Supreme Court Requested to Review MD Carry Case

Patrick · Apr 22, 2011

In case you didn't notice Krucam's latest entry (post #91)...

Stephen Halbrook took over the Williams case and is taking it straight to the Supreme Court to answer the Big Question:

Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution.

If the court grants cert (that means, accepts the question), this leapfrogs every RKBA case out there right now.

I added an initial explanation after Mark's post. Not sure whether we need a new thread or we keep the old one. I vote "New Thread" as this just moved into Federal space.

This is a Big Deal.

EDIT: Link to the Supreme Court Docket for Williams.

CASE STATUS as of 20 May 2011:

The Court will consider granting cert (agreeing to hear the case) this fall. Maryland owes a response to the petition by 7/15. No idea when the conference will be, but it will be after the court returns from their recess.

If granted cert, it will be heard this coming session - probably in the Fall. Final decision in late June 2012, almost two years to the day of McDonald.

CASE STATUS as of 27 July 2011:

All responses by Maryland and Petitioner are filed. The Court is scheduled to consider granting cert on the 26th of September. If they actually decide something at that conference, we will get word (yea or nay) about a week later. Nothing says they they will decide something on that date. They could push it out a little or even delay action. It's the Supreme Court...they will do what they wish.

But in simple terms, mark your calendars for the first week of October. That is the earliest we would see them say something.

joppaj · Apr 22, 2011

I'm ok with this being kept seperate. The older thread kind of wandered all over the place. When does the USSC have to announce whether they'll hear it?

Kingjamez · Apr 22, 2011

Is it your opinion that this "should" be the case that goes to the SC?

-Jim

krucam · Apr 22, 2011

joppaj said:
I'm ok with this being kept seperate. The older thread kind of wandered all over the place. When does the USSC have to announce whether they'll hear it?

Writs are reviewed on Conference Days, typically Fridays. Their Calendar is at:
http://www.supremecourt.gov/

4 of the 9 Justices must concur/agree that the Question asked is worthy or their time to hear, this is called the 'Rule of 4'. http://en.wikipedia.org/wiki/Rule_of_four

I want to say that 95%+ of Writs don't make it. I think Halbrook has proposed a very good Constitutional question. I can almost guarantee you we have Scalia & Alito already...just 2 more are needed to agree to hear it...

Patrick · Apr 22, 2011

joppaj said:
I'm ok with this being kept seperate. The older thread kind of wandered all over the place. When does the USSC have to announce whether they'll hear it?

Fair enough. You might want to lock the other one for a bit, then. Will repost my junk here.

Patrick · Apr 22, 2011

First, Stephen Halbrook is top notch.

Second, this is about as good a criminal case as we will ever have to get to the Supreme Court. Here are the facts, uncontested by both Maryland and the Plaintiff:

Williams legally purchased his handgun at a Maryland dealer, took a training course and took lawful possession of the gun a month later
Williams had the gun at his girlfriend's house and stopped by to take it home
A cop saw Williams rummaging in his bag at a bus stop and turned his cruiser around to check him out. The LEO saw Williams place something in some bushes
LEO asks Williams what was in the bushes. Williams states "my gun".
Arrest and hilarity ensue

Notice something here?

Williams was doing nothing wrong. No crime was alleged to occur, other than his possession of a lawfully acquired and owned handgun. He followed all the rules, save on: he did not have (or apply for) a carry permit.

This is a pure 2A case. This is not Chester - where some ******* beat his wife, kicked his daughter and then said "Gimme some guns!"

When it comes to that pesky permit, Halbrook dispenses with it here:

It is undisputed that Petitioner did not file an application for a handgun carry permit. He contended instead “that as a result of the regulatory scheme, ‘any such application would have been denied.’” The record does not disclose any documented threats, assaults or robberies against Petitioner that are a prerequisite to even potentially being able to obtain a carry permit for personal defense under the Maryland statutory scheme.

Of course, Maryland can try to argue that Williams should have applied for a permit before making this claim, but Maryland just argued in Woollard that absent any documentary evidence they can and will deny any and all who request it. That made the permit unattainable to Williams.

(My Argument/Point): Add to that the fact that even if he had applied, the process would have exceeded the time in which his arrest occurred. He was arrested barely two weeks after getting the gun from the dealer - Maryland routinely takes 90 days to rule on a permit.

None of that really matters, though. If the Court takes up this case, there are no arguments over little things like "standing". Simply put, if SCOTUS wants to take the case, it wil be all 2A all the way.

So let's get to the core argument Halbrook is making:

Instead of analyzing Heller in more detail, the Maryland court opined that Heller (and McDonald) only “address[ed] prohibitions against handgun possession in the home . . . .” Id. at 1176 & n.10 (string citing to cases). The court referred to “dicta in McDonald that ‘the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home . . . . .’” Id. at 1177, quoting McDonald, 130 S.Ct. at 3044. The Maryland court continued:

"Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."

The Maryland court concluded that the right to bear arms exists only in one’s home: “It is the exception permitting home possession in Section 4-203(b)(6) that takes the statutory scheme embodied in Section 4-203 outside of the scope of the Second Amendment, as articulated in Heller and McDonald.”

No fewer than ten state and federal courts have refused, relying on Heller, to recognize a constitutional right to bear arms outside the home. See Part II.B., below. Several have expressly acknowledged that they will not recognize such a right unless this Court does. The Fourth Circuit, relying on the Maryland Court of Appeals’ decision in the instant case, recently stated:

"On the question of Heller's applicability outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State,... ("If the Supreme Court, in [McDonald's] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.")"

United States v. Masciandaro,

Although this Court has specifically ruled only on the right to keep a handgun in the home, it is evident from the Court’s analyses and plain statements in Heller and McDonald that the right to bear arms exists outside the home. See Part I.B., below. Thus, the Maryland court’s decision and the other decisions limiting the scope of that right to the home (discussed in Part II.B.) have decided an important federal question in a way that conflicts with relevant decisions of this Court. If it should be contended that Heller and McDonald did not clearly establish that the Second Amendment applies outside the home, then this is an important question of federal law that has not been, but should be, settled by this Court.

The Big Question

"Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution."

Let's break it down:

"Whether peaceably carrying or transporting": only covers the good guys
"a Registered Handgun": oops But what does "registered" mean other than "lawfully purchased", as some states will consider a 4473 enough? This is a smart move because it takes the question of registration off the table, if the court so chooses.
"outside the home": non-specific and leaves sensitive places (whatever that means) intact
"without a carry permit that is unobtainable by ordinary, law-abiding citizens": a way to work around the fact Williams didn't even try to get one, but leaves open the door that SCOTUS might prefer to leave permits as a required item for RKBA (smart move...plays this both ways)
"is outside the scope" of 2A: the big question.

Summary:

If the Court wants this case, they could take it. The only real reach here is the fact Williams never tried to get a permit, but the way Halbrook phrased the query, the court is not cornered into deciding that issue right now. They can answer the particular question over public RKBA and ignore whether a permit is even required. Or they can rule there, too.

This is a case of whether the right supersedes the state's willingness to recognize it.

Patrick · Apr 22, 2011

krucam said:
Writs are reviewed on Conference Days, typically Fridays. Their Calendar is at:
http://www.supremecourt.gov/

4 of the 9 Justices must concur/agree that the Question asked is worthy or their time to hear, this is called the 'Rule of 4'. http://en.wikipedia.org/wiki/Rule_of_four

I want to say that 95%+ of Writs don't make it. I think Halbrook has proposed a very good Constitutional question. I can almost guarantee you we have Scalia & Alito already...just 2 more are needed to agree to hear it...

Roberts, Thomas and Kennedy are the other three who might take this.

Thomas was pretty clear in McDonald - the 14th applies via P&I and 2A is a fundamental right. There was no judicial averaging of his words, they were his alone. I think we count him as a vote to take this.

That leaves...

Roberts, who is reportedly shy about things like constitutional carry and restricting "law and order" practices. Hence (I think) the deference given by Halbrook in the question regarding permits, registration and places.

Kennedy likes the individual liberty aspects of 2A and is a civil rights proponent. One thing that might pique his interest is the manner of the arrest: the LEO saw a man at a bus stop rummaging through his backpack and decided that was enough to turn a cruiser and start asking questions. I do that all the time in public with my pack. What is it about the way Williams looked that caused the suspicion? I am not starting that discussion here (which has no value anyway), but am noting that as written, the record makes one wonder what kind of profiling was involved. Kennedy likes these questions, if only to prove a point. So that could cause him more than normal interest.

Assuming Thomas, we need one more.

I think the question is carefully written, and the Supreme Court can re-write it to some extent. If they want to take a public RKBA case, this one would be easy for them to accept. Assuming they ruled the way we hope they will, the criminal conviction aspect could be used to lend strong force to their opinion.

joppaj · Apr 22, 2011

Patrick said:
Fair enough. You might want to lock the other one for a bit, then. Will repost my junk here.

I have locked that one for now. If USSC does not agree to hear the case, I will re-open that one.

MOD SPEAK

Folks, PLEASE keep this thread on topic.

Patrick · Apr 22, 2011

Kingjamez said:
Is it your opinion that this "should" be the case that goes to the SC?

-Jim

As phrased, the question meets our need and the case fits better than any other criminal case could. Here the whole case was about a guy getting convicted (with jail time) for performing what all of us consider a fundamental right, and nothing else.

This isn't academic. A man's freedom is at stake. The Supreme Court is said to be more likely to review something they consider "wrong" when it involves jail time. Other times they may sit back and wait for the right case to come along.

I hope they take it. Their conferences are busy, and it might be a few months before they consider this request.

In terms of timing, an accepted case could get on the calender for the upcoming session, which means being heard this year. Decision roughly in line with that of McDonald, but two years later. So probably by June 2012, but possibly sooner.

Afield · Apr 22, 2011

Don't forget...Miranda was a criminal case too. And boy was he no saint.

Kharn · Apr 22, 2011

I'll wait outside overnight for orals, if cert is granted. Anyone else?

JasonN3ZBO · Apr 22, 2011

Kharn said:
I'll wait outside overnight for orals, if cert is granted. Anyone else?

Count me in!

05FLHT · Apr 22, 2011

Heck, I might make a road trip. I am looking forward to an answer with great anticipation.

boricuamaximus · Apr 22, 2011

krucam said:
Writs are reviewed on Conference Days, typically Fridays. Their Calendar is at:
http://www.supremecourt.gov/

4 of the 9 Justices must concur/agree that the Question asked is worthy or their time to hear, this is called the 'Rule of 4'. http://en.wikipedia.org/wiki/Rule_of_four

I want to say that 95%+ of Writs don't make it. I think Halbrook has proposed a very good Constitutional question. I can almost guarantee you we have Scalia & Alito already...just 2 more are needed to agree to hear it...

Thomas will go for it. Just need to start doing vodo dances and Kennedy will say it's ok.

krucam · Apr 22, 2011

Kharn said:
I'll wait outside overnight for orals, if cert is granted. Anyone else?

JasonN3ZBO said:
Count me in!

I tried to get into McDonald. Got up there around 5:30am, dark, cold and #75 in line. They only let 50 in when they started entry at 9:30am. 4 hours for nothing sucked.

Yep, overnight and IF this happens, we need a driver to show up at 9:25am...more later... :innocent0

BeltBuckle · Apr 22, 2011

Kharn said:
I'll wait outside overnight for orals, if cert is granted. Anyone else?

That may not do any good. I was 4th in line to hear oral arguments in a case I was interested in a while back, and the public interest was so high and the line so long that they tried to boot me out and rotate others in after about 5 of 60 minutes. I protested and almost got arrested. I did get to hear the whole thing, but only because as they ushered me out I exploited a moment of inattention, slipped the flock, circled back, and sat in an area forbidden for taxpaying citizens (equal protection my okole).

I agree w/ Patrick & Krucam -- this case has most of the elements we want. I'll be more than a little surprised if they don't grant cert -- there are, IMHO, at least 3 votes certain; Roberts may punt, and though this is the kind of thing that Kennedy loves to bloviate about, he may chicken out. We'll see.

Assuming they grant cert, I can see them punting because a permit had not been applied for and denied, regardless of the details mentioned above (SCOTUS can demonstrate a gift for invertebrate behavior). But here's one that gives me nightmares -- say they grant cert and hear the case, and then decide... R2KBA does not apply, fundamentally, outside the home? :facepalm:

I don't see how they could do so, given the historical record adduced in Heller, but this case puts the rubber squarely on the road. :poke:

I could imagine serious and terrible consequences if they decide in that direction... :draw:

press1280 · Apr 22, 2011

krucam said:
I tried to get into McDonald. Got up there around 5:30am, dark, cold and #75 in line. They only let 50 in when they started entry at 9:30am. 4 hours for nothing sucked.

Yep, overnight and IF this happens, we need a driver to show up at 9:25am...more later...

Don't they have "professional line holders" or something like that where you pay someone to stand in line all night for you?

My question is this: Can SCOTUS take into account Gansler's oral arguments in Wollard and the fact Wollard was denied?
Also, is there a middle ground possible-SCOTUS grants cert. and then remands back to MD with some choice words?

krucam · Apr 22, 2011

press1280 said:
Don't they have "professional line holders" or something like that where you pay someone to stand in line all night for you?

Many did. I have no idea what the going rate is. There's a Starbucks and 7/11 a few blocks south. People are cool about jumping out of line for a half hour or so. Sleeping bags to stay warm, laptop to stay entertained...it all needs to go away before entering...thats where the duty driver comes in...

My question is this: Can SCOTUS take into account Gansler's oral arguments in Wollard and the fact Wollard was denied?
Also, is there a middle ground possible-SCOTUS grants cert. and then remands back to MD with some choice words?

Woollard the case will be well out of District and perhaps Circuit before Williams ever makes it to Arguments. Woollard the plaintiff's trials and tribulations will be a matter of record by then.

Remanding back...no. This was the MD Court of Appeals (State) decision. If it was the MD District or 4th Circuit, possibly.

ezliving · Apr 22, 2011

Isn't the Williams case where the defense attorney was very unprepared during his orals. Am I confused? This is the one where the defendant tossed his handgun in the bushes when he saw the cops, isn't it?

krucam · Apr 22, 2011

ezliving said:
Isn't the Williams case where the defense attorney was very unprepared during his orals. Am I confused? This is the one where the defendant tossed his handgun in the bushes when he saw the cops, isn't it?

Yup...Williams, not Woollard.

Supreme Court Requested to Review MD Carry Case

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