The Difference with "Drake"

[Peaceful John]

Per Al Norris (http://thefiringline.com/forums/showthread.php?t=434336)

Partial quote: "What makes this different than all the other challenges that the SAF has used, prior to filing this case, is that this is a facial challenge to a specific portion of the law. the "lawsuit challenges the unrestrained discretion that New Jersey law vests in State and local officials to deny a “Permit to Carry” a handgun for lack of “justifiable need to carry a handgun.” N.J.S.A. § 2C:58-4(c), (d)."

There are two means to challenge contested law. The first (and easiest, therefore the most used) is an as-applied approach. This merely says that the law, as applied in this specific instance, is wrong.

The second approach, is a facial challenge. This approach is very difficult. What a facial challenge says is that in all cases, the law is wrong. Not just this case, but in every case. To defend against a facial challenge, all it is required is for the defense to prove that in one case, the law holds."

The Court may be waiting for Drake's facial challenge. It is to be fervently hoped for.

 

[ryan_j]

I am not 100% clear on Maryland law so please forgive me.

Are there other means to possess a handgun outside of the home in Maryland?

I know here in New Jersey, the law is pretty clear - possession of handguns is illegal unless you have a permit to carry.

The law then grants specific exemptions - obviously for law enforcement and the military. Private detectives and a few others.

Then you are allowed in your "home, premises, place of business or other land owned or possessed."

You may take your firearms to an authorized range or place of target practice but only directly to and from, locked in the trunk, unloaded with only reasonable deviations.

I think that's pretty much it.

So the "permit to carry" is essentially a "permit to possess" and this was the major issue that Judge Hardiman had with it. Even if they wanted to ban concealed carry they should still allow open carry. Long shot and not ideal but it makes sense.

 

[annihilation-time]

Other than a few exemptions, you cannot possess a handgun outside the home without a permit.

 

[press1280]

I am not 100% clear on Maryland law so please forgive me.

Are there other means to possess a handgun outside of the home in Maryland?

I know here in New Jersey, the law is pretty clear - possession of handguns is illegal unless you have a permit to carry.

The law then grants specific exemptions - obviously for law enforcement and the military. Private detectives and a few others.

Then you are allowed in your "home, premises, place of business or other land owned or possessed."

You may take your firearms to an authorized range or place of target practice but only directly to and from, locked in the trunk, unloaded with only reasonable deviations.

I think that's pretty much it.

So the "permit to carry" is essentially a "permit to possess" and this was the major issue that Judge Hardiman had with it. Even if they wanted to ban concealed carry they should still allow open carry. Long shot and not ideal but it makes sense.

The MD and NJ laws are quite similiar in this regard. That's why I'm not very optimistic Drake will get cert after Woollard's denial.
There are some other differences in the cases, namely the opinions themselves. Drake essentially said the right didn't extend beyond the home(although weaseled around with "may have application outside the home"), Woollard held it did, but used the intermediate scrutiny two-step to write public carry off.
We still, as of yet, don't have a true may-issue or total carry ban circuit splits. This is perhaps a reason Woollard was denied today.

 

[RightNYer]

The MD and NJ laws are quite similiar in this regard. That's why I'm not very optimistic Drake will get cert after Woollard's denial.
There are some other differences in the cases, namely the opinions themselves. Drake essentially said the right didn't extend beyond the home(although weaseled around with "may have application outside the home"), Woollard held it did, but used the intermediate scrutiny two-step to write public carry off.
We still, as of yet, don't have a true may-issue or total carry ban circuit splits. This is perhaps a reason Woollard was denied today.

Or there is another reason. Roberts and Kennedy are liberals.

 

[krucam]

Or there is another reason. Roberts and Kennedy are liberals.

I'll take those 2 Liberal's votes any day. Especially like they did in McDonald & Heller...

 

[RightNYer]

I'll take those 2 Liberal's votes any day. Especially like they did in McDonald & Heller...

Except that Heller was worthless. Other than the Chicago ban (which Posner could have struck down even without Heller), not a single law ANYWHERE IN THE UNITED STATES has been struck down post Heller/McDonald. NOT ONE! Why? Because the Supreme Court refused (and still refuses) to lay out a standard of review, and thus, the lower courts apply rational basis. And if the Supreme Court denies cert, it means they support that standard of review. It's that simple.

 

[ryan_j]

The MD and NJ laws are quite similiar in this regard. That's why I'm not very optimistic Drake will get cert after Woollard's denial.
There are some other differences in the cases, namely the opinions themselves. Drake essentially said the right didn't extend beyond the home(although weaseled around with "may have application outside the home"), Woollard held it did, but used the intermediate scrutiny two-step to write public carry off.
We still, as of yet, don't have a true may-issue or total carry ban circuit splits. This is perhaps a reason Woollard was denied today.

The other thing is that based on other threads, it does seem like MD issues a lot of permits, relatively speaking. They are restricted permits from what I see but it is nothing like NJ.

For example, in Maryland you can have a business with cash flow and get a permit. Not in NJ, example Richard Pantano who was refused a permit despite carrying thousands in cash.

Threats against your life, for sure, which is how Woollard got his permit. Again, wouldn't have happened in NJ. Muller was initially denied. It was only with the federal lawsuit threatening to bring the whole thing crashing down did NJ reluctantly issue a permit (and it remains to be seen whether Muller would be able to renew the permit).

So NJ is more like a true total ban, just not on paper.

The only people really getting permits are security guards and these are restricted to work duties. Not even judges get permits.

But I can still see the court denying cert. Moore would have been the better case for them to take, because that is an outright ban.

 

[Kharn]

Except that Heller was worthless. Other than the Chicago ban (which Posner could have struck down even without Heller), not a single law ANYWHERE IN THE UNITED STATES has been struck down post Heller/McDonald. NOT ONE! Why? Because the Supreme Court refused (and still refuses) to lay out a standard of review, and thus, the lower courts apply rational basis. And if the Supreme Court denies cert, it means they support that standard of review. It's that simple.

"not a single law"?
You might want to talk to Wilmington DE's public housing authority and the City of San Francisco.

The other thing is that based on other threads, it does seem like MD issues a lot of permits, relatively speaking. They are restricted permits from what I see but it is nothing like NJ.

For example, in Maryland you can have a business with cash flow and get a permit. Not in NJ, example Richard Pantano who was refused a permit despite carrying thousands in cash.

Threats against your life, for sure, which is how Woollard got his permit. Again, wouldn't have happened in NJ. Muller was initially denied. It was only with the federal lawsuit threatening to bring the whole thing crashing down did NJ reluctantly issue a permit (and it remains to be seen whether Muller would be able to renew the permit).

So NJ is more like a true total ban, just not on paper.

The only people really getting permits are security guards and these are restricted to work duties. Not even judges get permits.

But I can still see the court denying cert. Moore would have been the better case for them to take, because that is an outright ban.

And Moore isn't even dead yet, since last week the District Court opined that the case is not moot due to no issued carry permits and no relief on stun guns. Depending where the District Court goes with it, that might mean another trip back to the 7th for Ms Madigan.

 

[wolfwood]

Except that Heller was worthless. Other than the Chicago ban (which Posner could have struck down even without Heller), not a single law ANYWHERE IN THE UNITED STATES has been struck down post Heller/McDonald. NOT ONE! Why? Because the Supreme Court refused (and still refuses) to lay out a standard of review, and thus, the lower courts apply rational basis. And if the Supreme Court denies cert, it means they support that standard of review. It's that simple.

that is not true
the taser ban in Michigan was struck down in Yanna
very recently the Mass Supreme Court struck down the lack of guidelines to for out of state CCW holders in Bureau v. Simkin
there was a Midwest case I don't recall the details of that struck down a whole state provision based on being overbroad
Obviously Illinois's got struck down
Numerous resident alien laws have been struck down all across the country
there are others over at the firing line if you want a more comprehensive list

 

[yellowfin]

that is not true
the taser ban in Michigan was struck down in Yanna
very recently the Mass Supreme Court struck down the lack of guidelines to for out of state CCW holders in Bureau v. Simkin
there was a Midwest case I don't recall the details of that struck down a whole state provision based on being overbroad
Obviously Illinois's got struck down
Numerous resident alien laws have been struck down all across the country
there are others over at the firing line if you want a more comprehensive list

All still VERY small potatoes compared to carry license in CA, NY, NYC, NJ, MD, and DC. We need the massive changes that the anti gun establishment DREADS, not the tiny crumbs they can just chalk up as cost of doing business. We need Hiroshima on them, not a firecracker.

 

[RightNYer]

All still VERY small potatoes compared to carry license in CA, NY, NYC, NJ, MD, and DC. We need the massive changes that the anti gun establishment DREADS, not the tiny crumbs they can just chalk up as cost of doing business. We need Hiroshima on them, not a firecracker.

We also a standard of review that would render restrictions on guns based on cosmetics unconstitutional.

 

[press1280]

The other thing is that based on other threads, it does seem like MD issues a lot of permits, relatively speaking. They are restricted permits from what I see but it is nothing like NJ.

For example, in Maryland you can have a business with cash flow and get a permit. Not in NJ, example Richard Pantano who was refused a permit despite carrying thousands in cash.

Threats against your life, for sure, which is how Woollard got his permit. Again, wouldn't have happened in NJ. Muller was initially denied. It was only with the federal lawsuit threatening to bring the whole thing crashing down did NJ reluctantly issue a permit (and it remains to be seen whether Muller would be able to renew the permit).

So NJ is more like a true total ban, just not on paper.

The only people really getting permits are security guards and these are restricted to work duties. Not even judges get permits.

But I can still see the court denying cert. Moore would have been the better case for them to take, because that is an outright ban.

While this is true, I doubt whether NJ issues more or less permits will amount to anything to swing another justice to vote for cert.
I think we may possibly need to have more cases filed in order to increase odds of a split. For example, since Palmer has been completely stalled in DC District Court, perhaps a suit through DC Superior Court(DC's "state" court) should be filed against DC's total carry ban? I also think an OC lawsuit should be filed against Denver by an out-of-state plaintiff(like Gray Peterson's case), SC could also be sued for essentially banning carry for MD residents. We simply need as much conflict in the lower courts as possible, it's becoming apparent SCOTUS will wait until that happens.

 

[Ragnar]

When will the Supreme Court consider whether to hear the Drake case?

 

[kcbrown]

The argument that the Court requires a major split in order to render an opinion is, of course, bollocks. The implication of that is that if every circuit court rules in such a way as to render the Constitution inert, then the Supreme Court will do nothing about it.

Answer me this: how many "splits" were there on the subject addressed by Brown v Board of Education prior to that decision?


On the issue of carry, we already have a circuit split. That split happens to be the 7th Circuit against everyone else who has weighed in thus far. And that quite clearly isn't enough to get SCOTUS to act.

This, along with the options available to it for both Woollard and Kachalsky, is why I believe that SCOTUS is done with us on the issue of carry. We should continue to bring cases (just in case), but I think it's time to start looking at other options.

 

[Kharn]

When will the Supreme Court consider whether to hear the Drake case?

Petition is due in November, so probably late January or early February, it depends on if the state requests an extension or waives their chance to submit a response (which does happen for states, the SC will then review the petition and decide if the issue warrants requesting the state respond, but with such an in-your-face dissent, I doubt they'll waive).

 

[wolfwood]

All still VERY small potatoes compared to carry license in CA, NY, NYC, NJ, MD, and DC. We need the massive changes that the anti gun establishment DREADS, not the tiny crumbs they can just chalk up as cost of doing business. We need Hiroshima on them, not a firecracker.

This is a five year old body of law. The First Amendment free speech provisions where incorporated in 1914 via Gitlow. It is slowly being built upon every year.
Compared to most amendments this is actually going rather quickly from a historical perspective. The Courts are not going to simply overturn every law in the next year. That is not its role nor is it inclined to do so.

 

[HiballHiside]

This is a five year old body of law. The First Amendment free speech provisions where incorporated in 1914 via Gitlow. It is slowly being built upon every year.
Compared to most amendments this is actually going rather quickly from a historical perspective. The Courts are not going to simply overturn every law in the next year. That is not its role nor is it inclined to do so.

A five year old body of law? The second amendment was the second thing our founding fathers put in bill of rights.

When it comes down to the bill of rights, there should be a fast track. Got cases on the first amendment....Bing to the head of the line with you, second amendment...get on up here you're next.

Is it against the law to hold our civil rights that affirm our basic inalienable human rights of utmost importance and should be dealt with swiftly; coming down on the heads of those who have clearly ignored these tenants with a gavel that matches the weight of these issues?

I believe so!

 

[2AHokie]

This is a five year old body of law. The First Amendment free speech provisions where incorporated in 1914 via Gitlow. It is slowly being built upon every year.
Compared to most amendments this is actually going rather quickly from a historical perspective. The Courts are not going to simply overturn every law in the next year. That is not its role nor is it inclined to do so.

The role of the courts is to reign in the government. The system we have now rewards and permits government overreach while offering almost no recourse to those who are trampled upon. People at the NSA should literally be rotting in jail for violating the 4th Amendment. Instead, we have kangaroo courts that prevent the aggrieved from seeking justice.

When the government can pass a law that bans the most common rifle and it's going to take us literally years to challenge, there is something fundamentally wrong. The system "works" exactly backwards - it protects the government's ability to infringe on our rights and obstructs our ability to fix the problem.

SCOTUS might not be inclined to do its job, but that's because basic reading comprehension is too much to ask of them or any other politicians.

 

[RightNYer]

The argument that the Court requires a major split in order to render an opinion is, of course, bollocks. The implication of that is that if every circuit court rules in such a way as to render the Constitution inert, then the Supreme Court will do nothing about it.

Answer me this: how many "splits" were there on the subject addressed by Brown v Board of Education prior to that decision?


On the issue of carry, we already have a circuit split. That split happens to be the 7th Circuit against everyone else who has weighed in thus far. And that quite clearly isn't enough to get SCOTUS to act.

This, along with the options available to it for both Woollard and Kachalsky, is why I believe that SCOTUS is done with us on the issue of carry. We should continue to bring cases (just in case), but I think it's time to start looking at other options.

I agree. I've never found the Illinois v. Maryland/NY distinction particularly compelling. A total ban versus a de facto ban to me is the same thing.