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

The #1 community for Gun Owners of the Northeast

Member Benefits:

  • No ad networks!
  • Discuss all aspects of firearm ownership
  • Discuss anti-gun legislation
  • Buy, sell, and trade in the classified section
  • Chat with Local gun shops, ranges, trainers & other businesses
  • Discover free outdoor shooting areas
  • View up to date on firearm-related events
  • Share photos & video with other members
  • ...and so much more!
  • Status
    Not open for further replies.

    Trapper

    I'm a member too.
    Feb 19, 2009
    1,369
    Western AA county
    OC in CA is only permitted if the weapon is unloaded.

    :sad20:

    True, but that is their law. Gansler just said that our law allows for loaded open carry. He thinks this means only long guns, but the SC said uh-uh, handguns must be included. Therefore, if loaded open carry is okay, it's okay for all guns....

    Well spotted Patrick. I'm sure Gura and Hansel are on top of this, but you may want to point them to the thread just in case.

    It might also make a hell of a press release for SAF: "Maryland AG says loaded open-carry is Legal"
    (not that they would discuss an ongoing case ;) )
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Thanks for the in depth post, Patrick.

    Am I wrong to be giddy about this???

    Don't get giddy on my account. I am still buzzed from a large powdered donut and full-strength tea. That's a bit much for me...who knows what crazy ideas are running through my head?

    ...Hey! Look! I think I see a unicorn in the corner...

    It really sounds like Gansler is incompetent and has screwed the pooch on this. Could he be playing possum, "losing the battle to win the war"? Could there be something big-picture-clever going here that we're missing?

    No possum here. While we see portions of this response as full of circular logic, out-of-context references and outright faulty logic, much of that is window dressing. Brady's Amicus has outright errors about the actual process under litigation - a killer fault. It's not a small defect, they outright misstate the way we process applications. But Brady has a habit of screwing up and frankly Maryland cannot police what Brady writes.

    So...either Maryland messed up or we are not giving Gansler credit for a much more nuanced position than we have yet offered. I will offer that benefit of the doubt now.


    I have read it all in depth and am going back for a third pass. I started with the defense under intermediate scrutiny for a good reason: most courts nationwide have gone that direction for non-core opinions and Chester set intermediate as a floor. If there is a two-step in the courtroom, intermediate will rule the day. The "reasonable regulation standard" is wasted ink. To their extreme credit, Maryland even recognizes that fact:

    Although the defendants expressly preserve for appellate review their contention that “reasonable regulation” is the appropriate standard by which to judge Second Amendment challenges, the remainder of this brief focuses on the standard of review analysis employed by the majority in Chester.

    Intermediate is the floor. So that's where I focus my attention: how Maryland proposes to handle a finding that requires it. Remember, intermediate scrutiny represents the most restrictive circumstance Maryland thinks they can get. They are fighting to get to intermediate. Everything else is wishful thinking and they know it.

    Other defendants (NJ, Chicago, DC, NY) all claim that intermediate equates to rational basis by another name. Not so Maryland. They do offer the requisite "in the home" option so popular these days - and to their additional credit, Maryland does as good a job as anyone has done yet with the 'in the home' defense.

    But 2 out of 3 of their defenses actually involve people walking around with loaded guns in public. The breakdown: one option involving handguns require good cause and a permit; the other involves long guns that are open to all with no permit. You won't see that in the NJ defense.


    Maryland appear to be pinning its hopes on twin prongs: that the Plaintiffs get no more than intermediate scrutiny; and that the court uses it to somehow avoid Heller's specific direction on handguns. Heller got a ruling on his handgun that "survived any level of scrutiny."

    Two days ago we talked about containment. Today I am wondering if Maryland is actually looking at containment by way of triage. Either they made huge mistakes here, or they acknowledge that public RKBA in general is going to be allowed, and are making a final stand trying to prevent the wide-spread manner of carry involving handguns. If you read their brief with this in mind, you can see a heightened fear over handguns in particular. They may honestly fear what will happen in Baltimore if a lot of people carry handguns. Frankly, so do I. But so be it. The Bill of Rights was a dangerous document in 1789 and it remains so today. We live with it or change it.

    Credit Earned

    I may have to go back on some of my previous postings on this brief. Not the end result, but by giving our AG credit developing a more nuanced and carefully crafted argument than I originally considered in the areas where it counts (implementation of intermediate scrutiny). I operated under the assumption our AG was literally trying to avoid any chance of any gun anywhere, and saw this brief as overwhelmingly failing that goal.

    But I am thinking more along the lines of containment. Maryland recognizes what is coming and is trying to shape the outcome in a way that they feel will be least likely to cause damage. I think they really believe that more guns will cause excessive crime, just as many here feel the opposite will occur.

    So either they failed enormously, or they are giving some ground in the hopes they get to keep some.

    Looking forward to their next brief.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Nice analysis, Patrick. I'm a little shocked that the state made so many concessions, too.

    Here's my theory: the state knows it's in a bad position. They have no choice but to fight for political reasons. Ergo, they're just trying to figure out how they want to lose. Filing briefs that put the judge in a certain state of mind for that makes sense, and I think your thoughts on this are spot-on.

    My thought is that it could be that the state's end-game is now to keep concealed carry restrictions by legally allowing open carry of handguns. As we've seen in California and (for a while) NoVA, you can make life rather difficult on open carriers without actually having any laws against it.

    They could have done this legislatively in theory, but the current political (and intellectual) make-up of the legislative branch means they realistically would not have. It is just not politically viable for the members of the legislature to vote for legalized open carry, even if it saves the state a ton of money in legal costs (because, again, they'll have to appeal for political reasons). Hence, the debacle and expense of a court case that shouldn't have happened.

    You got there before I did, but I think this is one possible outcome.

    Trapper said:
    Well spotted Patrick. I'm sure Gura and Hansel are on top of this, but you may want to point them to the thread just in case.

    Yeah, great idea. I'll call them on the special Bat-Phone they had installed in my basement for just this purpose. :lol2:

    I'm sure that if anything I said here makes any sense at all, they figured it out yesterday in about ten minutes. If I am wrong...would rather not pick up the bat-phone. Bad enough I'd have to eat crow in front of you fellow basement dwellers... ;)
     

    X-Factor

    I don't say please
    Jun 2, 2009
    5,244
    Calvert County
    Right but given the arguments they made, what ground are they LIKELY to retain? Doesn't seem like any. They are trying to concede long guns but may actually be fighting the case into Constitutional Carry by accident, so what is there to "save?"
     

    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    If Maryland looses at the district level, do you think the judge will stay his decision pending appeal or will it take effect immediately and do you think Maryland can get an injunction?

    Maryland makes no distinction between OC and CC in it's permits, and you can carry openly with an MD permit, but it's generally considered the super express highway to loosing your permit.
     

    Trapper

    I'm a member too.
    Feb 19, 2009
    1,369
    Western AA county
    Can the judge decide to throw out a different piece of the law? Since the request here is to ditch the "good and substantial reason", could the judge decide instead to toss the section of the law forbids open-carry of handguns instead of striking the "GaS" from the concealed-carry law?
     

    X-Factor

    I don't say please
    Jun 2, 2009
    5,244
    Calvert County
    Can the judge decide to throw out a different piece of the law? Since the request here is to ditch the "good and substantial reason", could the judge decide instead to toss the section of the law forbids open-carry of handguns instead of striking the "GaS" from the concealed-carry law?

    That seema to be the key question at this point...
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,361
    SoMD / West PA
    Can the judge decide to throw out a different piece of the law? Since the request here is to ditch the "good and substantial reason", could the judge decide instead to toss the section of the law forbids open-carry of handguns instead of striking the "GaS" from the concealed-carry law?

    That seema to be the key question at this point...

    Judges, normally do not answer, the questions not asked. Can it happen, yes, but highly unlikely. That would equate to judicial activism, is some eyes.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    If Maryland looses at the district level, do you think the judge will stay his decision pending appeal or will it take effect immediately and do you think Maryland can get an injunction?

    No idea, though conceding that all citizens are allowed to carry functional, loaded firearms in public without a permit kinda makes it hard to argue that a ruling should be stayed because it would allow citizens to carry functional, loaded firearms in public.

    X-Factor said:
    Right but given the arguments they made, what ground are they LIKELY to retain? Doesn't seem like any. They are trying to concede long guns but may actually be fighting the case into Constitutional Carry by accident, so what is there to "save?"

    ...

    Hmm. Unless they legitimize legal OC and retain permit based CCW, which would require rewriting Maryland code.

    I think their goal is to keep handguns from the general public. That's it. They might prefer OC because then at least them LEOs will know who is carrying. Baltimore is a dangerous place.

    Maryland could pass a law calling out OC in urban areas and CCW everywhere else. I have privately thought this option will be more common once the right is fully recognized. It answers some of the law-enforcement concerns. I think some places (like Baltimore) might see that knowledge of who is carrying to be more important than keeping guns out of the eyesight of skittish citizens. It would also discourage some people from carrying - not everyone wants to be seen with a gun.

    Can the judge decide to throw out a different piece of the law? Since the request here is to ditch the "good and substantial reason", could the judge decide instead to toss the section of the law forbids open-carry of handguns instead of striking the "GaS" from the concealed-carry law?

    MD has no law against open carry of a handgun. Your permit to carry is just that - a permit to carry. As Greg points out, the prohibition on OC is just the threat of administrative action. That action would be off the table in the future.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    And to the big question: Will the District Judge toss 'good and substantial'?

    So far, I'd say some of these concessions make it more likely than I would have thought possible two days ago. I think Woollard just climbed to the top of the nationwide list for possible winners at the District Level. And that's just based on the defendant response. Let's see how Hansel/Gura respond; that will only strengthen the case.

    We need to see the state's next response. That should come roughly at the same time the stat approves that Glock 26 Gen 4 I am looking at.

    Keep in mind I am not even likely to carry. I just want the damn right to do it.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,947
    Marylandstan
    Patrick:
    MD has no law against open carry of a handgun. Your permit to carry is just that - a permit to carry. As Greg points out, the prohibition on OC is just the threat of administrative action. That action would be off the table in the future.

    What about MD code?


    § 4-203. Wearing, carrying, or transporting handgun. (a) Prohibited.-
    (1) Except as provided in subsection (b) of this section, a person may not:
    (i) wear, carry, or transport a handgun, whether concealed or open, on or about the person;
     

    jonnyl

    Ultimate Member
    Sep 23, 2009
    5,969
    Frederick
    If Maryland looses at the district level, do you think the judge will stay his decision pending appeal or will it take effect immediately and do you think Maryland can get an injunction?

    Maryland makes no distinction between OC and CC in it's permits, and you can carry openly with an MD permit, but it's generally considered the super express highway to loosing your permit.

    Does that part go away with "discretion"? Seems like the discretion to revoke based on "it's not illegal, but we don't like it" should fall with the discretion to grant.

    dang uppity peasants...
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    The exception to that law is the permit that requires 'good cause'. You get a permit and that prohibition goes away. Read a little further in 4-203 and find this:

    (b) This section does not prohibit:
    ...
    (2) the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under Title 5, Subtitle 3 of the Public Safety Article;


    We're suing for our permits under Title 5, Subsection 3 of the PSA.

    4-203 is a general prohibition on wearing and carry of a handgun in public. Once you surmount that prohibition (by exception), there are no further restrictions on manner of carry.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Does that part go away with "discretion"? Seems like the discretion to revoke based on "it's not illegal, but we don't like it" should fall with the discretion to grant.

    dang uppity peasants...


    Yes. They need to update the law and select a manner of handgun carry for us peasants.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,361
    SoMD / West PA
    If Maryland looses at the district level, do you think the judge will stay his decision pending appeal or will it take effect immediately and do you think Maryland can get an injunction?

    Maryland makes no distinction between OC and CC in it's permits, and you can carry openly with an MD permit, but it's generally considered the super express highway to loosing your permit.

    MD doesn't have the character clause like most states.

    The closest that MD law comes to is

    § 5-306

    (i) has not exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another; and
     

    X-Factor

    I don't say please
    Jun 2, 2009
    5,244
    Calvert County
    Judges, normally do not answer, the questions not asked. Can it happen, yes, but highly unlikely. That would equate to judicial activism, is some eyes.

    Isnt that exactly what the lawsuit is attempting? The question is (I guess) if the judge can go above and beyond the scope of the suite.

    Patrick isn't that circuitous though? Saying OC is illegal without a permit but legal with one. Doesnt change the bottom line of law enforcement or administrative harrassment if you do so legally.

    Any course of action by the court would require a law change. 4-203 says you cant open carry (among other things) without a permit (aside from the obvious few finote exceptions that dont apply to most of us). If OC were legal WITHOUT one that section would neednto go. If the "good and substantial " clause were rescinded THAT part would neednto be stricken.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,361
    SoMD / West PA
    Isnt that exactly what the lawsuit is attempting? The question is (I guess) if the judge can go above and beyond the scope of the suite.

    Patrick isn't that circuitous though? Saying OC is illegal without a permit but legal with one. Doesnt change the bottom line of law enforcement or administrative harrassment if you do so legally.

    Any course of action by the court would require a law change.

    No this lawsuit is to strike the enforcement if "Good and Substantial Reason" to issue a LCTF.

    Once MD is forced to issue permits, then the sky is the limit on how you wish to do so.

    Except for Drinking and Carrying there is a law on that, the ironny I know a local MSP or two, who drink and are carrying at the same time. :sad20:

    § 5-314. Carrying, wearing, or transporting handgun while under influence of alcohol or drugs.
     
    Status
    Not open for further replies.

    Users who are viewing this thread

    Latest posts

    Forum statistics

    Threads
    274,919
    Messages
    7,258,851
    Members
    33,349
    Latest member
    christian04

    Latest threads

    Top Bottom