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

[ezliving]

No Lawyers - Only Guns & Money: http://onlygunsandmoney.blogspot.com/2010/12/woollard-v-sheridan-mixed-ruling-on.html

Yesterday, the plaintiffs in the Maryland concealed carry case, Woollard et al v. Sheridan et al, got a win and a tie on Maryland's motion to dismiss the case. District Court Judge J. Frederick Motz denied the defense's motion to dismiss on Count I - Second Amendment grounds - and approved it on Count II - 14th Amendment Equal Protection grounds. However, he gave Alan Gura leave or permission to file an amended complaint to make up the deficiencies in the claim in Count II. I'd call that a tie.

 

[Patrick]

That's true, it will be awfully hard for MD to argue against carry in the 4th circuit when they are the only hold out. It will pretty easy for the judges to look at Gansler and ask "So are, ah, 4 states wrong, or are you wrong?"

That won't be a question at all. Prior to McDonald the states were free to make up their own rules because 2A did not exist in a state unless the state decided it did. This was not a federal question, at all. So comparing gun policies in MD and VA would be like comparing my choice of apples to your choice of oranges - we are both free to choose so why would anyone ask?

Post-McDonald, the question is now what the federal/constitutional response is to "fundamental right". And to get there we need to also define what that right entails...right now it definitely includes keep and bear in your home - and probably a good deal beyond that door. But it is still an open question. To that end, if SCOTUS were to draw a line that said keep and bear in public is not protected...nothing says VA cannot keep their laws as-is. The rights in te constitution are a floor, not a ceiling. Any state can choose to go above and beyond at their discretion - so if the SCOTUS said apples were the baseline...nothing says VA could not also offer the choice or oranges. Hope this horrible analogy makes sense.


Now keep in mind as I write this that I just posted this about the Fourth Circuit recently strongly hinting that carry of arms by law-abiding citizens to be a fundamental right worthy of strict protection. It doesn't change the question, but does flavor the answer.

 

[Patrick]

OK...everybody please read and follow this thread.

It is a recent decision from the Fourth Circuit that has serious potential to help us in Woollard.

As our VP would say, "It's a big f****ing deal."

 

[jpk1md]

To that end, if SCOTUS were to draw a line that said keep and bear in public is not protected...nothing says VA cannot keep their laws as-is. The rights in te constitution are a floor, not a ceiling. Any state can choose to go above and beyond at their discretion - so if the SCOTUS said apples were the baseline...nothing says VA could not also offer the choice or oranges. Hope this horrible analogy makes sense.

Patrick, regarding the Floor/Ceiling issue this is a real quandry.

I think you're wrong here because in conceding that "Shall not be infringed" doesn't really mean that it can't be infringed you're opening the door to interpretation that you may not like.

We may get lucky and have a court state to some degree in our favor that this is indeed a "Floor" but there's nothing to prevent them or a subsequent court from deciding that its actually a Ceiling.......this is the problem in conceding that the Fed has power/authority when its plainly clear in the Constitution that they have neither.

There's nothing to prevent the courts from coming back in a couple decades and declaring that McDonald and Heller were nothing more than the 2A equivalent of Dredd-Scott.

The only solution is to put the Djinni back into its bottle and return the Federal Gov to its Constitutional limits.

 

[Patrick]

Patrick, regarding the Floor/Ceiling issue this is a real quandry.

I think you're wrong here because in conceding that "Shall not be infringed" doesn't really mean that it can't be infringed you're opening the door to interpretation that you may not like.

We may get lucky and have a court state to some degree in our favor that this is indeed a "Floor" but there's nothing to prevent them or a subsequent court from deciding that its actually a Ceiling.......this is the problem in conceding that the Fed has power/authority when its plainly clear in the Constitution that they have neither.

There's nothing to prevent the courts from coming back in a couple decades and declaring that McDonald and Heller were nothing more than the 2A equivalent of Dredd-Scott.

The only solution is to put the Djinni back into its bottle and return the Federal Gov to its Constitutional limits.

I agree. I was simply trying to point out the differences between federal and state regulation. Before McDonald states were free to do anything they wanted with regards to 2A, post-McDonald they are subject to something. In the event that something is less than what we want, it will not constrain otherwise pro-2A states from implementing their own rules. Unless Congress gets involved, as you so clearly noted.

 

[jpk1md]

I agree. I was simply trying to point out the differences between federal and state regulation. Before McDonald states were free to do anything they wanted with regards to 2A, post-McDonald they are subject to something. In the event that something is less than what we want, it will not constrain otherwise pro-2A states from implementing their own rules. Unless Congress gets involved, as you so clearly noted.

We probably agree far more than disagree but its my opinion that the Courts are a much greater unrestrained threat to 2A and Private Property than Congress.....not that Congress isn't currently a train wreck but.....

 

[fightinbluhen51]

That won't be a question at all. Prior to McDonald the states were free to make up their own rules because 2A did not exist in a state unless the state decided it did. This was not a federal question, at all. So comparing gun policies in MD and VA would be like comparing my choice of apples to your choice of oranges - we are both free to choose so why would anyone ask?

Post-McDonald, the question is now what the federal/constitutional response is to "fundamental right". And to get there we need to also define what that right entails...right now it definitely includes keep and bear in your home - and probably a good deal beyond that door. But it is still an open question. To that end, if SCOTUS were to draw a line that said keep and bear in public is not protected...nothing says VA cannot keep their laws as-is. The rights in te constitution are a floor, not a ceiling. Any state can choose to go above and beyond at their discretion - so if the SCOTUS said apples were the baseline...nothing says VA could not also offer the choice or oranges. Hope this horrible analogy makes sense.


Now keep in mind as I write this that I just posted this about the Fourth Circuit recently strongly hinting that carry of arms by law-abiding citizens to be a fundamental right worthy of strict protection. It doesn't change the question, but does flavor the answer.

My reference was that it will be hard for a court of appeals to tell 4 other states that they must go back on their "carry laws" in order to uphold one liberal state's restrictive practices.

More later, I've been really busy, but as always Patrick and Kru, thanks for the good analysis since you guys keep me in the loop when I skim through stuff real quick.

 

[Patrick]

My reference was that it will be hard for a court of appeals to tell 4 other states that they must go back on their "carry laws" in order to uphold one liberal state's restrictive practices.

More later, I've been really busy, but as always Patrick and Kru, thanks for the good analysis since you guys keep me in the loop when I skim through stuff real quick.

Again, states are free to go above and beyond. So if the Fourth came back and said Woollard was 100% bunk (meaning no public carry rights for anyone), then VA can still offer them all day.

I could paint worst-case scenarios, but they are so far-fetched I won't bother.

 

[Dogabutila]

I don't really think we will end up losing Woollard. We MIGHT lose it here, but eventually it will be a winner.

The bigger question to me is the timeframe.

 

[jpk1md]

Again, states are free to go above and beyond. So if the Fourth came back and said Woollard was 100% bunk (meaning no public carry rights for anyone), then VA can still offer them all day.

I could paint worst-case scenarios, but they are so far-fetched I won't bother.

Patrick, most of the negative or worst case scenarios are by no means far fetched.....show me a piece if legislation/ruling that HASN'T gone WAY beyond what was passed/ruled upon.

Take 1939 Miller case....how fubar is THAT case in how it was screwed up from the start and then manipulated over the years by BOTH sides.

Look at Social Security (1930's) or Medicare (1968?)....neither were intended to be permanent or come anywhere near the leviathans that they are today

Same for Fannie Mae and Freddie Mac but they have been twisted and manipulated six ways to tuesday.

If you think that the chances of this one being twisted are remote you're out of your gourd.

 

[Patrick]

Patrick, most of the negative or worst case scenarios are by no means far fetched.....show me a piece if legislation/ruling that HASN'T gone WAY beyond what was passed/ruled upon.

...

If you think that the chances of this one being twisted are remote you're out of your gourd.

OK, I will feed the paranoia:

SCOTUS rules Heller does not give anyone the right to bear arms for self defense outside the home. When they said "in the home", they really meant it. VA and 42 other states can still go "above and beyond" and offer shall-issue...until the Congress gets involved and uses the powers they have (further entrenched by McDonald's incorporation of 2A nationwide) to ban all public carry nationwide.

So yeah, we need to win this one.


EDIT: Belated Happy New Year!

 

[jpk1md]

OK, I will feed the paranoia:

SCOTUS rules Heller does not give anyone the right to bear arms for self defense outside the home. When they said "in the home", they really meant it. VA and 42 other states can still go "above and beyond" and offer shall-issue

UNLESS THE FED COURTS SAY THEY CANNOT

...or until the Congress gets involved and uses the powers they have (further entrenched by McDonald's incorporation of 2A nationwide) to ban all public carry nationwide.

So yeah, we need to win this one.

And this is the problem with us granting the Federal Gov the power to rule on something they were never granted the power/authority to rule/pass legislation on.

I'm really concerned that Heller is going to backfire on us in a really big way in years to come unless we make progress on removing this power from the fed altogether.

We really need to stop "compromising" our rights away to enable arguably minor/temporary victories that put us within one ruling in the Fed Judicial System of losing EVERYTHING

 

[fightinbluhen51]

And this is the problem with us granting the Federal Gov the power to rule on something they were never granted the power/authority to rule/pass legislation on.

I'm really concerned that Heller is going to backfire on us in a really big way in years to come unless we make progress on removing this power from the fed altogether.

We really need to stop "compromising" our rights away to enable arguably minor/temporary victories that put us within one ruling in the Fed Judicial System of losing EVERYTHING

Then you need to assert the 10th Amendment, which is in and of itself a double edge sword. You can issolate the big gov states from the small gov states, up and until the point that the big gov people get tired of living under tyranny. Those people are like a virus that infects other states. The f' up one state to the point it's so unlivable, then they leave to f' up other states.


Pat, I see what you're getting at, and jpk, I understand your points. Yes, they shouldn't have ever REGULATED or created laws (infringements) pertaining to firearms. But, as has been rules over and over again on other rights, they are no completely all encompassing, nor do they come without some "compelling interest" restrictions.

 

[jpk1md]

Then you need to assert the 10th Amendment, which is in and of itself a double edge sword. You can issolate the big gov states from the small gov states, up and until the point that the big gov people get tired of living under tyranny. Those people are like a virus that infects other states. The f' up one state to the point it's so unlivable, then they leave to f' up other states.

Frankly I don't see how 10th is double edged at all.

In fact quite the opposite....if the Fed Gov is properly limited and restricted to Constitution then States like Cali, Ill, NJ, NY and others will go bankrupt and demonstrate definitely the failure of Big Gov/Liberalism.

I agree that we see folks shitting in their own beds/states and moving on to another state when it becomes unbearable but that only succeeds as long as we tolerate it and allow folks to NOT exercise Personal Responsibility.

We will only succeed if we win the war of ideas and demonstrate without a doubt that Liberalism is a dead end/failure.

What we SHOULD be doing is urging our reps/sens to vote AGAINST bailing out these states or loaning them money we don't have.....

Allowing the Fed Gov to rule on issues that they were never granted the power/authority to is a dead end and will only end up putting us into a position where we are forever 1 step away from a bad ruling where we lose EVERYTHING.

By asserting 10A at least you always have the option to beat feet and move to a free state....under the alternate path you're building a house of cards on a shaky foundation on the edge of a sink hole....it might provide you with temporary shelter but you damn well better be working on a permanent solution.

 

[krucam]

Why are we going around from thread to thread to thread to thread and talking this crap?

This is derailing the thread(s). If necessary, start a new thread about how to "fix" or "neuter" the Congressional "control" of Constitutional rights and how you propose to fix it.

Not without merits, but the same line over 5 different threads over the last several days c'mon man...start a new thread.

Back on topic for this thread, Plaintiff Amended Complaint is due 1/21/2011, to address Equal Protection claim inadequacies. The Counts in the initial complaint were:
COUNT I. U.S. CONST., AMEND. II, 42 U.S.C. § 1983
COUNT II. U.S. CONST., AMEND. XIV, EQUAL PROTECTION, 42 U.S.C. § 1983

Can Gura and Hansel, in their amended complaint, "add" Dicta from the US v. Chester (4th Ckt) opinion? Or, only the EP deficiencies?

 

[jpk1md]

Why are we going around from thread to thread to thread to thread and talking this crap?

Quite simply because its the same problem in each of these cases.

We're backing ourselves into a corner and we should hold no illusions that we are not.

BTW, something cannot both be "Crap" and "Have Merit".

This is a matter of Federalism (Fed Gov and Several States) v National Government.

Krucam, I applaud your efforts to document and inform folks on individual cases but please don't be so arrogant as to assume that a great many of these cases are a good approach to our 2A issues and to attempt to stifle or restrict discussion on that very point is short sighted at best.

 

[randyho]

Back on topic for this thread, Plaintiff Amended Complaint is due 1/21/2011, to address Equal Protection claim inadequacies. The Counts in the initial complaint were:
COUNT I. U.S. CONST., AMEND. II, 42 U.S.C. § 1983
COUNT II. U.S. CONST., AMEND. XIV, EQUAL PROTECTION, 42 U.S.C. § 1983

Thank you. I was just wondering where we were in the timeline.

 

[krucam]

OK, I will feed the paranoia:

SCOTUS rules Heller does not give anyone the right to bear arms for self defense outside the home. When they said "in the home", they really meant it. VA and 42 other states can still go "above and beyond" and offer shall-issue...until the Congress gets involved and uses the powers they have (further entrenched by McDonald's incorporation of 2A nationwide) to ban all public carry nationwide.

So yeah, we need to win this one.

Just wait till that UN Treaty passes, and we have to declare firearms on our tax forms, and...

 

[jpk1md]

and we have to declare firearms on our tax forms, and...

Not so rediculous actually....in many states folks pay property tax on a whole host of items besides Land.......Cars, Boats, Trailers and Mobile Homes are just a couple of examples....why not Fireams?...provide us with a good rationale that would distinguish Firearms from any other piece of property that would exempt it from taxation?

My point is that its neither unrealistic or far fetched.

 

[Fodder4Thought]

provide us with a good rationale that would distinguish Firearms from any other piece of property that would exempt it from taxation?

'Cause you can't tax books, either?