New Maryland Wear and Carry Lawsuit

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  • swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    It was decided differently in 2 different Circuits post Woollard

    With the DC ruling in Wrenn, we now have a split that SCOTUS can rule on. Woolard was decided before Wrenn, so it doesn't create the split needed. Previously decided cases can't be used to apply for CERT as I understand this.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    But the 4th Circuit has already ruled on this issue, so there is already a split.

    You can bring a new case to try different facts and determine whether the standard was properly applied, but you can't bring a new case to try the same legal issue of whether "good and substantial" is constitutional. That issue has been decided.

    Of course you can bring a new suit, even a facial suit, if the avowed purpose is to seek to have that otherwise binding precedent overturned. That is what these complaints expressly allege as the purpose. None of these circuit decisions (2d, 3d, and 4th) is binding on the Supreme Court. Denial of cert in those cases is not precedent on the question and all those denials took place prior to Wrenn. The whole point of all three complaints is to provide a case or controversy for asking the Supreme Court to review the split.
     

    Abulg1972

    Ultimate Member
    Of course you can bring a new suit, even a facial suit, if the avowed purpose is to seek to have that otherwise binding precedent overturned. That is what these complaints expressly allege as the purpose. None of these circuit decisions (2d, 3d, and 4th) is binding on the Supreme Court. Denial of cert in those cases is not precedent on the question and all those denials took place prior to Wrenn. The whole point of all three complaints is to provide a case or controversy for asking the Supreme Court to review the split.

    Sure . . . you can bring a new suit in federal court to challenge settled law, but you're likely to receive sanctions.

    The 4th Circuit Court of Appeals has overturned the District Court and ruled that Maryland's "good and substantial reason" is a constitutional standard. You're telling me that you'd feel comfortable advising a client to bring a new suit in the District Court for the District of Maryland to challenge whether the "good and substantial reason" standard is constitutional? You're braver than me.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Sure . . . you can bring a new suit in federal court to challenge settled law, but you're likely to receive sanctions.

    The 4th Circuit Court of Appeals has overturned the District Court and ruled that Maryland's "good and substantial reason" is a constitutional standard. You're telling me that you'd feel comfortable advising a client to bring a new suit in the District Court for the District of Maryland to challenge whether the "good and substantial reason" standard is constitutional? You're braver than me.

    Bringing a new suit for purposes of seeking reversal of existing circuit precedent by the Supreme Court is not sanctionable conduct. See ABA Model Rules of Professional Responsibility, Rule 3.1:

    Rule 3.1: Meritorious Claims & Contentions
    Advocate
    Rule 3.1 Meritorious Claims And Contentions
    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

    Here the "good faith argument" (set out expressly in the complaint) is that the 4th Circuit erred in Woollard for the reasons set forth by the D.C. Circuit in Wrenn on the constitutionality of a "good reason" requirement. The court, of course, will adhere to Woollard (unless they decide to go en banc), but that is merely the vehicle for seeking SCT review of the circuit split created by Wrenn on this very question. No court will sanction counsel for that argument. And yes, I would be perfectly comfortable in representing a client and making that argument. Indeed, this now extant circuit conflict could well serve as a basis for seeking initial en banc review in the 4th Circuit under Rule 35 of the Federal Rules of Appellate Procedure. When I worked at Civil Appellate at DOJ, we conducted appeals for precisely this reason of getting en banc review of circuit conflicts that had developed subsequent to the decision that was circuit precedent. And it worked. See, e.g., Detroit Free Press Inc. v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (en banc).
     

    Abulg1972

    Ultimate Member
    Bringing a new suit for purposes of seeking reversal of existing circuit precedent by the Supreme Court is not sanctionable conduct. See ABA Model Rules of Professional Responsibility, Rule 3.1:

    Rule 3.1: Meritorious Claims & Contentions
    Advocate
    Rule 3.1 Meritorious Claims And Contentions
    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

    Here the "good faith argument" (set out expressly in the complaint) is that the 4th Circuit erred in Woollard for the reasons set forth by the D.C. Circuit in Wrenn on the constitutionality of a "good reason" requirement. The court, of course, will adhere to Woollard (unless they decide to go en banc), but that is merely the vehicle for seeking SCT review of the circuit split created by Wrenn on this very question. No court will sanction counsel for that argument. And yes, I would be perfectly comfortable in representing a client and making that argument. Indeed, this now extant circuit conflict could well serve as a basis for seeking initial en banc review in the 4th Circuit under Rule 35 of the Federal Rules of Appellate Procedure. When I worked at Civil Appellate at DOJ, we conducted appeals for precisely this reason of getting en banc review of circuit conflicts that had developed subsequent to the decision that was circuit precedent. And it worked. See, e.g., Detroit Free Press Inc. v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (en banc).

    I wasn't referring to sanctions by Bar Counsel. I was referring to the decent possibility that the court would find the suit to be frivolous and impose monetary sanctions on the plaintiff and counsel - e.g., paying the State's attorneys' fees, etc.

    We must all assume that the Court of Appeals for the 4th Circuit thoroughly considered the relevant issues when it concluded that the good and substantial standard is constitutional. In light of that, to me, the argument that "you got it wrong. See what the D.C. Circuit did" seems a little risky. At a minimum, I would expect that the new plaintiff's circumstances were different enough to warrant a factual/application challenge.
     

    Abulg1972

    Ultimate Member
    I know that there is a judicial procedure (by which I mean, the stars must align, there must be a sufficient number of circuits in conflict, the issue has to be right, etc., etc.) that must be followed before cases get before the SCOTUS and I know that, for arguably good reason, the Court generally won't take up an issue until it has the "right" case, but I seriously wish that the Court would just decide these issues - rule on the constitutionality of bans on assault weapons and "high capacity" magazines, and right to carry. Think of all the money, energy, violence, polarization, etc. that the issues have required, caused, etc. and will continue to require, cause, etc.

    I almost think it's judicial negligence, if there were such a thing, for the Court to ignore these cases.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    I know that there is a judicial procedure (by which I mean, the stars must align, there must be a sufficient number of circuits in conflict, the issue has to be right, etc., etc.) that must be followed before cases get before the SCOTUS and I know that, for arguably good reason, the Court generally won't take up an issue until it has the "right" case, but I seriously wish that the Court would just decide these issues - rule on the constitutionality of bans on assault weapons and "high capacity" magazines, and right to carry. Think of all the money, energy, violence, polarization, etc. that the issues have required, caused, etc. and will continue to require, cause, etc.

    I almost think it's judicial negligence, if there were such a thing, for the Court to ignore these cases.

    I couldn't agree with you more!
     

    GOG-MD

    Active Member
    Aug 23, 2017
    366
    AA County
    Your dues goes to NRA, not NRA-ILA, so they don't fund any lawsuits.

    If your donations are specifically to NRA-ILA, then they go to fund the lawsuits, if not, then no they don't.

    If you want to support NRA-ILA lawsuits the donations need to be made specifically to NRA-ILA.

    Yeah, I donate specifically to the ILA for stuff like this. Here's hoping the lawsuit makes some headway.
     

    Cold Steel

    Active Member
    Sep 26, 2006
    801
    Bethesda, MD
    --
    ...[Maryland requires] that a citizen show “good and substantial” reason to obtain a concealed carry permit.
    Because of this requirement, Maryland residents
    must prove they are under some extraordinary
    imminent threat
    in order to be granted a permit.

    --

    Yeah, by the time one's under "imminent threat" it's too late to apply for the permit. And by the time it's over (if one is still alive) he or she is no longer under imminent threat and you don't need the permit.

    They've got you either way!

    We should have a bill introduced that will let us bury you with a gun and permit if you're killed without one when you do come under an imminent threat!
     

    Biggfoot44

    Ultimate Member
    Aug 2, 2009
    32,880
    This year was introduced a Bill whereby recieving a Protective Order ( as the Protectee) would be automatic G&S . The post 2013 scheme would still require the 16hr Training , which would be the limiting factor in speed of issuence . Died in Committee .

    Recent years have had series of similar Bills , with variations of Protective Orders enabling expedited issuence of W&C , to the Order itself serving as a Carry Permit. The common theme of all of them was not making out from Committee .

    ( And for that matter , every Session sees multiple Shall Issue Bills, and at least one Reciprocity Bill . All of which share the fate of never leaving Committee .
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    This year was introduced a Bill whereby recieving a Protective Order ( as the Protectee) would be automatic G&S . The post 2013 scheme would still require the 16hr Training , which would be the limiting factor in speed of issuence . Died in Committee .

    Recent years have had series of similar Bills , with variations of Protective Orders enabling expedited issuence of W&C , to the Order itself serving as a Carry Permit. The common theme of all of them was not making out from Committee .

    ( And for that matter , every Session sees multiple Shall Issue Bills, and at least one Reciprocity Bill . All of which share the fate of never leaving Committee .

    Do they even get a vote?
     

    wolfwood

    Ultimate Member
    Aug 24, 2011
    1,361
    This may work out well for us. We really need another vacancy on SCOTUS to bhe sure of a win here. By the time this is decided at the 4th we may have that.
     

    Bigfoot21075

    Ultimate Member
    Nov 3, 2008
    1,404
    Elkridge, MD
    Not going to happen


    Sent from my iPhone using Tapatalk

    I agree - the Dims have NOTHING to run on, hate Trump and identity politics. I pray pelosi stays in whatever form of alive she is in now, she is GREAT for the GOP.

    We REALLY need to figure out how to get every last SOB out to vote this time....
     

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