Whalen v Handgun Permit Review Board Appeal Brief Filed

[Occam]

You do know that the Maryland state boundary is the Virginia/West Virginia shoreline. Crossing the center of the bridge would still mean you are in Maryland.

The particulars of the example are irrelevant. The point is well taken.

I was traveling (while carrying) back from NoVa into MoCo this spring, headed towards the Legion Bridge when that tanker overturned, shutting it down. After an apocalyptic traffic jam, we eventually got redirected in a cattle chute all the way down to a DC Potomac crossing, so we could come back up on the Clara Barton or MacArthur/River to get back on the beltway in Maryland.

Which placed me - still absent a DC NR permit - very briefly in DC. One more unfortunate turn of events that day, and I'd be prohibited for life, and maybe writing this from the library computer in prison. That sort of geographic capriciousness should be exactly the sort of thing that any new gun-related legislation includes.

 

[CrueChief]

You do know that the Maryland state boundary is the Virginia/West Virginia shoreline. Crossing the center of the bridge would still mean you are in Maryland.

I believe that's the point.

 

[jcutonilli]

I believe that's the point.

You don't become a felon when you cross the center of the bridge, you become a felon when you cross the VA/WV shoreline. Any portion of the bridge that is over the water is technically in the state of MD.

 

[rbird7282]

You don't become a felon when you cross the center of the bridge, you become a felon when you cross the VA/WV shoreline. Any portion of the bridge that is over the water is technically in the state of MD.

We get it


Sent from my iPhone using Tapatalk

 

[Not_an_outlaw]

I think you are missing my point. I agree that precedent will likely apply to everyone. The problem is that the existing 4th circuit precedent values societal concerns over individual concerns. The lawsuit simply looks at individual concerns and does not address the fact that more than one individual is impacted. There are societal impacts to denying people their rights. Match the governments societal concerns against the peoples societal concerns. Trying to overcome the governmental societal concern against and individual concerns has failed almost every time with respect to 2A cases. This case is yet another example of some individual trying to overcome government societal concerns and will likely fail because they represent their own interests instead of the people.

You just defined "Mob Rule." This is precisely why we have a constitutional republic. I'm not disagreeing with anything here, I'm just thinking how you can make an argument that "Mob Rule" isn't what we should be espousing. For example, the civil rights movement, women's suffrage, etc., trumped mob rule. We don't deny rights due to the percentage of people affected. How can we take our issues and model it like an LGBTQ issue. Now, how to make sense out of what I said.......

 

[Biggfoot44]

So, is Jcutonilli expressing a proposal that only Class Action litigation be persued ?

 

[jcutonilli]

You just defined "Mob Rule." This is precisely why we have a constitutional republic. I'm not disagreeing with anything here, I'm just thinking how you can make an argument that "Mob Rule" isn't what we should be espousing. For example, the civil rights movement, women's suffrage, etc., trumped mob rule. We don't deny rights due to the percentage of people affected. How can we take our issues and model it like an LGBTQ issue. Now, how to make sense out of what I said.......

I am not sure that I would categorize it as "Mob Rule" because there are limitations to the extent in which the government interests overcome individual interests. With "Mob Rule" there are no limitations. In every case the courts do insure that at least some portion of the right exists.

I see the problem as how the issue is framed in the court. The government frames the issue as a way to provide public safety. They still allow some portion of the right to exist. They also tend to blame the gun. Our sides main point is that it is our right. We are silent about the benefits of people owning arms because it is an individual right.

From a conceptual point, we put limits on our rights when there is real harm to society. One restriction on 1A is that you cannot incite a riot. I believe the court sees the issues before them as another example of where it is proper to restrict the right when there is real harm. While I disagree that the public safety issues are so substantial as to require the curtailment of the right, there is some basis for their ruling.

I would frame the issue differently. To me it is about who provides public safety. When the government say that protecting individuals from crime is an important government interest, I would push back saying that the government has no interest protecting individuals. The governments role is simply to provide generalized protection. You cannot have the law meet intermediate scrutiny if the government has no interest in protecting individuals. Every example they cite is an example where there is no government interest that need protecting. Governments simply do not protect individuals.

The second part of the issue is how do the people (all of its individual citizens) get protected. The answer is that each person protects themselves and all of society gets protected through this individual protection. The only way to really protect people is through the individual. Diminishing the individual right diminishes public safety in general.

 

[jcutonilli]

So, is Jcutonilli expressing a proposal that only Class Action litigation be persued ?

No I do not think only Class Action litigation should be pursued. The continued reliance on doing the same thing over and over and expecting different results is the definition of insanity. I do think the litigation should be changed to reflect how the courts are ruling and perceiving the issue.

 

[Stoveman]

No I do not think only Class Action litigation should be pursued. The continued reliance on doing the same thing over and over and expecting different results is the definition of insanity. I do think the litigation should be changed to reflect how the courts are ruling and perceiving the issue.

So if this case fails what you are saying is that you are going to step in and help MSI with the next one?

 

[wjackcooper]

“If the arguments don't matter, why file a lawsuit? How do you know that the arguments don't matter if you use the same argument over and over?”

The obvious, overriding objective is to get the Second Amendment before an unbiased court. Thanks to Trump, the odds are trending (at the Federal level) in favor of decisions on the merits, not emotion and ideology. Given a neutral court, arguments fundamentally the same as those advanced by the likes of Paul Clement and Allen Gura, et al., most probably will prevail.

Regards
Jack

 

[jcutonilli]

So if this case fails what you are saying is that you are going to step in and help MSI with the next one?

If they want my help. There is certainly nothing preventing them from using these ideas now.

 

[jcutonilli]

“If the arguments don't matter, why file a lawsuit? How do you know that the arguments don't matter if you use the same argument over and over?”

The obvious, overriding objective is to get the Second Amendment before an unbiased court. Thanks to Trump, the odds are trending (at the Federal level) in favor of decisions on the merits, not emotion and ideology. Given a neutral court, arguments fundamentally the same as those advanced by the likes of Paul Clement and Allen Gura, et al., most probably will prevail.

Regards
Jack

The problem is that you are ignoring precedent. Now that there is established precedent an unbiased court will now decide a case the same way. It does not really matter who advances the argument.

 

[Not_an_outlaw]

Thinking out loud again. You have the ability (don't know if it's a right) to protect your home with electric fences, moats, razor wire, and a big mean dog. You can even put spikes on you fence. There seems to be a right to protect yourself at home with almost any means necessary. You could probably pay an armed security firm to protect yourself with weapons you cannot obtain.

Now outside the home you are still permitted means to defense? Now I'm trying to formulate an argument outside the home.

If the police have no duty to defend you, and you are permitted in the home to protect yourself with almost any means necessary, the court (opposing carry) are logically concluding you have no right to self defense outside the home.

Is this something that has been argued?

 

[jcutonilli]

Thinking out loud again. You have the ability (don't know if it's a right) to protect your home with electric fences, moats, razor wire, and a big mean dog. You can even put spikes on you fence. There seems to be a right to protect yourself at home with almost any means necessary. You could probably pay an armed security firm to protect yourself with weapons you cannot obtain.

Now outside the home you are still permitted means to defense. Now I'm trying to formulate an argument outside the home.

If the police have no duty to defend you, and you are permitted in the home to protect yourself with almost any means necessary, the court (opposing carry) are logically concluding you have no right to self defense outside the home.

Is this something that has been argued?

I do not believe the fact that the police have no duty to protect individuals has been presented in any 2A case. The government uses it all the time as an affirmative defense when they get sued because they did not protect someone.

The courts are not necessarily opposing carry. They are evaluating the public safety interest against the rights of the individual. When you are inside the home, this public safety interest is lowest, while the right to self defense is highest. Outside the home the public safety interests are higher because you are actually dealing with the public. They side with the government because there is no dispute that these public safety interests are substantial enough.

A properly argued case would find that the substantial governments public safety interests only apply to the public in general and the data the government supplies is not related to this interest because they do not protect individual citizens. Additionally government is negatively affecting this general public safety interest because large portions of the public cannot protect themselves.

 

[danb]

I do not believe the fact that the police have no duty to protect individuals has been presented in any 2A case. The government uses it all the time as an affirmative defense when they get sued because they did not protect someone.

Actually, the more interesting point that has never been presented in any case is the observation that either at common law or by statutes, all states recognize self defense outside the home, to some extent (with or without duty to retreat). Self defense outside the home requires carrying some sort of tools....

 

[Occam]

Self defense outside the home requires carrying some sort of tools....

 

[danb]

My rifles carry Chuck Norris for protection!

 

[daggo66]

You do know that the Maryland state boundary is the Virginia/West Virginia shoreline. Crossing the center of the bridge would still mean you are in Maryland.

Drop your semantics BS and try reading it again. The fact that an armed WV resident enters MD, regardless of where the boundary is makes them a felon. Why should an American citizen be guilty of a crime by crossing a state line?

 

[esqappellate]

If they want my help. There is certainly nothing preventing them from using these ideas now.

I confess that I am confused. Those ideas are part and parcel of this suit. Ony Whalen has standing to challenge G&S in this suit as only Whalen had his permit denied by the MSP and the Board. Until that happens, you can't challenge G&S in state court. The suit challenges G&S facially (meaning it can't be applied to anyone) and as applied to Whalen on these facts. As to federal court, there is already a challenge to Maryland's G&S requirement pending in Malpasso, in which the 4th Circuit reaffirmed Woollard. A cert petition in that case will be filed 9/26. That pretty much covers the water front.

 

[fabsroman]

Drop your semantics BS and try reading it again. The fact that an armed WV resident enters MD, regardless of where the boundary is makes them a felon. Why should an American citizen be guilty of a crime by crossing a state line?

It's not really semantics, it is something called states rights. Once upon a time, the states got to run their own show most of the time. That was before Congress started using the Commerce Clause to regulate everything, everybody, and their mother.

States Rights is why you have the ability to move to West Virginia and carry without much hassle. Would you like Maryland law to prevail in that regard? Would you like the federal government to pass something pertaining to concealed carry, or carry in totality, that is something more restrictive than Constitutional carry?

Be happy that we still have states rights and the "semantics"