**FLASH TRAFFIC** WOOLARD REVERSED

[Tashtego]

Can't be too surprised about the Fourth Circuit on this issue, knowing the tendencies of that court.

"Help me Obi Wan Scalia, you're my only hope!"

 

[JD-IAFF]

Prediction of SCT rulings is *always* hazardous. I've been doing it for 38 years and I think of myself as better at it than most. But I get surprised all the time. Few predicted the Chief's opinion in Obamacare for example. And I was mildly surprised that they struck down the Medicaid expansion mandate to the states with the vote that ruling got in the Court. As to concealed carry, I don't see the Court mandating it or any other type of carry, but I can see them relying on the same cases it cited in Heller for the proposition being pushed by Gura, et al, that either CC or OC is required. Otherwise the right doesn't apply outside the home at all and that makes no sense, as Posner held, if the right embodies the right of self-defense.

The odd thing is that I got that one right. I was the voice of doom around the office for months with the "it doesn't matter if the admin doesn't call it a tax. It's a tax, and therefore presumptively constitutional under Article I." People were very annoyed by that, but I accepted the shots they later provided with equanimity nonetheless.

I too was surprised by the Medicaid portion, given the makeup of the ruling, but it does tread onto some serious 10th Amendment problems with regard to Congress mandating state implementation of a federal statute. We're not really in an SD v. Dole situation there, since the Feds were essentially mandating the expenditure of state funds for a federal purpose (I may be reading that scenario wrong, if so, I'll stand corrected).

I agree that in the end it will probably come down to a question of either/or with regard to CC or OC, but OC isn't before them in either Kachalsky or Woollard, so I'm reluctant to think they'll go there on their own within the scope of whatever rulings those cases might produce. It may take additional rulings down the road challenging prohibitions on OC to really settle this matter with the finality that we want to see be applied.

 

[esqappellate]

"law-abiding" seems to have no problems following the law, and the % of law-abiding that commit gun related crimes is infintesimal compared to NON-law-abiding folk. That said, they can look at already established carry states who have "done it right" if they wish to find a permit system. Otherwise, they are treating everyone as would-be or outright criminal. What other fundamental right can color us in such a hue?

On the merits, I agree with you. But, like Posner in Moore, the SCT is not going to really mandate a particular set of requirements. It will allow each state to have their own rules, within whatever bounds the Court sets in Kachalsky.

 

[esqappellate]

The odd thing is that I got that one right. I was the voice of doom around the office for months with the "it doesn't matter if the admin doesn't call it a tax. It's a tax, and therefore presumptively constitutional under Article I." People were very annoyed by that, but I accepted the shots they later provided with equanimity nonetheless.

I too was surprised by the Medicaid portion, given the makeup of the ruling, but it does tread onto some serious 10th Amendment problems with regard to Congress mandating state implementation of a federal statute. We're not really in an SD v. Dole situation there, since the Feds were essentially mandating the expenditure of state funds for a federal purpose (I may be reading that scenario wrong, if so, I'll stand corrected).

I agree that in the end it will probably come down to a question of either/or with regard to CC or OC, but OC isn't before them in either Kachalsky or Woollard, so I'm reluctant to think they'll go there on their own within the scope of whatever rulings those cases might produce. It may take additional rulings down the road challenging prohibitions on OC to really settle this matter with the finality that we want to see be applied.

What was odd in the Medicaid expansion was that the Feds had mandated some coverage expansions in the past upon pain of losing all medicaid funding, and had, at other times, left it up to the states. The real case on mandating States for federal programs is Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, and I *love* that case. As to OC and CC carry, a fair argument can be mounted that Kachalsky involves both, as NY requires a license for either type of carry, just as Md does in Woollard. I think the Court could reach it.

 

[JD-IAFF]

The devil is in the details. The licensing requirement itself was not challenged in Heller. The details of the DC scheme are at issue on remand from Heller II in district court. MD licensing scheme in SB 281 is open to attack as it acts as a de facto ban on purchase for home possession with all of the onerous requirements, especially live fire, which are, as a practical matter, very difficult to satisfy in a timely way. And Heller II sustained DC's AWB in a very permissive part of the opinion, even though the court acknowledged that ARs are in common use. It is the only court to resolve that issue on the federal appellate level. Different issues will get different treatment.

I agree that it wasn't challenged, primarily because Heller conceded at oral that it was permissible per se. I still don't see them mandating a remedy that they would hold to be impermissible were it to be a challenged point. Maybe I'm importing more of a sense of review over their own mandates on their part than they actually employed.

And I would agree that SB 281 in its current form would be open to attack, but it hasn't been enacted yet, so we're dealing with hypotheticals there. That said, I don't think the remedy would be rescinding the scheme in totality, but instead a precise overturn of the aspects that make it problematic. In other words, I don't see a "you can't license" ruling. I see a "you can't license in the manner in which you are currently doing it" ruling.

With the AWB's, we run into common use vs. dangerous & unusual. As you said, and with which I agree, different courts will take different routes on that one. That said, they have upheld AWBs in practice before, so who knows? It's like trying to predict the weather.

 

[JD-IAFF]

What was odd in the Medicaid expansion was that the Feds had mandated some coverage expansions in the past upon pain of losing all medicaid funding, and had, at other times, left it up to the states. The real case on mandating States for federal programs is Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, and I *love* that case. As to OC and CC carry, a fair argument can be mounted that Kachalsky involves both, as NY requires a license for either type of carry, just as Md does in Woollard. I think the Court could reach it.

I would agree, with the caveat that Printz was a double edged sword. It equally insulates liberal state and local admins from having to comply with the mandates of a conservative Congress, so on some level it was a case of be careful what you wish for. It also doesn't buy us much in scenarios where state admins are willing or eager to comply on face with the federal mandate (as we well learned with regard to Brady).

on OC and CC, I see your point, and agree. What questions were posed in the Kachalsky petition? (I haven't read it).

 

[Elliotte]

Esq, do you think the 5 justices on the Supreme Court would believe the AG's BS about long gun open carry?

Computer programmers and Engineers have a more demanding standard than lawyers. Lawyers are just misunderstood. If programmers screw up, the program crashes. If engineers screw up, the bridge falls down. http://www.youtube.com/watch?v=C31IlOHNzbM

I can't pull up youtube on my work computer, but I'm guessing that's a link to the Tacoma Narrows bridge falling apart? And yes, I'm a licensed Engineer.

 

[knownalien]

Esq, do you think the 5 justices on the Supreme Court would believe the AG's BS about long gun open carry?


.

I don't think Gansler (the AG) even believes his own "long gun open carry" B.S.

 

[esqappellate]

I would agree, with the caveat that Printz was a double edged sword. It equally insulates liberal state and local admins from having to comply with the mandates of a conservative Congress, so on some level it was a case of be careful what you wish for. It also doesn't buy us much in scenarios where state admins are willing or eager to comply on face with the federal mandate (as we well learned with regard to Brady).

on OC and CC, I see your point, and agree. What questions were posed in the Kachalsky petition? (I haven't read it).

When we actually get a conservative congress, I'll be worried... But, anything that preserves the state's prerogatives is ok with me. I can always move.
The read of the petition is worth it. Here are the questions:

QUESTIONS PRESENTED
1. Does the Second Amendment secure a right
to carry handguns for self-defense outside the home?
2. Do state officials violate the Second Amendment
by denying handgun carry licenses to responsible,
law-abiding adults for lack of “proper cause” to
bear arms for self-defense?

 

[esqappellate]

Esq, do you think the 5 justices on the Supreme Court would believe the AG's BS about long gun open carry?




I can't pull up youtube on my work computer, but I'm guessing that's a link to the Tacoma Narrows bridge falling apart? And yes, I'm a licensed Engineer.

Naa, it is a diversion. Heller held that you have a 2A right to handguns. If the right to self defense applies outside the home, the Court will be unlikely to hold that that right can only be exercised by long guns.

 

[Brooklyn]

Didn't sleep much last night - the brain spent too much time wondering what the hell just happened. Having read the decision too many times, I'm struck by one section that appears to be grossly mis-interpreted by CA4:

The contention that Woolard may "wear, carry, and transport handguns ... in many public places" is completely erroneous. First off, "public place" is a very different statement from "private property accessible to the public." Let's examine the opportunities, shall we?
.. Target Shoots and Practices
.... informal? - private property with the permission of the owner
.... formal? - private organization, event on private property
.. Sport Shooting Events
.... private organization, event on private property
.. Hunting and Trapping
.... use of public lands, coordinated by State agency (typ. DNR)
.... private property with the permission of the owner
.. Specified Hunter Safety Classes
.... private organization, event on private property
.. Gun Exhibitions
.... private organization, event on private property

So really, the only truly "public place" where Woolard may wear, carry and transport his handguns is a State-organized hunting and trapping event that takes place on public land. All the others are privately organized events that occur on private property, and are subject to prohibitions at the discretion of the property owner. The property owner may discriminate against you on the basis of your religion, your skin color, or the model car you drive ... because he is not the State. The owner of a firing range may deny access to patrons for whatever reason, regardless of the sign on the door that states "open to the public - no membership required."

Further, in Maryland, these are the only reasons a handgun owner may transport his firearm legally. The law doesn't suggest restrictions within the scope of 2A, but lays down a wholesale prohibition with a handful of exceptions. To suggest that four justifications for handgun transportation is somehow compatible with "shall not be infringed" is, well, redonkulous.

Case and point - I have a Utah CCW permit. Transporting my handgun to another state, say Virginia, for concealed-carry purposes is illegal. Why? Because "out of state carry" isn't one of the justifications for transporting my firearm. I should be able to transport my firearms for "all legal purposes," but the law isn't worded that way. Concealed-carry of my firearm in another state is a perfectly legal activity, but is denied to me by the current legislation.

Now That's a Hail Mary. The law is misquoted as it removes words like directly. In re transport out of state fopa should work but I have never tried it. They must be Hoping that the court does not read the statue for itself and just takes them at their word..

I pitty advocate that stands before the court on this one.

 

[danielw]

This is maryland. Did you expect any thing different. Remember this at election time

 

[JD-IAFF]

When we actually get a conservative congress, I'll be worried... But, anything that preserves the state's prerogatives is ok with me. I can always move.

LOL, fair point.

The read of the petition is worth it. Here are the questions:

QUESTIONS PRESENTED
1. Does the Second Amendment secure a right
to carry handguns for self-defense outside the home?
2. Do state officials violate the Second Amendment
by denying handgun carry licenses to responsible,
law-abiding adults for lack of “proper cause” to
bear arms for self-defense?

I'll make a note to pull it down later today. I see a broad path to the potential for a ruling supporting open carry at the expense of concealed carry there. We could conceivably find ourselves in a situation where states are permitted to ban concealed carry across the board as long as they allow open carry. That could be a Pyrrhic victory. Who wants to deal with the unending grief that results from walking around with a firearm on your person that everybody else can see (and complain about and cause you problems over)? We won't even get into the "if I'm open carrying, I'm going to be the first target for whatever criminal I happen to encounter" problem, which is glaring.


Again though, I tend to plan for the worst because I don't like being surprised. Maybe I'm just being too gloomy. Anyhow, need to get back to the work that they pay me for. I'll give that petition a read tonight.

 

[Haides]

I am loving this back and forth between JD-IAFF and esqappellate. Very insightful.

 

[esqappellate]

I agree that it wasn't challenged, primarily because Heller conceded at oral that it was permissible per se. I still don't see them mandating a remedy that they would hold to be impermissible were it to be a challenged point. Maybe I'm importing more of a sense of review over their own mandates on their part than they actually employed.

And I would agree that SB 281 in its current form would be open to attack, but it hasn't been enacted yet, so we're dealing with hypotheticals there. That said, I don't think the remedy would be rescinding the scheme in totality, but instead a precise overturn of the aspects that make it problematic. In other words, I don't see a "you can't license" ruling. I see a "you can't license in the manner in which you are currently doing it" ruling.

With the AWB's, we run into common use vs. dangerous & unusual. As you said, and with which I agree, different courts will take different routes on that one. That said, they have upheld AWBs in practice before, so who knows? It's like trying to predict the weather.

Dangerous and unusual has always struck me as odd. All firearms are dangerous and Heller still held that you have handguns, so it can't mean that. The real point is that it must be unusually dangerous, ala grenades or machine guns. An AW is just like any other centerfire semi auto gun (e.g., Ruger Ranch Rifle). The antis claim that its features make it more "lethal" but that is nonsense on the facts. Someone please tell me how a telescoping stock or a flash suppressor etc make a semi auto rifle gun more dangerous or lethal (I could see the argument for M-16s fired at full auto, but not for semi auto)? They will be hard pressed to prove it in court if that is required.

 

[esqappellate]

LOL, fair point.



I'll make a note to pull it down later today. I see a broad path to the potential for a ruling supporting open carry at the expense of concealed carry there. We could conceivably find ourselves in a situation where states are permitted to ban concealed carry across the board as long as they allow open carry. That could be a Pyrrhic victory. Who wants to deal with the unending grief that results from walking around with a firearm on your person that everybody else can see (and complain about and cause you problems over)? We won't even get into the "if I'm open carrying, I'm going to be the first target for whatever criminal I happen to encounter" problem, which is glaring.


Again though, I tend to plan for the worst because I don't like being surprised. Maybe I'm just being too gloomy. Anyhow, need to get back to the work that they pay me for. I'll give that petition a read tonight.

I wouldn't want to interfere with work. BTW, no state is going to mandate OC only. The hue and cry and the 911 calls of MWAG are just too much. Illinois, for example, is not considering OC mandate after Moore. As a practical matter, it will be CC or nothing, e.g., Texas and Florida, both of which mandate CC only.

 

[2AHokie]

I see a broad path to the potential for a ruling supporting open carry at the expense of concealed carry there. We could conceivably find ourselves in a situation where states are permitted to ban concealed carry across the board as long as they allow open carry. That could be a Pyrrhic victory. Who wants to deal with the unending grief that results from walking around with a firearm on your person that everybody else can see (and complain about and cause you problems over)? We won't even get into the "if I'm open carrying, I'm going to be the first target for whatever criminal I happen to encounter" problem, which is glaring

VA has OC and there are few problems with it. If it were to happen, here in MD there would be a culture shock at first, but it would pass in time. As we exercised our "new" right, everyone else would eventually learn. The police would be retrained.

It is not without drawbacks, but having that option and only that option would still be an improvement over what we have now.

I am loving this back and forth between JD-IAFF and esqappellate. Very insightful.

It's my favorite part of these forums. I'm fascinated by legal discussions about the 2A and we have some top-notch posters here at MDS.

 

[knownalien]

Dangerous and unusual has always struck me as odd. All firearms are dangerous and Heller still held that you have handguns, so it can't mean that. The real point is that it must be unusually dangerous, ala grenades or machine guns. An AW is just like any other centerfire semi auto gun (e.g., Ruger Ranch Rifle). The antis claim that its features make it more "lethal" but that is nonsense on the facts. Someone please tell me how a telescoping stock or a flash suppressor etc make a semi auto rifle gun more dangerous or lethal (I could see the argument for M-16s fired at full auto, but not for semi auto)? They will be hard pressed to prove it in court if that is required.

the irony is that while the AR15 may be among the most common rifles owned in the USA, it is also far more seldom used in crimes than other "less dangerous" guns. It is a paradox, and no mistake.

 

[JD-IAFF]

Dangerous and unusual has always struck me as odd. All firearms are dangerous and Heller still held that you have handguns, so it can't mean that. The real point is that it must be unusually dangerous, ala grenades or machine guns. An AW is just like any other centerfire semi auto gun (e.g., Ruger Ranch Rifle). The antis claim that its features make it more "lethal" but that is nonsense on the facts. Someone please tell me how a telescoping stock or a flash suppressor etc make a semi auto rifle gun more dangerous or lethal (I could see the argument for M-16s fired at full auto, but not for semi auto)? They will be hard pressed to prove it in court if that is required.

They'll counter with the ability to convert an AR to full auto and the existence of things like bump fire stocks.

Now, granted, the first scenario is illegal, but there are how-to guides posted all over the internet, so the argument could be (and I would wager will be) made that the weapon was designed to enable an end-run around GCA 1968. I, along with you, would laugh at that argument, but again, the mere existence of the ability to effect the conversion without a huge degree of difficulty can be turned into a persuasive argument depending on which court is hearing it.

 

[ed bernay]

do you think NY or Gura will notify the court in Kwong vs Bloomberg about this decision...especially since it mentions in the home as being subject to strict scrutiny?