Patrick
MSI Executive Member
As for the Southern Boys, they are not real. These are transplants, Yankee "carpet baggers", if you will, in disguise. Any good Southern Boy wouldn't even argue the point. It would be like arguing against the right to breathe free air.
On 2A, perhaps. But when it comes to the many other civil rights cases fought over the last few decades, the southerners kinda led that charge. It stereotyped the South (which I was admittedly buying into there in my offhand swipe at southern 'civil rights'). Old news, I guess.
That was unsubstantiated theory on my part, but it goes to the point I was actually trying to make: Gansler seems to be floundering a bit here. He may have strong arguments on the procedural side - good/bad/indifferent though we may opine, they are what Gansler considers 'strong' enough to lead his response, so I give him that credit here.
But Gansler's 2A arguments - as parenthetical as they were - on the limited rights issues in the MTD response were weak sauce.
The SAF threw a softball in their response to MD's MTD by just blankly stating "2A affords the right to carry a gun in non-sensitive public places" with almost zero backup. Seriously, the SAF pretty much reduced the entire lot of carry cases nationwide to one line that opened the door to an easy MD swipe. But Gansler didn't even have a good response...he resorted to the kind of cherry-picking of Heller/McDonald that currently characterizes the public relations side of gun-control but that does not survive legal scrutiny. Almost like he doesn't expect the SAF or the court to understand that there was missing context to the (mostly) dicta referenced.
Is Gansler holding back? As a MD resident some part of me hopes so, if only because in a weird sort of way I'd like to think we have a decent AG instead of someone who merely gets the job by virtue of family party ties. In other words, I'd like to think we have a talented AG. So far he's just parroting bad contextual PR and post-Heller caselaw made irrelevant or suspect by McDonald.
As long as the Court doesn't toss the case now, next up from MD will be a response by way of an MTD that cites post-Heller/pre-McDonald (pre incorporated as a "fundamental" right) cases; 4/7 Circuit opinions that suggest intermediate scrutiny, though leaving off the fact that even the Appeals courts ruled felons - a group codified in Heller as 'undeserving' - deserve intermediate scrutiny; and another attempt to wrap 2A into some rational basis scrutiny via a 'compelling' need to perform the very same 'interest balancing' that the Supreme Court took off the table for the core of the Second Amendment.
In other words, MD will try to blur the line between permitted 'interest balancing' (limited non-core situations) and non-permitted 'interest balancing' (our core 2A rights).
If we had to sum up every argument made by every municipality so far, they are: an attempt to use intermediate/non-strict holdings on non-core or ancillary rights in 2A as a wedge to blur the line drawn by Heller/McDonald when it comes to the core of 2A. For example: to equate the 2A rights of a felon (which are subject to interest balancing according to Heller) with the rights of you (which are not subject to interest balancing according to Heller).
Lower courts might fall for it, but like we saw in McDonald (Chicago tried some of the same approach), it just frustrates the Supreme Court.
What would shock me: MD arguing that "bearing of arms" is not core to 2A, even though it is about the only unique argument they have left. The fact nobody nationwide seems willing to make it means they fear that not only will it lose, but that it's loss will open many, many doors currently closed. The thing is...they will be opened anyway.