US v. Black 4th Circuit

[2nd=Good+Substantial]

Wow, maybe I'm starting to catch on how to all this works (at least just a little). When I saw Black, I figured it directly addresses Maryland's assertion that police could not differentiate between law abiding CCW citizens and crimminals. I read Guru's 28j to confirm this line thought.

 

[esqappellate]

How strong is the point Gura's making there sound? Is it actually relevant or is he just grasping at straws?

It is relevant, just not dispositve because the issues are so different. The Rule 28j letter is entirely fair, I would have done the same. Remember, Moore recognized right outside the home and even Kachalsky said the right existed in some form. It all bears on the Maryland's point that there is NO right outside the home. Litigation is most often pawn moves. This was a pawn move. If you play chess, you will recall that pawn moves can be *very* important in the game.

 

[Afield]

If you play chess, you will recall that pawn moves can be *very* important in the game.

Is this a reference to that MD senator at the hearing?!

 

[esqappellate]

Is this a reference to that MD senator at the hearing?!

Good catch!

 

[OldSchool1959]

Is this a reference to that MD senator at the hearing?!

You must mean the esteemed Sen. Raskin the chess master. Though he may have been contemplating a grand gambit that day while we testified, he was certainly not anticipating the moves made by 5,000 pawns.

 

[Dogabutila]

anybody catch that G/S dig? masterful.

 

[fightinbluhen51]

It is relevant, just not dispositve because the issues are so different. The Rule 28j letter is entirely fair, I would have done the same. Remember, Moore recognized right outside the home and even Kachalsky said the right existed in some form. It all bears on the Maryland's point that there is NO right outside the home. Litigation is most often pawn moves. This was a pawn move. If you play chess, you will recall that pawn moves can be *very* important in the game.

Strength in numbers?

A fixed and fortified defensive war is the most miserable war your enemy can face, and will often make it impossible for the aggressor to win?


Also, doesn't this admit that the 4th circuit does recognize the right exists outside the home, at least in some form? Thus, we are down to arguing about scrutiny?

 

[fightinbluhen51]

I particularly like this paragraph.

Here, the practical implication of applying the so-called
"Rule of Two" is that anyone in proximity to an individual
with a gun is involved in criminal activity. Such a rule subjects
to seizure or search anyone who actively or passively
associates with a gun carrier. The seizure has no connection
with the individual seized, the activity they are involved in,
their mannerisms, or their suspiciousness; rather, the seizure
is a mere happenstance of geography. The absurdity of this
rule may be gleaned from scenarios where an individual carrying
a firearm walks into a monastery subjecting to seizure
all of the nuns and priests, or an ice-cream shop subjecting all
of the patrons to a seizure. Or could police officers apply this
rule to seize all individuals at a shooting range or on a hunting
trip? The scenarios abound. As there are no safeguards against
the unlawful use of discretion by the officer applying such an
arbitrary and boundless rule, it cannot be a basis for reasonable
suspicion of criminal activity.

 

[jonnyl]

Any chance of Maryland using this also? As in "See what happens when you can't assume that someone carrying a gun is a bad guy?"

Their argument would be that in Maryland "being a felon in possession of a gun IS the default status" ??

I do see this potentially being relevant too if the AWB passes. I'd think they wouldn't be able to just start checking serial numbers at a range. Since there will be >30,000 (or whatever large number) of legally grandfathered scary rifles it would seem that they couldn't assume seeing a rifle in a banned config was worthy of a check in absence of some other info.

 

[fightinbluhen51]

Any chance of Maryland using this also? As in "See what happens when you can't assume that someone carrying a gun is a bad guy?"

Their argument would be that in Maryland "being a felon in possession of a gun IS the default status" ??

I do see this potentially being relevant too if the AWB passes. I'd think they wouldn't be able to just start checking serial numbers at a range. Since there will be >30,000 (or whatever large number) of legally grandfathered scary rifles it would seem that they couldn't assume seeing a rifle in a banned config was worthy of a check in absence of some other info.

Taking that position makes Maryland look like fools. They are then forced to defense their insanely stupid position that you can use 2A exercise as a means to trample the 4A that the CA4 just said "no guy fellas, try harder."

 

[jonnyl]

Taking that position makes Maryland look like fools. They are then forced to defense their insanely stupid position that you can use 2A exercise as a means to trample the 4A that the CA4 just said "no guy fellas, try harder."

You say that like it's ever slowed them down before

"But your honor, if these folks want to carry guns for self defense, they can carry long guns. We're not limiting their rights in any way...."

 

[PJDiesel]

Gura in Woollard just sent it to the court with a 28(j) letter. Attached.

How strong is the point Gura's making there sound? Is it actually relevant or is he just grasping at straws?

Seems strong enough to me:

Black confirms that an individual carrying a handgun outside the
home is “exercising his constitutional right to bear arms,” and that the
police are not entitled, without more, to confront such individuals by
assuming that they are incipient criminals.

 

[pilotguy]

One of the lawyers can chime in here if I am wrong, but I believe that since Maryland is a part of the 4th Circuit, this ruling has an immediate implication here. Not saying that it is a sweeping decision that will immediately nullify any laws. But when a politician or our AG says something to the fact that the right does not apply outside of the home, it can be used to demonstrate the fact that it legally does.

 

[occbrian]

Any chance of Maryland using this also? As in "See what happens when you can't assume that someone carrying a gun is a bad guy?"

Their argument would be that in Maryland "being a felon in possession of a gun IS the default status" ??

I do see this potentially being relevant too if the AWB passes. I'd think they wouldn't be able to just start checking serial numbers at a range. Since there will be >30,000 (or whatever large number) of legally grandfathered scary rifles it would seem that they couldn't assume seeing a rifle in a banned config was worthy of a check in absence of some other info.

This. not a lawyer either, but this seems to be a direct logical assumption. An officer couldn't *assume* that the weapon was unregistered and initiate a search.

I hope esq or someone else weighs in, but it would seem that random spot checks at ranges would be the least of your worries when it comes to non-compliance.

Checking existing records and following up with the owner directly would be a different story. "Hey, you submitted background information for this AW 9 months ago, but have no registered weapon... can we speak to you?" I imagine that the prior background check and subsequent missing registration would be enough to initiate suspicion.

 

[eventhorizon]

You must mean the esteemed Sen. Raskin the chess master. Though he may have been contemplating a grand gambit that day while we testified, he was certainly not anticipating the moves made by 5,000 pawns.

Maybe we should start calling him Senator Bobby Fischer.

 

[esqappellate]

This. not a lawyer either, but this seems to be a direct logical assumption. An officer couldn't *assume* that the weapon was unregistered and initiate a search.

I hope esq or someone else weighs in, but it would seem that random spot checks at ranges would be the least of your worries when it comes to non-compliance.

Checking existing records and following up with the owner directly would be a different story. "Hey, you submitted background information for this AW 9 months ago, but have no registered weapon... can we speak to you?" I imagine that the prior background check and subsequent missing registration would be enough to initiate suspicion.

If you bought your AW in Maryland since 1996, it *should* already be in the MSP database, which they can easily access. Under SB 281, an unregistered AW is contraband and may be seized and destroyed. Practical advice to minimize your chances of arrest and detention: If I had an AW, I would take it absolutely NO WHERE without proof (form 77 copy) that I had registered it. Unless I had a copy of my old Form 77 from when I bought it, I would even re-register the gun as a "voluntary registration" if SB 281 passes. And I would do it as soon as it became law.

 

[djleepanda]

Where is road_dawg? he will have a fit if he sees this.

 

[Kharn]

An interesting read and a satisfying result from a very conservative jurisdiction (Fourth Circuit) but this criminal case has nothing to do with any pending gun-rights case.

It may not seem like much, but the majority wrote "exercising his constitutional right to bear arms" in reference to someone carrying outside the home, it also puts places like Philly and Virginia Beach (IIRC?) on notice that they cannot harass OC'ers.

 

[Les Gawlik]

If you bought your AW in Maryland since 1996, it *should* already be in the MSP database, which they can easily access. Under SB 281, an unregistered AW is contraband and may be seized and destroyed. Practical advice to minimize your chances of arrest and detention: If I had an AW, I would take it absolutely NO WHERE without proof (form 77 copy) that I had registered it. Unless I had a copy of my old Form 77 from when I bought it, I would even re-register the gun as a "voluntary registration" if SB 281 passes. And I would do it as soon as it became law.

The question was, I think, how would MSP know? I don't think that a SN on an AR is on open display, like one's license plate. The state has those data vacuums on the back of some police cars to scan and optically recognize all the plates the car passes.

Will the police be able to go to ranges and confiscate your rifle long enough to obtain and run the SN? If you have your AR in the trunk, and stupidly consent to a search after a traffic stop, can they remove the rifle and detain you long enough to run the SN? Most things are easily recognized as contraband or not. The exact same item will be either legal, or contraband, depending upon whether the SN exists on a list somewhere.

 

[press1280]

One of the lawyers can chime in here if I am wrong, but I believe that since Maryland is a part of the 4th Circuit, this ruling has an immediate implication here. Not saying that it is a sweeping decision that will immediately nullify any laws. But when a politician or our AG says something to the fact that the right does not apply outside of the home, it can be used to demonstrate the fact that it legally does.

I think it pretty much puts a final nail in the "only in the home" narrative, however, Kachalsky said as much but it's hard to overturn a law when it's basically subject to rational basis.