SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12

[jonnyl]

Speaking of the "besides, people can carry long guns" angle.

It seems to me they're forgetting that DC tried the "you can have a long gun" excuse in Heller and were slapped down with the "in common use for self defense" argument.

 

[Boxcab]

For those of you seriously (and I hope we're a bit less impulsive than this) considering open carry of any kind of long gun, check your county/city laws first. Montgomery County has restrictions on the carry of any kind of gun without a permit, outside of the transport to ranges/gunsmith/gunshop/gunshow/etc...

http://www.montgomerycountymd.gov/content/ded/agservices/pdffiles/ch57_weapons.pdf

Maryland has State preemption (Sp?) making Monty Co's gun laws invalid. So after a couple of years in court you would be found innocent!

Maryland's preemption statute provides uniformity for most gun laws
throughout the state. But localities may still regulate the discharge of firearms within their limits and the carry of firearms within 100 yards of schools, parks, churches, public buildings, and places of public assembly.

http://www.gunlawguide.com/Maryland.htm

 

[Patrick]

Follow this all the way to the end...

Speaking of the "besides, people can carry long guns" angle.

It seems to me they're forgetting that DC tried the "you can have a long gun" excuse in Heller and were slapped down with the "in common use for self defense" argument.

This.

Maryland gives a halfhearted attempt to acknowledge and get around Heller's guidance on handguns:

Although the Supreme Court held that the option to have firearms other than handguns was not sufficient to sustain a ban on handguns in the home, ..., the character of—and danger presented by—handguns is different inside and outside of the home. See discussion above at 14-16. “Unlike possession of a gun for protection within a residence, carrying a concealed firearm presents a recognized threat to public order,” exposing “persons other than the offender” to possible “physical harm.” People v. Yarbrough, 169 Cal. App. 4th 303, 314 (2008) (internal citations omitted).

Maryland's argument: The Supreme Court got it wrong in Heller, and look - a California State Appellate Court agrees with some of the "evidence" we introduced 14 pages back that in reality was literally a conversation with ourselves!


DC tried the same game and claimed handguns are more dangerous than long guns, and therefore they must be banned. They also introduced statistics showing they are the most commonly used weapon by criminals. That all backfired, because it conceded to the court that handguns are the most commonly used weapons for a good reason. Those reasons make them more dangerous, and therefore effective in a defense situation. Maryland oddly replicates this failed argument.

Maryland is missing one important doctrinal tenet here (though they actually acknowledge it in writing): that the Supreme Court found the Second Amendment to protect an individual right to self protection using arms. The right protects the use of 'effective and functional' firearms configured for 'immediate use in a hostile situation.' (Note that single-ticks are my way of paraphrasing materials...quotations are generally taken literally from the text.)

Maryland misses that point completely. They are still arguing against an individual right to self defense. The text of the above handgun-ban defense comes from a portion of their argument where they are arguing that even if the right exists, it is subject to intermediate scrutiny. But they forget the core cause of the right, and the proscription from Heller that any interest-balancing approach that allows the government to whittle the right down to meaningless words is proof that the balancing is faulty.

So take a look at the known facts:

• Heller specifically said individual self defense is the core tenet of 2A
  
• Governments cannot restrict handguns from individuals, because they are more utilitarian than other arms for personal protection
  
• Heller said that any type of "interest-balancing" that whittles the right down to meaningless words is proof that the balancing is faulty

And now what Maryland argues: that even if the right to bear arms exists, it is subject to a level of 'interest balancing' that - wait for it - removes the very type of firearm that Heller specifically calls out as protected! The argument itself is not only faulted, it is damning. Maryland is arguing that Heller was wrongly decided on this point, and that its binding proscription on this type of interest balancing should be ignored.

The state should have left this one alone. Big hole. They should have focused more energy on the argument that public RKBA is non-core and then tried to caveat a core finding with intermediate scrutiny such that it could be used to restrict the persons, not the object.

But it gets worse for Maryland

Their three arguments that the law does not implicate the "core" of 2A (the first step of the Two-Step) are (exact quotes):

1. "First, the Heller court located the core Second Amendment right in the home, and the conduct at issue here falls outside of the home." [Emphasis in the original]
   
   
2. "Second, Maryland’s law does not impose a complete ban on the public wearing and carrying of handguns, but rather provides a mechanism by which any law-abiding, responsible individual with a legitimate, demonstrable need can obtain a permit to wear and carry a handgun."
   
   
3. "Third, the law does not regulate the wearing and carrying of all firearms in public, but is limited only to handguns."

They should have stuck with #1, because the next two reasons are damning to their case. Both concede that some form of defense is required by at least some people, and available to all. The long-gun argument is especially hard to defend, simply because it is presented as a considered rationale for defense - as if the state intentionally provides that option for the average citizen, instead of simply forgetting to ban it. But by presenting it as a state response for an optional manner of carry for the average citizen, they open up a few nasty doors for themselves:

• Concealed carry is a manner of carry that we fear because of the nature of the act - concealing guns is bad
  
• Handguns are more dangerous than long guns
  
• Maryland provides a manner of carry for individual self defense using arms that does not require a permit.

This could easily backfire on them. Again, reviewing the facts and concessions (I like lists today):

1. Maryland offers two manners of carry: handgun and long gun
2. handgun requires a permit because of its dangerous effectivity
3. long guns require no permit
4. Heller specifically ruled that handguns are protected because of their effectivity as a personal defense arm

Maryland promotes unlicensed long-gun carry from "legislative gift" to "protected right" under intermediate scrutiny.

Read that again.

Maryland claims the right to public RKBA of handguns is not "core" to the Second Amendment, but then promotes the idea that long-guns would satisfy the right that would exist under even intermediate scrutiny. Elsewhere they argue that the long-gun allowance should be properly considered a gift of the legislature, but they destroyed their own argument by suggesting that if the court finds for a public RKBA right, that the long-gun manner of carry would satisfy the claim. By making non-permitted carry of long-guns responsive to the civil rights claim, they promote carrying of arms beyond the realm of legislative intent.

This argument goes beyond the defense any other state has tried. Everyone else says that intermediate scrutiny means we can subjectively prohibit carry for individuals - then they stop talking. Maryland went further by saying loaded guns answer the question even under less-than-strict circumstances. They took Peruta (unloaded open carry was used there) and upgraded it to loaded assault weapons and PDWs. Whah?

Also, once this has been done they open themselves to a due process issue: not everyone can shoulder a long gun in defense of themselves. Some people do not have the strength, and some may simply be missing one arm. Or be in a wheelchair. Or not able to afford a lightweight PDW properly configured for their needs (like an SBR'd PS-90 for $2000).

The whole discussion they have in this section (pages 29-32, btw) is predicated on the finding of a right to public RKBA and in minimizing its application and scope. But in providing the long gun option, they actually promote the idea of using arms for defense. Once they do that, they open the door to an argument (legitimate, per Heller findings - not dicta) on the types of arms we can use. That is an argument they already lost because the Supreme Court settled in decisively in Heller.

Maryland just argued that non-permitted Open Carry of firearms does not require a permit in Maryland even under intermediate scrutiny. They didn't meant to do it, but they did. And if you add the parts of Heller than bind handguns, that Open Carry would also have to include handguns.

Again...Maryland did not think this argument through to its logical end. All they considered was what would happen if a judge agreed with all of their points - as a complete collection - and ignored all of Heller's guidance on this topic. That won't happen. The judge can toss some of their obviously failed arguments and keep the concessions. Rule #1 when getting sued: keep the concessions to an absolute minimum. They should have stopped defending themselves at "in the home".


I think Maryland just accidentally lowered the bar to unlicensed open carry from strict scrutiny to intermediate.

Thanks Gansler! Glad you got this job through patronage rather than qualification!!!

 

[frozencesium]

Ugh, the 15th feels like such a long time. I can't wait to see the 2AFs pimp slap to MD and to the Brady Bunch.

 

[NY Transplant]

For those of you seriously (and I hope we're a bit less impulsive than this) considering open carry of any kind of long gun, check your county/city laws first. Montgomery County has restrictions on the carry of any kind of gun without a permit, outside of the transport to ranges/gunsmith/gunshop/gunshow/etc...

http://www.montgomerycountymd.gov/content/ded/agservices/pdffiles/ch57_weapons.pdf

Since when did Montgomery County trump state laws? I thought any state law preempts local laws.

 

[pcfixer]

The plaintiffs have failed to make that showing here. In simple terms, the “good
and substantial reason” requirement does not treat similarly situated people differently
because not all Maryland gun owners are similarly situated. Those who can demonstrate
that they face a greater than average level of danger are by definition situated differently from those who cannot ( page 59)

Since when does the level of danger have be demonstrated to apply 2A carry right?

 

[Inigoes]

Maryland just argued that non-permitted Open Carry of firearms does not require a permit in Maryland even under intermediate scrutiny. They didn't meant to do it, but they did. And if you add the parts of Heller than bind handguns, that Open Carry would also have to include handguns.

True, if the statement applies only to long guns

False, if applies to handguns

(1) Except as provided in subsection (b) of this section, a person may not:

(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person;

(ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State;

§ 4-203. Wearing, carrying, or transporting handgun.

 

[krucam]

Great pick Patrick and johnyl...the sweet irony is that as the State misquotes Heller, the attorney who argued and won Heller will be responding...something tells me Gura, along with Cary Hansel are just a bit more into the nuances of Heller than Gansler.

Yeah...April 15th can't get here soon enough.

 

[J.Brown]

So, couldn't the judge say "you conceded, they win with no stay" and when they appeal there told "no, we will not hear your appeal because you conceded?" it's probably wishful thinking but makes perfect good sense to me.

 

[swinokur]

From MD code 4-209"

(c) Preexisting local laws.- To the extent that a local law does not create an inconsistency with this section or expand existing regulatory control, a county, municipal corporation, or special taxing district may exercise its existing authority to amend any local law that existed on or before December 31, 1984.

If Montgomery County law contradicts MD law, it is null and void.

 

[Patrick]

True, if the statement applies only to long guns

False, if applies to handguns



§ 4-203. Wearing, carrying, or transporting handgun.

By promoting the long-gun allowance to protected status under intermediate scrutiny they take the legislature off the table, other than the fact the legislature chooses it as its protected manner of carry.

Handguns come in immediately after that. The Heller court made clear that they are also protected. Maryland can pass all the laws they want, but if a right to bear arms exists then handguns must be a part of the solution - this is explicit in Heller.

Gansler appears to have mis-stepped here: he offers a solution that involves loaded firearms as a response to a lower-than-strict finding for public RKBA. True, it is long guns...but it is: A) a loaded gun; and B) a state-sponsored manner of carry to satisfy the public RKBA claim. Again, Heller makes clear that where a right to bear arms in defense of yourself exists, handguns cannot be restricted. That is not dicta - it was a core holding in the case against DC.

I think Maryland goofed big time. It seems to me they just lowered the bar to public RKBA of all firearms to intermediate scrutiny.

Go team!

 

[BenL]

Hey not bad......They are telling us we can carry our rifles open or concealed.


Maybe I will have to start carrying my undefolder ak .

+1

One of my AR's is quite compact and has a single point sling on it.

 

[Inigoes]

I think Maryland goofed big time

We both can agree on that

 

[pcfixer]

Great pick Patrick and johnyl...the sweet irony is that as the State misquotes Heller, the attorney who argued and won Heller will be responding...something tells me Gura, along with Cary Hansel are just a bit more into the nuances of Heller than Gansler.

Yeah...April 15th can't get here soon enough.

Yes, your spot on partner! I'm wondering what is going on in the
offices of Gura and Hansel this morning....my guess is

 

[Patrick]

So, couldn't the judge say "you conceded, they win with no stay" and when they appeal there told "no, we will not hear your appeal because you conceded?" it's probably wishful thinking but makes perfect good sense to me.

I think Gansler just handed the judge a gift-wrapped option: rule for public open RKBA, assign it intermediate scrutiny -which Gansler acknowledges includes citizen carry of loaded firearms without a permit, and then use Heller's direct guidance on handguns to extend the long-gun concession to handguns. Maryland is suddenly a no-permit required Open Carry state.

If the Permit Statute Is Not Subject to the “Reasonable Regulation” Standard of Review, It Is Subject to Intermediate Scrutiny.​

...

Third, the law does not regulate the wearing and carrying of all firearms in public, but is limited only to handguns. Even individuals who lack a good and substantial reason to obtain a permit to wear and carry a handgun have the option of wearing and carrying other types of firearms in public.

Maryland has limited their defense to restricting handguns with an onus on concealment. They primarily argue for a less-than-intermediate finding, but if the national trend holds intermediate is a likely outcome at the district level. So in spite of 40+ pages about the evils of guns and the need to keep public bearing of arms outside the core of 2A, they have to respond to the possibility that some type of public RKBA right exists. Their response is that public RKBA is not "core" to 2A, partly because this long-gun option exists. That is a concession that even under non-core situations, loaded and armed firearms are available to the lawful citizen.

I don't get why they would argue this: that the right to bear arms in public is not core to the Second Amendment because people already have the ability to bear loaded arms in public.

Am I over-reaching here?

 

[Inigoes]

I think Gansler just handed the judge a gift-wrapped option: rule for public open RKBA, assign it intermediate scrutiny -which Gansler acknowledges includes citizen carry of loaded firearms without a permit, and then use Heller's direct guidance on handguns to extend the long-gun concession to handguns. Maryland is suddenly a no-permit required Open Carry state.

I'm thinking that will be one of the next cases, after Wollard wins

A runner up, will be a challenge to the handgun roster.

 

[BenL]

Thanks for the in depth post, Patrick.

Am I wrong to be giddy about this??? It really sounds like Gansler is incompetent and has screwed the pooch on this. Could he be playing possum, "losing the battle to win the war"? Could there be something big-picture-clever going here that we're missing?

 

[Inigoes]

There is a little additional irony, once the "good and substantial reason" is removed. Non-residents can apply for Handgun permits.

Nothing in § 5-306 says you have to be a resident.

 

[erwos]

Nice analysis, Patrick. I'm a little shocked that the state made so many concessions, too.

Here's my theory: the state knows it's in a bad position. They have no choice but to fight for political reasons. Ergo, they're just trying to figure out how they want to lose. Filing briefs that put the judge in a certain state of mind for that makes sense, and I think your thoughts on this are spot-on.

My thought is that it could be that the state's end-game is now to keep concealed carry restrictions by legally allowing open carry of handguns. As we've seen in California and (for a while) NoVA, you can make life rather difficult on open carriers without actually having any laws against it.

They could have done this legislatively in theory, but the current political (and intellectual) make-up of the legislative branch means they realistically would not have. It is just not politically viable for the members of the legislature to vote for legalized open carry, even if it saves the state a ton of money in legal costs (because, again, they'll have to appeal for political reasons). Hence, the debacle and expense of a court case that shouldn't have happened.

 

[swinokur]

OC in CA is only permitted if the weapon is unloaded.