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

J.Brown said:

Rita's opened back up last weekend!

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Israel or Switzerland?

Weak_Hand_Only said:

Hey Patrick, when are we going Glock shopping?

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Soon.

At the Outset

There is much fail in here. They spent too many pages filling in details that are not apropos to the discussion. They cite as sources themselves. Literally: a great number of the so-called "findings" they present in the first 14 pages or so are declarations from themselves (more pointedly: the named defendants).

As others have noted already, the concede that Maryland is an unusually dangerous place for its size and population; that is has been that way for some time; and that the police and governmental authorities have tried hard - but failed - to bring it under control. They also concede that common altercations in Baltimore can became violent quite quickly. They also note that the speed with which a problem can escalate might preclude a citizen from responding in time - that "some victims might not have time to respond with their gun'.

Yeah, but some will. And that's the ultimate rub. The world is imperfect, and Maryland just conceded that in at least some cases, a violent encounter could be successfully defended against by an armed citizen. Not all of them (even we would not claim that), but some of them. So long as the state denies the right, the number of lawful citizens able to defend themselves quickly approaches zero. I am not arguing philosophy; I see this as a concession and I am surprised they made it. I think as they read this post they might find themselves surprised they made it, too.

The also enter in the record the fact that numerous Shall-Issue states have lower crime than Maryland. Dumb. The SAF does not like to waste time arguing statistics (which do not matter to the Bill of Rights anyway), so its nice to have a defendant concede them for you.

They fill up a lot of pages saying the same things over and over again. They could have knocked off about 20 pages by just doing this:

- Implement: 2A Two-Step in its entirety
- Incorporate Brady Amicus briefings nationwide in their entirety
- "For the Children, So Say We All"

They also recognize that the Equal Protection claim hinges heavily on the Second Amendment claim. If the 2A right does not exist, the EP claim fails. But if it does, then Maryland better stop denying rights. This argument is specifically written for higher courts, and Maryland seems to acknowledge this and takes a cursory shot at it. Big EP claims are almost the exclusive domain of the higher courts.


Enough with what we already knew. Everything I mentioned so far is as expected. On to the parts we (as citizens of Maryland) should be proud of...

What They Did Right

This is - by far - the most expressive and well implemented crafting of the Two-Step yet. Really, it is beautiful in its compliance with the doctrine. It hits all the points. They even described the doctrine using the exact same semantics we do on this board. They then made it all fit into Chester exactly as we predicted they would here on this board. Brilliant.

Will I go over their implementation of it? Not at all. After all, we could have written it (and at certain times while reading this, I was thinking we actually did...).

No. Let's focus on new stuff:


Open Carry of long guns for self defense, without a permit, is acceptable in Maryland in all places in which you can carry a concealed weapon.

I love this one. It is a bold move and takes things a step further than Peruta and Richards in California. Unlike those cases - where the defendants claimed a non-functional firearm or an otherwise illegal act would suffice - Maryland has actually said that its citizens can carry a functional firearm in public for purposes of personal self defense.*

Analysis: Bold move, but desperate. In their mind, it probably gives the judge a Peruta-like "out" to avoid finding for the right. After all, people can carry in Maryland for their defense...so problem solved.

The issue is that they concede the ineffectiveness of the long arm in person self defense in public (and even private) situations. They accept without argument the Heller finding that handguns are especially good for personal defense, but then say that value is negated by the fact criminals find them just as useful. They argue that even though some value exists in handguns for lawful people, the criminal element makes it necessary to restrict your rights. This theory is called the "Thieves Veto" and it never quite explains how the laws in question actually stop violence. Oh wait...they cannot. Maryland already conceded that criminal violence flourishes in spite of their laws, three times in the last 20 pages. Oops.

They never claim the ability to carry this gun is a right, only that it is a gift of the legislature. They make that point directly in a footnote, as well. They openly tell the federal court that this area of law is strictly a legislative affair and that - by extension - the whole idea of judicial review is BS. I think they actually believe this.


They Addressed Nunn, Andrews, Reid and Chandler

I won't say they did a good job, but props should be given for at least trying. For those not super-geeked on this stuff, those cases were favorable cited in Heller as examples of why regulations against concealed carry were permissible: because Open Carry was also available. Maryland tried to make these go away (in a footnote!) by claiming the Supreme Court didn't really mean what they meant...that "The Court did not suggest that it agreed that open carry bans would be unlawful."

They are right. Technically, the Supreme Court suggested that 'bans on concealed carry - or any manner of carry - are presumptively lawful provided at least one manner is left available.'


They took a historical view of the right at the foundation and the at the time of the 14th

Again...credit must be given. They spent more than cursory time focusing on what the Second Amendment meant to the Founders, and on a related note spent time focusing on laws at the time of ratification of the 14th.

Both fail. They should have avoided this argument. It won't help them. Heller made damn clear what the right meant at the time of foundation - RKBA meant to "bear and carry in case of personal confrontation." While Maryland successfully notes the laws in place at the time of the 14th sometimes completely prevented the carrying of arms, they fail to mention that one of the key drivers of the 14th Amendment was the very fact that those same laws prevented freedmen (former slaves) from carrying arms for their own defense! The only saving grace for the racist gun-controllers back then was Slaughterhouse (another case, another day).

If it were not for Slaughterhouse, the Civil Rights movement would have been settled by 1900. Seriously - you cannot continuously abuse people of their rights if those citizens have guns and know how to use them. Good on Maryland favorably quoting this racist legacy. It's nice to see those true stripes every now and then.

They cited Cruikshank

Weak and dumb. They tried to separate themselves from it by citing another case that cited Cruikshank favorably, and by staying away from its core holding (at least in their text)...but they went there. Cruikshank was thoroughly reamed in McDonald by Thomas. For him it seemed personal. I don't think it matters that they used Cruikshank - at arms length - only to buttress a first amendment prior restraint defense. The case is toxic.

For those more curious, please see a good book on it titled "The Day Freedom Died" or even look over Wikipedia page on The Colfax Massacre. Anyway, I think it's bad form. They had better cases to choose from.


I left off other thoughts I forgot already, so that's enough for now.

Overall

It was easy to read. I am not so sure it was well though out in its entirety. Despite the Open Carry of rifles surprise, nothing here is really all that new or inventive. A stock defense cribbed from every other defendant in the nation, and maybe even a little bit from MDShooters. Some of the parallels were eerie. Just sayin'.

Add a little historical rub that hurts more than helps, plus a significant degree of circular logic, added to the fact they concede many, many of the points we have been making...and it looks pretty good for us so far.

The holes here are large and numerous. Maryland undercuts its own arguments time and time again. It's almost like they did proof-reading of the brief one paragraph/argument at a time - with zero real analysis of the collection of all their arguments taken as a whole. I think in the process of cribbing material elsewhere they failed at some critical stages to think about what they were writing. I think they are going to spend their next response fighting their own words. Also, I doubt their forthcoming MSJ will be anything more involved than this opening defense.

I won't directly handicap the District Court case, but will say nothing here increases the chance Maryland will prevail. A number of their arguments are actually going to help our case. I'd say we moved closer to the goalpost today than Maryland did. We were underdogs this morning.

But right now?

We now see the other dog is missing a lot of teeth.


* On Open Carry of Rifles in Public: Please note the AGs wording foreclosed "demonstrations" and protests while doing the same. Think before you replace the Open Holster Rally with the AK-47 rally.

It's really interesting to see how little the other side really has when they can't introduce emotional appeals and an army of straw-men.

Open Carry of long guns for self defense, without a permit, is acceptable in Maryland in all places in which you can carry a concealed weapon.


How would NFA Firearms factor into this statement ?

and the Bradys jump in.....

http://www.baltimoresun.com/news/maryland/bs-md-concealed-carry-lawsuit-20110322,0,3701191.story

Shall we all take a walk at Inner Harbor with our AR's this weekend??

shawn said:

no I do not want to be the test case.

However it is worth writing a letter to the AG, using his own words and explicitly asking if we can carry a loaded rifle.

When he responds with a letter I would possibly try it out while carrying his letter.

At the very least this put to bed the whole "having a rifle in my car" debate.

He said that there were very few exceptions to carrying a rifle. The hunting statute that everyone cites wasnt one of them.

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Well, there actually is a law on the books about transporting long guns in the car. Same preemptions as the open carry (no schools, government facilities, public demonstrations), but it has to be unloaded and in a case/rack.

jawn said:

Well, there actually is a law on the books about transporting long guns in the car. Same preemptions as the open carry (no schools, government facilities, public demonstrations), but it has to be unloaded and in a case/rack.

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Link?

Norton said:

and the Bradys jump in.....

http://www.baltimoresun.com/news/maryland/bs-md-concealed-carry-lawsuit-20110322,0,3701191.story

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Nothing on Pacer yet from the Bradys...I've honestly been expecting them. I almost feel left out that they've not thrown their tripe into our Docket yet.

Just Recap'd today's filing, Doc #26 as well, the pdf has been removed from the announcement post on pg106 to conserve your bandwidth :
http://ia600101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.26.0.pdf

The Brady Amicus is welcome. Because Maryland copied so much from them, we get a two-fer on the rebuttal. And a good Amicus from the SAF side will be able to attack both Brady and the state in the same breath.

Keep in mind that 'reasonable regulation' is a Brady mythical standard they are pushing nationwide. It hasn't been used in a decision, but it does show the true colors of those who push it. That is because 'reasonable regulation' is just 'rational basis' in a new wrapping. Anyone who uses it is basically demonstrating contempt for the rules of Supreme Court: no rational basis allowed.

Atlasarmory said:

Open Carry of long guns for self defense, without a permit, is acceptable in Maryland in all places in which you can carry a concealed weapon.


How would NFA Firearms factor into this statement ?

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NFA firearms may be carried by persons with a CCW in MD. They're treated as handguns.

Inigoes said:

Link?

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I can't seem to track down the MD Criminal Code link in particular, but the NRA has this quick and dirty version of our laws.

http://www.nraila.org/statelawpdfs/MDSL.pdf

jawn said:

I can't seem to track down the MD Criminal Code link in particular, but the NRA has this quick and dirty version of our laws.

http://www.nraila.org/statelawpdfs/MDSL.pdf

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Let me help you www.michie.com/maryland/

Patrick said:

The Brady Amicus is welcome. Because Maryland copied so much from them, we get a two-fer on the rebuttal. And a good Amicus from the SAF side will be able to attack both Brady and the state in the same breath.

Keep in mind that 'reasonable regulation' is a Brady mythical standard they are pushing nationwide. It hasn't been used in a decision, but it does show the true colors of those who push it. That is because 'reasonable regulation' is just 'rational basis' in a new wrapping. Anyone who uses it is basically demonstrating contempt for the rules of Supreme Court: no rational basis allowed.

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Hell...Intermediate is just Rational-Robusto given the way some of these Courts are using analysis. Traxel (?) in the 4th with Chester, Mazzarella and Skoien marginally used some real analysis.

Did anyone else read a little "contempt" to the 4th Circuit in this ruling...kind of saying they got it wrong with Chester (But we hear you)...saying you can't use 1A corollary analysis for the 2A because guns are dangerous, etc...?

Remember the MD Apellate Court in Williams thumbing their noses at SCOTUS?

Even "IF" this case loses at the District, they (Defendants) won't survive the 4th, and even if they survive the 4th, we'll have a good Bear (which means Carry) case at the SCOTUS that MD thumbed their noses at, the same SCOTUS who really hoped people could read the Second Amendment AS WRITTEN.

Public Safety Interests must take a back seat to a Fundamental right. MD doesn't see this. There are at least 3 fatal tenets I see.

1a) Regulations that do not regulate conduct within the home do not fall within the scope of the Second Amendment.
~ They base this solely on decisions from SCOTUS post-Heller. This near-sightedness will be their undoing.

1b) Other Courts Have Overwhelmingly Concluded that Statutes Regulating Handgun Possession Only Outside of the Home Do Not Fall Within the Scope of the Second Amendment Right
Full of bravado...they then cite Williams as their sole source. Courts have NOT OVERWHELMINGLY concluded that the 2A only pertains to "in the home". The words "in the home" are still diligently being sought in the Amendment without success...

2) THE SECOND AMENDMENT GUARANTEES AN INDIVIDUAL RIGHT FOR LAW ABIDING CITIZENS TO KEEP AND BEAR ARMS FOR SELF-DEFENSE IN THE HOME, SUBJECT TO EXCEPTIONS.
~ Huh? This is "Reasonable Regulation"?

All in all, a great day for us...a "best given the situation" brief by the State, but even so, I give this case a 80/20 chance of going the Plaintiff's way in the District. Too many holes. Too many bridges burned to their subordinates IF it does go the Defendants way...

My "Calendar" has been loaded for the next event:
The plaintiffs’ reply in support of their motion for summary judgment
and response in opposition to the defendants’ cross-motion for summary
judgment- to be filed on or before April 15, 2011

Inigoes said:

Let me help you www.michie.com/maryland/

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Alright, after a good deal of searching, the only thing that I could find about transport of long guns in vehicles is that they have to be unloaded and be in accordance with the prohibited places of concealed/open carry.

I'm curious if states tried something similiar to the "only in the home defense" right after the other amendments were incorporated, and if the lower courts actually did a thorough analysis of a new incorporated right. Let's hope this judge just doesn't mail in a decision saying he won't rule on anything unless SCOTUS specifically has ruled on it. That would make me think that the lower courts have become lazy and useless.

I just RECAP'd the Brady Amicus, but until it comes online here it is.

It's a lot of the same, colored specifically for Maryland. That said, even Brady does not go so far as to claim Maryland's regulation would survive strict scrutiny.

But much of this is recycled and error-prone. They come up with this little gem:

Licensing officers are best situated to make determinations about who in their communities can carry concealed weapons safely and responsibly. They are likely to be more familiar with the backgrounds and personalities of the members of their communities than courts or juries situated miles (and perhaps even counties) away. They are best situated to know, for instance, whether a man requesting a carry permit previously has threatened his wife with violence (even if, say, she declined to testify against him so he was not formally charged), suffers disqualifying mental illness that is undocumented in public records, or, for other reasons, would pose a danger if carrying weapons in public. These are precisely the types of decisions that need to be made – and that Maryland law requires – in order to protect communities from firearm violence. See COMAR 29.03.02.04.

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Umm. Whah?

"Licensing Officers" are not local to me. They are nameless, faceless bureaucrats who spend 90 days waiting to stamp "DENIED" on a permit application. They do now know me and they are unlikely to live in my community. Brady doesn't help Maryland much here. More web to untangle. Maryland should have coordinated with these idiots better, but for now we'll call them peas in a pod.

On the plus side, not only is their drivel somewhat humorous, but it also undercuts the Maryland MSJ/memo by saying arguing that Maryland licensing officials deserve to use the discretion granted them. The same discretion that Maryland was carefully claiming did not really exist.

Brady: licensing officials need to use their subjective knowledge of the community and the people in it to prevent "those people" from having access to arms in public

Maryland: licensing official do not use discretion in preventing "those people" from having access to arms in public, because that would concede the SAF claim of prior restraint.

Thanks Brady!


There is more to laugh at concerning this single sentence alone (anyone recognize the case law shooting down the 'unknown mental conditions' that got handed down last year?), but I am hungry. Will circle back another time.

Thanks Patrick...ugh, 41 more pages of reading...

What is really freaky about the Brady's take on 2A, is that the 2A interferes with .gov.

Instead of the Constitution limiting what the .gov can do