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

[Patrick]

Who says these people didn't plan ahead now they really do have us by the short hairs

Not so much. The state employees are not imbued with mythical powers. They are following the rules given to them from above. Those that are making the rules have been told they are violating our rights. They will argue and try to change that ruling, but realistically many outside of our community agree that is going to be hard.

This is not a case of us getting lucky once and ignoring the chances our side loses on appeal. This is a case where the state is going to have a real hard time in their appeal. The weight on them is intense and so far nobody nationwide has been asked to demonstrate what they are being asked to demonstrate. They are now fighting to overturn a ruling in favor of civil rights. Big change.

Once the rule-makers are told their time is up, everyone will tow the new line.

 

[LCPIWB]

Hopefully the politicians are too lazy to look here!

Too lazy to read the US Constitution or the Maryland Constitution that is for sure.

 

[pcfixer]

Merlin: Way, way, way too much common sense. You are hereby disqualified from ever applying for employment by the State of Maryland. Or maybe his prints changed? Wait, that's not right is it?

It is humbling to see someone has a sarcastic sense of humor in all this.!!
Well done, young jedi...

 

[CrueChief]

Sure. The artistry is making the arguments appeal to 3 appellate judges.

Surely to be in the court to see a grown man ( Gansler ) pleading his case that Judge Legg got it wrong because, well, I mean, ahh, well guns are SCARY

 

[CrueChief]

I can imagine the judges asking Gansler if he realized he was in the middle of Virginia and when he went to lunch he was probably standing around plain regular citizens carry firearms and didn't realize it........didn't know which ones.... and lived to tell about it?

and then with a straight face tell them that the people can't be trusted to carry firearms in public

 

[Virginian Templar]

I can imagine the judges asking Gansler if he realized he was in the middle of Virginia and when he went to lunch he was probably standing around plain regular citizens carry firearms and didn't realize it........didn't know which ones.... and lived to tell about it?

and then with a straight face tell them that the people can't be trusted to carry firearms in public

My Mayor would probably tell you the same thing, but little does he know I've been armed when he came for a visit to discuss some crime and property problems in a neighborhood. I've also met my Congressional Reps while carrying. Oddly I wasn't scared either time.

 

[OnTarget]

From the Herald Mail (Online) 04/03/12 PM

( I posted this because it seemed to be worded differently than what has been stated before IMHO.)

"While the ruling is appealed, Maryland State Police, the agency that processes permit applications, will not make decisions on applications in which approval rests solely on that clause."

http://www.herald-mail.com/news/hm-m...,5893730.story

 

[Patrick]

Surely to be in the court to see a grown man ( Gansler ) pleading his case that Judge Legg got it wrong because, well, I mean, ahh, well guns are SCARY

Gansler doesn't show for these cases. In practical terms the entire case is researched, presented and argued by staff of the AG's office. I would be surprised to find Gansler actually read the state's responses on the merits - there were some arguments that I cannot see many politicians wanting to forward in their name.

A political animal would have excised some of the more disturbing elements of their argument - to whit, that some people ('urban Baltimore and Prince George's County') would be especially concerning to the public if given free exercise of the right to bear arms. They didn't just suggest it, they actually outlined scenarios where 'those people' would engage in mass shooting sprees over everything from parking spots to simple arguments. Of course this cannot square with actual history nationwide. But the state made the argument: some people cannot be trusted like other US citizens. They did not explain why this is the case, which leads us to believe they think some of us more bestial than others.

 

[CrueChief]

My Mayor would probably tell you the same thing, but little does he know I've been armed when he came for a visit to discuss some crime and property problems in a neighborhood. I've also met my Congressional Reps while carrying. Oddly I wasn't scared either time.

you should be assamed being that close to the god like elected officials with an evil gun....how would you feel if it jumped off your hip and just fired and hurt some one...

 

[CrueChief]

Gansler doesn't show for these cases. In practical terms the entire case is researched, presented and argued by staff of the AG's office. I would be surprised to find Gansler actually read the state's responses on the merits - there were some arguments that I cannot see many politicians wanting to forward in their name.

A political animal would have excised some of the more disturbing elements of their argument - to whit, that some people ('urban Baltimore and Prince George's County') would be especially concerning to the public if given free exercise of the right to bear arms. They didn't just suggest it, they actually outlined scenarios where 'those people' would engage in mass shooting sprees over everything from parking spots to simple arguments.

Where's Sharpton when we need him?

So he hides under Owe Malley's desk while his staff fights this....chicken little the sky just might be falling......

 

[Virginian Templar]

you should be assamed being that close to the god like elected officials with an evil gun....how would you feel if it jumped off your hip and just fired and hurt some one...

I should feel ashamed, but my sarcasm meter was finely tuned that day so I smiled and shook his hand while looking him in the eye. Just to make sure my ccw stayed in place I cinched the ole belt down a notch and passed gas to temporarily disorient it when the entourage showed up. It's how I roll.

 

[CrueChief]

I should feel ashamed, but my sarcasm meter was finely tuned that day so I smiled and shook his hand while looking him in the eye. Just to make sure my ccw stayed in place I cinched the ole belt down a notch and passed gas to temporarily disorient it when the entourage showed up. It's how I roll.

 

[Mark75H]

I can imagine the judges asking Gansler if he realized he was in the middle of Virginia and when he went to lunch he was probably standing around plain regular citizens carry firearms and didn't realize it........didn't know which ones.... and lived to tell about it?

and then with a straight face tell them that the people can't be trusted to carry firearms in public

That would be sweet, wouldn't it

 

[Patrick]

Whether in favor of a stay or on actual appeal, Maryland has to argue that the right does not exist outside the home. But it does, to some extent. Maryland all but conceded this in its use of Loaded Open Carry or long guns as a defense. And the chances that the 4th would so completely dispose of the question is small - even those disposed against the right are going to have to acknowledge that outside-the-home falls under the 2A umbrella in some form.

That leads us to determining the extent of the right and then how to evaluate that right. The closer this right falls to the 'core' of 2A, the harder the job for the state in overcoming it. But even a non-core holding demands protection, and per Heller/McDonald this involved a 'heightened' standard of scrutiny. So for our purposes, assume intermediate scrutiny, though the 4th in Chester made clear that this is the floor, not the ceiling. In the as-applied context of Woollard, Chester opens the door to a much stricter form of analysis, if not strict scrutiny itself.

Any level of "heightened" scrutiny requires a real showing by the state. Maryland tried hard using academic research from some professors to demonstrate that, "Guns are bad, mm'kay?"

It failed in the District Court for good reason: it didn't wash with actual criminological trends and experience with lawful carriers nationwide. In short, the state tried to take the straw-man (bad guys with guns) and then apply them to lawful people. It's called the "Thieves Veto" - that the lawful should be denied access to something because the unlawful commit bad acts with those same things.

The hurdle Maryland faces (from Gura's NY Appellate Response):

Curiously, the one type of data that Defendants failed to offer is the data most relevant to their theory that law-abiding, responsible people cannot be trusted with guns: the crime rate of individuals licensed to carry handguns for self-defense in the states where such licensing occurs on a shall-issue basis. That information, readily maintained by various government agencies, is a matter of judicial notice. It does not advance Defendants’ theories.

Michigan, for example, issued 87,637 permits for the year ending June 30, 2011. In that time frame, it revoked only 466 permits. Texas compiles detailed information tracking the proclivity of handgun carry license permit holders to commit crimes. In 2009, of 65,561 serious criminal convictions in Texas, only 101— 0.1541%—could be attributed to individuals licensed to carry handguns, though not all such crimes necessarily utilized guns, or used them in public settings.

Perhaps the most comprehensive data comes from Florida, which reports having issued 2,145,632 handgun carry licenses since 1987. To date, Florida has only revoked 168 licenses—.0078%—for crimes utilizing firearms.

In any event, the social science debate is totally irrelevant. In considering constitutional claims, this Court does not weigh “expert” opinion disproving the utility of the right against search and seizure, various aspects of due process, or the right to counsel itself. Tax evaders cannot cite expert economists to explain the various policy deficiencies inherent in taxing income, the Sixteenth Amendment notwithstanding.

This Court does not referee academic debates. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are certainly entitled to believe that the Second Amendment right to bear arms is disastrously dangerous. They are also entitled to that same belief regarding the exclusionary rule or the right to counsel. Doubtless, virtually every aspect of the Constitution finds strong disagreement among some segment of society. But McDonald's instructions bear repeating:

Municipal respondents . . . note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.
​

The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.

District Courts have washed themselves of the issue by doing what we call the "2A Two-Step" - finding that RKBA outside the home is non-core and then applying a lower level of scrutiny that should be afforded even non-core rights. The courts call it 'intermediate scrutiny', but then accept ad-hoc evidence and proclamations from the defendants that they accept at face value. In the recent case of NY, the district judge literally accepted the notion that "guns are bad" as evidence to satisfy 'heightened' scrutiny.

Once we get the appellate level, such games are going to end. I am not saying these cases are all shoe-ins, but I am suggesting that the Two-Step is going to get real hard, real fast. A Circuit Court will need to ask more of the defendants than simple proclamations and legislative findings. There will need to be meat on those bones.

Which leads Maryland to an interesting conundrum. Their appeal is about the facts of the District Court case and the law used to evaluate those facts. Maryland cannot introduce new facts, evidence and findings. That ship sailed. All they can do is argue with what they have. And what do they have?

Nothing.

Maryland used the same professors that New York used for the social science argument. They avoided the historical argument almost in entirety. They took much of the same line of argument as New York. And none of it actually addresses the true requirement of showing that laws in favor of discretionary issue are truly required to protect the people. There is zero evidence presented. Of course, this evidence does not exist, but even if it did Maryland cannot enter it post-hoc.

This is why so many people say Maryland is going to have such a hard time. Even if they had an argument to bring (they do not), they cannot enter it at this point in time.

 

[csanc123]

Patrick,

Appreciate the analysis! This certainly sheds light on the challenges the state will face and more importantly...it just feels good!

..........This is why so many people say Maryland is going to have such a hard time. Even if they had an argument to bring (they do not), they cannot enter it at this point in time.

 

[Virginian Templar]

I'm pleased to announce that no elected officials were injured in the exercising of my Constitutional rights.

Patrick,

Heller and McDonald established Keep and Incorporation, and SAF's victory in NC gives us "bear". That can and likely will play into MD's issue at some point in the future.

 

[CrueChief]

This is why so many people say Maryland is going to have such a hard time. Even if they had an argument to bring (they do not), they cannot enter it at this point in time.

So they really didn't think they would win. they were so confident hey didn't even bother to enter real evidence??????? Wow

 

[Mark75H]

Its better than that Chief ... there is no (and never was any) "real evidence" to present ... that's their real problem

They are just "going thru the motions" to delay/impede/cause problems/make the process difficult ... because they can (and because it is their only avenue)

That's all this dance was ever about

 

[Merlin]

I think that reading - if they took it - would be strained. I haven't the time to look it up now, but I am sure there are plenty of cases out there regarding permits of all types where "acted on" meant actually making a decision. I don't see the state changing the basis of all permits just to avoid a few gun permits.

They know the numbers on lawful permit holders. They know we are safe. They will push, but I promise not one government employee is going to risk jail, their personal income or their pension to thwart our rights. This is the new territory we are in - little things like qualified immunity go away when a court teaches you civil rights law in explicit terms and you fail to heed the lesson. It's not an easy thing to breech, but the fact is nobody wants to be the one defending the legacy from the hordes of civil rights lawsuits.

In short, I am with esqappellate in his views. When the sands run out of their hour glass, the state and local employees will follow the law to the letter. They wont have to like it and they may not give you a high-five for exercising your rights, but the simple fact is none of them are going to risk contempt and/or a 1983/88 lawsuit on behalf of unconstitutional state policy.

I agree with you that in the end they will follow the law. But just for this time of uncertainty I can see them putting up the appearance of doing their best as the call people in for a few interviews. They may even get to the point where they will end up giving everyone a face to face interview to be ahead of the curve no matter how this goes in the end.

But can't they always fall back on the, "We are short handed and we are doing our best to processes them as fast as possible", as they buy time?

To be fair to the MSP, if they wanted to during this stay and if they did not want us to have CCW's, can't they just process as many as they can very quickly to get denied letters in the mail before the stay is lifted?

If they can do this it looks like they are not doing this to be fair to us. Or maybe I'm completely wrong about how any of this works.

 

[csanc123]

The process doesn't end there (unless you want it to) You can still appeal the decision and go before the permit review board and the courts....Would be pretty dumb on the part of MD to summarily deny the flood of new apps they received.

To be fair to the MSP, if they wanted to during this stay and if they did not want us to have CCW's, can't they just process as many as they can very quickly to get denied letters in the mail before the stay is lifted?