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

SkunkWerX said:

Glad to hear Chester now has mention in the MSJ.
Glad to hear the 3-7-11 date has been set. Not too far away, not at all.

At this point, am I correct in saying that there should be a reply from the defendants by 3-7-11? Something? Even if it's incoherent?

Then looking forward, it's reasonable and expected that the Honorable Judge Motz could take 2 to 3 months to issue his decision? June-ish?

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Maryland is likely to request an extension. We are more likely to see a response by mid or late month. It is generally the case that the SAF willingly accepts the extension requests, but in this case they could do what they did in Chicago and declare "Enough". It comes down to the SAF schedule. The SAF is real busy right now. They might welcome a few weeks worth of delay.

Maryland has avoided the fight entirely. Now they need to actually defend.

If Maryland again responds with the same tired arguments over standing, this case is over. They will be non-responsive. All they could do is hope the Fourth Circuit would take their case on appeal - and continue to argue the standing and abstention issues. But the Fourth has been clear on some of them already. The appeals court would probably deny review, or maybe even take it to end the argument entirely.

But I don't think any of that will happen. Whatever Maryland thinks its defense might be, it has been holding it back.

If history is to be repeated, they will go for more delaying tactics. Don't be surprised to see the words "limited discovery" in their response. The judge shut down one avenue for discovery (by saying the SAF standing issue is not an issue). They could try to perform discovery revolving around Woollard's "cause", but the SAF would oppose on the grounds that Woollard is challenging the constitutional basis of that law - not how it was interpreted in his case. No...the best shot they have to delay is to attempt some sort of fact-finding vis a vis the 14th Amendment claim. But even that would be weak sauce.

So they might attempt to avoid the argument yet again. But that is highly risky at this juncture. There is another strong MSJ on the table and the case has wore on since last July with still no real response from Maryland on the constitutional issues. They did put forth an affirmative defense in their last reply, which most of us saw as delaying action. Maryland runs the risk that the District Court accepts their last affirmative defense as the defense and rules against their next delay attempts. He could presumably rule on the MSJ at any point.

I think Maryland has to throw it all out there right now: argue their true defense while also asking for more delaying tactics. The SAF will use any request for more games as a foil to demand immediate judgment. Maryland really needs to do something this round or risk losing by being non-responsive (though technically they did respond last time - it's just those argument sucked).

Anyone care to guess what they will argue - other than the 2A Two Step?

Almost surely we are looking at Maryland responding with a Motion to Dismiss. They will not be asking for summary judgment on merits they propose. That would call for immediate judgment.

pcfixer said:

I am normally an optimist. Big BUT, here. Does anyone think
this could be a repeat of what Chicago is doing?

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You bet.

Working in our favor is that the MD General Assembly has limited calendar to work with and local municipalities are not able to act due to state law. The Chicago Council had all the time in the world to pass laws.

If we were to win this over the summer, the Maryland legislature would be out of session until 2012, unless MoM called a special session. Of course, he could play games with an executive action but then he has nobody to blame but himself for a civil rights loss. Governors don't put their necks out like that often. Don't think he'd do it here.

Also, as Gray explained, the SAF suit seeks to end all action by the government that substantively denies our rights. Re-wording a law to create a new restriction would fail immediately.

The next fight after this one (whenever it ends) will be over standards (training, etc.). But note those standards will have to apply equally to all - citizens and LEO alike. Any 'special' treatment of dirty citizens would fail Due Process.

My guess is that they will only allow someone with NO criminal record will be allowed to carry. You can purchase a firearm with certain convictions on your record, but to carry, they will ensure that you cannot. Some of us will be affected by that. Still, at least most of you guys will be able to carry. I'd still rather have that than not and hope that if I am at the mall and some thug decides to open fire like one did at Annapolis mall, one of you will put an end to it. I think victory is near.

My guess is that they will only allow someone with NO criminal record will be allowed to carry.

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If the right is ruled fundamental then restrictions are going to be closely monitored and evaluated.

The Chester case everyone here likes to mention is just such an example: the Fourth Circuit found that a convicted violent person (Chester) still was covered by the Second Amendment, even though he was convicted for beating his wife and kicking his daughter while she lay in a fetal position on the floor.

They did not say he could keep guns; rather they told the government that they had to do more than just say "Chester bad" to take his guns away. The 4th told the government to "prove" Chester would be such a danger to society that he should lose all rights. And this is after the 4th found Chester outside the scope of the Second Amendments fundamental protections (because Heller said "lawful persons" and specifically suggested violent people are excluded). When all was said and done, the circuit told the lower court to use intermediate scrutiny to evaluate Chester's case, but only after the government provided proof of Chester's danger - not some general case that domestic violence is bad and therefore all people convicted of DV are henceforth unworthy of the Second Amendment.

So if you have not been convicted of a violent act (especially a felony), the state is not going to be able to restrict your fundamental rights. Bloomberg wanted to open the doors to that game, but our 4th circuit shut that down hard. Maryland has their hands tied.

On a side note to Chester, it appears that losing 2A rights is going to need to be fought on a case-by-case basis. Blanket laws that deny rights on a general, administrative basis are doomed. Much like libel and slander require an individual finding, 2A is going to require an individual finding. It will probably be part of sentencing for serious, violent crimes.

Also, it looks like Chester will lose his rights. He should. It is just that the appeals court said the government had to more than just want it - they had to prove their case with more than general statistics about domestic violence.

For everyone impatient with the system, keep in mind a lot has already changed in just one year...

I see. Then I wonder what defines a "violent act." Maryland seems to draw the line based on sentence length: no more than 2 years sentence (whether served or not) to own a firearm and no more than 1 year to carry.

If, as Krucam mentioned earlier, the 2A could be treated like the 1A, then I think there is a very real possible double standard: even those convicted of DV seem to retain all of their 1A rights.

I personally feel that if someone acted violently, in a way intended to physically harm another, that that person should be disqualified, but forever?? Also, liberals tend to try to expand "physical harm" such that in the future "hurting someone's feelings" could be construed as "physical harm." Maybe I am just being too cynical.

The Fourth considered this.

In essence, it has to be a level of violence that rises to felony. BUT...Chester was convicted of misdemeanor domestic violence. The Fourth said that due to the vagaries of sentencing laws nationwide, some felonies are called misdemeanors and some misdemeanors are considered felonies. The lack of a clear standard muddies things. It is up to the courts to determine the basis of "serious crime".

That does not mean Joe Judge in Montgomery County Maryland is going to be able to turn a misdemeanor charge for a small bar fight (where nobody was hurt outside of some egos) into a lifetime ban on the second amendment. Or the all-too-common DV claim from a wife looking for a leg up in a divorce.

The appeals court made it clear: Serious crimes. Real violence. Proven cause.

If, as Krucam mentioned earlier, the 2A could be treated like the 1A, then I think there is a very real possible double standard: even those convicted of DV seem to retain all of their 1A rights.

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Those guilty of libel and/or slander are therefore enjoined from making the same mistake twice. Their freedom of speech is restricted - they cannot talk about certain people in certain ways. In egregious cases they can be prevented from public speaking on certain topics, entirely. They lose the tools (their voice) that can cause more harm.

If someone is violent they also will lose the tools that can cause more harm.

Understand that comparisons between 1A and 2A are not perfect. Once you step outside lawful characters, things break down fast. Eventually we will have a set of jurisprudence to handle 2A on its own. Right now there is almost nothing. So as we move forward crafting the 2A rules of the road, we look to the 1st for guidance - but we cannot just transpose First Amendment jurisprudence on top of Second Amendment law.

That's why the comparisons are scary for those who violate our rights: they know that the jurisprudence on 2A is being written today, but it will stay with us forever. Things are moving much too fast for them to keep up...they have to be feeling like everything is slipping away.

That is intentional. Even though a lot of people think these cases are moving too slowly - or that people like the SAF are not fighting everything they want right now (permits, for instance) - things are moving in quickly and in parallel. We will probably have major protections in place inside of a decade (starting in 2008). Prior civil rights issues took 20-30 years to sort out. And for now, the anti-rights crowd can barely keep up with their defense of their past violations, let alone significantly influence future jurisprudence. Their over-the-top laws and claims ("blood on the streets!!!") are going to make it hard for anyone to take them seriously.

last month I gave SAF $45. May be time to give them more.

"Mental Illness"

So, if I can, I would like to get a quick read on how our legal eagles see a "mental illness" impacting someones RKBA. (If this has been covered, my apologies, I started on page 77!)

IIRC, the current 'don't issue' process can rule out anyone diagnosed with a "mental illness". Technically, I have such a mental illness (I don't regard it as such, but it is in the DSM IV). While my 'diagnosis' is 'voluntary', it is required for me to get appropriate treatment. (Not covered under insurance, but that is another issue entirely.) It doesn't affect my ability to hold a job, be a responsible member of society, nor does it prevent me from keeping my government security clearance required for said job. However, I worry that because it is in my background investigation(s), and it is in the DSM IV, it could be used as an 'excuse' to deny my future CCL.

If these lawsuits go forward as predicted, will the government's chance of using categories like 'mental illness' to refuse someone a carry permit be reduced, under the assumption that the government would have to first prove said person is an actual danger, not just falling under a broad category definition?

(And to add to all the other member's thanks, Patrick and Mark and everyone else, great summaries! I was dreading buying a house in MD (job location), but now it looks I have to go support SAF and MSI to try to arrange a better (safer) future!)

Handling mental illness is an open question right now, like much everything else. Heller had dicta (language that is non-binding but suggestive) to the effect that laws that prohibit guns from felons and the mentally ill are presumably lawful. How does this apply to people in general?

The primary theory today is that those who have demonstrated they are a danger to themselves or others are surely out, but the length of that 'out' is probably going to be a case-by-case determination. As are issues revolving medications - if going off drugs makes someone 'dangerous'...maybe guns are not a good idea.

Moving down from there is a slippery slope filled with lots of good and bad ideas. The problem is figuring out which is good and which is bad.

If you dig deep enough into the DSM you can find something for just about anyone: I spent my indoor hours this weekend figuring out how to turn small micro-controllers into a thermostat for my heater; not because I need one or think the one on my wall is bad...but because I wanted to figure it out. Also, for some odd reason I want my heating system to be able to email me the fact it turned on. Is this deep interest in the low-level details of just about everything I see heightened curiosity or a case of manic compulsion?

My guess is the DSM has a page or two in there for people who won't accept the fact something 'just works' and must tear it down to tiny pieces for the sake of comprehension. I'm sure some shrink would call it a compulsion...people like me call it "engineering".

So you can see where this is going. There is a line somewhere between 'dangerous people' and the rest of us. Absent an easy litmus test, that line appears to be related to evaluated risk.

Here's the factoid we are looking for: the government cannot rescind your fundamental rights just because a page in some book might match your profile. The DSM is not a court; it is a physicians reference.

"Have you ever been found or adjudicated mentally deficient or dangerous to yourself or others?"

That is the question. Some states will try to expand on it, but at the end of the day removing someone's rights requires a legal finding that society has a compelling interest in doing so. And Chester made clear it needs to be proven and specific. General administrative policies that deny rights to anyone suspicious are not going to work.

Your rights (any of them) are yours until some court somewhere determines you are dangerous and they should be removed. At that point, all bets are off.

Technically, I have such a mental illness (I don't regard it as such, but it is in the DSM IV). While my 'diagnosis' is 'voluntary', it is required for me to get appropriate treatment.

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If you have been involuntarily committed, you are outside the scope of the strongest protections. Short of that is an open question, but I think the bar is lower for mental illness than for certain crimes. It will hinge on individual details. But the prominent process today (California has gone further in this respect) revolves around an evaluation of risk. If a person is being treated for an illness that could - left untreated - endanger themselves or others, then guns are a bad idea.

Note I am not asking for your details. Frankly, I don't think having them would matter anyway. All I can share is how I have seen some courts handle these issues. Others here may have seen more. I am neither a doctor nor a lawyer, so your details would be wasted on me anyway.

I see one problem with the mental health issue: mentally disturbed people, even violently so, don't automatically loose their First Amendment rights. I'm not saying that violently disturbed individuals should get to walk around with concealed weapons, but it will be very difficult to find the proper balance on this issue, and that's just within the pro-2A camp.

Oh, and in case anyone missed it, this thread is up to over 100k views now. Threadnaught FTW.

Prior restraint is the key here. This was used in 1st A cases to strike down regs that either chilled or infringed upon the right of free speech. I do think the Plaintiffs prematurely filed their equal protection claim without sufficient facts showing distinction of treatment based upon class. However, Gura should look for a new Plaintiff, and drop the firm he is working with. They are not presenting the federal claim succinctly. I am not sure the MSJ will succeed as drafted. It inherently creates a factual controversy over whether MD has exercised the right balance of regulation, bad move.

EarthLover said:

Prior restraint is the key here. This was used in 1st A cases to strike down regs that either chilled or infringed upon the right of free speech. I do think the Plaintiffs prematurely filed their equal protection claim without sufficient facts showing distinction of treatment based upon class. However, Gura should look for a new Plaintiff, and drop the firm he is working with. They are not presenting the federal claim succinctly. I am not sure the MSJ will succeed as drafted. It inherently creates a factual controversy over whether MD has exercised the right balance of regulation, bad move.

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I'm not sure thats a good idea at this stage of the proceedings (dropping councel, plaintiff). I'm curious as to why you feel councel has not presented the "federal claim succintly".

This case is truly simple at the core (remove 'Good and substantial reason' from the application). I agree with the original EP argument, but the Judge allowed them to expand that argument.

Healthy debate/questions.

EarthLover said:

Prior restraint is the key here. This was used in 1st A cases to strike down regs that either chilled or infringed upon the right of free speech. I do think the Plaintiffs prematurely filed their equal protection claim without sufficient facts showing distinction of treatment based upon class. However, Gura should look for a new Plaintiff, and drop the firm he is working with. They are not presenting the federal claim succinctly. I am not sure the MSJ will succeed as drafted. It inherently creates a factual controversy over whether MD has exercised the right balance of regulation, bad move.

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I respectfully disagree.

The problem with prior restraint is that the right is not yet defined. So is the restraint Maryland is imposing a violation, or just legal legislation? We have a chicken/egg issue there. There is no prior restraint argument without a recognized right that is being violated. These cases are all about getting recognition of that right.

The NY case is using some prior restraint logic, but they have a much more adverse environment to work within. For one thing, there is a license required to exercise a recognized right to bear arms in the home. Add a subjective system that places decisions in the hands of individuals and we have a system that fails on multiple levels.

I am not sure the MSJ will succeed as drafted. It inherently creates a factual controversy over whether MD has exercised the right balance of regulation, bad move.

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Except this assumes that the case is about "balancing". It is not. It is a facial challenge to a law that requires lawful persons to demonstrate good and substantial cause to exercise what we (and apparently a plurality of Supreme Court justices) deem a fundamental right.

Perhaps I misunderstood your view. What did you mean by "balance"?


There are legitimate questions about the scope of the right to bear arms outside the home. We have one view; the state has another. We think. We really don't know what the state thinks because they have avoided a cogent discussion of the issue for over seven months. Really. For seven months the Maryland Attorney General's office and legal eagles have feared answering this case. No worry. Heller dropped some breadcrumbs and McDonald emphasized them. Go read up on Nunn to see where this is going.

This argument is not about the balance of regulation...we believe in simple terms that Maryland's regulation is invalid on its face. Completely. There is no balance there. The framers of the Constitution made that choice 200 years ago - and no matter how antiquated some in this state feel that little document has become - it is still valid. Heller took away 'balancing acts'. Those all attempt to weigh social policy against fundamental rights. No other fundamental right has ever been weighed out of existence...at least, not for long.

No. The first question was simple: does the US Constitution afford lawful persons in this nation the fundamental right to bear arms in defense of themselves?

The answer to that question is an unequivocal "Yes", as stated in Heller and again in McDonald.

The current question in the Woollard case is also simple: does the US Constitution limit that fundamental right to a person's home?

If so, then state regulation is lawful. If not...then a great number of things will change.

Note the lack of any 'balancing'. It is a stark choice: yes or no. As for the outcome, I encourage you to look at the text of constitution and find 'in the home' in the Second Amendment. You won't. Neither will you find any case where a person is restricted in the exercise of their religion 'in the home'. You won't. Look into the Heller dicta regarding "presumptively lawful regulations against concealed carry" and find the four big cases used to explain the direction of the court...all of which found that a state could regulate the manner of carry (concealed or open), but not extinguish the right by denying all.

Big. Bread. Crumbs.

However, Gura should look for a new Plaintiff, and drop the firm he is working with.

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As for the competence of the various parties associated with this case, I will suggest that one should look first at our Attorney General and his office staff. In the seven months this case has existed they have avoided addressing the claims on their merits. Even if one grants benefit of the doubt with regard to questions about Younger and/or standing issues (Hail Mary attempts, at best to delay the fight)...they lost. They then failed to make a viable affirmative defense in their first response to the complaint after the judge dispensed with their motion to dismiss based on standing/Younger claims.

Read the last state response. All it does is restate the same standing arguments that they already lost. I will agree with you here: "Bad move."

We are granting the Maryland AG's Office liberal doubt here...we assume that they will at least provide some cogent argument in the coming weeks. But if their "Affirmative Defense" remains the same, they will lose.


EDIT: I just noticed that EarthLover has been here since 2009. My bad. I thought I saw "1 Post" next to the name. My apologies for minimizing your presence. I was not intentional.

Is there any chance that Maryland could lose without "inside/outside the home" being answered? I'm thinking of a scenario where the ruling states that Maryland already recognizes a right outside the home because they issue permits for self defense (although rarely) and finds unconstitutional the manner that they use to pick and choose people who qualify.

Basically, rather than saying "requiring a reason" is not allowed, they say that they must accept "self defense" from any non-disqualified person as a good and substantial reason.

Slightly different reasoning than they'd need in a no-issue state.

jonnyl said:

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Basically, rather than saying "requiring a reason" is not allowed, they say that they must accept "self defense" from any non-disqualified person as a good and substantial reason.
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IANAL nor am I Patrick or Krucam but my understanding is that this really isn't an option because Gura/SAF has specifically asked that the "good and substantial" claus be striken from the books. This essentially makes it a black and white case. Either the current law is upheld as written or "good and substatial reason" is stricken from the books and nothing is substituted.

How the judge got to the point of deciding one over the other will be in the decission and this is dicta (non-binding) which may or may not leave a trail (like SCOTUS did with Heller and McDonald) as to what may or may not be acceptable in the law if MD chooses to amend it via legislation.

That said, I wouldn't put much stock in the decission either way or what the text or reasoning end up being. No matter the outcome it will be apealed to the 4th circut and we get to listen to the fight again.

It's possible that we could win, but the chances of Gansler leaving it at that and accepting his fate and effective shall-issue are about as likely as Frosh becoming a Libertarian.

I think the short answer is, sure.

If the case is answered that if an applicant is otherwise eligible to own a firearm, there shall be nothing further the applicant has to demonstrate in order to receive a permit to carry, and one SHALL be issued.

I believe that to be an oversimplification though.

LD

Lindsay's Dad said:

I think the short answer is, sure.

If the case is answered that if an applicant is otherwise eligible to own a firearm, there shall be nothing further the applicant has to demonstrate in order to receive a permit to carry, and one SHALL be issued.

I believe that to be an oversimplification though.

LD

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+1

call me out, that’s fine but I still think there some should be some proficiency portion to get a permit. Either hands on training like FL or a sit down class like Utah. At a minimum to go over laws and regs of carrying. Just sayin...

yellowsled said:

call me out, that’s fine but I still think there some should be some proficiency portion to get a permit. Either hands on training like FL or a sit down class like Utah. At a minimum to go over laws and regs of carrying. Just sayin...

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I wouldn't call you out...in this thread... since it's not really about permitting requirements but rather who's eligible to even be considered.

I understand the logic behind it, but how would you square that with no other core right requiring a permit? I assume this would fall under the "reasonable restrictions" required of strict scrutiny but don't know if it would pass that level.

Since many states have no training requirement and have no issues, how does the state prove it's necessary?