Williams v. Maryland ~ Petition for Writ of Cert

[kcbrown]

Heller specifically did NOT decide the licensing issue. A license WAS involved in the relief only because the unchallenged licensing scheme stood in the way of their narrow ruling.

Correct, it did not. But it easily could have. If the Court really thought it inappropriate to license firearms ownership in the home, it easily could have said so in that context, if only in dicta.

As SCOTUS said, RKBA is most acute in the home. If licensing of the right in that setting is not offensive enough to the sensibilities of the Court to cause it to touch on that issue even in dicta, then licensing of the right surely will not be offensive enough to cause the Court to disallow it in other, less acute contexts.

[dantodd]

Nothing says the Court will remain consistent with its own telegraphed position, of course, but think it through: why would the court trying to protect licensing schemes which cover the entirety of "bear" now if it has no intention of doing so later?

The court is neither ignorant of, nor apathetic toward the current status of jurisprudence in the nation. They are very unlikely to "go all the way" on the first date. By incrementally changing over time the legislatures of the various states and the nation are given time to react appropriately and adjust their registration and regulation schemes accordingly. If the court simply says "a permit isn't required to bear a firearm" many states will be forced to rewrite their entire statutes on "sensitive places" and any other TMP restrictions. You REALLY don't want to have the legislatures rewriting that much code in such a short time to meet the perceived threat of masses of people carrying without a permit.

If instead the court is able to state that "bearing outside the home is core to 2A" then the legislatures can take a more moderate approach to re-writing the code.

Also, while California is not "just like" the rest of the country imagine what OUR legislature would do in the two contrasting scenarios. If they are essentially forced into shall issue there will be probably very little change other than removing GC from the statute.

If OUR legislature had to suddenly deal with "constitutional carry" then you can almost bet that they will be looking for every possible TMP restriction they can get away with. No carry in places that serve alcohol, no carry in churches, no carry on school grounds, no carry in places of assembly, no carry in any place they can dream up a secondary effect.

<tired_analogies> No, we are much better off if SCOTUS lets us turn up the water on the frogs in our legislature a little at a time rather than dumping them straight into boiling water. It worked the other way for decades let's learn from their example it's now our Camel's nose under their tent. </tired_analogies>

[kcbrown]

The court is neither ignorant of, nor apathetic toward the current status of jurisprudence in the nation. They are very unlikely to "go all the way" on the first date. By incrementally changing over time the legislatures of the various states and the nation are given time to react appropriately and adjust their registration and regulation schemes accordingly. If the court simply says "a permit isn't required to bear a firearm" many states will be forced to rewrite their entire statutes on "sensitive places" and any other TMP restrictions. You REALLY don't want to have the legislatures rewriting that much code in such a short time to meet the perceived threat of masses of people carrying without a permit.

I think you're overlooking the context.

The context here is that SCOTUS rejected Williams. Gene's supposition is that they're doing that to protect licensing schemes.

Furthermore, remember stare decisis. While the Court is free to ignore it, it tends not to. Worse, if they build up, or allow to be built up, jurisprudence recognizing the legitimacy of permit systems now, they will cause exactly the instability you speak of if they tear it down later.

If instead the court is able to state that "bearing outside the home is core to 2A" then the legislatures can take a more moderate approach to re-writing the code.

Also, while California is not "just like" the rest of the country imagine what OUR legislature would do in the two contrasting scenarios. If they are essentially forced into shall issue there will be probably very little change other than removing GC from the statute.

If OUR legislature had to suddenly deal with "constitutional carry" then you can almost bet that they will be looking for every possible TMP restriction they can get away with. No carry in places that serve alcohol, no carry in churches, no carry on school grounds, no carry in places of assembly, no carry in any place they can dream up a secondary effect.

Why in the world would you believe the California legislature would not go that second route regardless? They hate RKBA with a passion. If they're forced into shall-issue, do you really think they're so stupid as to not realize what it means?

<tired_analogies> No, we are much better off if SCOTUS lets us turn up the water on the frogs in our legislature a little at a time rather than dumping them straight into boiling water. It worked the other way for decades let's learn from their example it's now our Camel's nose under their tent. </tired_analogies>

This is a fair point, but the very principles you speak of work against you here. The longer permit systems are allowed to remain in place, the more reluctant the court will be to rule against them. Also remember that the Court is on a clock. The Heller 5 won't be around forever.

[OleCuss]

I think you're overlooking the context.

The context here is that SCOTUS rejected Williams. Gene's supposition is that they're doing that to protect licensing schemes.

None of us know why SCOTUS did not pick up Williams. It is likely we will never know. That means that projecting future decisions based on this one is tricky at best.

Furthermore, remember stare decisis. While the Court is free to ignore it, it tends not to. Worse, if they build up, or allow to be built up, jurisprudence recognizing the legitimacy of permit systems now, they will cause exactly the instability you speak of if they tear it down later.

The permit systems are already there - and so is the jurisprudence. I'm not sure how not picking up Williams is particularly interesting in that regard. IMHO it would have been wonderful if they had granted cert to Williams and had used it to wipe out permitting systems - but I do know how to daydream. My best guess is that SCOTUS doesn't think that Williams had standing (is that the right term) because he never applied for a permit. Since permits actually are granted and he didn't bother to try to get one - and he behaved furtively when LEO approached - it is really not a very good case for looking at whether a permit/licensing scheme is permissible.

I mean, the restrictiveness of the permitting scheme can't well be demonstrated in this case because it was never tried. If he had been a law-abiding citizen who applied for the permit and was denied for arbitrary or non-sensical reasons then it would be far easier to state that the permitting scheme is substantially burdening the core of the RKBA. The guy didn't bother to try to do it right, he just violated the law.

. . .The Heller 5 won't be around forever.

This may be true. And if the current political trends continue what may really happen is that it may expand to a 6 or 7 seat majority. Besides which, I have serious doubts that the Heller 5 would have held for Williams. The Williams case may very well have seen Kennedy split off and kill off a lot of our hopes and dreams for a long time.

For that matter, I'm not entirely sure where Thomas is on all this. It appears that the biggest reason Gura hit the P or I argument so hard in McDonald was so that he could get a Thomas concurrence. And remember that Thomas did not sign onto the majority opinion - he wrote a concurring opinion which differs from the main opinion.

It is a mistake to assume that the Heller 5 will automatically vote the way we want on any RKBA cases which come their way. It is not a strongly unified bloc at all.

I think Masciandaro will probably get picked up - but it is by no means a slam-dunk. I think its strongest point is that the lower court challenged the SCOTUS and that could pull in additional votes for a pro-RKBA majority opinion.

I even find it conceivable that you could get 6 sort of pro-RKBA votes on Masciandaro just because of the irritating lower court which needs to be slapped around a bit. Do remember that the people on SCOTUS did not spend years finagling their way onto SCOTUS just to have their authority challenged. SCOTUS is top dog and is jealous of its position. ((Understand that I'm not necessarily even saying that SCOTUS should be top dog, but at this time that's what it is.)

[Funtimes]

Gray - according to NRA ILA, only IL and MA require a license for ownership of all types of guns. NY only requires a license for handguns not long guns. Now Chicago and NYC also require registration of individual guns but the rest of IL and NY state doesn't.

If the concern about challenging licensing of gun owners and registration of individual guns as being too much too fast, why isn't the NYC requirement to register long guns an easy target for us right now, especially when the rest of NY isn't required to? In my humble opinion, if you can't get SCOTUS to hold strict scrutiny for the 2nd amendment most notably for ownership in the home, then is it realistic to expect to get it for carry. Just thinking out loud.

Hawaii requires licenses for all guns; they further require registration of all guns (minus a few really old / black powder style). You can only own a gun if you are 21 or older (no matter the type, no matter who you buy it from). It wouldn't be the first time ILA was incorrect. They also say that IL is the only place you can't carry. That is not true, Hawaii is another. At least in even the anti states ca, ny, nj, md etc... it appears the connected / and famous could possibly get a permit or have some form of open carry.

[kcbrown]

None of us know why SCOTUS did not pick up Williams. It is likely we will never know. That means that projecting future decisions based on this one is tricky at best.

I agree. My logic is based on Gene's stated opinion of the reason.

The permit systems are already there - and so is the jurisprudence. I'm not sure how not picking up Williams is particularly interesting in that regard.

In and of itself, without any further context or reasoning, it's not. But in the context of the notion that SCOTUS is attempting to protect permit systems that govern the bearing of arms in public, it is of great interest.

IMHO it would have been wonderful if they had granted cert to Williams and had used it to wipe out permitting systems - but I do know how to daydream.

Me too (though you wouldn't necessarily know by looking).

My best guess is that SCOTUS doesn't think that Williams had standing (is that the right term) because he never applied for a permit.

Right, but that goes right back to my point: lack of standing for not having applied to a permit presupposes the validity of the specific permitting system and, more generally, of the notion of permit systems encompassing the entirety of "bear" in public. Also remember that SCOTUS ruled in City of Lakewood v. Plain Dealer Publishing Co. that one need not have gone through the permitting system in order to have standing to challenge its validity. So for your guess to be correct, SCOTUS would have to be contradicting its own jurisprudence, thus somehow making 2A challenges "special" and less protected under the law.

Since permits actually are granted and he didn't bother to try to get one - and he behaved furtively when LEO approached - it is really not a very good case for looking at whether a permit/licensing scheme is permissible.

I suspect that, permit systems aside, his behavior in the face of LEO contact is what pushes the case into the "undesirable case" category for us.

Masciandaro is much better in that respect, but Gene suspects they'll deny cert to that as well. If they do, then I think that pretty much confirms his conjecture that SCOTUS is attempting to protect permit systems in general, and that would validate my conclusions.

I mean, the restrictiveness of the permitting scheme can't well be demonstrated in this case because it was never tried. If he had been a law-abiding citizen who applied for the permit and was denied for arbitrary or non-sensical reasons then it would be far easier to state that the permitting scheme is substantially burdening the core of the RKBA. The guy didn't bother to try to do it right, he just violated the law.

I don't think you quite follow my logic (or you're just not addressing it). If permit schemes which govern the entirety of "bear" are considered Constitutional, then permitless carry cannot be Constitutionally protected. Permitless carry and permit-based carry, when "carry" refers to the entirety of "bear" in public, are mutually exclusive vis a vis their Constitutional protection. If one is protected, the other cannot be. To be more precise, if unlicensed carry is Constitutionally protected, then carry licensing schemes must be Unconstitutional, and if carry licensing schemes are Constitutional then unlicensed carry cannot be Constitutionally protected. The only way out of that is for carry licensing to be allowable only in a limited fashion, e.g. when limited to certain manners of carry such as concealed.

But Williams and Masciandaro both involve permit systems that govern the entire scope of bear in public. To protect that kind of permit system, as Gene is suggesting SCOTUS is doing, is to clearly signal that permit systems which govern the entirety of bear will be regarded as Constitutional, and that means unlicensed carry will not have Constitutional protection.


Honestly, I see no way around this logic.

This may be true. And if the current political trends continue what may really happen is that it may expand to a 6 or 7 seat majority. Besides which, I have serious doubts that the Heller 5 would have held for Williams. The Williams case may very well have seen Kennedy split off and kill off a lot of our hopes and dreams for a long time.

I fully agree. The plaintiff matters here. This is why Masciandaro looks a lot better for this. But then, Gene is suggesting that SCOTUS will reject Masciandaro as well, and my logic is based upon that supposition.

I even find it conceivable that you could get 6 sort of pro-RKBA votes on Masciandaro just because of the irritating lower court which needs to be slapped around a bit. Do remember that the people on SCOTUS did not spend years finagling their way onto SCOTUS just to have their authority challenged. SCOTUS is top dog and is jealous of its position. ((Understand that I'm not necessarily even saying that SCOTUS should be top dog, but at this time that's what it is.)

That's most certainly possible, if not probable.

[hoffmang]

Masciandaro is much better in that respect, but Gene suspects they'll deny cert to that as well. If they do, then I think that pretty much confirms his conjecture that SCOTUS is attempting to protect permit systems in general, and that would validate my conclusions.

I think you're overstating my opinion of Masciandaro. I think it has a decent chance of being granted. However, it not being granted doesn't really mean a whole lot one way or the other to the rest of the civil cases.

Also, above I see people conflating carry licensing with home licensing or registration. I expect that we'll see that those two items are different and subject to very different standards. To require a permit to perform speech related activities in your home is absurd in ways that it's common outside your home.

-Gene

[M. D. Van Norman]

To protect that kind of permit system, as Gene is suggesting SCOTUS is doing, is to clearly signal that permit systems which govern the entirety of bear will be regarded as Constitutional, and that means unlicensed carry will not have Constitutional protection.

That conclusion will, however, require an actual ruling, which the court has dodged in this case.

[OleCuss]

.
.
.
I don't think you quite follow my logic (or you're just not addressing it). If permit schemes which govern the entirety of "bear" are considered Constitutional, then permitless carry cannot be Constitutionally protected. Permitless carry and permit-based carry, when "carry" refers to the entirety of "bear" in public, are mutually exclusive vis a vis their Constitutional protection. If one is protected, the other cannot be. To be more precise, if unlicensed carry is Constitutionally protected, then carry licensing schemes must be Unconstitutional, and if carry licensing schemes are Constitutional then unlicensed carry cannot be Constitutionally protected. The only way out of that is for carry licensing to be allowable only in a limited fashion, e.g. when limited to certain manners of carry such as concealed.

But Williams and Masciandaro both involve permit systems that govern the entire scope of bear in public. To protect that kind of permit system, as Gene is suggesting SCOTUS is doing, is to clearly signal that permit systems which govern the entirety of bear will be regarded as Constitutional, and that means unlicensed carry will not have Constitutional protection.


Honestly, I see no way around this logic.
.
.
.

Not sure whether or not I should agree with you on this. We're operating off from some pretty speculative issues.

We agree that we don't know why Williams was not granted cert. Denial of cert does not in and of itself establish precedent.

Personally, I don't see that we can take anything out of a denial of cert as implying that a permitting system will be acceptable to the current or to future Supreme Courts. We're just speculating too much and there is too much going on internally in the court that we don't know/understand - and it may be that even the SCOTUS members don't fully understand the current dynamic.

There may be horse-trading going on regarding the granting of certs. "Hey, if you'll vote for cert on Lowery, then I'll vote against cert for Williams and Masciandaro. In return, I get to write the Chien opinion and you'll do a concurrence on Lowery." And yeah, I wouldn't bet it would go exactly that way and that it would be considerably more subtle.

Anyway, I think your logic is pretty good. The problem is that our speculation is too iffy to put much credence in any of it. We'd need to know far more of the dynamics of the court and we might be exceedingly surprised as to who is making what moves.

I readily admit that I don't know what is going on at the SCOTUS. I actually don't want to spend the time trying to find out since for me it would be useless knowledge. But Gura and a few others are likely very keen observers of the interactions and related throughput of SCOTUS and are tailoring relevant cases to match - I just hope they are exceedingly good at it.

To me, the part I will likely be most fascinated by will be the decision on cert for Masciandaro. If cert is not granted I will be slightly surprised and have to adjust my opinion on how jealously SCOTUS protects its opinions and dominance. If cert is granted I will likely truly study the resulting opinion and dissents at a level I've never before done, just because I think I will find them an interesting study in group dynamics. But then, it's likely not worth it because the dynamic will soon change anyway. . .

Anyway, we're speculating. While I have hopes for Masciandaro I have more hope for the civil cases which have been carefully crafted and advanced.

FWIW.

[kcbrown]

I think you're overstating my opinion of Masciandaro. I think it has a decent chance of being granted. However, it not being granted doesn't really mean a whole lot one way or the other to the rest of the civil cases.

If Masciandaro is not granted cert and you're correct about the reasons for it, then how can that not mean a whole lot to the rest of the civil cases, in particular the Constitutionality of licensing schemes which cover the entirety of "bear" in public?

Also, above I see people conflating carry licensing with home licensing or registration. I expect that we'll see that those two items are different and subject to very different standards. To require a permit to perform speech related activities in your home is absurd in ways that it's common outside your home.

And yet, SCOTUS appears to not have even commented about home licensing and registration (at least, that I recall seeing) in the not one, but two very cases that have come before it so far that involved precisely that. So absurd or not, it appears, at least at this point, that there's an excellent chance that SCOTUS will not object to such schemes, even when applied to exercise of the right in the home.

It's one thing to not actually address such a thing in the granted relief. It's quite another to not even address such a thing in the dicta. Note that SCOTUS could easily have said, simply, that RKBA is an individual right protected by the 2nd Amendment in the home and left it at that, but they went out of their way to elaborate on quite a lot more than that ("sensitive places", the protection of arms in "common use", etc.), much of which was unnecessary for the granted relief. And yet, they chose to remain entirely silent on the notion of licensing the exercise of a fundamental right in the sanctity of the home where, supposedly, the strength of the right is at its highest.


I really do look forward to being proven wrong about what that implies, but I don't have a lot of confidence that I will be.

[kcbrown]

Good points about the internal politics of the Court. I'm certain that has at least a fair amount to do with which cases are granted cert. I'm not so sure how much it has to do with which cases are held versus rejected, though I can't see even that being immune so such horse trading.

Anyway, I think your logic is pretty good. The problem is that our speculation is too iffy to put much credence in any of it.

Well, in my defense, I am presupposing the truth of Gene's assessment of the Court's reasons for rejecting these cases.

Obviously much of what I said is speculative beyond that, but the core logic of the relationship between the Constitutionality of a licensing scheme that governs all "bear" in public and the Constitutional protection of unlicensed carry remains intact independently of any speculation.

Anyway, we're speculating. While I have hopes for Masciandaro I have more hope for the civil cases which have been carefully crafted and advanced.

Likewise, although with my stated (conditional) reservations.

[hoffmang]

And yet, SCOTUS appears to not have even commented about home licensing and registration (at least, that I recall seeing) in the not one, but two very cases that have come before it so far that involved precisely that. So absurd or not, it appears, at least at this point, that there's an excellent chance that SCOTUS will not object to such schemes.

No plaintiff has asked them to comment yet. Heller II might be the first time should it go up.

-Gene

[kcbrown]

No plaintiff has asked them to comment yet. Heller II might be the first time should it go up.

No plaintiff asked them to comment about "sensitive places", or which firearms have the greatest amount of protection, or any of a myriad of other things SCOTUS commented about. But they commented about it all the same, even though much of it was entirely unnecessary for the core holding.

What you're suggesting is, at a minimum, that what SCOTUS commented about in the dicta is something they cared about more than the notion of licensing the exercise of the right in the home. But that only reinforces my point.

Otherwise, we're left with the notion that SCOTUS is going to comment about the things they care about the least. While I find that absurd, I do have to grant that it's possible.

[hoffmang]

Otherwise, we're left with the notion that SCOTUS is going to comment about the things they care about the least. While I find that absurd, I do have to grant that it's possible.

SCOTUS was worried they'd be taken too seriously and when you understand that, their cautions make sense. However, I think they're finding that the reverse was true. I'm sure it's surprising to SCOTUS that the lower courts are this willing to ignore them on the core issues.

-Gene

[kcbrown]

SCOTUS was worried they'd be taken too seriously and when you understand that, their cautions make sense. However, I think they're finding that the reverse was true. I'm sure it's surprising to SCOTUS that the lower courts are this willing to ignore them on the core issues.

And yet, they denied cert to (rather than placing in suspension) a case where, in no uncertain terms, the court explicitly challenged SCOTUS to a duel. Which is to say: SCOTUS flinched and ran away. This will most certainly embolden the MD supreme court in future cases.

If the fact that the lower courts are ignoring SCOTUS is a surprise to SCOTUS, then SCOTUS certainly has a funny way of showing it.


I don't know why SCOTUS would be surprised about such a thing in any case, as the actions of the lower courts have been easily predictable. They're doing what I expected they would from the beginning, and I'm no genius (just a supergenius ).