SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12

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    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    I think shall issue with sensitive places would be great way to our foot in the door. Once people get a taste of the right, they will get tired of checking their guns where they need them most.

    I could see how shall issue permitting could be a standard for intermediate scrutiny.
     

    Afield

    Active Member
    Jul 3, 2010
    183
    Rockville, MD
    The judge does have a way out. That's the due process argument.
    The state calls self defense a "good reason" but only if a person has a rather arbitrary amount of info to show they are in some danger. Even for business uses, there's some undefined large amount of funds or value that is in question. Everybody doesn't get treated equally under the law.

    The judge can avoid the scrutiny issue and strike G&S based on due process arguments. He can let another court decide what level applies to 2A outside the home.

    And we now have MD on record in a hearing say they want to limit the number of permits and ordinary people can't get them. Voiding their Williams cert denial argument. Winning this would be nice now, but winning Williams would be infinitely more important.
     
    Last edited:

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,361
    SoMD / West PA
    The judge does have a way out. That's the due process argument.
    The state calls self defense a "good reason" but only if a person has a rather arbitrary amount into to show they are in some danger. Even for business uses, there's some undefined large amount of funds or value that is in question. Everybody doesn't get treated equally under the law.

    The judge can avoid the scrutiny issue and strike G&S based on due process arguments. He can let another court decide what level applies to 2A outside the home.

    And we now have MD on record in a hearing say they want to limit the number of permits and ordinary people can't get them. Voiding their Williams cert denial argument. Winning this would be nice now, but winning Williams would be infinitely more important.

    When the scope focus' is on self-defense, that argument has been laid to rest in heller, albeit "in the home".
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    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.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Constitutional avoidance(2A specific)-Judge Legg gets MD on violating the EP clause of the 14th Amendment, stating that MD discriminates between people in the same class(law abiding) for no substantial reason. He could basically gloss over the 2A without getting into whether public carry is specifically protected. Not very likely.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,361
    SoMD / West PA
    Thinking out loud here for a second. IF we win at this level, what would you do if you are Gansler? This means that a district court judge has just stuck his neck out to be the first one to rule in favor of a "core" right "outside the home" (or even forcing MD's interest balancing to take a turn towards due process in the least). Woollard winning this case now would me that MD would at least get to preserve it's permit system. With Williams before the big court, a non-appeal would almost certainly shape that case towards permitting, but it also might allow Gansler to argue in favor of a GVR to the trial court (or MD Court of special appeals?), issue Williams a permit, and keep going? (Irony perhaps?)

    If this goes our way and is appealed by Gansler to the 4th Circuit, I think this will instantaneously put the pressure on SCOTUS to take Williams, which means that Gansler will effectively face going 0-3 on Constitutional reviews ofMaryland's carry laws (assuming WE win today, Williams is taken by SCOUTS, and then the 4th Circuit takes Woollard or GVRs or lets the District court ruling stand, and then assume we do win all of those things).

    Basically what I am saying is, IF we win today, Gansler will have had his goose cooked.

    Can the AG find some sort of legal way in a loss today on Woollard, to be able to offer some kind of relief to Williams? Basically he could go back to SCOTUS and say "Oops, our bad. We have decided to settle Mr. Williams, return him his property, expunge his record, no jail time and oh btw, for your troubles, here's a permit." That in essence would preserve MD's permit system (and thus we assume no open carry aspect and still preserve the arbitrary delays of issuance), and thus preserve some 2A 2Step through his loss?

    That's a lot of if's, I know...guess we should "win" first.

    Where's Charlie Sheen when we need him?

    If Woollard wins; strategically, Gansler should cut his losses.

    Williams is before the SCOTUS for cert, and with the present Judge Legg focusing on Masciandaro (also before the SCOTUS or cert). Meaning the writing is on the wall to tackle the larger issues of publicly carrying firearms is either core or very close to core.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    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.
     

    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    I am a little surprised Alan didn't open the door to allowing the Judge to rule on G&S using a equal protection of law claim?

    Did Mr. Gura make a mistake by not offering this option? Or does he see that Maryland will adapt to a 14th amendment claim and continue to deny permits?

    As I said before, I think a ban on guns in dense places is where we could renew our efforts in Annapolis. If the MSP is forced to give out permits, and people begin to feel safe, what will they do when you say "You gotta check your gun at the city line." People might demand the right state wide.
     

    Jason21237

    Ultimate Member
    Apr 24, 2011
    2,825
    Delta,PA
    I really appreciate you taking the time to spell it out for us normal people. Thank you Patrick for turning Latin into English. You sir are due a lot of beers from lots of people.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    The judge basically spent zero energy on the 14th or EP claims today. You could sift some out of his inquiries, but they were not strong tenets. He seemed focused on the 2A question, rather than the 14th.

    Today was all about the judge and his questions. There was basically little to no room for additional arguments. Hell, Maryland never got through the whole list. I wasn't measuring time, but I think they got shorted pretty good. They seemed surprised to be cut off.

    It don't think it was intentional, but the judge appeared to have places to go and he started about 30 minutes late.
     
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