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

clandestine · Nov 15, 2010

Im really excited. Im a glass half full guy, but im feeling good about this one.

Thanks for taking the time to opine and post updates Patrick and Krucam, much appreciated.

Patrick · Nov 15, 2010

boricuamaximus said:
I fell asleep through my Anceint Greek courses. Can you explain that in a way that liberal progressive like myself can understand?

Sorry. Maybe the fingers got ahead of my head that time.

Basically the entire submission today is aimed to get MD off its ass and actually argue about 2A instead of a bunch of lame excuses to delay.

By filing an MSJ (Motion for Summary Judgment), the SAF is saying "all the facts are known, we request a decision from the court." It is a request to end the case with a decision.

The SAF argues this suit is over a "fact of law". Meaning that the entire complaint is over codified practices or law of the state of MD. There is no need for any investigation...only lawyers going head to head with differing opinions on the Constitution.

These things do not usually end in trials like we see on TV. They are decided by lots of motions being filed back and forth by the two sides. If a fact is in contention, "discovery" is used to interview and take sworn testimony (but not in front of the judge). This saves the court time.

So the way it is supposed to work: a plaintiff(s) complains in a "complaint"; if a fact is in contention, they perform discovery; the defense responds with an argument that the plaintiffs are full of baloney for reasons X, Y and Z. Both agree it is time for a decision. The court weighs the facts, the motions, the law and then issues an opinion.

In reality, that description is overly simplified. The defense can file a Motion To Dismiss (MTD) for procedural or factual reasons, or both. So far MD has done nothing but argue on procedural grounds - that the case is moot because of some other reason or another. They asked the judge to dismiss the case because it was not "ripe" for federal action owing to an "ongoing state action"...meaning they want the case to proceed only after Woollard goes through state court first.

By filing their MSJ today, the SAF is essentially prodding MD to actually respond to the SAF complaint with substantive arguments in favor of their existing regulation. The SAF was kind enough to offer more time to MD in the process.

If MD takes up the SAF offer of more time, they are pretty much agreeing to respond to the complaint and the 2A arguments. But most here feel MD will only respond to the 2A complaint when the judge forces them to, so I seriously doubt MD will do anything but request discovery. Also we'll see some more back and forth between the parties over standing (right to sue), until the court is too embarrassed to let it continue and tells MD to respond.

I think that absent a big decision in our favor elsewhere, this court is not going to rule our way. It's frankly too big a decision for a MD District Court to make. MD doesn't exactly have a history of forward thinking in civil rights - any civil right.

So let's get the denial and move the fight up a level, where Gansler' team will get their ass handed to him with force.

Patrick · Nov 15, 2010

ezliving said:
Great read. Since there is no factual dispute and this case is on a narrow point of law, no discovery is necessary.

I envision a strong possibility of a summary judgment for the good guys. And then, what does Gansler have left to appeal. His dog won't hunt.

Man, I hope you are right. I just see all these courts hemming and hawing over being the first to open that door. I just don't see it happening in MD, but I really want to be wrong. Call me a hopeful cynic.

MD is going to ask for discovery. Of what...probably aimed at proving the case should be dropped due to Younger, etc (was the process followed, etc.). But even that would be weak. I don't know what other items here would require a finding of fact.

You see anything?

pcfixer · Nov 15, 2010

Patrick and Krucam>
Just wondering if anyone thought about the issue of argument in regards to this
case and the 2nd Ammendment. ie argument of the letter of the law or the spirit
of the law.
Any thoughts?

Edit:
I did look this up online laws library... very interesting.....
Letter and spirit of the lawThe letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, he is obeying the literal interpretation of the words (the "letter") of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, he is doing what the authors of the law intended, though not adhering to the literal wording.

"Law" originally referred to legislative statute, but in the idiom may refer to any kind of rule. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used against an oppressive government.

Pro and con
Following the spirit of the law but not the letter is generally viewed more favorably than following the letter but not the spirit. In a court of law, judges usually review the intent of the players involved.

Authoritarians tend to view "following the spirit" negatively as disobeying the law. The reason is that the actual intent of the law may be ambiguous, and allowing anyone to follow his own interpretation of the law may result in anarchy.

Also: Rule of Law
One way to be free from the rule of law is by denying that an enactment has the necessary attributes of law. The rule of law has therefore been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings".

hvymax · Nov 15, 2010

The Founders left extensive texts describing the spirit of the law. Unfortunately lawyers have corrupted the meaning of the letter of the law. Lawyers can even corrupt the meaning of IS.

krucam · Nov 15, 2010

pcfixer said:
Patrick and Krucam>
Just wondering if anyone thought about the issue of argument in regards to this
case and the 2nd Ammendment. ie argument of the letter of the law or the spirit of the law.
Any thoughts?

This case is not truly arguing the 2A as a whole, that is a matter for the Supreme Court, remember it is only looking to remove one sentence (good and substantial) from MD code on permit issuance. The basis for this is using the 2A as the justification as they argue one sentence in MD Law.

Don't expect the 2A to be parsed too heavily here at the District Court level or if/once appealed, at the 4th Circuit Court level.

The 2A has plenty of history being argued, primarily before ratification of the 14A in the 1860's. It all pretty much said the 2A protects from Federal infringement (States/municipalities could pretty much do as they saw fit). This all went away on 6/28/2010 with McDonald.

This case is arguing for Shall Issue on the basis of McDonald (2010), Heller (2008), Muscarello (1998), Skoien, Nunn (1846), Peruta, etc....

Much of the structure for our argument now is already out there, no need to re-argue the 2A. It just needs to be wrapped together nicely for a Judge with the guts to say, "you're right".

I think the SAF team may have done this today to be honest. I'm glass half full as well...

I'm not sure I answered your question, but thanks for the chance to show off my true lack of knowledge on these matters! :innocent0

swinokur · Nov 15, 2010

If Gansler was intelectually honest which he isn't he'd realize in light of McDonald that he isn't going to win but he'll continue to waste our tax dollars in what appears to be a fruitless "delaying" action.

The Govt is supposed to be US. Not in MD (yet)

What a bunch of disingenuous goons.

Thanks Patrick and Krucam.

Patrick · Nov 15, 2010

As to "spirit of the law" versus precedent...

Look to Heller. This Supreme Court used a historical analysis to determine first the "core" of the right, and then the practice of it. They went into extensive detail on the history and expectation (spirit) of 2A in their opinion. Likewise, the SAF through Gura advances the same suggestion to the lower courts, though I have noticed a subtle change of strategy towards scrutiny analysis on their part in lower courts. Lower courts like boundaries and rules, and so-called "scrutiny" is such a analysis. Obviously, the SAF goes with 'strict'.

But when you hit the big leagues, the current majority of the USSC likes to harken back to the 'original intent' of the Constitution. If you can view that as 'spirit', then take comfort.

Courts are not uniform with their approach. Lower courts stick heavily to precedent and established law. Higher courts are open to new interpretations. That's why I say we are going to probably lose at the district level. It's not that a judge is liberally stacked against us, it's the fact that their is zero case law in our favor when it comes to public carry. A District Court has little choice but to punt to the next level by denying our complaint. Really...expect it and be surprised otherwise.

Heller lost at the level we are at on Woollard but was overturned in all the higher courts. I think we are looking at the same here.

Don't everyone get their hopes up that a district court will give you a permit.

krucam · Nov 15, 2010

hvymax said:
The Founders left extensive texts describing the spirit of the law. Unfortunately lawyers have corrupted the meaning of the letter of the law. Lawyers can even corrupt the meaning of IS.

There has been more than sufficient text post-founders, which unfortunately is the case in the Judicial world. Not slamming you, just saying that we are fine with Jurisprudence as it stands.

Go back and look at Patrick's post regarding Judicial interpretation of 'Bear': http://www.mdshooters.com/showpost.php?p=842529&postcount=1242
This covers 'Bear'

Look at the decision in United States v Skoein, not SCOTUS but from the 7th Circuit (IL, WI et al): http://www.ca7.uscourts.gov/tmp/2T0ZLER2.pdf
This didn't go well for the plaintiff (DV Conviction, using shotgun for hunting) BUT...it did make an honest attempt in interpretation of the 2A. Skoein was arguing 2A protection for hunting, not self defense. The court then (to our benefit) opened up the other options since Skoein did not argue his prohibited status with 'self defense', just hunting.

Todays brief utilizes the 7th's ruling in Skoein:

“[T]he Second Amendment creates [sic] individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open [in Heller].” United States v. Skoien, 614 F.3d 638, 640

So...we've contested and arguably won some sort of Bear is required, we have wounded the "In the Home" argument....if this Judge is mildly fair, I still may get out of a dinner this year....not betting, but hopeful..... :innocent0

Jim Sr · Nov 15, 2010

hvymax said:
The Founders left extensive texts describing the spirit of the law. Unfortunately lawyers have corrupted the meaning of the letter of the law. Lawyers can even corrupt the meaning of IS.

UP

This two-letter word in English has more meanings than any other two-letter word, and that word is 'UP.' It is listed in the dictionary as an [adv], [prep], [adj], [n] or [v].

It's easy to understand UP, meaning toward the sky or at the top of the list, but when we awaken in the morning, why do we wake UP?

At a meeting, why does a topic come UP? Why do we speak UP, and why are the officers UP for election and why is it UP to the secretary to write UP a report? We call UP our friends, brighten UP a room, polish UP the silver, warm UP the leftovers and clean UP the kitchen. We lock UP the house and fix UP the old car.

At other times this little word has real special meaning. People stir UP trouble, line UP for tickets, work UP an appetite, and think UP excuses.

To be dressed is one thing but to be dressed UP is special.

And this UP is confusing: A drain must be opened UP because it is stopped UP.

We open UP a store in the morning but we close it UP at night.
We seem to be pretty mixed UP about UP !

To be knowledgeable about the proper uses of UP, look UP the word UP in the dictionary.. In a desk-sized dictionary, it takes UP almost 1/4 of the page and can add UP to about thirty definitions

If you are UP to it, you might try building UP a list of the many ways UP is used. It will take UP a lot of your time, but if you don't give UP, you may wind UP with a hundred or more.

When it threatens to rain, we say it is clouding UP . When the sun comes out we say it is clearing UP. When it rains, it soaks UP the earth. When it does not rain for awhile, things dry UP. One could go on & on, but I'll wrap it UP, for now ........my time is UP !

Oh....one more thing:
What is the first thing you do in the morning & the last thing you do at night? . . . . "U P!"

Did that one crack you UP?
Now I'll shut UP.

Patrick · Nov 15, 2010

Jim Sr said:
UP

This two-letter word in English has more meanings than any other two-letter word, and that word is 'UP.' It is listed in the dictionary as an [adv], [prep], [adj], [n] or [v].

It's easy to understand UP, meaning toward the sky or at the top of the list, but when we awaken in the morning, why do we wake UP?

At a meeting, why does a topic come UP? Why do we speak UP, and why are the officers UP for election and why is it UP to the secretary to write UP a report? We call UP our friends, brighten UP a room, polish UP the silver, warm UP the leftovers and clean UP the kitchen. We lock UP the house and fix UP the old car.

At other times this little word has real special meaning. People stir UP trouble, line UP for tickets, work UP an appetite, and think UP excuses.

To be dressed is one thing but to be dressed UP is special.

And this UP is confusing: A drain must be opened UP because it is stopped UP.

We open UP a store in the morning but we close it UP at night.
We seem to be pretty mixed UP about UP !

To be knowledgeable about the proper uses of UP, look UP the word UP in the dictionary.. In a desk-sized dictionary, it takes UP almost 1/4 of the page and can add UP to about thirty definitions

If you are UP to it, you might try building UP a list of the many ways UP is used. It will take UP a lot of your time, but if you don't give UP, you may wind UP with a hundred or more.

When it threatens to rain, we say it is clouding UP . When the sun comes out we say it is clearing UP. When it rains, it soaks UP the earth. When it does not rain for awhile, things dry UP. One could go on & on, but I'll wrap it UP, for now ........my time is UP !

Oh....one more thing:
What is the first thing you do in the morning & the last thing you do at night? . . . . "U P!"

Did that one crack you UP?
Now I'll shut UP.

Huh?

WTF...UP with that post? :lol2:

swinokur · Nov 15, 2010

Don't forget fu*k up. Noun and a verb and adj

Tom43491 · Nov 16, 2010

swinokur said:
Don't forget fu*k up. Noun and a verb and adj

"That certainly illustrates the diversity of the word.". :lol2:

Love that movie...

Thanks for the great read so far! I too have a good feeling about this. Maybe not from this level of the court system, maybe not anytime in the immediate future, but a good feeling about the longer term picture. Here's hoping...

frozencesium · Nov 16, 2010

Patrick said:
...

Courts are not uniform with their approach. Lower courts stick heavily to precedent and established law. Higher courts are open to new interpretations. That's why I say we are going to probably lose at the district level. It's not that a judge is liberally stacked against us, it's the fact that their is zero case law in our favor when it comes to public carry. A District Court has little choice but to punt to the next level by denying our complaint. Really...expect it and be surprised otherwise.

Heller lost at the level we are at on Woollard but was overturned in all the higher courts. I think we are looking at the same here.

Don't everyone get their hopes up that a district court will give you a permit.

So out of curiosity, if the facts are clear then is the punt really a matter of cowardice? To put it another way, if the judge in this case were to find for SAF but stay the decision on appeal (which would in effect be a punt as well) and would have the same net result as a denial of the complaint, why would a denial be chosen over a grant + stay?

Another angle then, why wouldn't Heller, McDonald, et al be considered as valid case law and precedent for a district decision?

Patrick · Nov 16, 2010

Because neither Heller nor McDonald ruled on bearing of arms in public. Didn't happen.

That is what the current crop of cases filed nationwide are doing: extending Heller beyond the doorstep. True, "carrying for defense (in public)" is in there if you read between the lines. But courts hate subjective analysis - they want it written down explicitly.

Its not a matter of cowardice or (in my opinion), even anti-gun judges. The District Courts are faced with a question for which they have no easy answer. One the one hand is the status quo...on the other is a door that once opened is tough to close - and in the words of the government - dangerous to the public.

The District level is great for performing fact finding (trials, discovery, etc.) and for ruling on cases when clear lines are drawn. This level is not the best for interpreting newly recognized civil rights. That's where the Appellate (Circuit Courts) weighs in. And ultimately, if there is disagreement between the Circuit Courts, the Supreme Court needs to get involved.

True, we could win at the District Level. It is distinctly possible. But the judge would be likely to stay the ruling pending appeal. It's the classic "Barn Door" analogy: it's better to keep it closed then to shoo them back if a mistake is made.

But realistically the District Courts are more likely than not to rule against us. This is expected. It's what happened in Heller. We just need to get the cases through and move up the ladder. Don't read too much into a loss.

And as it happens, the District Courts are a great place for people disenfranchised from a right that is explicitly noted in law or higher ruling. So when we win these cases, the District Courts are the ones that will quickly and efficiently deal with bad regulation and restrictions put in place by recalcitrant governments. When a case is clear, these courts can act in days.

pcfixer · Nov 16, 2010

Jim Sr said:
UP

Did that one crack you UP?
Now I'll shut UP.

So what's the meaning of "uppedy"?

knownalien · Nov 16, 2010

Patrick said:
The District Courts are faced with a question for which they have no easy answer. On the one hand is the status quo...on the other is a door that once opened is tough to close - and in the words of the government - dangerous to the public.

the government doesn't hesitate to take more power, why shouldn't "the people?" The door you mention seems to like swinging in only one direction.

Fodder4Thought · Nov 16, 2010

Has this been posted?

fightinbluhen51 · Nov 16, 2010

Did anyone catch this yesterday?

http://wherespatton.blogspot.com/2010/11/b-more-seeking-to-make-illegal-carry.html

krucam · Nov 16, 2010

fightinbluhen51 said:
Did anyone catch this yesterday?

http://wherespatton.blogspot.com/2010/11/b-more-seeking-to-make-illegal-carry.html

Almost deserving of it's own thread....

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

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