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

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    Trapper

    I'm a member too.
    Feb 19, 2009
    1,369
    Western AA county
    You remember correctly. Came from Heller.

    The context was the "historical" reference regarding states deciding to ban concealed carry when open was available. At least, that's how our side reads it. The other side obviously has their view.

    I'll try to dig it up today for everyone to read and decide for themselves.

    Thanks Patrick.

    While not the most popular, my position would be that since open was historically non-regulable, then it should currently be the same.
    Just because concealed carry was regulated (due to it's cowardly foundations) doesn't mean that you get to choose. My position is that open is fully covered by "shall not be infringed", but states and localities may regulate concealed. Which means that they can choose to allow concealed, but cannot prohibit open carry.

    My $.02
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Ok, this comes up a lot so it's worth noting and reviewing the details (this includes myself, I don't want to appear condescending in my approach).

    The operative paragraph from Heller:

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n.*2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

    This paragraph is the one most often cited by those opposed to our rights - it is chocked full of anti-2A goodness, as long as you forget to read the context.

    The Heller Court was kind enough to expound on this earlier in the opinion of the court, when defining the prefatory clause of 2A:

    ...
    In Nunn v. State, 1Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...

    Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

    Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protect[ion of] the public liberty” and “keep[ing] in awe those in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment ).

    Note that all of these decisions are at the state level. This, of course, tracks with what we know of 2A prior to this year - it was not held against the states because it was not yet incorporated. This is how Cruikshank was decided: the constitution did not apply at that time.

    So what we hear from Gansler, et al, is that the Heller did not prohibit restrictions on concealed carry, and they are correct. But the little tidbit they leave out is that Heller specifically referenced these restrictions in the context of historical prohibitions that favored open carry. None of the cases referenced by the Heller court held that a state could ban both forms of carry. As a matter of fact, the operative clause in Heller relied upon by Gansler references cases that all held that the right to bear arms in public was fundamentally protected in those states.

    That's what I mean when I say the various defenses to the SAF com paint's involve "cherry picking". It requires contortions to somehow read one line of dicta in Heller and then ignore every explanation of that line, or to ignore the findings of the cases that led to oita inclusion in the first place. It is literally a play on semantics.

    The problem with the approach is that these cases are going right back to the same justices who wrote those words. As we saw in McDonald, the approach fails. It's pretty hard to write a defense claiming to the justices who wrote Heller that you know what Heller really meant.

    Is our reading of all of this correct? Are we also guilty of cherry-picking?

    I do not think so. I've read through Heller a number of times and come to the same conclusion. I've looked for ways to defend from pro-2A arguments and cannot really find much outside the above. I note with confidence that in all the cases currently under review, no other party has found any more, either.

    What we'll see are a number of district courts who will also perform this selective reading. Those are going to be informative and at times humourous reads. The linguistic gymnastics will need to be Olympic-worthy and with all the parallel cases out there, only judges who are devoutly liberal will dare go that far.

    But some will, and that's why we have an appeals process.
     

    krucam

    Ultimate Member
    Thanks for the digging Patrick...in a nutshell, what we will get (perhaps not in 2010 :innocent0) is the States/Municipalities WILL have to accept "bear", and if not concealed, then open.

    "Keep and Bear"
    "Natural Right to Self Defense"

    States can perhaps use a compelling interest (public safety) argument under Intermediate scrutiny, and CCW may not be protected.

    Even so called "fringe" states (in a CCW sense) like CA and WI have already come to terms with this reality, allowing OC (unloaded in CA) while restricting CCW. The real anti-carry of any kind states (IL, MD, etc...) are going to have a wake up call of delightful proportions soon. I can't wait.

    If MD goes CCW, a Kahr PM9 is on my buy list. If MD, losing Woollard drops Good/Substantial req for the permit, then says only Open Carry...well, that will be short-lived and a honking N-framed S&W will be acoming...

    OC events will then be needed while we then push for CCW once Bear is established in MD...perhaps even Nationally if we can get these cases moving in District Cts, appealed to Circuit Cts, etc...we would need our coveted Circuit Split before the September 2011 timeframe if we hope to get a writ of certiorari granted at SCOTUS for the Oct-11 session. It will be close...
     

    blindnoodle

    Livin' the dream!
    Apr 21, 2009
    1,416
    OC events will then be needed while we then push for CCW once Bear is established in MD...perhaps even Nationally if we can get these cases moving in District Cts, appealed to Circuit Cts, etc...we would need our coveted Circuit Split before the September 2011 timeframe if we hope to get a writ of certiorari granted at SCOTUS for the Oct-11 session. It will be close...

    This case won't make it to SCOTUS by next year. No way. Think more like 2014 at the soonest if it even makes it there. Chances are it will never make it there.

    To give you an idea of how long it will take for each step, the initial pleading in Heller was filed Feb. 10, 2003. District Court ruled March 31, 2004. Appeal was filed June 1, 2006. Court of Appeals ruled March 9, 2007. Petition to SCOTUS was filed on September 4, 2007. SCOTUS decided the case Decided June 26, 2008. That's over 5 years
     

    Trapper

    I'm a member too.
    Feb 19, 2009
    1,369
    Western AA county
    So, the SC said that 19th century (1800's) courts had allowed prohibitions on CC, but what was the intent when the law was written?

    Reading all of that, and thanks Patrick, I still don't see where they can prohibit OC.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    So, the SC said that 19th century (1800's) courts had allowed prohibitions on CC, but what was the intent when the law was written?

    Reading all of that, and thanks Patrick, I still don't see where they can prohibit OC.

    Yeah, neither can I. And from what I am reading in all the reply briefs over the past year or so, neither can the antis.

    So I say, we're in for some serious sematic contortions over the next 18 months or so.

    Edit: it may not be apparent in the quotes I selected above, but each of the cases used by the supreme court when talking about concealed restrictions did so while also protecting open carry.
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    Two things.

    One, we don't need a MD case to win, all we need is A carry case t reach SCOTUS and win, and correct me if I am wrong, but there are others (Palmer, Nordyke) that are further along, if only at the district level.

    Second, we also only need to win 1 case at the 4th circuit level to get carry. Although, considering no other state in our circuit restricts carry, no one else will help us out directly on Woollard. Assuming rulings are stayed and MD drags it out, 3 years.

    A win at our district, or any other circuit is good jurisprudence to build off of so, hopefully we get some judges that rule right and don't stay their rulings, or MD gives up.

    Would an emergency session bill be immediately effective? Once passed and signed, would it be effective that day, unlike regular session bills that go into effect Oct 1? Could a court ruling set a time frame?
     

    Boxcab

    MSI EM
    MDS Supporter
    Feb 22, 2007
    7,867
    AA County
    Thanks Patrick et al. :thumbsup:

    I'm working on an "Open Holster Rally" on January 17th of 2011, just before the General Assembly's next session. I would really like to make it a "Full Hoster Rally" for January of 2012!
     

    Porsche

    Around...
    Jul 7, 2010
    125
    Even so called "fringe" states (in a CCW sense) like CA and WI have already come to terms with this reality, allowing OC (unloaded in CA) while restricting CCW. The real anti-carry of any kind states (IL, MD, etc...) are going to have a wake up call of delightful proportions soon. I can't wait.

    CA allows open carry but it must be unloaded? You might as well carry a hammer in your holster.... Or does this mean that you cant have one in the chamber?
     

    krucam

    Ultimate Member
    CA allows open carry but it must be unloaded? You might as well carry a hammer in your holster.... Or does this mean that you cant have one in the chamber?

    To the best of my knowledge, in CA unloaded means unloaded...nothing in the chamber (in the case of a Semi-auto), magazines/rounds separate.

    It wouldn't make a difference with my handgun if I had a round in the chamber but no magazine (S&W M&P .40). With the mag safety, no bang without a mag inserted....

    Unloaded Open Carry (ala California) is marginally unconstitutional given precedent on the Natural Right to Self Defense in the courts as well.

    Moot point for me as I don't live there...but I'd take what they have over what our options are here in MD for now...the landscape will be changing a lot in the next year however.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    I once (as a former Southern CA denizen) said CA Open Carry was an invitation for trouble from local LEOs in Southern California. I was only right for moment, though: San Digo arrested a dude for legal OC and then quickly settled for $35K (!) when they realized they over-reacted.

    So I now retract my earlier opinion. Apparently the only risk one suffers from legal OC in San Diego is some minor frustration and an eventually larger bank account.

    So DD214 (another former Southern CA denizen): I am quite happy to concede that debate to you. :)

    How it applies here: while "Open Carry" in CA is essentially carrying a hammer on our belt, it did demonstrate something I claim will be critical in our eventual success: that localities will only stop harassing lawful carry when they are forced to pay lawful restitution, including punitive damages.

    How far can this go?

    Keep in mind that those found guilty of civil rights abuses are not protected by their duty status - if a LEO busts a head because of someone's skin color, they are personally liable. As of June, 2A is also protected under those same statutes. It will take time to get the case law built behind us, but when it is...this fight is over. No LEO is going to risk his/her house because of a bee up their mayor's bonnet.

    So in this case, those 'useless' CA OC statutes had an excellent use: they demonstrated the validity of a strategy we will use in the future nationwide. Because I seriously doubt San Diego arrests another guy for legal OC anytime soon...

    EDIT: You know the irony here is that I will almost likely never want to carry a pistol for personal, practical reasons. It's the academic argument here that gets me going. My wife, on the other hand, would carry a 44 mag if you let her. For those that have met her: you recognize this is accurate; and you'll laugh at the mental image of a 94 lb woman under 5' with that kind of gun on her hip.
     

    shawn

    Active Member
    Oct 23, 2007
    708
    How it applies here: while "Open Carry" in CA is essentially carrying a hammer on our belt, it did demonstrate something I claim will be critical in our eventual success: that localities will only stop harassing lawful carry when they are forced to pay lawful restitution, including punitive damages.

    Two things.....the hammer on belt thing. Couldnt you just slap in a loaded magazine if you ever ran into trouble while OCing?


    EDIT: You know the irony here is that I will almost likely never want to carry a pistol for personal, practical reasons. It's the academic argument here that gets me going. My wife, on the other hand, would carry a 44 mag if you let her. For those that have met her: you recognize this is accurate; and you'll laugh at the mental image of a 94 lb woman under 5' with that kind of gun on her hip.[/SIZE]


    Really? If we ever get the ability to carry you will never do it for defense purposes?....Wow...if that is the case it is awesome how much you are involved with something you dont even want to do.... just because "whats right is right":party29:
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Two things.....the hammer on belt thing. Couldnt you just slap in a loaded magazine if you ever ran into trouble while OCing?

    I'm pretty sure in CA they can carry a loaded mag in their pocket. Not the same, as many here would attest.

    EDIT: You know the irony here is that I will almost likely never want to carry a pistol for personal, practical reasons. It's the academic argument here that gets me going. My wife, on the other hand, would carry a 44 mag if you let her. For those that have met her: you recognize this is accurate; and you'll laugh at the mental image of a 94 lb woman under 5' with that kind of gun on her hip.[/SIZE]


    Really? If we ever get the ability to carry you will never do it for defense purposes?....Wow...if that is the case it is awesome how much you are involved with something you dont even want to do.... just because "whats right is right":party29:

    I won't say 'never', only 'exceptionally rarely'. It just wouldn't fit my lifestyle much. But still, I will be first in line for a permit on the constitutional grounds of "just because".

    As for why I care...I'm not a black man but still would stand against racism; not a gay man but will stand for them to live life without interference.

    But I do like guns. Got several and will get more. Built my own mini-range. It's just not likely I will carry one, for rather practical reasons. The irony is I would probably qualify under today's standards in MD. I was tempted, but passed. Would rather wait with the rest of you lower-class citizen scum. ;)
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    I once (as a former Southern CA denizen) said CA Open Carry was an invitation for trouble from local LEOs in Southern California. I was only right for moment, though: San Digo arrested a dude for legal OC and then quickly settled for $35K (!) when they realized they over-reacted.

    So I now retract my earlier opinion. Apparently the only risk one suffers from legal OC in San Diego is some minor frustration and an eventually larger bank account.

    So DD214 (another former Southern CA denizen): I am quite happy to concede that debate to you. :)

    How it applies here: while "Open Carry" in CA is essentially carrying a hammer on our belt, it did demonstrate something I claim will be critical in our eventual success: that localities will only stop harassing lawful carry when they are forced to pay lawful restitution, including punitive damages.

    How far can this go?

    Keep in mind that those found guilty of civil rights abuses are not protected by their duty status - if a LEO busts a head because of someone's skin color, they are personally liable. As of June, 2A is also protected under those same statutes. It will take time to get the case law built behind us, but when it is...this fight is over. No LEO is going to risk his/her house because of a bee up their mayor's bonnet.

    So in this case, those 'useless' CA OC statutes had an excellent use: they demonstrated the validity of a strategy we will use in the future nationwide. Because I seriously doubt San Diego arrests another guy for legal OC anytime soon...

    EDIT: You know the irony here is that I will almost likely never want to carry a pistol for personal, practical reasons. It's the academic argument here that gets me going. My wife, on the other hand, would carry a 44 mag if you let her. For those that have met her: you recognize this is accurate; and you'll laugh at the mental image of a 94 lb woman under 5' with that kind of gun on her hip.
    Awesome about your wife, wish mine was like that. I guess this will eventually go for rifles too?
     
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