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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #81  
Old 07-28-2011, 12:12 AM
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Originally Posted by hoffmang View Post
Uhm.. Halbrook attempted to torpedo Parker/Heller w/ Seegars - the case that caused Parker to end up being Heller and that caused Dearth to have to be appealed on standing before it could even come back to district for the merits.

Actively opposing tends to tilt the balance to the folks who beat both Halbrook and DC (and the US Solicitor General...)

-Gene
I had remembered Seegars as an NRA thing, but had forgotten Halbrook's involvement. (Not that Halbrook works a lot for NRA, but that Halbrook was so much the lead here.) I plead distance from 2003...
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  #82  
Old 07-28-2011, 1:38 AM
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Originally Posted by wildhawker View Post
Actually, the inverse might be more accurate.

What 2A cases have NRA/Halbrook won, again?
Halbrook successfully argued Printz, Small, Thompson Center and Castillo at the SCOTUS.
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  #83  
Old 07-28-2011, 1:49 AM
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Halbrook successfully argued Printz, Small, Thompson Center and Castillo at the SCOTUS.
Emoticon noted, and I presume that indicates we both know none of those are 2A.

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  #84  
Old 07-28-2011, 3:32 AM
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Parker, Seegars, Dearth...Halbrook torpedoing a case, and that comment about "detriment to liberty"
All this case interaction has got me a little confused...Maybe a simple recap for the dot-connecting challenged???
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  #85  
Old 07-28-2011, 4:51 AM
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The usual beautiful lawyer porn from Gura. Always a great read. He does a great job of illustrating to SCOTUS that they will need to step up and "re-explain" themselves pretty darn soon, so it might as well be now!
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  #86  
Old 07-28-2011, 4:56 AM
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Originally Posted by hoffmang View Post
Uhm.. Halbrook attempted to torpedo Parker/Heller w/ Seegars - the case that caused Parker to end up being Heller and that caused Dearth to have to be appealed on standing before it could even come back to district for the merits.

Actively opposing tends to tilt the balance to the folks who beat both Halbrook and DC (and the US Solicitor General...)

-Gene
I stand corrected. I was basing my comment on Halbrook's extensive originalist scholarship. I was unaware that he was involved in NRA's attempt to torpedo Heller. I only got involved in 2A issues in early 2008.
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  #87  
Old 07-28-2011, 9:51 AM
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Originally Posted by ptoguy2002 View Post
Parker, Seegars, Dearth...Halbrook torpedoing a case, and that comment about "detriment to liberty"
All this case interaction has got me a little confused...Maybe a simple recap for the dot-connecting challenged???
Oi! Maybe someone has it in his head better. I have to go out; if nothing appears sooner, I'll try to get something up by this evening.

"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that...

Maybe more like two weeks.
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  #88  
Old 07-28-2011, 12:23 PM
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Originally Posted by Librarian View Post
Oi! Maybe someone has it in his head better. I have to go out; if nothing appears sooner, I'll try to get something up by this evening.

"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that...

Maybe more like two weeks.
I think that's already a CATO institute book on this.
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  #89  
Old 07-28-2011, 7:10 PM
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I stand corrected. I was basing my comment on Halbrook's extensive originalist scholarship. I was unaware that he was involved in NRA's attempt to torpedo Heller. I only got involved in 2A issues in early 2008.
Halbrook should absolutely be lauded for his scholarship, however his litigation is a bit checkered. He also helped torpedo CGF/SAF's attempt to have the CA Handgun Roster declared unconstitutional in DC which has of course hurt Peña...
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Originally Posted by Librarian View Post
Oi! Maybe someone has it in his head better. I have to go out; if nothing appears sooner, I'll try to get something up by this evening.

"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that...

Maybe more like two weeks.


But that could rock!

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  #90  
Old 07-29-2011, 5:28 AM
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Let's face facts, for the moment.

The amicus brief is an attempt to garner enough recognition/support in this case, that one Justice will call for a response from the Solicitor General's office.

If this does not happen, the case is dead where it stands.
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  #91  
Old 07-29-2011, 11:11 AM
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Note on prospective 'History" ...

What I had hoped to find was some documentation on the case selection of what NRA supported/opposed from the 1970s forward, but I'm beginning to believe I'm not enough of an insider to get that.

I can certainly point to the Gura - Halbrook kerfuffle already mentioned in Seegers; Alan's response to the suggestion of consolidating Seegers with Parker is available, and it's a remarkable 'that is something up with which I shall not put!' document.
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  #92  
Old 08-01-2011, 9:52 PM
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Originally Posted by Al Norris View Post
Let's face facts, for the moment.

The amicus brief is an attempt to garner enough recognition/support in this case, that one Justice will call for a response from the Solicitor General's office.

If this does not happen, the case is dead where it stands.
Hardly. The 4th Circuit conflicts with the 7th here on Federal Constitutional interpretation. The merits of this and Williams are identical with the only difference being that the petition is submitted during recess meaning it may take longer to get a request for a response.

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  #93  
Old 08-02-2011, 7:42 AM
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I understand that, Gene.

I'm simply stating that this is not settled, as it concerns grants of certiorari. There is still another step that must be taken. That step could happen at any time, up to and including the "Long Conference" at the end of Sept.

Nor have I forgotten how long it took D.C. v. Heller to get cert. granted. We were all on pins and needles for 10 months after the decision in Palmer. After cert, it was pins and needles for another 7 months. You might remember that one...
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  #94  
Old 08-02-2011, 8:31 AM
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Hardly. The 4th Circuit conflicts with the 7th here on Federal Constitutional interpretation. The merits of this and Williams are identical with the only difference being that the petition is submitted during recess meaning it may take longer to get a request for a response.
-Gene
Gene, it was my impression that Masciandaro relates to sensitive places while Williams addresses "bear". Although related, they are not duplicates. Am I wrong on this?

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  #95  
Old 08-02-2011, 9:38 AM
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Both cases have petitioned over the same core question: does the Second Amendment end at your doorstep?

From that, the assumption is made in Williams that any law requiring a permit is unconstitutional if the state would routinely deny it to qualified people; and in Masciandaro that laws prohibiting carry in public places in a national park (were) unconstitutional.

Masciandaro is technically not a "sensitive place" listed in the dicta of Heller, but it was treated as such if only because some over-read the Heller dicta as a broad ability to ban arms in/on/near any place managed, owned or operated by "the government". What we call a 'sensitive place' is just a place restriction ala First Amendment jurisprudence (ironic how the opposition avoids the first amendment except when the tenets seem to help them). Williams is technically not a "permit case" because the core issue at question is whether the right extends outside the house. If it does, then the state's routine denial renders their case against Williams moot; Maryland is beyond the point of claiming Williams could qualify. They extinguished that flame several times in Woollard. We should at least grant them a thumbs-up for intellectual honesty - no games saying Williams "could have" gotten a permit.


You could frame both questions differently, and in my small universe they could still take on nuances of the underlying issues at play. Meaning both cases get picked up to settle slightly different inquiries.

Masciandaro is pretty much impossible to decide without at least some tightening of the Heller dicta on place restrictions. Even if they choose to split the baby - decide the core right extends outside the home and then toss the case back to the Circuit - they will need to provide more on place restrictions than a one-sentence piece of dicta from 100+ pages of opinions.

Williams has nuances of the same issue - having to decide something about permits after having dispensed with the core right. That said, the Williams inquiry as written lets the court skip much of it entirely, by just agreeing with the petition and saying "the permit law in Maryland is unconstitutional to the extent it routinely restricts the issuance of permits to qualified citizens", without addressing whether a shall-issue system is even constitutional, at all. Much like Heller's footnote that the court is issuing the permit because that was the relief requested - not because the permit was required under the constitution.

Note that due to the criminal nature of both cases, there is no relief sought to undo laws encumbering the right. So the Maryland law in question would still exist, though toothless. And in the case of Masciandaro, the law has already been changed. Challenges to those laws (or similar laws) would still stand. They would just be easier to decide.


If you want the case most likely to deliver a "two-fer" on public RKBA + some bonus question, then Masciandaro is the one with the most opportunity to deliver. Of course, that "feature" is something that could dissuade the court from taking it up. I am not qualified to read those tea leaves and leave such prognostications to those with a clue or an anonymous keyboard and a penchant for good guessing. The Court could just decide RKBA with either case and toss the secondary questions back to their respective courts for further evaluation. Wash, Rinse, Repeat.

I obviously operate under the assumption the core right extends outside the home in some strong (if not fundamental) form. If this assumption is off, these two cases will all but sink our movement from a litigation standpoint. It'll be open season for gun control and Bloomberg can party like it is 1999.
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  #96  
Old 08-02-2011, 10:18 AM
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Thanks, Patrick. Your thoughtful comments are always deeply appreciated. It never occurred to me that Williams / Masciandaro constitute most of the remaining marbles. If we win, it doesn't mean the game is entirely over, but if we lose it's a grievous, grievous wound.
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  #97  
Old 08-02-2011, 9:47 PM
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Thanks, Patrick. Your thoughtful comments are always deeply appreciated. It never occurred to me that Williams / Masciandaro constitute most of the remaining marbles. If we win, it doesn't mean the game is entirely over, but if we lose it's a grievous, grievous wound.
And this would be why we fought like hell to try to get permit denial cases up first...

I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward.

Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.

-Gene
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  #98  
Old 08-02-2011, 10:03 PM
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Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.
Yeah, I thought of that. There are the Slaughterhouse Cases. We might have to wait until '12-'13 for the Concealed Carry Cases.

Oh well. It's not like a bunch of Americans will be getting mugged, robbed, raped, and/or murdered in the mean time....
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  #99  
Old 08-02-2011, 10:10 PM
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Maryland is beyond the point of claiming Williams could qualify. They extinguished that flame several times in Woollard. We should at least grant them a thumbs-up for intellectual honesty - no games saying Williams "could have" gotten a permit.
Maryland was not always so intellectually honest. In the , Maryland's attorney repeatedly claimed that MD issues to over 97% of applicants, and that Williams probably could have gotten a permit if he had applied. The judges had to know this was not true, but they were all in the game together of ignoring the Right.

As you say, Woollard is keeping them honest.
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  #100  
Old 08-03-2011, 4:32 AM
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And this would be why we fought like hell to try to get permit denial cases up first...

I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward.

Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.

-Gene
Relief requested is to overturn the conviction. As for how, I think the court would take the same approach they did in Heller and just say as long as Williams is "not otherwise prohibited", as in "give Heller that permit as long as he is not otherwise prohibited."

Prior convictions could be challenged, but a determination on those otherwise prohibited would need to be made. I suspect most of those convicted are probably prohibited for prior acts anyway (but have no data on that at hand), but we are sure to see some legitimate challenges a sure to make their way up. It might be awkward, but so was Miranda.

There is a whole slew of criminal cases out there ahead of all the civil suits. How many more criminal convictions are out there that failed within the state systems, that are eligible to petition for cert? Probably quite a few. Those cases have years of legacy behind them. For the same reasons most of the 1A jurisprudence comes from those who were defending themselves from government fines, convictions and the like, we are going to see the criminal pool take a strong role in 2A cases.

I agree it might get ugly, but history says we cannot avoid it. My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.
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  #101  
Old 08-03-2011, 9:35 PM
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My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.
I could tease you here, but I won't

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  #102  
Old 08-03-2011, 9:52 PM
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I could tease you here, but I won't

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Heh.
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  #103  
Old 08-04-2011, 3:58 AM
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Originally Posted by hoffmang View Post
And this would be why we fought like hell to try to get permit denial cases up first...

I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward.

Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.

-Gene

Theoretically (and what I hope for), the court could find that no permit is needed. At least for open carry.


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Relief requested is to overturn the conviction. As for how, I think the court would take the same approach they did in Heller and just say as long as Williams is "not otherwise prohibited", as in "give Heller that permit as long as he is not otherwise prohibited."

Prior convictions could be challenged, but a determination on those otherwise prohibited would need to be made. I suspect most of those convicted are probably prohibited for prior acts anyway (but have no data on that at hand), but we are sure to see some legitimate challenges a sure to make their way up. It might be awkward, but so was Miranda.

There is a whole slew of criminal cases out there ahead of all the civil suits. How many more criminal convictions are out there that failed within the state systems, that are eligible to petition for cert? Probably quite a few. Those cases have years of legacy behind them. For the same reasons most of the 1A jurisprudence comes from those who were defending themselves from government fines, convictions and the like, we are going to see the criminal pool take a strong role in 2A cases.

Yup.


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I agree it might get ugly, but history says we cannot avoid it. My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.

Always the key point.


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  #104  
Old 08-04-2011, 4:42 AM
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I could tease you here, but I won't

-Gene
And yet another attempt of mine to subtly sidetrack a thread fails...

For the record: we fly our flags full staff here in the Chesapeake. Except when we're drunk. Which is often.


Back on track: I think Miranda and Terry are both decent models for what happens when the Court limits (or expands) what law-enforcement can do in a given situation. With no ability to enforce, laws against the condition simply fall to the wayside. Our friends Williams and Masciandaro did nothing wrong. Their only crime was the gun possession. Both 'clean' otherwise. Miranda, on the other hand...
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  #105  
Old 08-04-2011, 9:30 PM
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Our friends Williams and Masciandaro did nothing wrong. Their only crime was the gun possession.
Mr. Williams theoretically could have had a permit. Mr. Masciandaro had no way to carry at all as no permit was good enough. In the former, I'm reluctant to predict that SCOTUS is going to say that a state can't enforce an objective permit requirement on local gang bangers...

Kennedy isn't going to limit the state's ability to dissuade young entrepreneurs in the pharmaceuticals business from getting their first gun fight for free.

-Gene
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  #106  
Old 08-04-2011, 10:01 PM
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I remember watching a video on one of the gun forums. As I rememeber it was a UOC'er and a anti gun politician. The Politician didn't want anyone legally open carrying because some undocumented gang member would be able to carry also.
I remember thinking....He probably already has a gun and is carrying it concealed illegally and could care less about any law. I would think that is a police problem, not a constitutional question.
Granted, I don't think like a judge.
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  #107  
Old 08-04-2011, 10:04 PM
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Granted, I don't think like a judge.
Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.

-Gene
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  #108  
Old 08-04-2011, 11:27 PM
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Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.

-Gene
I hope we don't have too many judges that think like soccor moms. If there are, we are soooo screwed.

I'm hoping for something like Nevada has, only because something like Arizona has won't happen in my lifetime.
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  #109  
Old 08-05-2011, 1:54 AM
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Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.
Um, if open carry is banned and concealed carry is licensed, how does that stop 2 above? Said bad guy isn't going to be openly carrying in that case, which means the cop won't know the banger/tough standing there is carrying and will have to have probable cause for a search to reveal that the guy is carrying sans permit.

So either the cop actually has probable cause for a search, in which case the cop could easily catch the guy on the very felony you speak of, or the cop claims to have probable cause to search when he really doesn't. I doubt you would be happy about the latter, but I won't be surprised if a judge that thinks the way you outline above would be happy about it.
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Old 08-05-2011, 1:56 AM
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I hope we don't have too many judges that think like soccor moms. If there are, we are soooo screwed.
I'm pretty sure we have an abundance of them here in California and in the 9th Circuit.
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Old 08-05-2011, 6:50 AM
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Originally Posted by hoffmang View Post
Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.

-Gene
Isn't this how DC, Chicago and NYC thinks about even possesing a firearm in your own home?
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  #112  
Old 08-05-2011, 7:03 AM
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Mr. Williams theoretically could have had a permit.
Maryland concedes in all other civil challenges that ordinary citizens cannot receive a permit; that the acknowledged goal of Maryland is to keep permits from even lawful persons; and that living in a violent neighborhood is not cause enough. Telling is that Maryland claims Williams should have applied for a permit, but nowhere do they actually suggest he would get one. The permit application process is a red herring tossed as a desperation measure. There is enough jurisprudence from SCOTUS to settle that.

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Mr. Masciandaro had no way to carry at all as no permit was good enough.
Exactly. There was no way - even theoretical - for Williams to transport his new, Maryland-approved, registered handgun between his girlfriend's house and his own. For one, such transport in Maryland is illegal. You can only have a gun at home, the range or the shop. Not a girlfriend's house. And absent that restriction, there is no provision for those who travel by Mr. Williams' mode of choice: the bus.

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In the former, I'm reluctant to predict that SCOTUS is going to say that a state can't enforce an objective permit requirement on local gang bangers...
Not sure how we get here. First, nobody is asking the Court to invalidate an objective system. Maryland's system is subjective, and as Judge Legg noted in the recent Woollard hearing, it's purpose is to "ration a right." That makes it capricious and arbitrary at the same time.

Local gang-bangers are not lawful persons. If they have a record, they cannot receive a permit under any of the proposed methodologies. If they do not have a record, then they are not gang-bangers under the law and are therefore eligible for a permit, unless we want to keep the subjective "Good Moral Character" standards in place, where we evaluate the individual's need and character to weed out those (black|hispanic|poor|trash) people "who are not the type of person that should have a gun". Rather retro and obviously not what you were suggesting. But I wanted to point out where that thinking could go in the head of some of our politicians.

Even in the so-called Constitutional Carry movement, dangerous persons are not able to lawfully carry, even when the supposed proof (a permit) of lawfulness is not required. The only thing that I think Constitutional Carry gets right is removing the presumption of criminality for carry. The rest is wishful thinking best targeted to the legislatures. But I digress.


The risk May-Issue states face (and the one I was trying to get at) is that Williams removes enforcement measures for possession to the extent those measures enforce unconstitutional restrictions. This would be a temporary effect, for sure. I cannot imagine California or Maryland letting stand conditions that essentially create a no-permit carry condition. Given the choice between "unconstitutionally subjective permit-system that we cannot enforce" and "shall-issue that we can probably enforce", they are going to move towards a shall-issue system as quick as their system allows. Maryland's executive could do that by fiat. California would probably require a bit more work, but even San Francisco would race to shall-issue given those options.

Overturning a criminal conviction for carry, when a permit is unavailable, puts the onus on the subjective system to become objective as quickly as possible. It puts the state in the position of actor, instead of our side having to constantly attack whatever they come up with. It also creates a strong precedent that if a restriction goes too far, the court says the prosecution is unconstitutional. Theoretically that is always the case, but until it actually happens it hasn't happened.

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Kennedy isn't going to limit the state's ability to dissuade young entrepreneurs in the pharmaceuticals business from getting their first gun fight for free.

-Gene
Again, nothing in the above suggests that unlawful persons or unlawful acts get a pass. I can carry in public at my house in Florida. I have a permit. That does not imply my sanction for armed robbery of a pizza shop down the street is less than for someone without a permit. The permit does not actually imbibe any protection or quality upon me that does not already exist. Nor does it shelter me from the consequences of any unlawful - or even irresponsible - acts I commit.

Gun owners are not more likely to commit crimes ust because they have the gun. Nothing in Williams, Masciandaro or any other case I have seen suggests a system where unlawful people are given passes on murder, robbery or drug dealing. Or for that matter, beating their children.

I may be alone in seeing Masciandaro and Williams as two different and critically important cases. I don't understand the need for a horse-race. I understand that each case requires some kind of finding on public carry, but even with that dispensed each case also requires another finding. Whether illusory permits or places-that-are-kinda-sensitive, the case does not end with "Yup. 2a extends outside the home."

One thing I like about both cert petitions is they do not stop with public RKBA. Each brings their particular issue to the front and makes clarification of 2A pretty much an entry condition. In my mind, my preferred opinions from the court would dispense with public 2A and then spend most of it's time focused on the place and illusory permit issues. We all claim Heller solved for the public RKBA problem, yet expect these cases to solve it again.

Recognizing I am alone on the branch here, this suggests I am either rather brilliant, confused, or more likely - just wrong. That said, this is one time I'd really like to be able to say, "I told you so."

So I know I may be tilting at windmills, hoping that the court picks up both questions. We'll see.


A Google-Worthy Caveat...

Everyone reading this friendly back and forth needs to understand something important: Gene and I and others are jousting some theoretical outcomes.

We need to be really clear that Mr. Williams is not gang-banger, drug peddler or felon. He is poor and lives in a neighborhood under a consent decree with the Justice Department for harassing minorities on the street and in cars, hoping to catch them doing something. His county invented the term "Driving While Black".

Mr. Williams saved up his limited resources, bought a gun at a gun shop, filled out the paperwork, submitted the shell casings to the state, waited for Maryland to return with a "Not Disapproved" finding, then he picked up his gun and took it to his girlfriend's house. Two weeks later he tried to take it to his home, but got nervous when a police officer stared him down at a bus stop. His public defender literally stammered his way through his defense in Maryland's top court. It was cringe worthy.

If someone Googles this thread and finds the name of Mr. Williams, I don't want them walking away thinking he is a bad guy, just because we posit scenarios that might somehow extend from resolution of his case. From what I can tell, he is like most of us. The state busted him for doing what most of would agree is "nothing wrong."
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  #113  
Old 08-05-2011, 8:02 AM
Untamed1972 Untamed1972 is offline
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Local gang-bangers are not lawful persons. If they have a record, they cannot receive a permit under any of the proposed methodologies. If they do not have a record, then they are not gang-bangers under the law and are therefore eligible for a permit, unless we want to keep the subjective "Good Moral Character" standards in place, where we evaluate the individual's need and character to weed out those (black|hispanic|poor|trash) people "who are not the type of person that should have a gun". Rather retro and obviously not what you were suggesting. But I wanted to point out where that thinking could go in the head of some of our politicians.

Wouldn't is just be a simple matter of altering the laws to state that "Posession of a firearm WHILE engaged in, or with INTENT to engage in, other criminal activity, OR while in POSESSION of illegal drugs is a crime"?

So you remove "mere posession" of the firearm as presumption of criminality, and simply require that the posessor must be engaged in or have intent to engage in criminal with and/or while in posession of the firearm.

Problem solved right?
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  #114  
Old 08-05-2011, 8:13 AM
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State and federal law already take into consideration the criminal use of a weapon in the commission of a crime. The effect varies by jurisdiction, but generally it amplifies the charge and in many cases kicks in mandatory minimum (and severe) sentences. Baltimore targets gun crimes specifically and implements mandatory minimums for violent crime with guns. It keep some people off the streets, but they cannot catch all of them. I think Virginia has a minimum 5 year sentence for criminal use of a gun.

We don't need to create laws criminalizing criminal behavior. We got that already. We are at the point where we need to legally differentiate between criminal use and defensive carry of arms. We know who should not be armed. For them the existing rules apply. The rest of us are not the problem. The problem are systems that put poor black people in jail for taking their lawfully acquired handgun home, but somehow let's the rich white banker walk from an airport security line fully armed with nothing but a smile and warning. Both of these are actual scenes from Maryland this year.

We like to talk in theory, but there is at least one guy looking at a year in maximum security for doing nothing wrong. When it comes to cert petitions, there is no better case in the world to end his persecution. For him, this case is exceptionally small and has nothing to do with a larger movement. I hope his counsel remembers that.

If we believe that our system is aligned with the interests of its citizens, the Supreme Court needs to take these criminal cases, even if they wish they had gotten slower-moving civil cases next year that cover everything from English Common Law to modern interpretations of the 14th Amendment. I read the words of Justice Thomas in McDonald; this is not a game to him. The role of the court goes beyond legal chessboard actions. Sometimes they gotta clean up a mess.

Again, I am tilting at windmills a bit. Off the soapbox (for now)!!!
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  #115  
Old 08-05-2011, 8:41 AM
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We don't need to create laws criminalizing criminal behavior. We got that already. We are at the point where we need to legally differentiate between criminal use and defensive carry of arms. We know who should not be armed. For them the existing rules apply. The rest of us are not the problem. The problem are systems that put poor black people in jail for taking their lawfully acquired handgun home, but somehow let's the rich white banker walk from an airport security line fully armed with nothing but a smile and warning. Both of these are actual scenes from Maryland this year.
I see your point. That's kinda where my thought process was going. Why does it matter if it's a gun, or a hammer, or a 2X4, or a brick. If one is doing something illegal or intend to do something illegal, like rape, rob or murder.....THOSE are the criminal actions.....who cares what tool they choose to do or attempt to do it with.

Conversely......if I choose to arm myself with any of those "tools" solely for the purpose of lawful self-defense.....and I'm doing nothing else wrong, then who should care if I go for a walk at night with my trusty Louisville Slugger?

I think that really is an issue in CA, because not only is carrying a firearm impossible or nearly impossible for most people in the state, but the long list of prohibited weapons in 12020, remove from lawful possession/use just about every other viable defensive tool there is also.

So is the guy who decides to rape/rob/murder tonight really gonna care that it's a felony to also use a baseball bat? Uhh......he is already intent on committing a violent crime, why would he give a crap about what weapons are lawful or not? Is it somehow less offensive to society for a murder to use his bare hands to stangle someone, or his feet to kick them to death? Murder is murder.....why does it matter how it is actually carried out?

Criminalize the act or intent......not the tool.

ETA: Quite simply it seems the POV of courts and legislators needs to be....if an item can have a lawful purpose then you can't criminalize the item, you can only criminalize unlawful acts committed with that lawful item.
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  #116  
Old 08-05-2011, 4:34 PM
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Originally Posted by Patrick-2 View Post
A Google-Worthy Caveat...

Everyone reading this friendly back and forth needs to understand something important: Gene and I and others are jousting some theoretical outcomes.

We need to be really clear that Mr. Williams is not gang-banger, drug peddler or felon. He is poor and lives in a neighborhood under a consent decree with the Justice Department for harassing minorities on the street and in cars, hoping to catch them doing something. His county invented the term "Driving While Black".

Mr. Williams saved up his limited resources, bought a gun at a gun shop, filled out the paperwork, submitted the shell casings to the state, waited for Maryland to return with a "Not Disapproved" finding, then he picked up his gun and took it to his girlfriend's house. Two weeks later he tried to take it to his home, but got nervous when a police officer stared him down at a bus stop. His public defender literally stammered his way through his defense in Maryland's top court. It was cringe worthy.

If someone Googles this thread and finds the name of Mr. Williams, I don't want them walking away thinking he is a bad guy, just because we posit scenarios that might somehow extend from resolution of his case. From what I can tell, he is like most of us. The state busted him for doing what most of would agree is "nothing wrong."
I want to strongly underscore what Patrick is saying above. Mr. Williams is friggin innocent as he violated a strict liability statute in circumstances that are unconstitutional. The man deserves better than what he's gotten, period.

The theoretical debate is about what SCOTUS has to work with amongst these cases so far.

-Gene
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  #117  
Old 08-05-2011, 5:55 PM
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I want to strongly underscore what Patrick is saying above. Mr. Williams is friggin innocent as he violated a strict liability statute in circumstances that are unconstitutional. The man deserves better than what he's gotten, period.

The theoretical debate is about what SCOTUS has to work with amongst these cases so far.

-Gene
That is, aside from the little matter of Mr. Williams hiding his weapon from the police. Not illegal in and of itself, but definitely suspicious. This is not exactly how a person proud of his 2nd Amendment rights and eager to confront injustice in a court of law should behave.

This is why I prefer the Masciandaro petition. No suspicious behavior to hang the petitioner.
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  #118  
Old 08-05-2011, 8:51 PM
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He was afraid and rightfully so. His attorney said as much. Imagine legally owning a gun and having absolutely no way to to legally transport it. That what we have in MD as I understand it.
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  #119  
Old 08-06-2011, 4:08 AM
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Exactly. There was no way - even theoretical - for Williams to transport his new, Maryland-approved, registered handgun between his girlfriend's house and his own. For one, such transport in Maryland is illegal. You can only have a gun at home, the range or the shop. Not a girlfriend's house. And absent that restriction, there is no provision for those who travel by Mr. Williams' mode of choice: the bus.

Hmmm. Getting way ahead of things, this inspires a thought. I'm going to have to work on it a bit before I present it though.

Mostly just wanted to say that I don't think you're tilting at windmills. Your analysis looks spot on to me. But then, INAL.


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  #120  
Old 08-09-2011, 8:03 PM
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Default Response requested in Masciandaro

Wanted to let you all know that the Court has requested a response from the SG. It's currently due on September 8.

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Matt Levy
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