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

[Patrick]

Last time it came up was last year.

 

[krucam]

The 2.5-3 year number comes from the following assumption, I'm assuming...

Woollard at the District, finalized NLT July '11. Appeal to Circuit.

Visit at 4th Circuit lasts 9-12 months. Apr - July '12.

The SCOTUS Oct11 Term will be wrapping up June '12. Summer Vacation.

SCOTUS OCT12 Term commences Oct '12 (I think). A Woollard case would not have gotten in early on this time line, figure a Winter '13 Oral, Spring-Summer '13 Opinion.

That is all worse case, taking up to 2 1/2 yrs. Whether it is Woollard or any of the other Carry cases going all the way (Peruta excepted).

Other Scenario's:
- SAF Wins at the District, no appeal from MD. Carry this Summer. Don't laugh, it could happen...
- SAF Loses at District, or SAF Wins & MD appeals, we're off to the Circuit that wrote Chester. SAF Win at Circuit, no MD appeal to SCOTUS. Carry Spring/Summer '12
- Peruta sails through the 9th Circuit this year, appealed to SCOTUS and makes it in time for the OCT11 SCOTUS term (the only way I see getting a Carry case to SCOTUS this early)...we'll be carrying Nationally in Summer '12.
Palmer...nah.

Sometime between Summer '11 (MD Only) and Summer '13 (Nationally)

 

[fightinbluhen51]

The SAF Standing issue of the Defendants was never fully rejected when the MTD was rejected. Not as completely as Younger Abstention anyways. Footnote 1 in the Judge's response to MTD:



He didn't want to address SAF Standing in December, MD brings it up again anyways.

So...as we see things now, we have either:

- Def response to SAF MSJ using canned (2A-2Step) arguments. Uses Heller dicta, ignores Chester. Likely & Judge Motz would then have to rule on the SAF MSJ...figure 1-2 months.

or

- Def MTD as response to Pltf MSJ. SAF would then have 3 weeks to respond to the revised MTD. Judge Motz would then have to rule for one or the other (MTD-Def, MSJ-Pltf)....figure 2-3 months.

Like any Federal Judge, this one is very busy. Dozens of new cases filed every month, you can see here: http://dockets.justia.com/browse/state-maryland/court-mddce/judge-Motz/

End game is coming soon at the District level...May-June time frame

So, what you're telling me is...2~3 months, and I will more than likely be applying for my MD permit!??! I really should get to steppin' on a new carry gun, holster, mag carrier.

G17 or P226, G17 or P226?

 

[fightinbluhen51]

Good point on the SAF standing issue. Honestly don't see that being an impediment. It will slow down payment to the SAF at win time, for sure. Ironically, by making it part of an affirmative defense MD may force the judge's hand to make a ruling on standing. It will be in favor of SAF, therfore denying even the little bit of delay MD can create post-loss to claim they don't owe legal fees.



Gosh, on some level I really hope he has more to argue than this paltry defense - even if he copies it from another case. As a resident of Maryland, I hope we have someone smart working state issues. These responses are authored by from someone in his office...but at the end of the day Gansler signs them. Unless our AG has something serious up his sleeve, the more I see the less impressed I get.

Maryland can go with the 2a Two-Step. It has a decent track record at the District level. It'll buy him some time. It'll make Maryland at least appear involved in the argument. The Appeals Court is going to be interesting, though. You better bring your "A Game" there.



Absent some new arguments from the other side (nationally or local), everything is looking good. We're on track for a big win in 1-2 years. Maybe sooner.

The question is what role will Chester play. From what you guys have been saying, no other Circuit has that set of rules to play by correct? Therefore, if outside the home can be definable to the "core" of the 2A (which I see how could be a stretch here at the district level), it means we should win here and now, period, yes?

The question is, if are we going to have one forward thinking (activist or at least originalist) Federal Judge issue a ruling defining carry as core 2A, is this case the perfect storm (good case, good plaintiff, good jurisprudence from overseeing circuit, weak defendant), for such a ruling to occur at the district level?

From everything Kru and Patrick kick around, it seems that this is the case. June. I hope it's June.

 

[BenL]

With all 91 (!) pages of this thread, I have to ask our experts: what is Gansler's endgame, here? Not to be myopic, but it seems like this case is clearly in our favor; from his behavior, even Gansler seems to think so. If that is the case, what is the best he can honestly expect? Keep delaying and hope for a miracle?

 

[krucam]

So, what you're telling me is...2~3 months, and I will more than likely be applying for my MD permit!??! I really should get to steppin' on a new carry gun, holster, mag carrier.

G17 or P226, G17 or P226?

2-3 months +/-, Woollard at the District Level will be done...no guarantee on carrying in MD however. That would depend on 1) We win and 2) MD NOT appealing to the Circuit that delivered Chester and 3) MD Not requesting/getting a Stay on the District Judgment while appealed...It 'IS' possible, but a big 'IF'. You never know...

Oh, Kahr PM9/40/45 or the new Ruger LC9?

 

[krucam]

With all 91 (!) pages of this thread, I have to ask our experts: what is Gansler's endgame, here? Not to be myopic, but it seems like this case is clearly in our favor; from his behavior, even Gansler seems to think so. If that is the case, what is the best he can honestly expect? Keep delaying and hope for a miracle?

Think of the fable "Emperor's New Clothes" and you'll be close. They've had it their way "because" for so long, they don't know any different. I truly believe they're in shock/disbelief. NJ's arrogance comes to mind as well. "Off with their Heads" doesn't work at this level, it may in their silly-assed Handgun Permit appeal board. Fuggem'.

Don't expect much in District. The AG may be playing the game I believe. They may let this fail using their tactics to date (I'm putting myself in their position) and hope for better at the Circuit upon Appeal (same Ckt that wrote Chester, same Ckt where every state but MD is Shall Issue), they may try to lace Gura's & Hansel's Starbucks coffee...

I give up, nothing they're doing makes sense...

 

[yellowsled]

#20 has just been posted!

http://ia700101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html

 

[Atlasarmory]

#20 has just been posted!

http://ia700101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html

I tried to read it "wont make that mistake again"

 

[krucam]

#20 has just been posted!

http://ia700101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html

'Bout frigging time! Should have been there last night...

 

[yellowsled]

that was painful to read.

 

[Dead Eye]

77. Did not dot the third "i" in the second sentence, of the fourth paragraph.

78. Used a double negative twice, before breakfast.

79. Left the toilet seat up.

Yawn...

 

[boricuamaximus]

Only way I could understand that beast is =

Gansler = No he didnt.
Gansler = That's not what I said.
Gansler = Nuh-uh
Gansler = He does not know what he's talking about.
Gansler = That's not what we mean.

Kinda sounds like an Elementary School Argument...

 

[mudd4life88]

I tried to read it "wont make that mistake again"

+1

 

[Mr H]

#20 has just been posted!

http://ia700101.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html

Now my brain hurts.

But, I get the distinct feeling it was a lot of "Nyuh-unh"

 

[Bikebreath]

Re: End Game...

Wouldn't Gansler, seeing how big a FAIL he is in for, be off in a corner writing laws to restrict whatever we have coming once we win?

That's my fear.

 

[Patrick]

First, Gansler has a ready-made defense that has worked nationally at the District Level. We're calling it the "2A Two Step":

• Step 1: you point out that Heller did not specifically say that RKBA existed outside the home, thereby allowing a court to say that public RKBA is not "core to the defined 2A right."
  
  
• Step 2: you then assign a lower standard of analysis/protection to public RKBA and then use rational basis - or more accurately, rational basis made to look like intermediate scrutiny - to say that because the legislature deemed it a public safety matter, it must be so and therefore good.

This defense fails on several levels. We can skip talking about Step 1 -- we all agree public RKBA is core. Let's focus on Step 2 because it now fails even if public RKBA is deemed not core to the right.


The Implication of Intermediate Scrutiny, per Chester

The Chester opinion said that 2A rights were implicated when a violent misdemeanor convict was denied access to firearms. But - because Heller talked of "lawful persons" being protected by the core of the right - the 4th Circuit said Chester fell outside the ring of strong protection. The restrictions on Chester did not directly offend the 'core' of the right, because he was violently unlawful. So the Fourth Circuit turned to Intermediate Scrutiny instead.

Intermediate Scrutiny is proscribed when the there is suspicion that a core right is implicated. It is a higher standard than rational basis - which basically says a legislature need do nothing more than consider the effect of the law for it to pass constitutional muster. Intermediate Scrutiny is for cases that almost reach the core or a right.

The Fourth made clear that Intermediate required more than a showing of well considered legislative intent. They said that it required the government to "prove" that Chester should be denied access to firearms. They had to prove he was dangerous to himself or others. The Fourth said that a law that simply supposes harm to exist is unconstitutional.

The Chester Opinion Undercuts Step Two of the 2A Two-Step

Apply this rationale to the second part of the 2A Two-Step: District Courts have been using what they claim to be 'Intermediate Scrutiny' to evaluate any presumed outside-the-core RKBA right. Using this, they accept without question arguments from the government that the restrictions under evaluation are reasonable because they are 'for the children', etc.

But none of these District Courts have actually told the government to do what the Fourth told the government to do: prove it.

The District Courts have waved the "intermediate" semantic but blindly accepted the arguments of the government as gospel. They have used the rationale that legislative intent - in the name of public safety - was adequate. But without any form of proof, this is called "rational basis" scrutiny. Courts know rational basis would not survive a direct challenge, so they call it intermediate instead.

This is another gem in Chester. It makes clear that intermediate analysis requires more than "because we said so" as a proof. That seriously dents half of the argument used by the prohibitionists. They cannot demonstrate that lawful persons armed with guns represent a danger to society, only that guns in the hands of unlawful persons are dangerous. You cannot restrict the rights of a lawful person because of the bad acts of an unlawful person.

We've been focusing on Chester's impact on Step 1 of the Two-Step: that Chester did not limit the right to the home (but did not explicitly declare RKBA beyond it, either); and that Chester also strongly implicated strict scrutiny when evaluating restrictions on lawful persons.

But I wanted to point out that the goodness there is not restricted to Step 1. Even if our District Court found public RKBA to outside the core of 2A, it must require more than the word of the government when it comes to the final evaluation. Chester says that the government must prove the restriction is justified in the name of public safety. And that is nigh impossible for Maryland to do.

But...

An anti-gun judge could easily accept the argument that most murders in Baltimore are from handguns and then accept this as "evidence". But it would still eventually fail because there is no proof that armed, lawful persons in Maryland are the cause of violent crime. The Brady "Blood in the Streets" argument would get put to the test, and only the most rabid anti-gun court could let it pass.

I have no idea where our District Court will fall.

What is clear is that Maryland must now prevail on two prongs. Three months ago they only had to argue that the core of the right did not include public RKBA. Now - even if they win that argument - they must prove that their restriction actually protects public safety. There are now two gates, where in the past there was one.


Chester alone cannot cure the defects that deny us our civil rights. But by setting a higher standard for evaluating RKBA questions, our Fourth Circuit has put Maryland front and center in the national debate over gun rights. Our Woollard - and to some extent Bateman in North Carolina - could become the most valuable cases our movement has nationwide.

Wonder if Gansler is feeling any pressure?

 

[Inigoes]

First, Gansler has a ready-made defense that has worked nationally at the District Level. We're calling it the "2A Two Step":

• Step 1: you point out that Heller did not specifically say that RKBA existed outside the home, thereby allowing a court to say that public RKBA is not "core to the defined 2A right."
  
  
• Step 2: you then assign a lower standard of analysis/protection to public RKBA and then use rational basis - or more accurately, rational basis made to look like intermediate scrutiny - to say that because the legislature deemed it a public safety matter, it must be so and therefore good.

...

Wonder if Gansler is feeling any pressure?

I thought we were past that with woollard. Isn't the judge looking at the fundemental right not being applied equally via 1983?

 

[Patrick]

I thought we were past that with woollard. Isn't the judge looking at the fundemental right not being applied equally via 1983?

Not really. There is a Due Process complaint but it depends on the definition of the right.

The fight in all of these cases is getting recognition that RKBA exists everywhere. That is the biggest question before the courts.

The next question is what that recognition implies. Is the right diminished outside the home as so many suggest/desire?


As of now, on the federal level there is still no recognized right to bear arms outside your home, fundamental or otherwise. Chester doesn't "fix" that. It just lays some helpful groundwork that helps us along, by restricting some of the arguments made by the other side. Until now they had carte blanche to argue 'not core' and 'for the children'. Chester does not end their game, but it seriously raises the bar on their claims.


Hope this helps. Sometimes I fear I confuse topics more than I clear them up.

 

[eruby]

What the h3ll???

Is this the fingers in the ears defense?

"I can't hear you..don't understand you..sorry..you make no sense therefore I object to the complaint"

Kind of sums it up.

But in time, Maryland WILL be spanked!