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

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    Storm40

    Ultimate Member
    Apr 13, 2009
    1,373
    Harford County
    that sets us back at least 2 years, i imagine... until the appeals process winds its way forward, finally and hopefully to a SCOTUS that is still leaning "our" way...
     

    Abacab

    Member
    Sep 10, 2009
    2,644
    MD
    Don't know the facts behind Peruta but I don't how the loss of that one affects Woollard. Entirely different districts with no relation to each other.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    that sets us back at least 2 years, i imagine... until the appeals process winds its way forward, finally and hopefully to a SCOTUS that is still leaning "our" way...
    I'm not sure where the two year delay is coming from. McDonald lost at the District and Circuit levels, and he went from filing to SCOTUS ruling in 24 months.
    Did anyone really think that any of these cases were going to be settled on the local level and not require a Supreme Court ruling? If you did its time to wake up from the dreams your having and rejoin us here in reality.
    The SC will have to weigh in, but wins at the local level help build momentum.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Well, now Gansler has his defense for Woollard - just copy from Peruta and keep mumbling "Heller does not apply outside the home...Heller does not apply outside the home..."
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Peruta won't delay anybody. It may actually speed things up a bit becaue Peruta is at least 6 months ahead of where we are in Woollard, maybe more the way MD is delaying. But Peruta is not the best to use as a challenge because there are secondary issues involved.

    All of these cases will result in a trip to the supreme court, and realistically few would result in a change until that happened. But there is nothing wrong with looking to the federal courts of this nation and being happy to see a few wins now and then.

    But so far it appears the lower courts are not going to do anything not explicitly scripted by the supreme court.

    I will say Peruta has one huge silver lining: in the judges initial reply to the defendants motion to dismisss, she laid out a world in which we are pretty much guaranteed the things we are seeking. Much disappointment exists in her actual ruling, because so much promise existed in the early stages.

    People are claiming political pressure caused her to "change her mind", but the simpler truth is that when evaluating a MTD from a defendant, the judge is obligated to assume that nearly all claims of the plaintiff are factual. There is no finding other than one of law.

    That explains our dashed hopes, but the silver lining is that when she accepted our arguments as "truth", there was but one outcome: a constitutional right to protected bearing of arms for self defense.

    Fast forward past the MTD and we're in a place where she just could not find the right in Heller or McDonald. It is there, but not flagged as plainly as we need it. The irony here is that most rights previously recognized came from less enumerated dicta...but no bother.

    My point is that this court defined the outcome of these cases today, even though it could not deliver it.

    For those feeling distraught, go back and read the judges ruling on the MTD. Read the "assumed truths" and realize those are reasonable under our expectations of supreme court action. Then read the results of those truths. That is us in two more years.
     
    Last edited:

    AvidRider

    Active Member
    Dec 3, 2010
    228
    Good info Patrick. I'm concerned however, that things aren't exactly promising at the Supreme Court level. Didn't Obama just appoint another SC justice who is anti-guns?

    I'm not as good with this politics stuff as people like you. I only care to get our 2A rights fixed here in Maryland. I just know that the more SC justices that are against gun rights, the more problems and case losses we are going to have in the future with 2A...
     

    Norton

    NRA Endowment Member, Rifleman
    Staff member
    Admin
    Moderator
    May 22, 2005
    122,853
    Good info Patrick. I'm concerned however, that things aren't exactly promising at the Supreme Court level. Didn't Obama just appoint another SC justice who is anti-guns?
    .

    No net change since it was replacing one anti-gunner with another.
     

    AvidRider

    Active Member
    Dec 3, 2010
    228
    Now that I didn't think about. I did not know the previous justice was anti-gun rights. Can you imagine if all the justices were pro-gun rights. :)
     

    Tom43491

    Active Member
    Dec 9, 2009
    146
    Timonium
    APPEAL!!!
    Pretty much what I expect of all the lower courts in any liberal, anti-gun district. But, a loss at this level is only the loss of a battle, not the war!
     

    krucam

    Ultimate Member
    But Peruta is not the best to use as a challenge because there are secondary issues involved

    Agreed regarding Peruta, still disappointed...

    All of these cases will result in a trip to the supreme court, and realistically few would result in a change until that happened....

    But so far it appears the lower courts are not going to do anything not explicitly scripted by the supreme court....

    I will say Peruta has one huge silver lining: in the judges initial reply to the defendants motion to dismisss, she laid out a world in which we are pretty much guaranteed the things we are seeking. Much disappointment exists in her actual ruling, because so much promise existed in the early stages..

    Fast forward past the MTD and we're in a place where she just could not find the right in Heller or McDonald. It is there, but not flagged as plainly as we need it. The irony here is that most rights previously recognized came from less enumerated dicta...but no bother....

    My point is that this court defined the outcome of these cases today, even though it could not deliver it...

    Read the "assumed truths" and realize those are reasonable under our expectations of supreme court action. Then read the results of those truths. That is us in two more years.

    Patrick is absolutely correct here. The District AND Circuit levels of the Federal Court system will not and can not go against the Justices nor should they be. They will convey the law, explore boundaries, but rarely create or define it.

    McDonald, on the way to SCOTUS had to go through the IL District and 7th Circuit Court of Appeals, and it lost both rounds. Most of you know this, but what is enlightening is the 7th Circuit's Opinion while rejecting McDonald.

    http://www.chicagoguncase.com/wp-content/uploads/2009/06/appeals_court_decision.pdf

    From that disappointing opinion that ended up well:
    (Remember, this is all 7th Circuit in their McDonald denial Opinion)

    The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

    Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered.

    The 7th Circuit, referencing 9th Circuit dicta in Nordyke:
    Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete.

    Finally:
    Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

    I'm afraid we're going to be stuck with "in the home" through the District and Circuit Courts...at least one of the Circuits need to grow a pair, and we'll have a guaranteed ticket to the Supreme Court.

    I know, Patience my ass, I wanna kill something....
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Mark,

    Awesome look back at McDonald. It would be great to see a court change direction prior to the supreme court, if only for the psychological value. But like you suggest, we should be ready for a hard ride to the top.

    The great thing?

    If all these cases continue to claim restrictions are valid based on "in the home" it will be easier to knock them all down eventually. I do note that they are not making the same mistake the MD state courts did in saying "if 2A were incorporated fundamentally this decision would be different." So far defendants and courts are not leaving open such easy doors. There will be more fights.

    We have a few state cases potentially percolating. Wonder how far we are from those being filed?
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    Mark,

    Awesome look back at McDonald. It would be great to see a court change direction prior to the supreme court, if only for the psychological value. But like you suggest, we should be ready for a hard ride to the top.

    The great thing?

    If all these cases continue to claim restrictions are valid based on "in the home" it will be easier to knock them all down eventually. I do note that they are not making the same mistake the MD state courts did in saying "if 2A were incorporated fundamentally this decision would be different." So far defendants and courts are not leaving open such easy doors. There will be more fights.

    We have a few state cases potentially percolating. Wonder how far we are from those being filed?
    So...what would that mean? State cases filled for relief would obviously be the fastest way that this gets turned, but to me, it would seem that the federal rulings would be the most lasting. Correct?

    Obviously, a left leaning court going back on it's "if 2a were incorporated fundamentally, this decision would be different" would not surprise me. Meaning, MD appeals court and MD Court of Special Appeals would contradict itself quite easily.

    Just an interesting thought that we could lose at the Fed District and Circuit levels, but then potentially win @ MD's highest level while waiting on a SCOTUS ruling?
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    A federal supreme court win is the big prize we are looking for. These cases are filed in lots of jurisdictions for a few good reasons, one of which is almost surely to prevent one state court from overturning their restrictions and then stopping progression of cases into the higher federal system. So even if MD state courts went our way, the overall movement still has NY/NJ/CA etc. to work with. No chance in hell they will all go our way, so something is going to make its way up high soon.

    MD has enough of a caveat in Heller/McDonald to not overturn their laws and still maintain a straight face. All of this "in the home" language from Scalia is all they need. So the state court can claim quite easily that the fundamental protection they claimed they needed to overturn "good and substantial" was limited by Heller to "in the home", hence not applicable.

    Only the USSC is going to fix this for good. I hope Scalia gets a chance to re-write the majority opinion and fix the mess the courts are making of his original opinion. He said "most acute in the home", not "only in the home". So far courts take this as a sign they can give lower scrutiny to rights exercised outside the home. They don't see self defense as fundamental outside your doorstep.

    Let's hope the current Supreme Court does not agree with them.
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    A federal supreme court win is the big prize we are looking for. These cases are filed in lots of jurisdictions for a few good reasons, one of which is almost surely to prevent one state court from overturning their restrictions and then stopping progression of cases into the higher federal system. So even if MD state courts went our way, the overall movement still has NY/NJ/CA etc. to work with. No chance in hell they will all go our way, so something is going to make its way up high soon.

    MD has enough of a caveat in Heller/McDonald to not overturn their laws and still maintain a straight face. All of this "in the home" language from Scalia is all they need. So the state court can claim quite easily that the fundamental protection they claimed they needed to overturn "good and substantial" was limited by Heller to "in the home", hence not applicable.

    Only the USSC is going to fix this for good. I hope Scalia gets a chance to re-write the majority opinion and fix the mess the courts are making of his original opinion. He said "most acute in the home", not "only in the home". So far courts take this as a sign they can give lower scrutiny to rights exercised outside the home. They don't see self defense as fundamental outside your doorstep.

    Let's hope the current Supreme Court does not agree with them.
    Maintaining the health of the current majority, my guess, like most others, is they will not go against their own dicta from the prior cases.

    Where's Doc Brown and his flux capacitor when you need it?
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    I wouldn't bet an entire farm on it. Scalia left wiggle room for a reason. I still say it's better than 50/50 we're interpreting things correctly, but little would surprise me.

    To be sure, you can read these cases (and supporting references) and draw a pretty good picture of where you think the justices will go. Drawing a picture that is restrictive is possible, but much harder. So on balance, it seems that the decisions are heavy on the side of expansive protection for the exercise of 2A. But we're all technically reading tea leaves.

    If we (collectively, many people nationwide) are reading these cases correctly, I just don't see the USSC backing away from the big question. Even Adam Winkler (avowed anti-gun legal professor) acknowledges that we are probably looking at shall-issue being required.

    But I don't think we're looking at direct attacks on NFA (Miller) and GCA and FOPA being too successful. parts, maybe. But not facially. MGs will require congressional action.
     

    Nobody

    Ultimate Member
    Jan 15, 2009
    2,810
    I still say 7-10 years away IF ever in MD, lest the legislature changes.

    Sorry to be the bearer of bad news but I am a realist.

    NOBODY
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    If you assume a loss of these cases at the Supreme Court, I tend to agree with you. But if we are going to win, it will be sometime in/before 2013. The changes will roll soon after. Too much delay and you will be able to sue MD for punitive damages for violating a civil right.

    So it's either 2-3 years or never.
     

    Abacab

    Member
    Sep 10, 2009
    2,644
    MD
    Barring a court change, the legislature will only grow more liberal if the Montgomery County Federal job growth is not stymied. So our odds may be worse in 7-10 years.
     
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