Whalen v Handgun Permit Review Board Appeal Brief Filed

PJDiesel · Sep 19, 2019

Motor vehicle law doesn't cross State lines......

A Maryland registered vehicle doesn't need to have PA State inspection stickers in the window to drive on PA roads.

A West Virginia registered car isn't illegal for use in Maryland just because it hasn't passed VEIP.

So,.... how is a Constitutionally protected right so easy to trample as you cross a boundary line?

danb · Sep 19, 2019

PJDiesel said:
So,.... how is a Constitutionally protected right so easy to trample as you cross a boundary line?

Because until relatively recently (McDonald), the 2nd amendment was not held to apply to the states - and since McDonald, the Supreme Court has refused to clarify the scope of the right. Basically for 230 years the states have had wide latitude to set gun policy.

PJDiesel · Sep 19, 2019

As they do with many laws. Difference being (in my example) they don't try to enforce THEIR law on the casual motorist passing through.

Kaffakid · Sep 19, 2019

danb said:
Because until relatively recently (McDonald), the 2nd amendment was not held to apply to the states....

Right. One of the holdings of Scherr was that the 2A didn't apply to the states. Now, following McDonald it does through the 14A.

That is one of the arguments in Whalen v. HPRB --- Scherr (and Snowden) are no longer good law in Maryland in the wake of McDonald. Unfortunately, the MSP, and the HPRB continue to rely on Scherr (and Snowden). As stated in Whalen they are featured prominently on the HPRB's website. In Whalen v. HPRB, COSA will be presented with this question, and the Court will be at a crossroads as to whether those two cases are still good law in Maryland.

BeoBill · Sep 19, 2019

fabsroman said:
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"

The issue was the wanton picking of nits, not the concept underlying the example cited. And those nits were quite thoroughly picked, processed, packaged and put away IMO.

Please end the :deadhorse:

Now, what's the next step in this Journey to Fredom?

daggo66 · Sep 19, 2019

fabsroman said:
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"

This is why we will never win. SMDH. Why you you even consider something directly opposed to the COTUS. Despite popular revisionist history the civil war was fought over states rights. The states lost. I want to live where the state cannot over ride the COTUS. Is that so difficult to understand? Shall we argue over that as well?

wjackcooper · Sep 19, 2019

Jcutonilli wrote:

“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.”

Precedent controls subsequent cases within the respective jurisdictions. Justice Breyer’s interest balancing argument (which you apparently endorse) has been utilized by progressive lower courts, but was explicitly rejected (precedent) in Heller. The simple strategy is to win where you can, and appeal when you lose.

The problem is progressive judges and justices, not how the cases are presented.

Regards
Jack

jcutonilli · Sep 19, 2019

esqappellate said:
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.

I confess that I am confused also. I reread the brief that was submitted.

https://www.marylandshallissue.org/...c-documents/170-whalen-opening-brief-redacted

I see you present two questions; 1. Whether G&S violates the 2A; and 2. Whether an erroneous legal standard was used.

I get that this is a facial challenge and may affect others depending on the outcome.

What I don't see is the discussion about public safety and who provides it, which is the basis for what I have been talking about. I don't see any cases in the table of authorities that address the limits on the government's public safety interests. Reading your arguments I see you talking about self defense outside the home and how you address the two questions presented. I get the sense that the argument is just about an individual. I do not see where you relate self defense outside the home to public safety.

I am not sure why you need to defeat the G&S reason. Simply supply the most proved example; public safety. There are numerous cases where the court has concluded that public safety is not only a good reason but a substantial reason. The government would not be able to meet intermediate scrutiny without it being a substantial reason. It is also related to the text, history, and tradition. According the MSP website it is part of the common law and we all have an obligation to respond to the "hue and cry". We need to be able to use the firearms that our government feels necessary for that type of response.

jcutonilli · Sep 19, 2019

wjackcooper said:
Jcutonilli wrote:

“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.”

Precedent controls subsequent cases within the respective jurisdictions. Justice Breyer’s interest balancing argument (which you apparently endorse) has been utilized by progressive lower courts, but was explicitly rejected (precedent) in Heller. The simple strategy is to win where you can, and appeal when you lose.

The problem is progressive judges and justices, not how the cases are presented.

Regards
Jack

The courts are not saying that they are using Justice Breyer's interest balancing argument. They are saying that they are using intermediate scrutiny. Heller did say that the law would not meet any of their standards of scrutiny and they are following that route. SCOTUS certainly has not stepped in to correct the situation.

I am adopting the "win where you can" strategy that actually addresses the issues raised by the court rather than the hope and pray approach that usually keeps getting defeated.

wjackcooper · Sep 20, 2019

The Second Amendment as a Normal Right - Harvard Law Review Apr. 2014

For those who think Second Amendment litigation is being improperly postured below is a link to an article by Alan Gura which ought to be read. Peruta was later reversed (2016) by the 9th Circuit sitting en banc , surprise, surprise!

Regards
Jack

Scroll up:
https://harvardlawreview.org/2014/04/the-second-amendment-as-a-normal-right/#_ftn9

fightinbluhen51 · Sep 20, 2019

jcutonilli said:
I am not talking about levels of scrutiny. I am talking about how many people the precedent will apply to. The MSP has a very limited or narrow view of what G&S means. It applies to a few people, but not many. This lawsuit is trying to expand that interpretation of what G&S means. The court may find that the current interpretation is acceptable, like the 4th circuit did. It may also find that the circumstances as applied to Whelen may be sufficient to meet G&S, but those circumstances do not apply to most other people. Your suggesting a very broad ruling where self defense is a G&S reason and almost everyone would meet the definition. That certainly is a possibility.

I believe the plaintiffs in every court case since Heller has stated that the law is inconsistent with Heller, yet very few courts have found that to be the case. This case is just like every other case in that respect. Why should the court come to a different conclusion in this case if the arguments are the same as what has previously been decided?

I think you are missing the fact that DC copied our law in exact form and was told that discrimination of "palpable need" is interest balancing and discriminatory to individuals. You're also missing the fact that this case, is another vehicle to reach SCOTUS to settle this across all 50 states and territories.

I'd love nothing more than to go down to the islands on a Maryland permit for a week, American Soma the week after, and the Alaskan frontier the week after that. All while crossing bridges and shorelines.

jcutonilli said:
I confess that I am confused also. I reread the brief that was submitted.

https://www.marylandshallissue.org/...c-documents/170-whalen-opening-brief-redacted

I see you present two questions; 1. Whether G&S violates the 2A; and 2. Whether an erroneous legal standard was used.

I get that this is a facial challenge and may affect others depending on the outcome.

What I don't see is the discussion about public safety and who provides it, which is the basis for what I have been talking about. I don't see any cases in the table of authorities that address the limits on the government's public safety interests. Reading your arguments I see you talking about self defense outside the home and how you address the two questions presented. I get the sense that the argument is just about an individual. I do not see where you relate self defense outside the home to public safety.

I am not sure why you need to defeat the G&S reason. Simply supply the most proved example; public safety. There are numerous cases where the court has concluded that public safety is not only a good reason but a substantial reason. The government would not be able to meet intermediate scrutiny without it being a substantial reason. It is also related to the text, history, and tradition. According the MSP website it is part of the common law and we all have an obligation to respond to the "hue and cry". We need to be able to use the firearms that our government feels necessary for that type of response.

I haven't seen a case yet, where statistics influenced or swayed honest, or dishonest judges.

Insistence upon the exercise of the right is all that anyone should need.

Kaffakid · Sep 20, 2019

jcutonilli said:
I am not sure why you need to defeat the G&S reason.

If G&S is unconstitutional then all states are shall issue. Why the heck wouldn't you raise this argument?

jcutonilli said:
Simply supply the most proved example; public safety.

Dude. This argument basically advocates that Marylanders relegate themselves to the notion that their fundamental right to carry outside the home is subject to a level of Constitutional scrutiny. That's contrary all indicators in the holdings (and dicta) in Heller. You're basically saying that Marylanders should play within the confines of the right as the General Assembly has so graciously bestowed upon us. I reject that -- we all should.

Maryland applies intermediate scrutiny to strike down G&S challenges. Maryland argues that the G&S reason standard is "substantially related to the important governmental goal of 'public safety'" (whatever that means). No Marylander (or Californian, etc.) should accept that; it serves as a de facto band on the average working man's right to carry.

jcutonilli · Sep 20, 2019

wjackcooper said:
The Second Amendment as a Normal Right - Harvard Law Review Apr. 2014

For those who think Second Amendment litigation is being improperly postured below is a link to an article by Alan Gura which ought to be read. Peruta was later reversed (2016) by the 9th Circuit sitting en banc , surprise, surprise!

Regards
Jack

Scroll up:
https://harvardlawreview.org/2014/04/the-second-amendment-as-a-normal-right/#_ftn9

The courts certainly are not making it easy to win 2A cases. The lawyers are making it easy for the courts however. They keep making the same arguments over and over and wonder why they lose. Gura wants you to believe it's the courts so you will hire him. He presents a one sided view of things. The courts decisions to date are not without some basis, which is why SCOTUS has not stepped in to correct the situation.

jcutonilli · Sep 20, 2019

fightinbluhen51 said:
I think you are missing the fact that DC copied our law in exact form and was told that discrimination of "palpable need" is interest balancing and discriminatory to individuals. You're also missing the fact that this case, is another vehicle to reach SCOTUS to settle this across all 50 states and territories.

I'd love nothing more than to go down to the islands on a Maryland permit for a week, American Soma the week after, and the Alaskan frontier the week after that. All while crossing bridges and shorelines.

I haven't seen a case yet, where statistics influenced or swayed honest, or dishonest judges.

Insistence upon the exercise of the right is all that anyone should need.

I am not missing the facts. I have not claimed that the courts always find the law is consistent with Heller, There are a very few courts that have found inconsistencies. Wren is one example.

You seem to be missing the fact that there are few differences between this case and Woollard. SCOTUS passed on Woollard, why are they going to take this case? They are already seem to be holding similar cases. The reasons they passed on essentially every other 2A case is concerning. It suggests to me that the arguments need to address certain issues and all the cases to date do not present any different arguments.

I am not sure why you think that you need statistics to demonstrate public safety. It is a legal argument based on case law, common law, and text history and tradition. Read the MSP website. https://mdsp.maryland.gov/Pages/HistoryofMarylandLawEnforcement.aspx

jcutonilli · Sep 20, 2019

Kaffakid said:
If G&S is unconstitutional then all states are shall issue. Why the heck wouldn't you raise this argument?

Dude. This argument basically advocates that Marylanders relegate themselves to the notion that their fundamental right to carry outside the home is subject to a level of Constitutional scrutiny. That's contrary all indicators in the holdings (and dicta) in Heller. You're basically saying that Marylanders should play within the confines of the right as the General Assembly has so graciously bestowed upon us. I reject that -- we all should.

Maryland applies intermediate scrutiny to strike down G&S challenges. Maryland argues that the G&S reason standard is "substantially related to the important governmental goal of 'public safety'" (whatever that means). No Marylander (or Californian, etc.) should accept that; it serves as a de facto band on the average working man's right to carry.

Dude! There are no absolute rights as interpreted by SCOTUS. Every right is subject to some level of scrutiny. Heller certainly did acknowledge that the DC law "Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition would fail constitutional muster. "

Just because a Court says it is meeting a certain level of scrutiny does not mean that it actually is meeting that level. It is the lawyers job to argue why it is not. All the 2A lawyers seem to just make the statement that it is rational basis without supplying any explanation. It is no wonder the SCOTUS does not take the case. You have not really defeated the lower courts argument, you are just hoping and praying that SCOTUS will magically make one up.

It is interesting that you don't know what public safety means. Apparently both sides agree that it is a substantial interest that is capable of sustaining laws under intermediate scrutiny. Given the case law, I would not be so agreeable. Every example the government cites about the dangers of gun is also an example of areas where the government is not responsible. In other words the government cite examples of individuals involved in crime yet they continually say that they don't protect individuals. How is it a substantial interest if they have no responsibility to provide it?

Mark75H · Sep 21, 2019

jcutonilli said:
Dude! There are no absolute rights as interpreted by SCOTUS. Every right is subject to some level of scrutiny. Heller certainly did acknowledge that the DC law "Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition would fail constitutional muster. "

Just because a Court says it is meeting a certain level of scrutiny does not mean that it actually is meeting that level. It is the lawyers job to argue why it is not. All the 2A lawyers seem to just make the statement that it is rational basis without supplying any explanation. It is no wonder the SCOTUS does not take the case. You have not really defeated the lower courts argument, you are just hoping and praying that SCOTUS will magically make one up.

It is interesting that you don't know what public safety means. Apparently both sides agree that it is a substantial interest that is capable of sustaining laws under intermediate scrutiny. Given the case law, I would not be so agreeable. Every example the government cites about the dangers of gun is also an example of areas where the government is not responsible. In other words the government cite examples of individuals involved in crime yet they continually say that they don't protect individuals. How is it a substantial interest if they have no responsibility to provide it?

The best words you have ever typed

Biggfoot44 · Sep 21, 2019

Durn tooting this case is similar to Woolard , what's different is Wren happened inbetween .

If District Court or the 4th rules for the plantiff, I'm sure he'll do his Happy Dance , but undoubtedly the big picture is to the Supremes for a Circuit split , if the matter wasn't already settled before then .

press1280 · Sep 22, 2019

jcutonilli said:
I am not missing the facts. I have not claimed that the courts always find the law is consistent with Heller, There are a very few courts that have found inconsistencies. Wren is one example.

You seem to be missing the fact that there are few differences between this case and Woollard. SCOTUS passed on Woollard, why are they going to take this case? They are already seem to be holding similar cases. The reasons they passed on essentially every other 2A case is concerning. It suggests to me that the arguments need to address certain issues and all the cases to date do not present any different arguments.

I am not sure why you think that you need statistics to demonstrate public safety. It is a legal argument based on case law, common law, and text history and tradition. Read the MSP website. https://mdsp.maryland.gov/Pages/HistoryofMarylandLawEnforcement.aspx

The argument why Scotus passed on previous cases misses the fact that an overwhelming majority of cert grants are due to lower court splits. At the time of Woollard we didn't have one.
Also, how do you make a public safety argument with no stats? IMO the fact that the other side can produce ZERO cases pre Heller (with an individual rights interpretation) of an all out public carry ban should be the end of it. No, the problem is the courts have decided that the exception in Heller swallows the rule and will continue until slapped down by SCOTUS.

jcutonilli · Sep 22, 2019

press1280 said:
The argument why Scotus passed on previous cases misses the fact that an overwhelming majority of cert grants are due to lower court splits. At the time of Woollard we didn't have one.
Also, how do you make a public safety argument with no stats? IMO the fact that the other side can produce ZERO cases pre Heller (with an individual rights interpretation) of an all out public carry ban should be the end of it. No, the problem is the courts have decided that the exception in Heller swallows the rule and will continue until slapped down by SCOTUS.

You have given an example of confirmation bias. SCOTUS certainly does grant the majority of cases due to lower court splits, but does it always take cases where there are splits? It turns out that SCOTUS rejects a significant amount of splits also. The fact that there is a split does not mean that they will take the case.

They certainly do not provide the reasoning why they grant or reject case so we are left to speculate. I suspect it has to do with how to resolve the split and whether it can be resolved in a way a majority can support. When they can't see a majority, they let the split continue. They receive lots of cases so they can be patient waiting for the correct one.

With respect to the 2A, they certainly said to used text history and tradition in Heller, but they did not really rule out scrutiny either. The lower courts have felt that scrutiny analysis is certainly easier because they use it with other rights. I believe the reason that they a waiting is because none has really been able to explain why the scrutiny analysis is wrong.

You don't need stats to make a public safety argument. What stats do you need to figure out what the role the government plays in public safety? What stats do you need to show that the government does not protect everyone. What stats do you need to figure out that there is a common law/history/tradition of the people providing public safety because there were no police?

The correct answer is that you do not need stats because the answers are legal answers which the court is well suited to answer. The lawyers give the case away because they agree that public safety is an important government interest even though they do not protect individual citizens. The stats that the government provides to demonstrate guns harm public safety are examples of harm to individual citizens and are not part of the government interest.

Kaffakid · Sep 23, 2019

jcutonilli said:
Every right is subject to some level of scrutiny. Heller certainly did acknowledge that the DC law "Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition would fail constitutional muster. "

Many 2A attys agree that this indicates the placement of the 2A above the level(s) of scrutiny applied to the freedom to speak, associate, worship, travel, vote, etc. Ask around.

jcutonilli said:
All the 2A lawyers seem to just make the statement that it is rational basis without supplying any explanation.

Can you provide a citation for this one? I'd be very interested (genuinely -- no sarcasm).

Whalen v Handgun Permit Review Board Appeal Brief Filed

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