Severability - let's get one thing straight

[Brooklyn]

Yet you are willing to concede the entire referendum process...

BTW, people who support the referendum would like all parts of the law struck down. Recognizing that we might not win that battle in court isn't conceding.

I claim as a fact that we can not win. I claim as a fact that we have no resources to pursue it. I claim as a fact that we will lose the ability to defeat weak incumbents and shift the balance if power in the Mga.

I further assert that if the mga does not change but we somehow win referendum the mga will just pass a new bill, just as problematic but having fewer contititional issues, and then if and when ajudicated it will face a court without scalia.

Now go and bring the referendum. Its is your right,and if you believed it it is your duty. It is not my duty to fight for your cause. Where are all the pro referendum people?

Please do or do not do. I need to revamp my entire 2014 strategy if this is on the ballot. Just do it or stop talking about it.

Especially if you think you will win. Nothing sells like success. Want people to belive show them. You will all be heros and the old guard can go back to their day jobs.


Oh right you want us to do the work.. Got it. Sorry no.






.

 

[iH8DemLibz]

I'm not going to write a novel here, but let me just share with you guys a brief synopsis of something I came up with a few years ago called the Progression Theory, as it sort of explains what 6-Pack and iH8DemLibz just stated. It's a new spin on things, if you will.

As backwards as this sounds, most of the liberals in this country are smarter than most of the conservatives. The Progression Theory basically argues that there are three stages a person can fall into for both politics and religion. Stage 1 politics is conservative, and stage 1 religious are believers of God. These people have made up the majority of our nation the last 200 years, and they're as dumb as a wall. Ask any of them to articulate their views and why they believe what they believe, and you'll just hear fumbling and nonsense.

Stage 2 are the liberals and atheists who are smart enough to recognize that those in stage 1 are clueless. The liberals and atheists believe what they believe not because it makes any sense, but because they feel since idiots are conservative and believe in God, it must therefore be incorrect. They're elitist in the sense that "they know better, therefore they are correct." Those in stage 2 base their opinions on others, not on anything sound, and they never look in the mirror.

Stage 3 are those who, like those in stage 1, are conservatives and believers of a higher power. The difference is these people recognize the ignorance of those in stage 1 and stage 2, and these people can articulate their views, reason, etc.

The shift we're seeing in our country is a shift from stage 1 -> stage 2. We're technically getting smarter, but we're moving in the wrong direction. The only way we (pro-2A people) can win, is to educate those in stage 1 of their ignorance (they're on our side, but they don't know why), while also tearing down the assumptions made by those in stage 2.

Please note that you can be in different stages for politics/religion, so it's not a one-size-fits-all approach.

DUDE! You are my new HERO. I think. Still wrapping my head around it.

What I get out of this is that stage 3 people are Brilliant Libertarians. Not to be confused with Braindead Libtards.

Very well put, Sir.

Very well put indeed.

 

[dblas]

SB281 is not going down in flames in its entirety just because one section is deemed unconstitutional and there is no severability clause within the bill itself.

SCOTUS looks to legislative intent when determining whether an unconstitutional portion of a bill is severable or not.

The 2013 Maryland Legislative Drafting Manual deals with this pretty well.

http://dls.state.md.us/data\leganda...ana_bildra_bildraman\2013-Drafting-Manual.pdf

The basic test for determining whether a bill embraces more than one subject
is whether or not all portions of the bill are “germane” (i.e., connected, related, pertinent) or whether they are foreign to one another. Note that absent an express nonseverability clause, all enactments of the General Assembly are presumed to be severable. (See Article 1  Rules of Interpretation, § 23 of the Annotated Code.)

Therefore, on determining that a law embraces more than one subject, a court will attempt to define and give effect to the principal subject of the enactment and separate out the dissimilar subjects. For an analysis of the application of the “one subject” rule to a legislative enactment, see Migdal v. State, 358 Md. 308 (2000).

at p. 35

Severability Clause and Nonseverability Clause
Article 1 – Rules of Interpretation, § 23 of the Annotated Code states that
provisions of statutes enacted after July 1, 1973, are severable unless the statute specifically provides that they are not. However, the following clause may be used to reinforce this rule:

Example
...; making the provisions of this Act severable; ...

SECTION 2. AND BE IT FURTHER ENACTED, That if any provision of this
Act or the application thereof to any person or circumstance is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions or any other application of this Act which can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are declared severable.

at p. 109-110

So, while the General Assembly could add the above language to reinforce that a bill is severable should any portion of it be struck down, the presumption since 1973 is that everything is severable UNLESS the General Assembly puts something into the bill stating that the bill is NOT severable.

So, SB281 is NOT getting struck down in its entirety just because one single portion is found unconstitutional.

I hate raining on our parade. Now, if anybody can prove the opposite, I am all ears/eyes and will be dancing in the streets after agreeing with you.

If you were relying on the bill not being severable in the hope that it would all be struck down in Court, you need to change your risk outlook now.

You are welcome for all of the above...

 

[jonnyl]

Your attitude is pretty elitist. I have read plenty of case law and that's why I am asking why anyone thinks the licensing is going to be overturned. You obviously can't articulate a reasonable response.


BTW, I am an NRA member and have donated to MSI over the years.

I think that even in the most narrow interpretation of Heller possible it is still clear that owning a handgun for self-defense in your home is a fundamental right.

The government (Fed or State) should have a pretty high bar to justify putting up any barriers to allowing someone to exercise a fundamental right, let alone a high barrier.

I think realistically that because guns are so scary, the courts are giving ore leeway to the gov than they would for other rights. Even though most of us would disagree with that it seems to be the way things are.

Someone showing that they can afford a handgun, but can't afford the additional costs, or training not being available, etc... may be able to show that the exercise of the right is being suppressed.

I'd think the best case that could be made would be Maryland's own words in Woolard that they think reducing the number of handguns is their goal.

You're right there are a lot of licensing schemes in existence, so getting it overturned is probably a pretty high bar....

 

[Traveler]

Originally Posted by aireyc View Post
I'm not going to write a novel here, but let me just share with you guys a brief synopsis of something I came up with a few years ago called the Progression Theory, as it sort of explains what 6-Pack and iH8DemLibz just stated. It's a new spin on things, if you will.

As backwards as this sounds, most of the liberals in this country are smarter than most of the conservatives. The Progression Theory basically argues that there are three stages a person can fall into for both politics and religion. Stage 1 politics is conservative, and stage 1 religious are believers of God. These people have made up the majority of our nation the last 200 years, and they're as dumb as a wall. Ask any of them to articulate their views and why they believe what they believe, and you'll just hear fumbling and nonsense.

That is one of the most arrogant posts I have read in a while.

Feel free to think as you like. Insulting people of faith is just narrow minded.

As I read further down, it does not get much better but, comes around a bit. I firmly believe we need to have a rational basis for our faith.

Psalm 10:4

In the pride of his face the wicked does not seek him; all his thoughts are, “There is no God.”


Obadiah 3

The pride of your heart has deceived you, you who live in the clefts of the rock, in your lofty dwelling, who say in your heart, "Who will bring me down to the ground?”

 

[Brooklyn]

Your attitude is pretty elitist. I have read plenty of case law and that's why I am asking why anyone thinks the licensing is going to be overturned. You obviously can't articulate a reasonable response.


BTW, I am an NRA member and have donated to MSI over the years.

Then ask someone who can.I take no offense in case you were wondering

 

[RRHemi]

I'm not going to write a novel here, but let me just share with you guys a brief synopsis of something I came up with a few years ago called the Progression Theory, as it sort of explains what 6-Pack and iH8DemLibz just stated. It's a new spin on things, if you will.

As backwards as this sounds, most of the liberals in this country are smarter than most of the conservatives. The Progression Theory basically argues that there are three stages a person can fall into for both politics and religion. Stage 1 politics is conservative, and stage 1 religious are believers of God. These people have made up the majority of our nation the last 200 years, and they're as dumb as a wall. Ask any of them to articulate their views and why they believe what they believe, and you'll just hear fumbling and nonsense.

Stage 2 are the liberals and atheists who are smart enough to recognize that those in stage 1 are clueless. The liberals and atheists believe what they believe not because it makes any sense, but because they feel since idiots are conservative and believe in God, it must therefore be incorrect. They're elitist in the sense that "they know better, therefore they are correct." Those in stage 2 base their opinions on others, not on anything sound, and they never look in the mirror.

Stage 3 are those who, like those in stage 1, are conservatives and believers of a higher power. The difference is these people recognize the ignorance of those in stage 1 and stage 2, and these people can articulate their views, reason, etc.

The shift we're seeing in our country is a shift from stage 1 -> stage 2. We're technically getting smarter, but we're moving in the wrong direction. The only way we (pro-2A people) can win, is to educate those in stage 1 of their ignorance (they're on our side, but they don't know why), while also tearing down the assumptions made by those in stage 2.

Please note that you can be in different stages for politics/religion, so it's not a one-size-fits-all approach.

Well put!

 

[fabsroman]

Shout it from the rooftops, start a new thread every day and get a billboard along the Beltway and people on here still won't believe you because that's not the opinion of certain organizations.

Im beginning to re-think referendum though: if our own kind are too thick-headed, how can we expect to educate those who don't care? Honestly, I'm about out of patience of trying to educate people on here. I charge $200/hour for my advice to clients, but gladly spend time on here trying to correct misconceptions about the court-only route.

lol - I only bill $175 an hour. I'll get to $200 eventually. My wife just left for work and saw me reading this board instead of getting through the mound of paperwork I have in front of me. Told here "I need to stop reading this board because it is a waste of time and it gives me indigestion".

I read a couple of threads about severability last night, some of which MSI members were participating in, and they all made it seemed as though there was no severability in SB281. A little over an hour of my time revealed the OP and left me scratching my head. Who the heck is advising the leadership of our 2nd Amendment organizations? I so wish my kids were all of school age so I could participate more in this process.

Me, I am buying the firearms I think I might want over the next 18 years, and then trying to decide where we are going to live after that so I can start looking at farms in those areas. Think my wife and I have decided that our main home will be in Florida, or another right leaning state where there is no income tax, and then we will spend the rest of our days out of the year in a different state or states where we have bought farm land (i.e., I like hunting). End of the day, it is all probably going to depend on what our kids do.

I am starting to lose hope regarding the demise of SB281.

 

[6-Pack]

I'm amazed that only a few months ago we were united as one and now we're falling apart.

What we need to overcome is the "because NRA/MSI/SAF said it it mus be true" attitude. I'm a member of these organizations because I support their goals and objectives, but that doesn't mean I disagree at times.

Everyone has a strong opinion one way or another on referendum, but there are many opinions stated as fact that are simply incorrect (the contention that the antis want a referendum comes to mind). We need to take FACTS (like the fact about the severability of SB-281) and make sure we weigh our options accordingly. I saw at least one post a while back saying we could always referendum if we lose he court challenge (which is incorrect) - we have a strict deadline for referendum and I will put forth the effort to at least educate those on here who are willing to listen). Before posting something as a fact (such as the debate dblas and I had regarding severability), please at least do a Google search or ask if it is indeed accurate.

I've been criticized because I'm not a "pro" lawyer who handles this stuff on a daily basis. That's fine. But I bring something to the table to you: the knowledge of the law that I have and I am willing to give it away for free on here to help the cause. If you want to tell me I'm wrong about why the court won't automatically issue an injunction then please cite a case or statue, not conjecture and speculation because my knowledge of equity and remedies says that injunctions are usually never automatically granted.

 

[6-Pack]

lol - I only bill $175 an hour. I'll get to $200 eventually. My wife just left for work and saw me reading this board instead of getting through the mound of paperwork I have in front of me. Told here "I need to stop reading this board because it is a waste of time and it gives me indigestion".

I read a couple of threads about severability last night, some of which MSI members were participating in, and they all made it seemed as though there was no severability in SB281. A little over an hour of my time revealed the OP and left me scratching my head. Who the heck is advising the leadership of our 2nd Amendment organizations? I so wish my kids were all of school age so I could participate more in this process.

Me, I am buying the firearms I think I might want over the next 18 years, and then trying to decide where we are going to live after that so I can start looking at farms in those areas. Think my wife and I have decided that our main home will be in Florida, or another right leaning state where there is no income tax, and then we will spend the rest of our days out of the year in a different state or states where we have bought farm land (i.e., I like hunting). End of the day, it is all probably going to depend on what our kids do.

I am starting to lose hope regarding the demise of SB281.

If you are thinking of moving out of state, you might want to think about waiving in DC to get reciprocity in another state.

I was posting last night while preparing a deed for filing - I had to re-read it this morning just to make sure I wasn't too distracted by reading MDS.

 

[fabsroman]

If you are thinking of moving out of state, you might want to think about waiving in DC to get reciprocity in another state.

I was posting last night while preparing a deed for filing - I had to re-read it this morning just to make sure I wasn't too distracted by reading MDS.

Waived into DC after taking the bar exam in 1998. Thanks for the advice though. Had thought about moving to VA in 2004 and VA allows attorneys to waive in if they hang a shingle for their own practice. Florida isn't quite as easy.

Also, not sure I really want to practice law in retirement. I prefer doing tax work right now, and as long as I am an attorney/CPA admitted to practice in some state, I believe I can represent clients before the IRS. I also do a decent amount of small business consulting. While I do litigation right now and have done it for the past 14 years, it isn't something I really enjoy. Think the only reason I continue to do it is to help my clients out. Practicing law makes me feel good about my profession when I can help people. Sending out invoices every month though is a little tough for me, but the bills do need to get paid.

Also looking at setting up a bunch of rental properties here in Maryland right now and then doing a 1031 exchange when we move and putting the money to work in the state we move to. By the time my wife and I are in our 60's, we should be in really good shape at the rate we are currently saving. Our plan is to have the option to do whatever kind of work we feel like doing from our 60's on, even if it is volunteer work. Sadly, I'll still probably be practicing law so I can help my clients with legal issues.

 

[fabsroman]

You are welcome for all of the above...

Yeah, after reading a couple SCOTUS cases regarding severability, I did a google search on severability for Maryland and your thread came up, crow and all. lol

Then, I went and read through the 2013 Maryland Legislative Drafting manual. I honestly have no idea how anybody could even think that severability is not available for SB281 and that it must either fail or survive in its entirety.

Answer is, SCOTUS or any other Court can slice it up however they see fit and allow the Constitutional parts to remain.

 

[fabsroman]

What makes you think the licensing will die? As I understand it several other states have licensing of some type for ownership.

I dont support licensing, just trying to understand the logic

Not all of the licensing portion will die. I believe the monetary fees required for it will die. Whether or not the monetary fees associated with the background check will kill the fingerprinting, I have no idea. I think the fingerprinting and training are viable as long as the applicant does not have to pay for them and they are not too burdensome. The fingerprinting is the part I really hate. I would be willing to pay $1,000 for a handgun qualification license IF there was no fingerprinting. Granted, that would not be fair to the poor, or my wife. lol

Ultimately, I would need to do a couple weeks worth of research to really give you an opinion on the licensing issue that I could really stand behind and argue. At this point, I'm not willing to do that much work. That might change over the summer which is usually my slow period with work, but who knows.

 

[Brooklyn]

I think that even in the most narrow interpretation of Heller possible it is still clear that owning a handgun for self-defense in your home is a fundamental right.

The government (Fed or State) should have a pretty high bar to justify putting up any barriers to allowing someone to exercise a fundamental right, let alone a high barrier.

I think realistically that because guns are so scary, the courts are giving ore leeway to the gov than they would for other rights. Even though most of us would disagree with that it seems to be the way things are.

Someone showing that they can afford a handgun, but can't afford the additional costs, or training not being available, etc... may be able to show that the exercise of the right is being suppressed.

I'd think the best case that could be made would be Maryland's own words in Woolard that they think reducing the number of handguns is their goal.

You're right there are a lot of licensing schemes in existence, so getting it overturned is probably a pretty high bar....

All binding case law says otherwise as far as I know. This means that the court must pave new ground to sustain Lic of a fundamental right in a post Heller world.

What they will do is anyone's guess, but the safest bet is not to cast doubt on settled law which is what Lic a right will do.

I am of course a brain dead NRA lemming and know nothing, But when we fight in 2014 I do not want the opposition to be able to say "even on Md shooters they know licencing will hold up in court."

I know the deal, op force knows the deal. But why do we need to give the press room to help us undercut our own argument in the 2014 election?

They will use these quotes in 2014 just as we will use thiers.

 

[fabsroman]

All binding case law says otherwise as far as I know. This means that the court must pave new ground to sustain Lic of a fundamental right in a post Heller world.

What they will do is anyone's guess, but the safest bet is not to cast doubt on settled law which is what Lic a right will do.

I am of course a brain dead NRA lemming and know nothing, But when we fight in 2014 I do not want the opposition to be able to say "even on Md shooters they know licencing will hold up in court."

I know the deal, op force knows the deal. But why do we need to give the press room to help us undercut our own argument in the 2014 election?

They will use these quotes in 2014 just as we will use thiers.

You went from the Court case to the election. What quotes are they going to be using from this chatboard (rhetorical)? If their legal team relies on what is posted on this chatboard, we have already won the Court case. Unless of course, our legal team is relying on posts made to an anti-gun chatboard. Then all bets are off.

 

[iggy]

I think that even in the most narrow interpretation of Heller possible it is still clear that owning a handgun for self-defense in your home is a fundamental right.

The government (Fed or State) should have a pretty high bar to justify putting up any barriers to allowing someone to exercise a fundamental right, let alone a high barrier.

I think realistically that because guns are so scary, the courts are giving ore leeway to the gov than they would for other rights. Even though most of us would disagree with that it seems to be the way things are.

Someone showing that they can afford a handgun, but can't afford the additional costs, or training not being available, etc... may be able to show that the exercise of the right is being suppressed.

I'd think the best case that could be made would be Maryland's own words in Woolard that they think reducing the number of handguns is their goal.

You're right there are a lot of licensing schemes in existence, so getting it overturned is probably a pretty high bar....

I appreciate you taking a shot at it. I agree that it is a should be probably wont be thing.

 

[iggy]

I claim as a fact that we can not win. I claim as a fact that we have no resources to pursue it. I claim as a fact that we will lose the ability to defeat weak incumbents and shift the balance if power in the Mga.

I further assert that if the mga does not change but we somehow win referendum the mga will just pass a new bill, just as problematic but having fewer contititional issues, and then if and when ajudicated it will face a court without scalia.

Now go and bring the referendum. Its is your right,and if you believed it it is your duty. It is not my duty to fight for your cause. Where are all the pro referendum people?

Please do or do not do. I need to revamp my entire 2014 strategy if this is on the ballot. Just do it or stop talking about it.

Especially if you think you will win. Nothing sells like success. Want people to belive show them. You will all be heros and the old guard can go back to their day jobs.


Oh right you want us to do the work.. Got it. Sorry no.






.

You claim a awful lot as fact, that doesn't make it so.

Who are you and why would your strategy matter to me/others?

 

[Brooklyn]

You went from the Court case to the election. What quotes are they going to be using from this chatboard (rhetorical)? If their legal team relies on what is posted on this chatboard, we have already won the Court case. Unless of course, our legal team is relying on posts made to an anti-gun chatboard. Then all bets are off.

I am saying that we are, allways have been going to fight, with or without a referedum , to remove from office those who supported and/or did not vigorously oppose sb281. This is not news. There never was, and never will be a court only strategy.

The leadership, and those here that agree, believe that there are incumbents who are vulnerable, and that if we focus our energies district by district we can change the MGA and even over the next few elections move it in our direction. We further feel, as has been stated here often,that a statewide referendum will make this difficult and even impossible.

We will be making political arguments. They will be doing the same. I do not now and never have cared about the use of this dialog in court.. I am concerned that it may be used during the election.

This should be sufficient. Our opposition does not need to know what parts of the bill we may or may not think will or will not survive what level of review..

I will concede nothing going into 2014. I will use whatever argument has traction with the audience i am engaging at the time.
I will not limit it to gun control or crime or taxes or anything else.

There are few single issue voters so I will be a multi issue advocate. Unless the referendum forces the issue then in have no way to manuever and I figure we will lose. Everything ---the referendum the MGA the statewide races and even the pettition of cert.

Of course I am a brain dead NRA robot, so carry on.

 

[Brooklyn]

You claim a awful lot as fact, that doesn't make it so.

Who are you and why would your strategy matter to me/others?

Then bring the petition. Now. Your clock is ticking not mine. I will not do it. You will not do it? Who will?

If you think the referendum is the right thing to do then it is your duty to do it. Not mine.

Do or do not do. Find all the people who think I am wrong and show me up. I can take it.

Posting is not doing. Doing is doing.

I have only decided for me. I have no other power. I can not decide for you. Would not, could not.

So there is only one question remaining --- what will you do. And when will you do it.

 

[iggy]

Then bring the petition. Now. Your clock is ticking not mine. I will not do it. You will not do it? Who will?

If you think the referendum is the right thing to do then it is your duty to do it. Not mine.

Do or do not do. Find all the people who think I am wrong and show me up. I can take it.

Posting is not doing. Doing is doing.

I have only decided for me. I have no other power. I can not decide for you. Would not, could not.

So there is only one question remaining --- what will you do. And when will you do it.

I see you spreading a lot of criticism but when pressed you don't have any solutions so you punt with "then start a petition"

I don't think people who want litigation are wrong, I don't think people who want a referendum are wrong either, I don't even think that people who want to hold out for changing the MGA are wrong. I think we should go for all three and not disparage our allies who hold a slightly different view point. It's going to take all of us and more to make any difference at all.