concealed shall issue is ok where LOC is banned though so it may be under our jackets...

No matter. Freedom will feel great walking armed in Manhattan.

-Gene

Maestro Pistolero
03-08-2012, 8:43 PM
No matter. Freedom will feel great walking armed in Manhattan.
Yes it will. Here's an illustration of backup position of those antis who don't yet see the writing on the wall:
http://www.christopherjhoffman.com/images/headinthesand.jpg