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Old July 21st, 2011, 07:34 PM #3207
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Join Date: Apr 2009
Location: Calvert County
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Patrick Patrick is offline
MSI Executive Member
Patrick's Avatar
 
Join Date: Apr 2009
Location: Calvert County
Posts: 7,678
Today's Hearing

First, the judge did something unusual last night: he created a crib sheet for today's hearing. In it, he handicapped his views on certain issues, such as scrutiny - intermediate. He also provided a list of discussion topics for the hearing, in the way of questions.

The judge today started the hearing asking counsel to at least work through the list, but that they were free to "roam" beyond them as they saw fit. Good luck...the list was pretty complete.

I will say before we begin that Judge Legg ("JL" in these notes) was really up to speed on the case and the relevant jurisprudence. He did his homework, even reading the cited materials and the most recent case law. Not a small task for a busy man.

The Arguments

First, a bit on style. Judge Legg is working through these arguments by essentially taking what counsel says and adding his own reading of jurisprudence to the mix. Then he asks counsel if he got it right. He's not challenging directly, but rather making statements and then asking others to agree/disagree. It's non-confrontational and low-drama.

Alan Gura started by noting that plaintiffs did not necessarily agree with the characterization that "all parties agree on intermediate scrutiny." He obviously pushed higher. The judge talked a bit about "Advanced Intermediate Scrutiny" and something above intermediate but less than strict. In other words, the Ezell standard.

The judge clarifies exactly what he is being asked to do: rule on the constitutionality of the "Good and Substantial" requirement - not anything else. The judge lists all of the objective standards used by Maryland to determine sutiability for a permit (criminality, convictions, drug-abuse, mental incapacity, etc.) and verifies that they are not in contention. Gura agrees and produces a laundry list of things this case is not about. He points out that even if the judge rules in favor of Woollard, that there are still going to places and times in which carry is legitimately not allowed. Courthouses, etc.

The judge agreed on the narrow nature of the inquiry.

The discussion moves toward the core of the right and whether public RKBA fits there. He doesn't ask the question - instead he quotes from the Masciandaro dissent, noting that the judge said it did. But...it was not appropriate for that case due to other factors. Pay attention...that is going to be a revolving theme here.

Judge Legg notes that "the Supreme Court settled the individual versus collective right in Heller. They answered that question and included hunting, militia service, self defense and opposition to tyrannical regimes as core to the right." Gura agrees.


Gura noted that nowhere in their pleading has Maryland actually identified a cogent reason to restrict the right. He also makes a point that the Miller decision in 1939 convicted someone for carrying an unusual weapon, but that nobody actually challenged the idea of his carrying a weapon in public, in general. The issue there was not public carry, but rather a sawed-off shotgun.

I'm going to skip a little back-and-forth because we'll all get the audio soon, but the judge did get to a point where the discussion came down to public policy versus the constitutional right. His view:

"If we held a Constitutional Convention today, we could recognize the urbanized society we live in today and make changes that make sense. If we were all delegates to that convention, we could do things differently....but we are not there. The state's interest is not to uphold the best policy, but to uphold the Constitution. Whether that is the best policy or even unwise, that is not ours to decide."

I was sitting behind the defense table and saw a very short, one-line note pass to lead counsel. I could not read it, but in my head I imagine it said "Damn. We're hosed."

Not so fast...put down those beers. There are caveats (we're getting there).

Gura did note that in the land of our imaginary constitutional convention looking to "fix" the rights that would "harm" governmental interest in putting bad guys behind bars, the 4th Amendment would almost surely be "fixed" before the Second. Good point. Not a cop in the land loves Miranda.


So now we get to the important part.

Judge Legg asks whether we have an issue of constitutional avoidance. I will interject here that the question he is asking applies in general to issues before courts - if they can decide a controversy without reaching the constitutional question, they should. But it also applies quite directly here because controlling jurisprudence in the Fourth Circuit (Masciandaro) tells lower courts to avoid answering 2A questions unless forced to do it.

Gura argues that the question is unavoidable. He notes that the majority opinion in Masciandaro did not actually rule against the RKBA question, but rather a "time/place/manner" issue that short-circuited the 2A inquiry. While noting he does not agree with the outcome, it did leave the question open. He notes that the majority did acknowledge that there would be cases where the question should be answered. Gura also argues that the Supreme Court is not meant to be "the court of first impression."

Gura asks, "If this is not a case requiring an answer to the constitutional question, what is?"

In other words, Gura appears to saying that whatever the judge wishes to decide, he should swing for the bleachers and let the appellate courts deal with the results. Don't avoid it. Own it.

Judge Legg seems to agree. He notes the only way to avoid the question is to read Masciandaro as requiring the question to be proposed to the Supreme Court "undeveloped." He says that while he thinks Masciandaro is correct on its avoidance principle in general, here it was "harder to create the end-run [on the question]."

Alan Gura gets to First Amendment parallels. We know them; I won't recount them here. He does point out the affirmative nature of both the first and second amendments: that both protect individual activities that the government cannot "fully intrude." In the 1A context, the jurisprudence protects speech that is outside the "core" right to political speech (notes EMA video game case as being non-political speech). The same philosophy applies in the second amendment context - the government cannot just decide to ban rights it does not like. It must protect them.

Judge Legg interrupts..."and sometimes even unpopular opinions..."

On social science...Gura notes that it doesn't matter when you are addressing exercise of a core activity. Maybe on the edges, but not the core. Both sides have numbers, but the fact is that absent a compelling reason, the government cannot pick favorite rights. I am paraphrasing, because I think we would all agree with his views on the matter.

Judge Legg introduces an analogy: imagine the landscape of the right divided with a line down the center. Social Science might apply to one side of that line - to regulations that are related to the right but that do not restrict its exercise. Serial numbers on guns are his example. You can trot out social science to support the notion that requiring serial numbers could help track and capture criminals (my note: or ATF agents...). But requiring serial numbers does not stop the exercise of the right. The gun works the same.

The judge then suggests that you can "compress" a right, but only so far. You can work the edges and margins, but at some point you get to the center and "you can compress it no more."

<Fifteen Minute Break before MD steps in>

For those ever interested, the vending machines in the Baltimore Federal Courthouse are hidden in the back of the jury room on the Fourth floor. Make nice with the interns and they will take care of you.

I'll end this post here so you can read it, and start working on the Maryland arguments in a second post. At some point, I am going to tie some of this together. I've left out a small discussion in this phase that has big implications, because it is better fleshed out in the Maryland defense. Sorry for the intrigue, but there are some really important questions coming up that will affect not only this decision, but also the effect of the decision.
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