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Old July 21st, 2011, 08:50 PM #3216
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Join Date: Apr 2009
Location: Calvert County
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Patrick Patrick is offline
MSI Executive Member
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Join Date: Apr 2009
Location: Calvert County
Posts: 7,678
Today's Hearing, Continued...

Maryland opens by saying Masciandaro requires the court to first decide if the law would survive the proposed scrutiny by assuming it was covered by the second amendment. Only if the law fails that level of scrutiny does the court actually need to determine if it was core.

So Maryland is focusing on defeating this thing via intermediate scrutiny. They don't even want to argue whether it affects a core right.

Judge Legg starts talking Masciandaro in detail. He notes that the use of intermediate scrutiny was due to a place restriction, not a holding that the carry was outside the umbrella of the right. The state counters by reading an excerpt from the decision that appears to make it sound like Masciandaro made a non-core determination. The judge interrupts and starts looking for the passage. He remembers it. He cannot find it, and asks court staff to find it for him. They do.

Judge Legg continues reading the whole passage, in context. Masciandaro found the public RKBA outside the core protection because of the nature of the place of carry. It was not a 'sensitive place', as Gura suggested - but neither was it any-old-place as Maryland suggested. Notably, it was restricted because the place was densely populated with people, including children.

They go back and forth a bit over this during this phase of the discussion. It is important to the judge, and I can see where it might be going. This is a key question and a potential hole in Masciandaro.

Maryland continues by trotting out the same "presumpitvely lawful restrictions on concealed carry" dicta everyone else uses to defend their policies. The judge notes Maryland allows Open Carry with the same permit. So what't the issue with Concealed Carry versus Open Carry and can't Maryland just choose OC if they are worried about LEOs knowing who is carrying a gun by visual inspection?

The discussion here between OC and CC is somewhat surreal. Some of you guys are really going to like the audio here. I can't do it justice, but the judge at some point asks about the public safety issues that might result from letting people carry a powerful shotgun on the street, instead of a .38 Special. Maryland flubs this a bit but comes down to "handguns are evil."

Judge Legg goes back to the Masciandaro 'densely packed places' language. He says that the state can - according to Masciandaro - restrict carry in densely packed places, but not in those "where people do not congregate."

Let me say, nobody appeared ready for this suggestion.


Moving on, Maryland argues that the "overall regulatory scheme" is fair and balanced to exercise of the right. Maryland is not DC or Chicago. People can carry and bear arms when hunting, when in their home, when performing target practice and training, when defending their home and business, and in "traditional ways." None of this requires a permit.

Please note something missing from the above list: loaded open carry of long guns. The judge referenced the state claim there, but the state conveniently avoids it. I don't recall them really talking it up, but maybe I missed it (anyone else?). Maybe a certain set of questions from some couch commandos on the internet - funneled through friendly Maryland legislators in a way that required the state to respond to the inquiries - made them acknowledge the futility of that argument?

Or maybe the figured it out on their own. Either way, they did not lean on it. Smart.


Judge Legg interjects that he is leaning towards finding the right does extend outside the home. Another note between defense counsel.

The issue for the judge is what that means under intermediate scrutiny. Does it kill G&S?

The judge says they can regulate the time/place/manner per Masciandaro and that the plaintiffs seem to agree they can do this (my note; in principle, but probbaly not in application). This leads to a key question for the judge, "How does requiring good cause reduce risk in the public place?"

Maryland talks about legislative findings that violent crime in Maryland is bad and was increasing at the time the law was passed. Counsel notes that the laws of the time were not effective at stopping bad guys from performing violence...so they created more laws.

The judge says he was trying to "tweak out" the practical effect of the requirement, but could only come up with one: that the G&S Cause requirement reduces the number of law-abiding people with carry permits. He asks the state if they have another reason. The state essentailly says, "Nope. That's about it."

The judge points out that the people who commit violent crimes are not generally people like Mr. Woollard (he outlines the law-abiding qualities of Mr. Woollard and notes Maryland once gave him a permit).

To bolster their argument, the state trots out the "Thieves Veto" defense: that more people with guns on their person means more opportunity for criminals to target and take those guns from their person or their cars, bags, etc. The judge seems to understand the argument and suggests more guns in glove boxes means more guns stolen. Defendants agree and don't point out that leaving a gun unattended in a glove-box is illegal, even with a permit.

Defendants also claim that encounters with criminals would become deadly, where today they are not (nobody killed but victims are victimized). They also say that some routine encounters would become deadly, but are circumspect about how they do it. They know this is a BS argument in 40+ states.

The state also points to the Violence Policy Center data that suggest as many as 200 permit holders - nationwide - have done bad things since 2007. (my note: out of an estimated 6.8 million carriers)

The judge asks how many people are affected by the restriction. How many people would get a permit?

The state says they have no idea, but it would be small. The judge asks about Texas...what kind of stats exist for Texas?

Maryland kinda garbles the question and talks about the number of people who commit crimes in Texas. They don't have good numbers. But they say the number would be hard to quantify anyway, because "Texas allows Open Carry without a permit, so the true number would be hidden by that." (Note: that BS did not go unchallenged in the Gura rebuttal later on - Texas does not allow OC in the least. Gura gives the number and it is roughly 0.13% of carriers.)

Maryland eventually says the number of Texas residents who have permits appears to be about 1.8%.

The judge says, "Texas is big. That is a lof of people."

The judge then proposes that if 1.8% of Maryland residents applied for a permit, it would be manageable (for processing purposes), but still significant. So, a lot of MD people are affected by the restriction. At the end of all this, the judge notes that managing the permit load is "not relevant to the constitutional question, anyway."

Now Maryland claims that 90% of those who apply are approved for a permit. They argue that the state uses social science to craft a "reasonable fit" between permit policy and public safety. They then argue that other things people can do with guns in Maryland (ranges, hunting, etc.) are good enough to claim that the entire regulatory scheme is fair.

The judge starts digging into the approval process and good cause requirements, in detail. The state says people with enhanced risk can get permits. The judge asks if a lawful resident of east or west Baltimore - living in a dangerous neighborhood full of drug dealers and violent crime - would get a permit due to their enhanced risk over the people in the courtroom.

Anwer: no. Those residents need to demonstrate cause "above that of their neighbors." (my note: WTF?!)

But the Maryland regulations are nothing close to Heller's prohibitions...


Before getting to First Amendment parallels, the judge cuts the Maryland time off. He is going to give them both a few minutes to answer a question: how does Masciandaro's ruling - that the "dense public nature" of the location caused the issue - affect Woollard?

Maryland argues that Masciandaro says they can restrict permits because the core of the right does not exist anywhere but in the home. Gura says that Masciandaro upheld a place restriction, not a broad restriction everywhere. The judge asks if Maryland could argue for a ban of all carry in Baltimore or Prince George's County (places the state called out in their written arguments). Gura says that they can create all the prohibited areas they want, and none of them would change the fact this case is not about prohibited places. It is about the prior restraint of a fundamental right, writ large.

Gura notes that if Maryland bans guns in Baltimore, he would argue against the outcome. "But that would be another case."

The judge seemed to agree.


Everyone goes home.

More on my thoughts later. But the short-circuit here is that winning this level is not necessarily impossible. I guess you can say I have upgraded my outlook from "improbable, due to Masciandaro" to "Hopeful, due to Masciandaro."

The key questions that will guide this case are:

- Can the judge claim the Masciandaro ruling does not find public RKBA non-core, by finding it only applied to a time/place/manner issue? Is he looking for a hole in Masciandaro's holding?

- If so, does the Maryland G&S requirement survive intermediate - perhaps even "advanced intermediate" - scrutiny?

And then in the event of a win, what is the practical effect? The judge seemed predisposed to the idea Maryland could ban guns in densely populated areas, per Masciandaro. We would need something from the 4th Circuit ot the SCOTUS to overcome that.

Enough for tonight.
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