Williams v. Maryland ~ Petition for Writ of Cert

[OleCuss]

I don't know about a code of silence. In fact, I doubt you could find many who are conversant on Wickard and Carolene.

But we have to work with the system as it is not as we might wish it to be. When I was in the CAARNG I thought that in a combat zone that given my role a good semi-auto shotgun would have been my proper carry weapon. They gave me a peashooter anyway. Point is that sometimes you don't get to choose your tools - you have to make do with what you have.

We have Heller and McDonald. Those two cases are going to change a lot of jurisprudence but we're in the early part of the changes.

Let me put it another way. I frequently ask people if they could walk a hundred feet - and they universally agree that they could. I then ask them if they could go that hundred feet in one step - and every one has said that they couldn't. Point is that if you attempt too much you fail when a multitude of small steps leads to success.

We are in a situation where attempting too much leads to failure. Many small steps will get us the win.

But do not underestimate Clarence Thomas in particular. This guy is brilliant and may prove very influential in moving jurisprudence to the point where we actually start getting some of the most offensive/unconstitutional rulings and legislation overturned.

FWIW

[yellowfin]

I don't know about a code of silence. In fact, I doubt you could find many who are conversant on Wickard and Carolene.

Uhm...isn't that what I'm saying, that they're not talking about it?

[OleCuss]

Uhm...isn't that what I'm saying, that they're not talking about it?

Perhaps that is what you were trying to communicate - but I generally don't equate it with a code of silence. But yes, we have a knowledge deficit and thus don't address all issues. And many, frankly, care about only one issue that has captured their interest to the exclusion of nearly all else - including the linkage between the various aspects of our rights and the instruments of their suppression.

I share some of that knowledge deficit - but keep working at remedying at least some small part of that deficit.

[kcbrown]

kcbrown:

I don't think the Supremes view their function as do you. They actually don't seem to view themselves as in place to right the wrongs and keep the innocent out of prison - that is generally a lower court function.

And yet, that is one of their functions. Were it not, it would not be possible to appeal a criminal case to SCOTUS.

In any case, there is a simple mechanism SCOTUS can use to deal with such cases: hold, then GVR when the issues are settled in a different case.


The bottom line is that you're saying that the Court is intentionally shirking its responsibilities. I'm sorry, but that does not sit well with me, nor should it with anyone else.

If they try to right every perceived wrong they will be usurping the role of the lower courts and neglecting the role they believe they were actually given.

If they wish the lower courts to deal with the issue then the lower courts will have to be given the proper guidance to do so. Issuing that guidance is the role of SCOTUS, and it is a massive derailment of justice for them to not do so, and they know this.

And note that even when they rule they frequently don't right the wrong - they render the ruling and remand issues to the lower court with instructions to right the wrong in accordance with the case law they have just made.

And this is why they don't really have an excuse to reject this case, and it's precisely why I see no way out of the argument I previously made.

In the case of Williams I believe that there is a miscarriage of justice. But what, exactly, is the question of law to be answered? Is it whether someone has standing in such a case if they did not even bother to apply for a permit? Is it really a 2A case or is the 2A more of a secondary issue in the Court's eyes?

Seems to me that there are two related questions in Williams: does the right to keep and bear arms extend outside of the home, and if it does, does a "may issue" permitting system with the characteristics of the one in MD satisfy the right (which is to say, is it permissible for a government to enact a prior restraint on a fundamental right in such a way that its permissible exercise rests solely on the arbitrary judgment of a government official?).

But Masciandaro is arguably simpler and more straightforward - and has a lower court darned near challenging the SCOTUS to a duel. It has a better chance for cert.

I thought the same was true of Williams, what with the court saying that if SCOTUS meant the right to apply outside of the home, they should have said so more plainly...

If the Court had the intention of taking on Masciandaro as well as the belief that the situation of law in Maryland was incorrect, then it follows that the Court would have held Williams and then GVRed it after having dealt with Masciandaro. But they didn't. It seems to me that actually rejecting a case like Williams says exactly what I mentioned previously, precisely because of the options available to the Court and the set of cases currently in front of them.

[Gray Peterson]

Take heart you rape victim, you mothers of murdered sons and daughters. You husbands whose wives have been devastated. You victims of crime allowed to run rampant INTENTIONALLY. Take heart all you victims! Because in two weeks, we will have your rights restored! We are really sorry it won't save you tomorrow, or the next, you will just have to be a victim because otherwise you get to go to jail and be jeered by the lawful types. Till those "two weeks" are up just take it on a chin and be a victim because you will be, no matter if you choose to Stand and defend and violate the illegal laws or if you obey them and let your criminal friend have his way with your daughter you will be made a victim the same.

In the end though, justice will forever be denied those made Victims by their own government. Even after we win, even after, rights are restored there are no recourses against, nor accounting taking of the harm done unto others by those in power. They will NEVER feel the sting of their wrongs in this life.

IN the end, we get to say, well at least we got our Rights back. But really, if they were Natural Rights, do we not have them now? How can a Natural Rights be taken? Well, the answer is Natural Rights can be GIVEN away, which is what we did. Now we have to fight to get them back. And yet, while we fight for the 2nd Amendment and its Natural Right, other Natural Rights and Civil Rights are being handed over like candy by a willing populous. The price we pay as a society I see as the broken, dead, and ruined lives stacked like cord-wood as far as the eye can see and each day we pile more bodies. Yet we don't learn and continue to make the same mistakes over and over and the bodies pile ever higher.

I don't think you'll find anyone out there who is more acutely aware of the cost of blood every day the right to carry for personal protection is infringed by these large population anti-gun states.

This is the reason, despite the potential risk to my own case, I want HR822 to pass, to allow folks to carry across state lines. Even though it isn't as expansive as many folks in California want it to be (allow carry by Californians on out of state licenses right in California). This would fix some issues, but will not fix them all. It'll save some lives.

Supreme Court has made it clear: It will not consider at this time any criminal law challenges to 2A (this is assuming Masciandaro is denied cert). You can scold them here all you want here and make statements about natural rights just to make yourself feel better, but none of that amounts to a hill of beans in the end.

[masameet]

What are the chances that the SCOTUS would have heard the case had Williams not removed his handgun from his backpack and placed it in the bushes?

I think his petition for certiorari would have had greater merit if he'd just kept his backpack zipped, his handgun enclosed and unfondled, and he had then been illegally searched by the cop. Then his argument that he was legally carrying from one residence (albeit his GF's) to another residence (his own) would have stood the legal test.

[Smokeybehr]

^ To keep it really simple then, they should first right their own wrongs. Namely Wickard, Carolene, Slaughterhouse, and all of the zillion omissions in Heller and McDonald.

By the way, is there some kind of code of silence for conservatives to not talk about Wickard and Carolene? It seems like it should be the first thing on their list, way above Roe v. Wade, yet they say NOTHING about them. NEVER. Not once.

If SCOTUS decides to hear any or all of the cases related to "Obamacare", you'll see Wickard take a nasty hit. There's a pretty good chance that it'll be next year that it happens, pending the outcome of the cases currently finishing their way through USCoA. There's already a split between the circuits, so a hearing is almost inevitable. The question is which cases, and how might they be combined.

This is the reason, despite the potential risk to my own case, I want HR822 to pass, to allow folks to carry across state lines. Even though it isn't as expansive as many folks in California want it to be (allow carry by Californians on out of state licenses right in California). This would fix some issues, but will not fix them all. It'll save some lives.

The only reason that I can see against HR822 is the lack of a uniform standard between the states for issuance. With a DL, you have to pass a written test and a demonstrative test. With a CCW, various levels of training and testing are necessary. If it was uniform, such as a classroom course of X hours covering a defined curriculum, a test with X questions, and a course of fire with a minimum score, then there would be no questioning blanket reciprocity.

[Connor P Price]

I'm just glad they denied it so early in the session, I'm an impatient sort. Hopefully we'll get word on Masciandaro soon.

Sent from my SGH-T959 using Tapatalk

[hoffmang]

You guys are massively over reading SCOTUS' SOP. Please go look at the miles long list of cases not granted from the long conference. You really can't read as much into a no grant as all of you seem to want to.

2A cases are novel so they're going to get more closely looked at - that is true. However the statement that Williams brings up may issue squarely is at best arguable and at worst totally wrong. If you live in Texas and are caught carrying without a license, you're going to be convicted. I've long held here that I expect that to be constitutional. Williams hints that I'm correct there but I could be wrong - heck - one of the Heller 5 might know the guy and would otherwise have to recuse.

We just don't know for sure and the Supreme Court is VERY clear to the lower courts that it's not granting cert can't be taken by any lower court to mean anything substantive.

-Gene

[Maestro Pistolero]

I agree with this, Gene. If Williams had been granted cert, and won the case, it would have eviscerated regulatory licensing schemes nationally in one fell swoop, essentially foisting constitutional carry on the entire nation. Let's stop and think how likely we would have been to get a majority to vote for that with the present panel. I'd wager 0% likely.

So if this case had been taken up the likely outcome would have been that Maryland's despicable, nearly no issue policy for civilians would then have a SCOTUS case validating it. The Heller majority had to know that, and may have helped us dodge the bullet.

[ccmc]

What are the chances that the SCOTUS would have heard the case had Williams not removed his handgun from his backpack and placed it in the bushes?

I think his petition for certiorari would have had greater merit if he'd just kept his backpack zipped, his handgun enclosed and unfondled, and he had then been illegally searched by the cop. Then his argument that he was legally carrying from one residence (albeit his GF's) to another residence (his own) would have stood the legal test.

I alluded to this in post 523 because that's exactly the reaction a friend of mine (who was unfamiliar with the case) had when I described the facts to her.

[Patrick-2]

I agree with this, Gene. If Williams had been granted cert, and won the case, it would have eviscerated regulatory licensing schemes nationally in one fell swoop, essentially foisting constitutional carry on the entire nation. Let's stop and think how likely we would have been to get a majority to vote for that with the present panel. I'd wager 0% likely.

So if this case had been taken up the likely outcome would have been that Maryland's despicable, nearly no issue policy for civilians would then have a SCOTUS case validating it. The Heller majority had to know that, and may have helped us dodge the bullet.

We're arguing over a has-been, but this would not have been the case. The question was phrased to affect discretionary issue in which the law-abiding individual was not going to get a permit, anyway. I would argue that even Alabama's may-issue regime would not have been affected because they regularly issue to all who qualify.

But even six or seven states would have been a big change. California and New York populations alone would comprise almost 12% of the US Population. Maybe too far, too fast.

And I have also agreed that permits are going pass muster. But the permits cannot have arbitrary roadblocks, be delayed for unreasonable purposes, or cost more than the bare minimum required to process them. And I am not comfortable with any of that, but what I want and what we get are two different things.

[Mulay El Raisuli]

Not exactly, but it doesn't bode well. The biggest problem with the case was that he threw the gun into the bushes. Right there you need to stop and address a few things.

1) Why would he throw a firearm into a bush?
2) If he thought that it was indeed a right to carry, then wouldn't he have just kept it in his bag (and probably not have been caught)?
3) Expressly breaking a law, no matter how unconstitutional, then attempting to cover it up puts a lot of questions to burden the plaintiff.

It was "unclean" from the start. There were significant issues not associated with the RKBA and while the 2A may be framed into the issue the window to look at those issues was cloudy.

Now if Mascidinario is pulled I will start sweating bullets. I don't think that Lowry will address CCW.

All of this is true. Still, the fact that the MD Supremes basically challenged SCOTUS gave me hope that they would put that all aside & issue a Ruling anyway. But, now I'm thinking that what Maestro Pistolero said (below & in post 550) might be right.

I'm not so sure. This may hinge on licensing. Perhaps 'constitutional carry' won't be the standard but LOC is still the only form of carry specifically pointed to in Heller as historically protected.

I'm as disappointed as anyone. Yesterday felt like a kick in the stomach. But I think we are reading too much into this. The justices probably have some idea where they would like to see this go and Williams obviously wasn't the vehicle for it.

I suspect that licensed carry is going to carry the day, whether concealed or open. If this is correct, they won't take Masciandaro either, they'll wait for a licensing standard case.

Here's hoping you're wrong about the last part & but correct about them looking for a better way to say that LOC remains the Constitutional Standard.

You are correct that I should say unlicensed carry and not just LOC. However, most of the advocates for LOC first assume "unlicensed LOC" as being the constitutional carry right.

Its not a bad assumption. Nunn is very clear about that & SCOTUS quotes Nunn approvingly.

The CGF strategy is to just get the right to bear a functional firearm in public in any manner and then start again to figure out what manner regulations are constitutional. In some ways if licensed carry is the base, it would be a shame to end up with the only constitutionally protected carry to be licensed open carry...

-Gene

Just another reason to not ignore the approving words of SCOTUS in re Nunn.

Let me put it another way. I frequently ask people if they could walk a hundred feet - and they universally agree that they could. I then ask them if they could go that hundred feet in one step - and every one has said that they couldn't. Point is that if you attempt too much you fail when a multitude of small steps leads to success.

We are in a situation where attempting too much leads to failure. Many small steps will get us the win.

Yes. "The lion takes mighty strides, but the path is worn smooth by pygmy armies."

But do not underestimate Clarence Thomas in particular. This guy is brilliant and may prove very influential in moving jurisprudence to the point where we actually start getting some of the most offensive/unconstitutional rulings and legislation overturned.

FWIW

Here's hoping!

Seems to me that with this, the Supreme Court has spoken out loud and clear: the Constitution is not the supreme law of the land in face of contravening laws which have not yet been litigated to a decision.

Which is to say: I see only two real possibilities here, both of which are very, very bad:

• Most of the justices on the Court decided that they want Williams to go to prison for breaking a law that is surely Unconstitutional, or
• Most of the justices on the Court don't actually regard "may issue" permit laws governing "bear" in public as Unconstitutional!

If the former, then my comment about the Constitution no longer being the supreme law of the land applies in full. If the latter, well, then that means that for all practical purposes, "bear" applies only in the home.


Either way, it looks to me like the Supreme Court has stepped all over the Constitution on this one. The reason is that no matter the case in front of them, the Court is not bound by any rule or law to limit what they rule on and how they rule (a self-imposed rule is no rule at all). They can expand the scope of the ruling to cover more than merely the relief asked for if they so choose. That means they can, if they choose, address the questions of "bear" outside the home, permitting systems, methods of analysis, etc., all within this one case if they choose, and they can also choose to ignore in part or in full the arguments made by both plaintiff and defendant when deciding the case. They can use their own research, their own methods of substantiation, etc., if they so choose.

The bottom line is that it seems to me that the quality of the case determines the outcome only to the degree the Court allows it to. If there's any court that can truly rule on the merits of a case regardless of how well or badly it's argued, it's the Supreme Court.


That fact is why the rejection of Williams inexorably leads me to the conclusions I stated above. I now have grave doubts about the future of the 2nd Amendment in this country, even from this Court.

I share those doubts. But, that they're planning something good & just don't think Williams is the best vehicle to deliver that 'good' (because of the problems with the case as laid out by SilverBulletz06) is also a possibility. After all, Justice Thomas is in the house & that may make all the difference.


But, I am entirely with Yellowfin:

Can they at very least extend us the courtesy of saying so more plainly? This absurd guessing game sucks.

It sure the hell does!



The Raisuli

[htjyang]

If they don't want the courts to be flooded, then why not start doing their jobs and axe most of the useless glut of laws which are blatantly afoul of the 9th, 10th, and 14th Amendments?!?

I'll only respond in the context of the 2nd Amendment and my response can be summed up in 2 words: "reliance interests."

Okay, a few more words. Let's suppose the Court comes out with a 2-sentence ruling for the next 2A case: "What part of 'shall not be infringed' do you not understand? From now on, all gun restrictions in the country are presumptively unconstitutional."

What will immediately follow is a campaign of fearmongering raising specters of every other household buying Stinger missiles and machine guns in schoolyards. That will be quickly followed by Congressional hearings, impeachment of the justices who voted for such a ruling or, at the very least, rapid confirmation of multiple Sotomayor clones (The 9-justice limit is not a constitutional limit.) to overturn that ruling at the earliest opportunity and overturn Heller and McDonald.

In other words, aside from the committed anti-2A foes like the Bradyites, there are those who are quite comfortable with gun control, (think Mayor Daley, his support of Chicago's gun control scheme, and his hypocritical use of bodyguards) and an even larger number of ignorant people who instinctively think guns are icky and cause crimes. These are all people who (dare I say it?) bitterly cling to their gun control religion. Any earth-shattering pro-2A ruling will be quickly undone by them and all the progress that has been made so far will be overturned.

Can they at very least extend us the courtesy of saying so more plainly? This absurd guessing game sucks.

Again, the Court reviews 7,000-8,000 cert petitions every year. 99% of them are rejected. Do you really expect the Court to issue opinions for those 99%?

What I find interesting is that there is no dissent from denial of cert. Admittedly a rare occurrence but has been known to happen when 1 or more justice feels particularly strongly about a case. The absence of such a dissent suggests to me that none of the Heller-McDonald majority feel particularly strongly about this case.

We need to remind ourselves that we belong to a very small community: A community of no more than a few hundred thousand (out of a national population of more than 300 million and a gun owning population of 80 million) who are very interested in 2A and are broadly familiar with the state of 2A litigation. There is no reason to think, for example, that Chief Justice Roberts cares as much about 2A as he does about... patent rights. (After all, both are mentioned in the constitution.) That might sound absurd to our small band of committed 2A supporters, but from an objective perspective, Roberts had been a corporate lawyer for years before he took on Heller. I can find no evidence if he ever so much as held a gun in his hands.

By the way, is there some kind of code of silence for conservatives to not talk about Wickard and Carolene? It seems like it should be the first thing on their list, way above Roe v. Wade, yet they say NOTHING about them. NEVER. Not once.

Since I consider myself a conservative, I think I'll have to take this one. I can't speak for my fellow conservatives, but I think my "No Discussion of Wickard and Carolene" form was lost in the mail.... I blame it on USPS.

First, if you actually pay attention to what conservatives say about Wickard, you'll find that many of us are opposed to it. The reason why we don't make it a priority is because we have priorities. When we're besieged by everything from Operation Fast and Furious to Obama's attempt to pack the federal courts, tackling the Commerce Clause simply cannot be the priority. The journey of a thousand miles starts with a single step and Wickard is much closer to the end of that journey than the beginning.

Or, to put it even more simply: We don't have the votes for it, in terms of Supreme Court votes, Congressional votes, and popular votes. Tackling that issue without substantial support is a swift way to commit political suicide.

[yellowfin]

What I'm saying is to bring up Wickard and Carolene to get the popular support. We don't have the votes? Why not stir up the public to get them then? I'd venture that most people if they knew about Wickard and Carolene would be pissed off beyond belief about it and demand action on it--they get worked up all the time about far less. As mentioned in another thread, people like the idea of having rights. What if they knew the truth that they effectively have NONE, since the government can claim anything to be permissible to restrict and that any law can stand so long as they can come up with a reason to explain to themselves that they're right? How do you think people would really feel if they knew they're regarded as cattle by the government, who holds that ITS interests are what determines if it can or can't do something, not the people's rights and what the Constitution says?

My guess is they'd be more pissed off than I am every day about it. The economy and government spending are front page every day--guess what's responsible for it? It's the legal presumption that government can regulate anything they want whenever they want because they say so and spend endless amounts of money whenever they want on whatever they want because they want to. We're in this mess in total both in gun rights and the economy because of the same root reason. Is there a REAL reason why that information absolutely must be held back as it is being?