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

ToneGrail said:

Yeah. He must be one of those Souter/Stevens types though. Sounds like a hypocritical elitist to me.

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Rights for me but not for thee. Yeah, I don't like that last statement either. Of course, in that article, it is without a lot of context to the direct line of oral arguments.

Might want to wait for him to rule before we sharpen the pitchforks. Judges will frequently ask the toughest questions of the side they are favoring, to reinforce their pre-existing opinions. Remember, oral arguments are really optional and some judges think they are useless.

If you read the opposing briefs you will see that Gura used a strong constitutional theory that leans on many reinforcing tenets of existing, new and evolving jurisprudence. He crafted a strong argument - telling a story - that relies on many components, yet somehow it remains a simple issue.

Yolo, on the other hand, latched on to some dicta in Heller that they chose to misread (until the last minute) to craft an single argument: "Heller said we can ban concealed carry" and our favorite, "Heller said the right was limited to the home." They never quite explained how Heller overruled the US Constitution. They were arguing Heller, Gura was arguing the Constitution. They were picking nits in one case, Gura was arguing the concepts of liberty.

Yolo made no real attempt to argue against the right to bear arms in public. They only argued that they are allowed to ban the manner under dispute. They did not attempt to explain or resolve the fact the state left no other option. Gura was able to simply tell the Heller story, "It was my case. We limited the question to inside the home. This is a new question."


There are only two real options for a judge who wants to pass the constitutional hurdle and still keep all the peasants from carrying guns themselves: the 2A Two Step; or to deciding that the challenge against CA Concealed Carry Regulation is aimed the wrong way and that Gura should be going after the state - then he could rule Unloaded Open Carry meets the burden for immediate defense. I don't think the Defendants did enough work to support the Two Step (idiots), so I lean towards the second option even though the county made and lost that argument already (previous standing and venue questions).

That second option would be slippery and wouldn't survive an appeal. It also pretty much acknowledges that RKBA in public is required. The fact is California law puts permits in the hands of Sheriff and it also requires Concealed Carry in any county with more than 200,000 residents. Yolo has 203K residents.

At the end of the day, the Sheriff chooses who gets permits and who does not. That arbitrary process is what is under attack, and Yolo failed to argue their process is constitutional. Only that it was 'necessary' without providing any effective proof that it was and by claiming that the use of 'standards' to make decisions saves the process, even if the standards are unconstitutional. Under that line of thinking, we can deny anyone any right we want provided we deny them the right using clearly stated rules that always work - something like "Whites Only" would fit in that philosophy quite well.

I have an obvious bias about the direction I want this to go, but I like to think I remain objective about the various likelihood of these cases. In this case, I do not like the defendant response. I think it was weaker than others we have seen nationwide. I ignore Maryland's horrible responses thus far because I expect a monkey could do better and therefore we have yet to see their real response.

But the defendants do have some low-level jurisprudence on their side, and California law is a lot more peculiar about guns than other states. It sounds like the judge wasn't willing to let another district decide his case, though. It might advise him, but it won't rule him.

I am optimistic but ready for a slippery call.

I only read the nuggets from the Richards orals. Is any audio available?

So at least what I've seen with all cases so far-Blood in the streets claims by defendants with no explanation why it hasn't happened in any other state that has shall-issue or unlicensed carry.

Patrick said:

So the final handicap is going to wait for Maryland's true response. I predict a modified Two-Step with a strong emphasis on public safety/compelling interest arguments to overcome Chester and a general trend towards viewing RKBA as fundamentally bound.

The fight nationwide is moving to the edges: what constitutes a "reasonable regulation"?

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I've been thinking about this and also couldn't stand seeing this thread slipping quickly down the list on page 2.

I agree whole heartedly with the idea that the defense in these cases are playing the "reasonable regulation" card. But am thinking that we may be seeing the seismic shift from 2-step to containment, nationally. My tinfoil hat being firmly in place at the moment, the anti's take counsel not only in their own state but nationally. I suspect AG Gansler gets "help" or tidbits from the Bloomberg bunch, Soros bunch, Brady bunch or whatever bunch is this week's brain trust. So my tinfoil says, they are seeing the once wonderful 2-Step not quite the teflon shield it once was, so the shift to containment, nationally, may rear it's ugly head here it MD? ( Question marks because I'm just tossing it out as a possible.)

I don't expect MD to throw in the towel and give up ground voluntarily, their containment strategy will certainly be as stringent as they think can pass muster.

I see MD saying that if CCW is to be the future here, they will burden it with as many encumbrances as possible, from the application process to where you can and canot legally carry. It's the MD way. Then they will pus hthe mule down the road farther, and it will take another court case, with merit, to argue the overzealous encumbrances.

Eh, I guess we are saying simialr things.
Well, at least I brought our favorite case back to page 1, for now.
Color me impatient today.

SkunkWerX said:

...

Well, at least I brought our favorite case back to page 1, for now.
Color me impatient today.

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Thanks SkunkWerX, but...this thread should light up tomorrow afternoon/evening...Defendant response to Plaintiff MSJ is due, they might even argue on 2A vs procedural grounds....we'll see.

I'm with you 100%. It all makes sense.

The shift from 2-step to containment - if it continues strongly - will be a good sign that they agree our points have merit and are good chances to prevail. If they go all-out containment that will be an even stronger sign that they have given in on the right existing.

Containment is a stretch of the 2-step theory in some ways, because the only way it succeeds is if the state can whittle the public RKBA right down to something less than 'fundamental', as a practical matter. They need to find a way to make RKBA subservient to something the legislature can influence. The 2-step was an attempt to make the whole of RKBA subservient; the new strategy is to craft exceptions, "for the children", that make it subservient in function instead of philosophy. That would be permitting fees and delays, sensitive places, qualifications, limitations on firearms, capacities, magazines, etc.

They are starting with the largest bite they can take, but they will soon start to take smaller bites on each of those issues. It will be a fractured attack - more an insurgency - but one we will need to fight.

I say, if you are going to swing, swing hard. The more arguments they use today, the fewer we need to fight tomorrow.

My calendar says the MD brief is due tomorrow. Someone correct me if I am wrong...

I sounds to me like even if they can get their heads around the fact that the 2A is fundamental and some kind of carry must be allowed, that they can't really conceive of a world where "interest balancing" doesn't outweigh the the right.

That could backfire against them both by the fact that Heller slapped it down specifically, and that their "common sense" doesn't actually contain any evidence that their desired laws would contribute to the public good.

...which is why they need to get the activities we are pursuing outside the 'core' of the right. They can then apply less than strict scrutiny to them and get them crushed under the weight of that interest balancing.

Even intermediate scrutiny requires proof from the government. While still a subjective call, such proof is still likely more than the government can provide. Those courts that have distanced XX right from the core of 2A thus far have applied intermediate scrutiny, but then treated it like rational basis. The big exception here is Chester, which found intermediate for an excluded person but then told the government to go the extra step and provide "particular proof" that Chester was going to be a danger to community. They specifically said 'no blanket administrative rules and no statistics about domestic violence...we want proof that Chester himself is a bad guy.'

This set up a strong standard for cases like Chester. Our bet is that the standard for law-abiding people is even stronger.

Tomorrow we'll see what Maryland thinks. If they come back with nothing more than their last cited 'affirmative defense', I will be out shopping for a Glock 26 carry pistol the next day.

Patrick said:

...which is why they need to get the activities we are pursuing outside the 'core' of the right. They can then apply less than strict scrutiny to them and get them crushed under the weight of that interest balancing.

Even intermediate scrutiny requires proof from the government. While still a subjective call, such proof is still likely more than the government can provide. Those courts that have distanced XX right from the core of 2A thus far have applied intermediate scrutiny, but then treated it like rational basis. The big exception here is Chester, which found intermediate for an excluded person but then told the government to go the extra step and provide "particular proof" that Chester was going to be a danger to community. They specifically said 'no blanket administrative rules and no statistics about domestic violence...we want proof that Chester himself is a bad guy.'

This set up a strong standard for cases like Chester. Our bet is that the standard for law-abiding people is even stronger.

Tomorrow we'll see what Maryland thinks. If they come back with nothing more than their last cited 'affirmative defense', I will be out shopping for a Glock 26 carry pistol the next day.

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Same here.

Patrick said:

If they come back with nothing more than their last cited 'affirmative defense', I will be out shopping for a Glock 26 carry pistol the next day.

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Papi4baby said:

Same here.

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You better catch up, they don't have anything better

Patrick said:

...which is why they need to get the activities we are pursuing outside the 'core' of the right. They can then apply less than strict scrutiny to them and get them crushed under the weight of that interest balancing.

Even intermediate scrutiny requires proof from the government. While still a subjective call, such proof is still likely more than the government can provide. Those courts that have distanced XX right from the core of 2A thus far have applied intermediate scrutiny, but then treated it like rational basis. The big exception here is Chester, which found intermediate for an excluded person but then told the government to go the extra step and provide "particular proof" that Chester was going to be a danger to community. They specifically said 'no blanket administrative rules and no statistics about domestic violence...we want proof that Chester himself is a bad guy.'

This set up a strong standard for cases like Chester. Our bet is that the standard for law-abiding people is even stronger.

Tomorrow we'll see what Maryland thinks. If they come back with nothing more than their last cited 'affirmative defense', I will be out shopping for a Glock 26 carry pistol the next day.

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go for the Glock 36 instead!!!

PS -- Thank you for your posts and keeping us non-legal people up to speed on these issues!

ffemtreed said:

go for the Glock 36 instead!!!

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It's an option, for sure. But I already have two calibers and don't relish a third right now. Besides, the wife is good with a 9. I figure we keep some parity there. I do want a .45, but in a larger frame.

PS -- Thank you for your posts and keeping us non-legal people up to speed on these issues!

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No worries. I think the bunch of us who do it pretty much look at these the same way some people do Sodoku: mind puzzles.

You better catch up, they don't have anything better

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I'd like that to be true. We should know this week.

Seriously, that would place Maryland with the worst response nationwide. As much as I hope it to be true, it would still sting due hometown pride and all.

Patrick said:

I'd like that to be true. We should know this week.

Seriously, that would place Maryland with the worst response nationwide. As much as I hope it to be true, it would still sting due hometown pride and all.

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At most, it will be a child-like ranting of NJ's AG.

We can take it, MD firearm's owners have broad enough shoulders to completely understand the ineptitude of MD's elected officials.

NJ's response is pretty much on top of the 'dumb response' list right now. They basically said "NJ State Law says it's legal, so it's legal. And look: our state courts have agreed with us."

At least Chicago and DC put some work into it (between the delays and games).

I guess you are right about the inept politicians. In that case, I hope to see NJ knocked off the top of the idiot list by Maryland.

My forecast for the response, is that gansler has his fingers in his ears while saying "LA LA LA, I can't hear you, LA LA LA"

That's about what the last one said. They just regurgitated arguments they lost in front of the court already regarding standing. The only issue they did well on was the 14th Amendment claim. But that looks to have been fixed by the SAF. We'll see.

if there's another delay in this case, i may go insane. i hit refresh half expecting to see one....

Reviewing Maryland's last response:

Affirmative Defenses:

1. The first amended Complaint fails to state facts sufficient to constitute a claim
upon which relief can be granted.

2. This action is barred by plaintiffs’ failure to exhaust administrative remedies,
including, but not limited to, internal administrative procedures and/or statutory administrative procedures, and to appeal within the State of Maryland judicial system, and therefore this Court lacks jurisdiction over plaintiffs’ claims.

3. Plaintiff Second Amendment Foundation lacks standing to maintain this action.

4. Defendants are entitled to judgment against Plaintiffs to the extent Plaintiffs have an adequate remedy at law.

5. Defendants are entitled to judgment against Plaintiffs to the extent Plaintiffs’ claims for relief are barred by laches, estoppel, or waiver.

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The first defense is the one they need to argue: that the SAF complaint has no merit because the Second Amendment does not apply in this case. Or if it does, that it allows the state to restrict the right arbitrarily.

The issue here is that they look to be taking time to re-argue standing and other issues. That is space (page count) that could be applied to fighting the 2A and 14A claims.

These guys are probably going to argue the right does not exist because of public safety, and 'in the home'. They'll also try to avoid the 14A issue by saying that the law creates a non-arbitrary process for evaluation and that any subjective approach is mitigated by the hearing review boards and ultimately the MD Supreme Court. They will argue that is where the case should have been fought.

So I expect to see some 2A response: a bit of the two-step and a public safety argument. The argument over the 14th will only work if they knock the first complaint (2A) down by saying it does not exist. That also means that once we win the 2A claim, the rest of their defense will crumble.

If "they" keep using in the home as their basis for a defense, they're screwed. The argument "they" are building their case upon was the Heller Court only answering the question they were asked.

The Supreme Court granted certiorari to address this question:

Whether the following provisions – D.C. Code §§ 7-
2502.02(a)(4), 22-4504(a), and 7-2507.02 – violate the Second
Amendment rights of individuals who are not affiliated with
any state-regulated militia, but who wish to keep handguns and
other firearms for private use in their homes?​

District of Columbia v. Heller, 552 U.S. 1035 (2007) (emphasis added).

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If "they" argue standing, they're screwed.

If "they" attempt to prop up the state handgun permit review board, or the state courts as redress....guess what? They're screwed.

If they can't articulate a Constitutionally valid argument for "good & substantial", they've lost & they're screwed.

In summary, they're screwed.

Go out an get that Glock 26/PM9/LC9...

Just waitng for the MSP to approve the LC9