Williams v. Maryland ~ Petition for Writ of Cert

[Wolverine]

In other SCOTUS news, DC has been granted an extension to file a response in Lowery v DC today as expected. The new due date is November 14th (originally October 12th).

[kcbrown]

I'm sure it's surprising to SCOTUS that the lower courts are this willing to ignore them on the core issues.

By the way, isn't there historical precedent for this? Isn't that exactly what the lower courts did during the civil rights movement as well?

If not, then that illustrates the truth of what I've said before: the right to arms is much more of a perceived threat to the judiciary (which is, in the end, merely another part of the very same government that fears power in the hands of the people) than is the right to equal treatment, for issues of prejudice go merely towards ones preferences, while the right to arms goes right to the issue of perceived safety.

[Mulay El Raisuli]

I'm going to go way, way out on a limb and say that at some point, SCOTUS is going to either hold themselves or let lower courts get away with the idea that at least some people who were carrying illegally according to laws eventually found unconstitutional are not sufficiently law abiding to get their convictions overturned.

Fact is, most people who go to prison for illegal carry are probably bad guys (anyone wanting to argue this should look up the definition of "most" first), and SCOTUS is no-how, no-way going to want to let them all free.

I disagree. The Miranda decision applied (necessarily) only to bad guys. Mr. Miranda was a pretty bad guy himself. And yet, "want to" or not, SCOTUS found for him, & all those other bad guys too.

<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>

I don't know. That calls for the Heller-5 to have a plan of action in re this. I have a lot of trouble with that idea.

And of course, there is a danger.

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.




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?




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.

The last being the most important.

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

-Gene

Then here's hoping that they get it right.


The Raisuli

[Al Norris]

I keep seeing people write things to the effect that because Williams didn't even try to get a permit, that makes the case bad - in that respect alone.

But as kcbrown has mentioned, in Plain Dealer the Court explicitly said that one need not attempt to obtain a permit that would a be futile exercise in order to have standing to sue.

The counter argument is that we don't even know if Williams would have been rejected... because he didn't even try! After all, the record reflects that MD issues on 90% of the applications that were submitted.

But the trial court record does not reflect this. The 2A defense wasn't even allowed (You have a right to keep a gun in the home. Period). Therefore, no record of permitting was ever developed. That "90%" thingy was said at the MD Court of Appeals, not he trial court.

However, the MD AG's statements in Woollard could have been used at the Supreme Court. And there, Gansler explicitly said that the whole permitting scheme was meant to keep guns out of the hands of ordinary people. That [b]is[/i] on record.

In this, MD is duplicitous. It has said one thing to a State Court while saying the exact opposite to a Federal Court.

Which all boils down to what I said over at MDShooters:

The Court could have taken this case and in a very narrow decision, ruled that the right of self defense exists beyond the door-stop. Remanded the case back to MD with the instructions to further develop the record as to whether or not Williams, as an average person, could have obtained a carry permit, and thus be accorded his constitutional rights.

This would have opened up a very small window in the rest of the carry cases, but it would not have stricken the laws of other States. It would have allowed a MD court to overturn (or not) its own laws. The Supremes wouldn't be seen as the bullies here.

Now if I can see that (and I'm not the brightest light bulb here), surely the SCOTUS saw it too. That begs the question of why an otherwise law-abiding man is now being sent to prison.

[Al Norris]

Dup

[Maestro Pistolero]

Isn't it possible that the court may agree that William's behavior was constitutional, but felt that another case may be a better vehicle to establish that fact. In such a circumstance wouldn't Williams then have recourse if there were new supreme court precedent establishing such? Also, might not the court wish to avoid the appearance of sour grapes with regard to the challenge by the court of appeals to "say so more plainly" especially if they knew another case would accomplish the same end without any baggage?

[kcbrown]

Isn't it possible that the court may agree that William's behavior was constitutional, but felt that another case may be a better vehicle to establish that fact. In such a circumstance wouldn't Williams then have recourse if there were new supreme court precedent establishing such? Also, might not the court wish to avoid the appearance of sour grapes with regard to the challenge by the court of appeals to "say so more plainly" especially if they knew another case would accomplish the same end without any baggage?

SCOTUS concerned about the appearance of sour grapes? As a result of a glove slap to the face from some underling?




Seriously, though, think of the horrible precedent it sets if SCOTUS lets the underlying courts get away with going rogue. For if the underlying courts can get away with ignoring SCOTUS, then of what use is SCOTUS?

[jar]

But as kcbrown has mentioned, in Plain Dealer the Court explicitly said that one need not attempt to obtain a permit that would a be futile exercise in order to have standing to sue.

Plain Dealer is about a bringing a civil facial challenge to an ordinance though, not appealing a criminal conviction. I see nothing obvious that forecloses consideration of a permit application or lack thereof in a criminal matter, or even preventing after the fact constitutional challenges to criminal statutes entirely. Time to do some research.

[hoffmang]

By the way, isn't there historical precedent for this? Isn't that exactly what the lower courts did during the civil rights movement as well?

No. Federal courts took NAACP claims very seriously and were the arbiters of much of the calming and change that let CORE/SNIC, etc, succeed.

It was local governments who tried to ignore the courts that were the foot draggers. That happened right up to US Marshalls compelling attendance at hearings where Federal judges explained how contempt worked for Sheriffs and Mayors.

-Gene

[kcbrown]

No. Federal courts took NAACP claims very seriously and were the arbiters of much of the calming and change that let CORE/SNIC, etc, succeed.

It was local governments who tried to ignore the courts that were the foot draggers. That happened right up to US Marshalls compelling attendance at hearings where Federal judges explained how contempt worked for Sheriffs and Mayors.

-Gene

Well, well...so we have a new judicial dynamic on our hands, huh?

SCOTUS had better assert their authority, and quick, because if they don't then this whole "ordered liberty" thing that the SCOTUS justices believe so strongly in is going to crumble around them. The lower courts will certainly notice their own newfound power, and will use it.

My estimation of the chance of civil war just went up a notch.

[Librarian]

US v Barnett seems to be related interesting reading, regarding the contempt citations of Mississippi Governor Barnett and Lt. Governor Johnson.

The court seemed less than amused by actions that

would result in immediate and irreparable injury to the United States, consisting of impairment of the integrity of its judicial processes, obstruction of the administration of justice, and deprivation of Meredith's declared rights under the Constitution and laws of the United States.

[kcbrown]

US v Barnett seems to be related interesting reading, regarding the contempt citations of Mississippi Governor Barnett and Lt. Governor Johnson.

The court seemed less than amused by actions that

Note that the case cited above involved obstruction of the law (as adjudicated by the Supreme Court) by state actors, and that the federal executive branch (President Kennedy, in particular) ordered all persons engaging in such activities to cease such action.

Which is to say, enforcement of the judicial holdings of the Supreme Court was, at that time, something that the majority (if not the entirety) of the federal government, including the entire federal judiciary, was behind.

That is not the case here. Not only is it clear that much of the federal judiciary is content to outright ignore the Supreme Court to whatever extent they disagree with its holdings, but we have a federal executive engaged in outright treasonous activities in the form of Fast & Furious for the purpose of implementing additional restrictions against activity that is likely protected under the 2nd Amendment. The thought of this executive, which has shown itself to be willing to go as far as aiding and abetting the enemies of the people of this country in order to achieve its anti-2nd-Amendment goals, actually getting behind this Supreme Court on these matters is difficult to imagine, if not outright laughable.

[hoffmang]

US v Barnett seems to be related interesting reading, regarding the contempt citations of Mississippi Governor Barnett and Lt. Governor Johnson.

The court seemed less than amused by actions that

Excellent find. Reading between the lines things were a bit more similar to the current situation than I was thinking. The District Court was just as "conservative" as we've been seeing District Courts be, but the Court of Appeals was being the even handed jurists (which is what we see in all but Heller II so far.)

Also note that Kennedy's order as executive was lawful but in addition to the court's remedy. "In the custody of the Attorney General" meant that the Marshalls or FBI could lock the Governor in jail.


The guys in front are US Attorneys. The guy in the helmet is a US Marshall.

[kcbrown]

Excellent find. Reading between the lines things were a bit more similar to the current situation than I was thinking. The District Court was just as "conservative" as we've been seeing District Courts be, but the Court of Appeals was being the even handed jurists (which is what we see in all but Heller II so far.)

With respect, we haven't seen that kind of "even handedness" in Nordyke, either. About the only "good" thing you can say about it is that the 9th Circuit made use of some of the text of Heller.

[mdimeo]

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.

I don't think you should make much of that. Aside from maybe-sorta not applying to non-citizens, it was a stronger ruling fully in agreement with the plurality opinion that the 2nd applied to the states via the 14th.

Gura didn't need to make that argument; Thomas would have written the same opinion if P&I had never been brought up.

I'm much more worried about Scalia getting cold feet about letting bad guys out of jail than about Thomas's principles getting in the way of a favorable 2A ruling.