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

Patrick · Oct 27, 2010

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.

Dead Eye · Oct 27, 2010

Patrick said:
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.

Maybe I'm just a bit more "simple" in my way of thinking. How does one (AG Gansler) defend the indefensible? At this point, he doesn't want to bite on the 2A issue, because he knows it will lead him to a dog fight he can't win. He is relegated, therefore, to have the case tossed on procedural hooey.

In the Army, as Combat Engineers, our job was to "Delay, Detain, and/or Canalize", and I think that is Gansler's approach. When you have an enemy before you, the preferred method is to stop them cold, or detain them, and then pummel the crap out of them. Gansler can't do that, so he is reverting to delaying, in the hopes that either the situation turns in his favor, or someone else enters the picture on his side to help. When that falls apart, he is going to start canalizing, in essence, he will try and force Atty Gura into a position that he doesn't want to be in, in order to better pick him off later, or use other means to nibble at his heals. That's when all of the Mickey Mouse rules and regulations will start on how to obtain a "Shall Issue" CCW in MD.

In the meantime, we need to be working on his supply lines. War is all about "beans and bullets", or logistical supply. Voting to take away his allies, writing to our elected officials and our fellow Marylanders complaining of all of OUR tax dollars that are being wasted on this litigeous nonsense.

Boondock Saint · Oct 27, 2010

Gansler is an elected official who is largely immune to pressure from other big players in Annapolis. As AG, he doesn't particularly need allies per se, so the analogy of war here is a bit of a stretch, at least in my opinion. He's drawing this out because he's an idealogue, has the backing of a friendly governor's mansion (largely irrelevant, but it obviously doesn't hurt), and stands to lose nothing personally in this fight. If he's competent, and I'm not suggesting he is or isn't, he knows that he's on weak legal ground and is trying to delay the inevitable while lessening the "damage" that will come from the State's loss in this suit.

Dead Eye · Oct 27, 2010

Boondock Saint said:
Gansler is an elected official who is largely immune to pressure from other big players in Annapolis. As AG, he doesn't particularly need allies per se, so the analogy of war here is a bit of a stretch, at least in my opinion. He's drawing this out because he's an idealogue, has the backing of a friendly governor's mansion (largely irrelevant, but it obviously doesn't hurt), and stands to lose nothing personally in this fight. If he's competent, and I'm not suggesting he is or isn't, he knows that he's on weak legal ground and is trying to delay the inevitable while lessening the "damage" that will come from the State's loss in this suit.

Understood, rhetorically speaking, so how do we figuratively "take his feet out from underneath him"? "I don't know", or "you can't", ("good luck", etc...) is not an acceptable answer.

Boondock Saint · Oct 27, 2010

Dead Eye said:
Understood, rhetorically speaking, so how do we figuratively "take his feet out from underneath him"? "I don't know", or "you can't", ("good luck", etc...) is not an acceptable answer.

That's a good one. The GOP couldn't be bothered to bring a candidate to run against him this year, suggesting that either Gansler is bulletproof and/or or no interested and/or qualified candidates on the other side of the aisle could be found. You could stop paying taxes, though I'd be willing to bet MOM would see that Gansler remained fat in defense of the State while other ancillary programs suffered, assuming enough of us stopped paying to make a relevant dent in the state's coffers. Personally, I fall on the side of grass roots activism, trying to educate the public about the benefits of shall issue and lobbying the legislature to support laws that actually make sense as opposed to sounding good to the liberal media and those who subscribe to their view of the world.

ezliving · Oct 27, 2010

Dead Eye said:
Understood, rhetorically speaking, so how do we figuratively "take his feet out from underneath him"? "I don't know", or "you can't", ("good luck", etc...) is not an acceptable answer.

I think the best way to chop off Gansler's legs is to convince the General Assembly that the Woollard case is a loser for the state and it is better for them to amend the unconstitutional law so that the fundamental civil right of self-defense is a good and substantial reason to carry a weapon.

Or SAF/Gura wins Bateman, which surgically removes Gansler's legs with a hand grenade.

We will either get a legal solution or a political solution.

Dead Eye · Oct 27, 2010

Boondock Saint said:
That's a good one. The GOP couldn't be bothered to bring a candidate to run against him this year, suggesting that either Gansler is bulletproof and/or or no interested and/or qualified candidates on the other side of the aisle could be found. You could stop paying taxes, though I'd be willing to bet MOM would see that Gansler remained fat in defense of the State while other ancillary programs suffered, assuming enough of us stopped paying to make a relevant dent in the state's coffers. Personally, I fall on the side of grass roots activism, trying to educate the public about the benefits of shall issue and lobbying the legislature to support laws that actually make sense as opposed to sounding good to the liberal media and those who subscribe to their view of the world.

That's real shame, that the GOP couldn't put up ONE candidate. In these times, all one has to do is point to the high murder rate in B'more, and bootstrap AG Gansler to it.

Yes, I understand what MSI is doing, and please keep up the good work. We need more of that, or need to put it on steroids, or something. Not knowing your budget, but do you have or have you thought of a "public service" campaign? Billboards, newspaper ads, that sort of thing, or is that outside the bugetary means? Point being, unless you go looking for your website, how do we educate the average person(s) en mass, or point them toward your website? MSI bumperstickers on milk cartons?

Dead Eye · Oct 27, 2010

ezliving said:
I think the best way to chop off Gansler's legs is to convince the General Assembly that the Woollard case is a loser for the state and it is better for them to amend the unconstitutional law so that the fundamental civil right of self-defense is a good and substantial reason to carry a weapon.

We will either get a legal solution or a political solution.

How do we do that (convince the General Assembly)?

Boondock Saint · Oct 27, 2010

Dead Eye said:
That's real shame, that the GOP couldn't put up ONE candidate. In these times, all one has to do is point to the high murder rate in B'more, and bootstrap AG Gansler to it.

Yes, I understand what MSI is doing, and please keep up the good work. We need more of that, or need to put it on steroids, or something. Not knowing your budget, but do you have or have you thought of a "public service" campaign? Billboards, newspaper ads, that sort of thing, or is that outside the bugetary means? Point being, unless you go looking for your website, how do we educate the average person(s) en mass, or point them toward your website? MSI bumperstickers on milk cartons?

We've held numerous Open Holster Rallies (search the forums). We attend gun shows, community fairs, essentially any large gathering of people where we can reach out to the public and let them know what they can do in the fight to restore and maintain their rights. Search the forums for MSI updates, especially those that come out during legislative session (January-April) for a more detailed picture.

The problem is that the average gun owner does not pull their weight in the fight. MSI membership is $10/year. Conservative estimates would suggest that we have about 750,000 gun owners in this state. If MSI had $7.5M in yearly revenue to spend on its efforts, shall issue would have been a reality long ago.

What's arguably worse than the lack of financial support is the lack of boots on the ground. The truth is that there are a very small group of people, likely less than 100 strong, who are legitimately, actively involved in the process. Take the Open Holster Rallies, for example. At the largest rally, we had roughly 100 people who could find time to show up. That beats the heck out of 10 people, but what if that number were 1,000 or even 10,000?

Please don't misunderstand, any and all support both helps and is sincerely appreciated. Those that do donate their time and/or their money are very generous. We just need a wider and deeper breadth of support from the entire community if we expect to have success on the levels that most of us want.

Patrick · Oct 27, 2010

Dead Eye said:
How do we do that (convince the General Assembly)?

That's a bad idea anyway. Again, getting the GA to relent keeps your rights under their control. The Federal lawsuits are the best way to draw a line they cannot cross. I understand the impatience and the willingness to do things, but lobbying the GA at this point is time wasted and ironically, a success there is not a good thing assuming SAF can win these cases.

Maybe I'm just a bit more "simple" in my way of thinking. How does one (AG Gansler) defend the indefensible? At this point, he doesn't want to bite on the 2A issue, because he knows it will lead him to a dog fight he can't win. He is relegated, therefore, to have the case tossed on procedural hooey.

That's the thing: these cases are more defensible than the MD response suggests. We may have some wind at our back and a strong belief we are correct - but nothing is absolute. There are legitimate and serious questions yet to be answered when it comes to 2A and the public at large. Don't mistake posturing for fact - our side's opinion and analysis is stronger, but that does not make it is absolute.

Which brings me back to Gansler. Either he's holding out on a good defense or he's over his head. His latest submission suggests the latter as he opened the door to some critique of his work given the mistakes he made that even I could spot. This suggests he's not playing chess. Likely what we see is only reviewed by him anyway - some aide wrote it and he approved it without performing due diligence. Again: sloppy.

The problem is that the average gun owner does not pull their weight in the fight. MSI membership is $10/year. Conservative estimates would suggest that we have about 750,000 gun owners in this state. If MSI had $7.5M in yearly revenue to spend on its efforts, shall issue would have been a reality long ago.

People need compelling reasons to send money one way or the other. Many folks are members of the NRA; a few support the SAF. Fewer still probably support MSI. It's trickle-down economics when it comes to non-profit work and we're no different than any other cause.

MSI could take in more if they/we gave a compelling reason to do so. Education campaigns are an option; as is jumping into a suit at the state level. But only if they have reasonable chances of doing good and not harm. See GrassRoots North Carolina and CalGuns for groups that play this pattern well. But in reality, the SAF suit is probably the big one to wait on. We did our part in sending them money. Duplicate action at the state level is just that - duplicate action.

MSI will come into its own if the SAF suit wins. It will then be up to us to challenge the MD blockades that will follow. MSI will get its day...it's just not today.

Again: patience

Boondock Saint · Oct 27, 2010

Patrick said:
People need compelling reasons to send money one way or the other. Many folks are members of the NRA; a few support the SAF. Fewer still probably support MSI. It's trickle-down economics when it comes to non-profit work and we're no different than any other cause.

MSI could take in more if they/we gave a compelling reason to do so. Education campaigns are an option; as is jumping into a suit at the state level. But only if they have reasonable chances of doing good and not harm. See GrassRoots North Carolina and CalGuns for groups that play this pattern well. But in reality, the SAF suit is probably the big one to wait on. We did our part in sending them money. Duplicate action at the state level is just that - duplicate action.

MSI will come into its own if the SAF suit wins. It will then be up to us to challenge the MD blockades that will follow. MSI will get its day...it's just not today.

Again: patience

I didn't mean to suggest that MSI was the only option for a Marylander seeking to maintain and advance his/her 2A rights, although my post certainly could have given that impression. You're right; there are any number of ways that we as a community can join the fight, but to date, a very large percentage of us are still on the sidelines. I can't be certain, but I seriously doubt that all gun owners in our state support any of the groups you mentioned. The NRA, the 800 pound gorilla, is largely inactive in this state because our community gives them very little reason to spend resources on us. It seems to me that there's a willingness among the vast majority of our community to let others expend time/money/effort on their behalf while standing in line, eagerly awaiting any and all benefits that come from the action of others.

krucam · Oct 27, 2010

Patrick said:
..........

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.

This is the next issue to be settled that is being worked, bear...

I'll donate $1,000 immediately to the Brady's and trade my guns in for $50 gas cards if they can pull that off, arguing and winning with 'bear' is not core to the 2A.

'Self Defense' is now deemed core to the right and appears no where in the actual text....good luck with that 'bear' argument.

When/if MD addresses the Complaint, they'll take the dicta from Heller that Concealed Carry may not be protected...anyone reading that can read between the lines to see the implication that it is either Open or Concealed (bear) that is protected...pick one.

fightinbluhen51 · Oct 27, 2010

ezliving said:
I think the best way to chop off Gansler's legs is to convince the General Assembly that the Woollard case is a loser for the state and it is better for them to amend the unconstitutional law so that the fundamental civil right of self-defense is a good and substantial reason to carry a weapon.

Or SAF/Gura wins Bateman, which surgically removes Gansler's legs with a hand grenade.

We will either get a legal solution or a political solution.

That and vote for State Question No. 1 on Tuesday!

http://redmaryland.blogspot.com/2010/10/why-you-should-vote-for-state-question.html

Inigoes · Oct 27, 2010

krucam said:
I'll donate $1,000 immediately to the Brady's and trade my guns in for $50 gas cards if they can pull that off, arguing and winning with 'bear' is not core to the 2A.

Didn't you already lose a bet this year?

Dead Eye · Oct 27, 2010

Years ago, my father got drug into an issue involving illegalities being conducted by the Mob, through the Teamster's Union. At that time, DE, the state we lived in, was more like Marylandistan is today. My Pop loaded his S&W, Police and Military Airweight, .38 Special, and put it in his pocket. Even at that age, in my early teens, I asked my Dad about the need for a gun permit. His reply was something like this: "Yes, son, I know I am breaking the law, however, the alternative is not acceptable. Some times a man must do what is necessary to protect their lives, and that of their family's".

Just asking, but doesn't that speak ill of the law that has to take a good solid citizen and turn them into a common criminal?

fightinbluhen51 · Oct 27, 2010

krucam said:
This is the next issue to be settled that is being worked, bear...

I'll donate $1,000 immediately to the Brady's and trade my guns in for $50 gas cards if they can pull that off, arguing and winning with 'bear' is not core to the 2A.

'Self Defense' is now deemed core to the right and appears no where in the actual text....good luck with that 'bear' argument.

When/if MD addresses the Complaint, they'll take the dicta from Heller that Concealed Carry may not be protected...anyone reading that can read between the lines to see the implication that it is either Open or Concealed (bear) that is protected...pick one.

Personally, I hope that open carry is determined to be protected.

I could careless if the courts give us open or concealed carry, either way it is carry. Yes, I am aware that concealed is more beneficial than open, but needless to say, I'll take my chance to screw it to the state of MD anyway I can get it. Permitless open carry, making a statement, and having the libs freak out and potentially having paydays in the court system? I'm game.

krucam · Oct 27, 2010

Inigoes said:
Didn't you already lose a bet this year?

Not "quite" yet...Dec 31st...

Inigoes · Oct 27, 2010

krucam said:
Not "quite" yet...Dec 31st...

I'll go buy a $50 gas card for that 5R. Just in case :lol2:

Patrick · Oct 27, 2010

Boondock Saint said:
I didn't mean to suggest that MSI was the only option for a Marylander seeking to maintain and advance his/her 2A rights, although my post certainly could have given that impression. You're right; there are any number of ways that we as a community can join the fight, but to date, a very large percentage of us are still on the sidelines. I can't be certain, but I seriously doubt that all gun owners in our state support any of the groups you mentioned. The NRA, the 800 pound gorilla, is largely inactive in this state because our community gives them very little reason to spend resources on us. It seems to me that there's a willingness among the vast majority of our community to let others expend time/money/effort on their behalf while standing in line, eagerly awaiting any and all benefits that come from the action of others.

Agreed. Unfortunately that has become "The American Way".

krucam · Oct 27, 2010

fightinbluhen51 said:
Personally, I hope that open carry is determined to be protected.

I could careless if the courts give us open or concealed carry, either way it is carry. Yes, I am aware that concealed is more beneficial than open, but needless to say, I'll take my change to screw it to the state of MD anyway I can get it. Permitless open carry, making a statement, and having the libs freak out and potentially having paydays in the court system? I'm game.

Woollard is arguing for elimination of Good & Substantial in the statute. The statute referenced is for the permit, but the statute does not state Open v Concealed.

Woollard (and SAF/Gura) only have to 1) Get the State to argue the complaint, 2) Stick to their guns that the 2A is incorporated fully, which contains the language 'keep and bear', 3) Resist/fight the "in the home" challenges that will come when they decide to fight vs duck/cover.

I meant no harm in mocking the possibility of the State arguing that 'bear' isn't core to the 2A. Patrick is right as that is the only legally defensible argument that is left, outside of this "in the home" shinola.

I was putting myself in the position of the Plaintiffs and how I would outline my response to an absurd claim, and it may have come off as slamming Patrick...which was definitely not my intent...

So we wait in this case with a possibility of the Judge granting a MTD, or not and saying move forward and we say goodbye to SAF Standing and Younger Abstentions. If the latter, we just may see them trying to argue that bearing arms isn't core/protected...

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