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

Patrick · Sep 21, 2010

shawn said:
Patrick,

You keep saying there was no second amendment in Maryland before June but is that really the case?

The state of Maryland has always been bound to the U.S. Constitution.

I know that the second is now incorporated against the states but the supremacy clause says that the Constitution is the supreme law of the land.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

It gets better. MD actually has a pointer to the US Constitution in its Constitution that says, "Yeah, what they said."

But MD Courts long ago ruled that to be a literary flourish, not binding in any way (citation welcome from someone who knows it off hand).

The US Constitution was ruled in 1833 to apply only to Federal matters and enclaves by a unanimous Supreme Court in Barron v. Baltimore. Basically, only the Congress had to follow it. They ruled that the Constitution did not encumber the states; this means the Bill of Rights did not protect the citizens of the many states. Seriously...read that again - that "WTF?" feeling you just got is real.

The 14th Amendment tried to fix this by applying all rights to the states, but five years later that was gutted by the Supreme Court in a series of cases know as "the Slaughterhouse Cases".

Selective Incorporation of rights started in the early 20th Century using a theory of law that conveniently by-passed previous the previous Supreme Court rulings against the 14th. That theory ("Substantive Due Process") survived and flourished. It is the basis of most every incorporated enumerated (written, like freedom of speech) and unenumerated (not written, like abortion) right we have. It makes the states heed our rights outlined in the US Constitution (plus a few not listed), bit by bit.

So yeah, they lied to you in High School civics class. The Bill of Rights did not apply to you until someone in the 20th Century made pieces stick, one by one. The Second Amendment is just the most recent one to be "stuck". But in defense of your teachers, they didn't know what they hell they were talking about. They deserve forgiveness. And education.

shawn · Sep 21, 2010

krucam said:
Read pgs 22-26 of the Scherr (2005) case: http://www.courts.state.md.us/opinions/cosa/2005/780s04.pdf

They (MD) still live in that world...

I understand how they think.

But I dont think we should jump onboard and say the 2a didnt exsist in md until June.

shawn · Sep 21, 2010

Patrick said:
It gets better. MD actually has a pointer to the US Constitution in its Constitution that says, "Yeah, what they said."

But MD Courts long ago ruled that to be a literary flourish, not binding in any way (citation welcome from someone who knows it off hand).

The US Constitution was ruled in 1833 to apply only to Federal matters and enclaves by a unanimous Supreme Court in Barron v. Baltimore. Basically, only the Congress had to follow it. They ruled that the Constitution did not encumber the states; this means the Bill of Rights did not protect the citizens of the many states. Seriously...read that again.

The 14th Amendment tried to fix this by applying all rights to the states, but five years later that was gutted by the Supreme Court in a series of cases know as "the Slaughterhouse Cases".

Selective Incorporation of rights started in the early 20th Century using a theory of law that conveniently by-passed previous the previous Supreme Court rulings against the 14th. That theory ("Substantive Due Process") survived and flourished. It is the basis of most every incorporated enumerated (written, like freedom of speech) and unenumerated (not written, like abortion) right we have.

So yeah, they lied to you in High School civics class. The Bill of Rights did not apply to you until someone in the 20th Century made pieces stick, one by one. The Second Amendment is just the most recent one to be "stuck". But in defense of your teachers, they didn't know what they hell they were talking about. They deserve forgiveness. And education.

Awesome summation.

The only point I want to highlight is that MD court saying that its a "literay flourish" was wrong....thus it should be ignored.

Barron v. Baltimore was wrong....thus it should be ignored.

The slaughterhouse cases were wrong....thus should be ignored.

I dont mean break the law. I mean if something was decided wrongly than say so....dont say the 2nd didnt exsist before june. Say after June the states are FORCED to recognize the 2nd. But it always exsited and the founders always expected the states to follow it.

Patrick · Sep 21, 2010

shawn said:
I understand how they think.

But I dont think we should jump onboard and say the 2a didnt exsist in md until June.

I understand your confusion and dismay. The plaintiff in Scherr argued a few things of note: that the Second Amendment should apply; and also argued that the existence of 2A in itself was "proof" that the world is a dangerous place and therefore Scherr should get his permit.

The MD Court of Appeals settled the entire argument in one line, "Appellant’s argument is non-meritorious."

They further reinforced their view with a reference to Onderdunk (linked in a post above this one), where that Court said plainly of the same argument, "It [restricting permits] does not violate the Second Amendment because that amendment is not applicable to the States."

Don't let common sense stand between you and the law.

jonnyl · Sep 21, 2010

shawn said:
I understand how they think.

But I dont think we should jump onboard and say the 2a didnt exsist in md until June.

It could be worded as "prior to June 2010, there was no law or precedent that required Maryland to recognize that the 2nd Amendment applied to Maryland citizens and they could make any laws restricting firearms that they wanted" .

Pre-McDonald saying "but what about my 2A rights" in Maryland had no more meaning to the Maryland government than saying "Lady Gaga commands you to repeal the 20 round magazine limit". Both statements meant they could write you off as a nut and there was nothing anyone could do about it. (legally - voting the bums out is a different story)

Patrick · Sep 21, 2010

shawn said:
... I mean if something was decided wrongly than say so....dont say the 2nd didnt exsist before june. Say after June the states are FORCED to recognize the 2nd. But it always exsited and the founders always expected the states to follow it.

I agree, with some caveats. We were looking at the same coin through two sets of lens: what "is" and what "should have been."

There is some argument over whether the Founders intended the BoR to apply to the states. They answer is generally "no", only because they would never have gotten ratification if they forced the matter. The states were too weary of centralized authorities. But the 14th was ratified specifically for that purpose, and it was wrongly gutted five years later. We're not alone in thinking that - a good many legal scholars (the majority) all feel much the same way. The current controversies have more to do with correcting the record and opening the door to even more unenumerated rights (overturning Slaughterhouse could open some doors many want to stay closed).

The Founders did a great thing in crafting the Constitution, but they could not have gotten it ratified without adding some "wiggle room" for the states to selectively ignore parts of it at their choosing. It's an ugly truth that we tend to gloss over. The smartest of the bunch most surely suspected we'd get to a moment where the union would galvanize and our rights would be recognized in whole by all (including slaves). I just don't know if they thought it would take this long (we're still not done and it has nothing to do with 2A).

Dead Eye · Sep 21, 2010

Patrick said:
I agree, with some caveats. We were looking at the same coin through two sets of lens: what "is" and what "should have been."

There is some argument over whether the Founders intended the BoR to apply to the states. They answer is generally "no", only because they would never have gotten ratification if they forced the matter. The states were too weary of centralized authorities. But the 14th was ratified specifically for that purpose, and it was wrongly gutted five years later. We're not alone in thinking that - a good many legal scholars (the majority) all feel much the same way. The current controversies have more to do with correcting the record and opening the door to even more unenumerated rights (overturning Slaughterhouse could open some doors many want to stay closed).

The Founders did a great thing in crafting the Constitution, but they could not have gotten it ratified without adding some "wiggle room" for the states to selectively ignore parts of it at their choosing. It's an ugly truth that we tend to gloss over. The smartest of the bunch most surely suspected we'd get to a moment where the union would galvanize and our rights would be recognized in whole by all (including slaves). I just don't know if they thought it would take this long (we're still not done and it has nothing to do with 2A).

OK, now I think I'm getting it, in that SAF is basically telling Gansler, "Historically, it was wrong, so fix it the way it was REALLY intended to be, which was - it's our God given right."

Changing subjects slightly, wasn't it the Slaughterhouse Rules that kept the SCOTUS from proclaiming or defining, carte blanche, the 2A Rights to the citizen? It seems like I recall one of them commented to Attorney Gura, during McDonald, basically that he was not going to give a broad opinion because it would in essence "undo" 150 years worth of law - referring to Slaughterhouse?

Patrick · Sep 21, 2010

Dead Eye said:
OK, now I think I'm getting it, in that SAF is basically telling Gansler, "Historically, it was wrong, so fix it the way it was REALLY intended to be, which was - it's our God given right."

Pretty much. We're saying to MD, "You're looking at this the wrong way. The responsibility is for the government to prove that a certain individual should not have it; not the other way around."

Changing subjects slightly, wasn't it the Slaughterhouse Rules that kept the SCOTUS from proclaiming or defining, carte blanche, the 2A Rights to the citizen? It seems like I recall one of them commented to Attorney Gura, during McDonald, basically that he was not going to give a broad opinion because it would in essence "undo" 150 years worth of law - referring to Slaughterhouse?

Yes. Overturning Slaughterhouse comes with a cost beyond just saying "Oops, our bad."

Progressives love the P&I clause of the 14th because to them it opens the door to many "unenumerated rights" - rights that are interpreted from the Constitution but are not specifically written (abortion, etc.). We could take a whole thread on this, so suffice to say if you poke around the net you'll find lots of theory on how that would work, especially when combined with the next clause regarding "life, liberty and property". Many progressive feel that a reinvigorated P&I would open the door to a nationalized social scheme that guarantees life (health care), liberty (anything goes) and property (welfare) to all.

I don't buy all of it. There are limits on everything, including 2A (no "Machine Guns for Tots" programs at the local mall, for instance).

Still, it worries the Conservatives in our nation quite a bit while also exciting the Left. So there must be some fire behind that smoke. The current regime of Substantive Due Process appears to have struck a safe - though controversial - middle ground.

rambling_one · Sep 21, 2010

Patrick said:
There is some argument over whether the Founders intended the BoR to apply to the states. They answer is generally "no", only because they would never have gotten ratification if they forced the matter.

It's a hard notion to accept that the Founders, on one hand, would insist on including the 2A in the BoR and, on the other, give up their arms to the states.

The question of including a 2A statement arose during the writing of Maryland's Constituion. If memory serves, a representative from Baltimore argued against inclusion, saying in effect that it would be redundant, precisely because it was already in the Federal document which is the supreme law of the land. He
carried the day and we've been screwed ever since.

Dead Eye · Sep 21, 2010

Patrick said:
Pretty much. We're saying to MD, "You're looking at this the wrong way. The responsibility is for the government to prove that a certain individual should not have it; not the other way around."

Yes. Overturning Slaughterhouse comes with a cost beyond just saying "Oops, our bad."

Progressives love the P&I clause of the 14th because to them it opens the door to many "unenumerated rights" - rights that are interpreted from the Constitution but are not specifically written (abortion, etc.). We could take a whole thread on this, so suffice to say if you poke around the net you'll find lots of theory on how that would work, especially when combined with the next clause regarding "life, liberty and property". Many progressive feel that a reinvigorated P&I would open the door to a nationalized social scheme that guarantees life (health care), liberty (anything goes) and property (welfare) to all.

I don't buy all of it. There are limits on everything, including 2A (no "Machine Guns for Tots" programs at the local mall, for instance).

Still, it worries the Conservatives in our nation quite a bit while also exciting the Left. So there must be some fire behind that smoke. The current regime of Substantive Due Process appears to have struck a safe - though controversial - middle ground.

Thanks, I think I got it now. Now I can put words around the feeling I get when thinking about this whole mess. It's kinda like someone who has just kicked me in the b@!!$, as I am down on all fours I am looking up at them through teary eyes, thinking, "You just wait until I get up!"

Spot77 · Sep 21, 2010

Fellas,

I just want to compliment you all on a fantastic, enlightening conversation.

I'm no less interested in it than the rest of you, but my legal knowledge is slim, and my time for research is even less.

Thanks for letting the rest of us follow along. :thumbsup:

krucam · Sep 21, 2010

Spot77 said:
Fellas,

I just want to compliment you all on a fantastic, enlightening conversation.

I'm no less interested in it than the rest of you, but my legal knowledge is slim, and my time for research is even less.

Thanks for letting the rest of us follow along.

We're fortunate to have members who "stayed at a Holiday Inn Express last night"....I on the other hand was last at one 6 months ago, it feels...

Oreo · Sep 21, 2010

Spot77 said:
Fellas,

I just want to compliment you all on a fantastic, enlightening conversation.

I'm no less interested in it than the rest of you, but my legal knowledge is slim, and my time for research is even less.

Thanks for letting the rest of us follow along.

+1

Patrick · Sep 21, 2010

We're fortunate to have members who "stayed at a Holiday Inn Express last night"....I on the other hand was last at one 6 months ago, it feels...

Hah. I prefer the Hojo Inn for that retro-seedy feeling you get from the brown decor and insect companions.

I'm no less interested in it than the rest of you, but my legal knowledge is slim, and my time for research is even less.

Thanks. Time for reading is tough now that I have a toddler. Most of the stuff I reference comes from previous time in a chair reading David McCollough and related authors. I know we have a lot of Civil War buffs on the site here - I am the complete opposite in that I am fascinated by the times before and immediately after the conflict. Post-Civil War Reconstruction is still not done, in my opinion. The Second Amendment is a big part of it, but not all of it.

These threads are, to me, some of the best on MDS. There are an incredible set of people on here who all add (and subtract when needed) our collective view of things. These threads also remind me I should stay away from the Water Cooler; that I should stick to "stuff about guns."

Trapper · Sep 21, 2010

Patrick said:
So anticipating a question: Why a permit at all?

Simply put, there is an interest in weeding out dangerous people. That interest would survive a constitutional challenge so long as it is objective (not subject to personal views) and the terms of the permit process clearly acknowledge the fundamental nature of your right.

I respectfully disagree with your analysis. If truely looking from the "why permit at all" perspective, it seems to me that permitting serves no useful purpose.

As we have seen with the bans and restrictions, the purpose of keeping criminals and crazy people from getting guns is not served by issuing permits. Those people who are willfully violating the law will continue to do so.

This leaves my simple argument as "the State cannot prove a compelling interest to issue permits, because permits do not prohibit someone from carrying a gun". All the permit does is provide another restriction "you can't carry without a permit", but they don't actually stop anyone from doing it.

The State could prove a compelling interest in denying criminals and crazy people firearms, but permits don't do that, background checks when purchasing firearms do. Even if another background check is done for the permit, that won't keep them from getting a gun, they probably already have it!

Gray Peterson · Sep 21, 2010

Trapper said:
I respectfully disagree with your analysis. If truely looking from the "why permit at all" perspective, it seems to me that permitting serves no useful purpose.

As we have seen with the bans and restrictions, the purpose of keeping criminals and crazy people from getting guns is not served by issuing permits. Those people who are willfully violating the law will continue to do so.

This leaves my simple argument as "the State cannot prove a compelling interest to issue permits, because permits do not prohibit someone from carrying a gun". All the permit does is provide another restriction "you can't carry without a permit", but they don't actually stop anyone from doing it.

The State could prove a compelling interest in denying criminals and crazy people firearms, but permits don't do that, background checks when purchasing firearms do. Even if another background check is done for the permit, that won't keep them from getting a gun, they probably already have it!

You need an actual right to bear outside of the home respected by the courts before you go after fees, training requirements, other restrictions, before you go for the kill with annihilating the licensing system itself.

Gura is one of the best legal maestros ever, and on 2A issues, there is no one better.

Dead Eye · Sep 21, 2010

Gray Peterson said:
You need an actual right to bear outside of the home respected by the courts before you go after fees, training requirements, other restrictions, before you go for the kill with annihilating the licensing system itself.

Gura is one of the best legal maestros ever, and on 2A issues, there is no one better.

Roger. That can wait until next week (going after the fees, etc...).

Patrick · Sep 21, 2010

Gray Peterson said:
You need an actual right to bear outside of the home respected by the courts before you go after fees, training requirements, other restrictions, before you go for the kill with annihilating the licensing system itself.

Gura is one of the best legal maestros ever, and on 2A issues, there is no one better.

I respectfully disagree with your analysis. If truely looking from the "why permit at all" perspective, it seems to me that permitting serves no useful purpose.

As Gray noted, the argument over a permitting system will likely be made if we win. My opinion is one will be allowed; there is enough of an argument that it will be held constitutional provided it does the things we need it to do. The Courts may go our way on this phase but are not likely to go so far as a gun free-for-all. I am not saying that is my preferred outcome, only my educated opinion.

And just to rile you up (

), I also think (humble opinion only) that in the future a limited registration scheme may be allowed but with a toothless penalty. But not with this Court; a future Court will go there. If we don't see a registration challenge soon after this set of cases, that fight will live on. If we win, the grabbers are going to learn and will tone back attacks until they know they can win. Stuff like registration will go unanswered and they will be fought under more permissive environments. You can see why this is important right now.

Also do not see most of what we hate about NFA or FOPA (MG Ban) being undone without legislative intervention under this Court or a likely future one.

swinokur · Sep 21, 2010

Spot77 said:
Fellas,

I just want to compliment you all on a fantastic, enlightening conversation.

I'm no less interested in it than the rest of you, but my legal knowledge is slim, and my time for research is even less.

Thanks for letting the rest of us follow along.

Spot I second that. I spend a lot of time on other Gun Boards and this group is by far the most civil, knowledgeable and supportive place I have found.

It doesn't hurt that they also possess the wackiest sense of humor ever.

and i didn't post this to kiss the mods' asses either.

"I love you man"

Dave MP · Sep 21, 2010

Civility? This thread yes.

Take a look at all the civility in the Gaga thread! :sad20:

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