history: "Reasonable precaution against apprehended danger"

[Jaybeez]

I am not sure I quite understand what they are saying. "Proof" of *what* exactly?! Are they saying that the MSP has the burden to justify their actions? That's quite unusual in administrative law, where the burden is on the plaintiff to show that administrative agency action was arbitrary or contrary to law. As a concept, "burden of proof" is very important, as it allows the decision maker (here the Board) rule simply on a failure to carry the burden. I wonder how the Board itself is using this burden of proof allocation in its decisionmaking. Does it even come up during the hearings?

i read it to say that its MSP's burden of proof of
b) results of investigation
and
c) conclusion and ruling by the secretary (that the applicant does not have a g&s or rpaad)

 

[esqappellate]

i read it to say that its MSP's burden of proof of
b) results of investigation
and
c) conclusion and ruling by the secretary (that the applicant does not have a g&s or rpaad)

That would most unusual, as it entails that the agency (MSP) show the lack of G&S (demonstrate a negative), where the statute actually places that burden on the applicant. I wonder where this burden shifting comes from.

 

[Jaybeez]

That would most unusual, as it entails that the agency (MSP) show the lack of G&S (demonstrate a negative), where the statute actually places that burden on the applicant. I wonder where this burden shifting comes from.

Historically, rpaad has always been an affirmative defense. it remains that way for dangerous weapons other than handguns, at least.

im really dense. where does 5-306 place the burden on the applicant specifically? there is specific instructions about applicants criminal history and drug use, both prohibitors under GCA 68. Propensity to violence or instability, thay may be clues to criminal intent, which is definitly not a rpaad. the applicant must provide proof of traing and pay a fee. but the g&s is an "investigation" by the secretary, not something the applicant "must" provide. Wouldn't that place the burden on MSP?

 

[esqappellate]

Historically, rpaad has always been an affirmative defense. it remains that way for dangerous weapons other than handguns, at least.

im really dense. where does 5-306 place the burden on the applicant specifically? there is specific instructions about applicants criminal history and drug use, both prohibitors under GCA 68. Propensity to violence or instability, thay may be clues to criminal intent, which is definitly not a rpaad. the applicant must provide proof of traing and pay a fee. but the g&s is an "investigation" by the secretary, not something the applicant "must" provide. Wouldn't that place the burden on MSP?

Those are good points (you're definitely NOT dense). The answer is that 5-306 does not obligate the MSP to issue a permit *unless* there is a finding of G&S and burden of producing evidence of G&S is upon the applicant. For example, if an applicant simply applied without *any* evidence of G&S and said *give me a permit* the MSP would be perfectly within its rights to say *NO* under this statutory scheme simply because there is no evidence on which to base a finding of G&S. The MSP's investigation is based on the evidence supplied by the applicant. Thus the burden of going forward is squarely upon the applicant. Which only makes sense under a scheme like this as the applicant is the person who is in control of the evidence (I am not defending the scheme, which is unconstitutional in my view, only what makes sense under the scheme).

Once the applicant does produce evidence of G&S then the burden shifts to the MSP to investigate that evidence and make a finding. But that burden is only to make a decision. Normally, in admin law, a person aggrieved by an administrative decision bears the burden of showing that it is arbitrary or contrary to law under the Administrative Procedure Act (that's the same under federal and state law). So placing the burden on the MSP to justify its decision is a departure from the norm. And it can be important conceptually, as any failure to justify would mean that the applicant gets the permit. Now, if you want to appeal the Board decision to the courts, but burden is on you under the State APA and case law.

All that said, as a practical matter, I am not sure any of this makes a whit of difference at the Board level (makes a lot of difference in the courts where the agency gets a lot of deference). The Board seems to just look the file and all the evidence and make a call without regard to burden. The Board does seem to make a de novo determination (without deference to the MSP) and that's *really* important, but the policy you posted does not seem to address that point (standard of review), either way. Perhaps the Board is equating "de novo" with "burden." If so, it is an odd usage of these legal terms, but that's fine. It is just unclear.

 

[Jaybeez]

Those are good points (you're definitely NOT dense). The answer is that 5-306 does not obligate the MSP to issue a permit *unless* there is a finding of G&S and burden of producing evidence of G&S is upon the applicant. For example, if an applicant simply applied without *any* evidence of G&S and said *give me a permit* the MSP would be perfectly within its rights to say *NO* under this statutory scheme simply because there is no evidence on which to base a finding of G&S. The MSP's investigation is based on the evidence supplied by the applicant. Thus the burden of going forward is squarely upon the applicant. Which only makes sense under a scheme like this as the applicant is the person who is in control of the evidence (I am not defending the scheme, which is unconstitutional in my view, only what makes sense under the scheme).

(1) is an adult;
(2) (i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or
(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c);
(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;
(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction;
(5) except as provided in subsection (b) of this section, has successfully completed prior to application and each renewal, a firearms training course approved by the Secretary that includes:
(i) 1. for an initial application, a minimum of 16 hours of instruction by a qualified handgun instructor; or
2. for a renewal application, 8 hours of instruction by a qualified handgun instructor;
(ii) classroom instruction on:
1. State firearm law;
2. home firearm safety; and
3. handgun mechanisms and operation; and
(iii) a firearms qualification component that demonstrates the applicant’s proficiency and use of the firearm; and

For #1, i guess that i can prove that i am an adult, but it requires documents issued by the state dhmh or mva. i dont think msp takes my word for it. so who has the burden to prove? who takes it upon themselves as the burden?

For 2, and 3, I cannot prove any of those things. If i could, then nics and the 16 databases would not be needed. I can supply my state issued ID and SS#, and MSP can prove that I am one of the prohibited classes, but they cannot prove with 100.00% accuracy that I am definitly not one of those prohibited classes. They only attempt to prove that i am prohibited. Records are lost, delayed and misinterpreted. who has the burden to prove? who takes it upon themselves?

For #4, I could possibly submit to regular and surprise drug tests. But i think msp has an internal policy, one that i dont think they share, as to what is requirement means. they conduct an investigation, and attempt to prove i am one of those prohibited classes based on their databases and criteria. who's burden?

#5. they create the requirements and syllabus, and the standards for passage, and issue the certificate. I cannot prove this except through them. Maybe equal burden?

Does supplying my driver's license and checking boxes prove anything?

(a) Subject to subsection (c) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds:

snip

(6) based on an investigation:

 

[esqappellate]

For #1, i guess that i can prove that i am an adult, but it requires documents issued by the state dhmh or mva. i dont think msp takes my word for it. so who has the burden to prove? who takes it upon themselves as the burden?

For 2, and 3, I cannot prove any of those things. If i could, then nics and the 16 databases would not be needed. I can supply my state issued ID and SS#, and MSP can prove that I am one of the prohibited classes, but they cannot prove with 100.00% accuracy that I am definitly not one of those prohibited classes. They only attempt to prove that i am prohibited. Records are lost, delayed and misinterpreted. who has the burden to prove? who takes it upon themselves?

For #4, I could possibly submit to regular and surprise drug tests. But i think msp has an internal policy, one that i dont think they share, as to what is requirement means. they conduct an investigation, and attempt to prove i am one of those prohibited classes based on their databases and criteria. who's burden?

#5. they create the requirements and syllabus, and the standards for passage, and issue the certificate. I cannot prove this except through them. Maybe equal burden?

Does supplying my driver's license and checking boxes prove anything?

All true. I was primarily referencing evidence that would support a "finding" after the "investigation" that you have a good and substantial reason with a RPAAD. The rest of it is administrative. BTW, the applicant has to supply the certificate of completion -- the MSP doesn't get a copy from the instructor.

 

[Jaybeez]

to me, for the most part as written (prior to training being added), all the burden is on msp, as it should be with an affirmative interpretation of rpaad.

 

[BeoBill]

That would most unusual, as it entails that the agency (MSP) show the lack of G&S (demonstrate a negative), where the statute actually places that burden on the applicant. I wonder where this burden shifting comes from.

Poorly and sloppily constructed law? Just a guess...

 

[JamesH]

Poorly and sloppily constructed law? Just a guess...

Business as usual in Maryland. We get part-time quality from our part-time legislature. Gun law isn't the only area that suffers from this problem.

 

[brownspotz]

and just to think...these discussions never have to happen in the rest of free america. I hate MD more and more every passing day.

 

[Bob A]

Business as usual in Maryland. We get part-time quality from our part-time legislature. Gun law isn't the only area that suffers from this problem.

Last thing in the world I'd want to see is the MD GA in action year-round.
"No man's life or property is safe when the legislature is in session".

 

[LoneRanger]

Last thing in the world I'd want to see is the MD GA in action year-round.
"No man's life or property is safe when the legislature is in session".

+1.....

 

[JamesH]

Last thing in the world I'd want to see is the MD GA in action year-round.

"No man's life or property is safe when the legislature is in session".

Good point.

It still seems like we get a lot of crap bills passed because they rush through to get things done before the session ends.

 

[LoneRanger]

Good point.

It still seems like we get a lot of crap bills passed because they rush through to get things done before the session ends.

That is probably true, but if you look at the committee calendars throughout the session there is a lot of wasted time.

Just think how much of a raise they would vote themselves if they met for a longer session.......

 

[dblas]

That would most unusual, as it entails that the agency (MSP) show the lack of G&S (demonstrate a negative), where the statute actually places that burden on the applicant. I wonder where this burden shifting comes from.

Perhaps someone friendly to our issue??

 

[Jaybeez]

i think we have established that rpaad does not include criminal activity, but very soon security companies and medical marijuana growers and dispensers will be applying for and receiving wear and carry permits to protect their grow operations, marijuana stock, and business property.
groovy man.

 

[Biggfoot44]

We get a lot of crap laws , because our legislators are stupid. If the sessions were twice as long , they would still put off most of the activity for the last minute.

 

[BeoBill]

We get a lot of crap laws , because our legislators are stupid. If the sessions were twice as long , they would still put off most of the activity for the last minute.

I think it's more like "Our legislators feel they HAVE to pass something so the Little People think they're doing something on the public dime." So they submit anything, no matter how ignorant or outlandish, in the vain hope that it will pass and make them look heroic and electable.

 

[Jack McCauley]

I think it's more like "Our legislators feel they HAVE to pass something so the Little People think they're doing something on the public dime." So they submit anything, no matter how ignorant or outlandish, in the vain hope that it will pass and make them look heroic and electable.

Exactly!

 

[foxtrapper]

Ok, so can anyone explain the legal unlisc'd open carry prior to 1972, and why they had to add it to the may-issue permitting process? Criminals don't open carry, right? So was it the Black Panthers in MD doing it and the racist ways of the time said "OMG uppity black people are open carrying and we can't do anything about it!"? Were the BP committing serious crimes while OCing? Wouldn't this then be blatant racism and not jive with current times ( today)?

2nd thing- my understanding is MD had a 2A clause in the state constitution until some time after the Civil War ended. If this is true, what year did they remove it, and did it coincide with the passing of Jim Crow laws? If this is the case, we have yet another racist doing, and blatant as can be. This also does not jive with current times. Can any of this blatant racism as a reason for may-issue practice be used in a court case challenge?