Options if US Supreme Court exercises Starry Decisis in DC v. Heller

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Hi, I am a new member of opencarry.org but have been reading this site, as well as other sites and forums, with regards to rights of citizens to carry weapons for self-defense. I have been staying on top of the DC V Heller Supreme Court case and had a few questions that I am sure you can answer. Generally, through starry decisis, the Supreme Court tends to uphold the rulings of the lower courts. If this happens, and the Supreme Court accepts the interpretation of the 2[suP]nd[/suP] amendment to grant individual rights, does this then make Maryland’s CCW review process unconstitutional? It is my opinion that the review process infringes upon our rights to bear arms in that the decision to issue a permit to carry concealed, is decided by the Superintendent of the State Police and without legitimate reason to deny someone their rights, the Superintendent does. According to the US Appellate Court of Washington, DC., the Second Amendment is an individual right as quoted here:



“To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”



However, they also concluded that:



“Once it is determined - as we have done - that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them ... That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.”


But doesn’t the way that Maryland currently issues CCW permits, or better yet doesn’t issue them, constitute a ban? Essentially, by leaving the decision up the Superintendent of the Maryland State Police, and issued at his sole discretion, which we both know is NEVER, the State of Maryland is enacting a ban on handguns. Which according to the decision of the US Appellate Court for DC in the aforementioned case, is a violation of the rights of US citizens under the 2[suP]nd[/suP] Amendment. I’m sure you understand where I am coming from, probably better than I do, but I want to see some sort of stand in this State for gun owners’ rights. There are many groups in this State that are pro-gun and they all have very intelligent and dedicated individuals among them, but it seems to me that our case is presented before the State Senate, not as one large collective movement with some power, but as individual groups with a smaller voice. Is anyone, that you are aware of, planning a fight with the State of Maryland? And if so, is that same individual or organization pulling everyone in MD that is pro-gun together for the fight? I am ready to start submitting whatever I need to by email, phone, n person,or in writing in support of any efforts to battle this tyrannical State Senate but I want to be sure I am not just “One Voice”. I appreciate you taking the time to read what turned out to be quite a lengthypost and I look forward to your response.

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I think the main difference is that Heller is focused on DC's ban on owning handguns. Your issue is with Maryland's ban on carrying. Though Heller is very important and may eventually lead to shall issue nation wide, The Supreme Court would have to issue a very broad ruling to affect Maryland.

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It would take a follow up lawsuit, but I do believe Maryland Permit to Wear a handgun law (btw, in Maryland, you need a license to open carry or concealed carry. Did you know that open carry of handguns without license was completely LEGAL until 1972?) is unconstitutional. Once it's established 2nd amendment is considered an individual right any state which has licensed open carry and discretionary issuance may be subject to a rather unique attack on their licensing statute.

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Lonnie Wilson wrote:

It would take a follow up lawsuit, but I do believe Maryland Permit to Wear a handgun law (btw, in Maryland, you need a license to open carry or concealed carry. Did you know that open carry of handguns without license was completely LEGAL until 1972?) is unconstitutional. Once it's established 2nd amendment is considered an individual right any state which has licensed open carry and discretionary issuance may be subject to a rather unique attack on their licensing statute.

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Sorry for the long post, but this is more complicated than many of you may realize.

I agree it's unconstitutional, and I agree it's going to take another court decision to reverse it. The question before SCOTUS was "WHETHER [D.C.'s provisions combining to create a total handgun ban and a ban on functional long arms] VIOLATE THE SECOND AMENDMENT RIGHTS OF INDIVIDUALS WHO ARE NOT AFFILIATED WITH ANY STATE-REGULATED MILITIA, BUT WHO WISH TO KEEP HANDGUNS AND OTHER FIREARMS FOR PRIVATE USE IN THEIR HOMES?" SCOTUS will most likely seek to craft a ruling that strikes down the total ban, but remains narrow in scope such that it's limited to D.C. I assert that this may in fact be impossible.

The problem is that the question does not concern one law, but the combination of three laws, two of which are particularly contradictory. First law: handguns must be registered. Second law: no handgun registrations will be accepted. Third law: firearms must be unloaded and either secured with a lock or disassembled. SCOTUS would normally uphold or strike down one law. Here, it has a choice of one or more to strike down, and no fewer than 67 briefs were filed urging SCOTUS to make the right one. SCOTUS is highly unlikely to hold all three as independently unconstitutional. It is also unlikely to use a reasoning that could be cogently applied to any gun law. However it must strike one down because the situation is clearly unconstitutional.

The law that, if struck down, would immediately bring D.C. into agreement with at least the rest of the Eastern Seaboardwould be the second one; D.C. would have to begin accepting registration applications and show that it will approve at least some of them. We in more civilized states have known for years that this definition of RKBA barely qualifies; it's what Maryland, New Yorkand Hawaii have right now for carry law, and nobody can carry. However, to rule that the firearmlicensing/registration law is fundamentally unconstitutional would open the floodgates forcases against FOIDs, CCW permits, and theNFA itself,and SCOTUS is very unlikely to do this. To rule againstthe lock-up lawby itself really doesn't answer the question, and its scope would have to be carefully considered as well as it could be applied to securing guns in vehicles.

Even striking down the registration prohibition poses a very interesting question. The Hughes Amendment would become unconstitutional by similar logic; the NFA requires registration of machine guns, short-barrel rifles/shotguns, silencers, and explosive devices.The Hughes Amendment makes registration of at least machine gunsimpossible, so it's the same combination of two laws to ban an entire class of weapons. If that's the Court's reasoning in overturning the registration prohibition, the '86 ban is effectively overturned.

Now, at this point you're saying "I fail to see the problem. Down with licensing! Down with the BATFE!". However, the Bush Administration and the RNC are shaking in their boots. The Democrats already have a lot of clout and a lot of political weapons at their disposal. For a High Court, to which Bush nominated two justices during his tenure, to strike down the Hughes Amendment or to issue a ruling that would make all licensing and registration offirearms and/or ownersillegal, would be to hand the Democratic Party a political thermonuke. Can't you see the commercials? "The Bush administration was responsible for the destruction of a law that has brought us decades of security and peace of mind. Now, for $200, anyone can buy a brand-new, fully-automatic AK-47. And we thought Fallujah was bad...". McCain might as well concede the next day, and the first order of business on the Dem's plate will be to undo Heller, either by Federal law or Constitutional Amendment.

In other words, on its face, a ruling against DC might be exactly what we want, but behind the scenes SCOTUS is in a legal minefield during an election year. It might be analagous to working on a phone system or some othercomplex circuit. Disconnect the wrong thing and you could take the whole system down, resulting in a LOT of angry reprisals. Even doing it "right", you could end up short-circuiting paths you didn't intend to mess with. If SCOTUS rules for Heller here, it will be VERY narrow in scope.

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Liko81 wrote:

Now, at this point you're saying "I fail to see the problem. Down with licensing! Down with the BATFE!". However, the Bush Administration and the RNC are shaking in their boots. The Democrats already have a lot of clout and a lot of political weapons at their disposal. For a High Court, to which Bush nominated two justices during his tenure, to strike down the Hughes Amendment or to issue a ruling that would make all licensing and registration offirearms and/or ownersillegal, would be to hand the Democratic Party a political thermonuke. Can't you see the commercials? "The Bush administration was responsible for the destruction of a law that has brought us decades of security and peace of mind. Now, for $200, anyone can buy a brand-new, fully-automatic AK-47. And we thought Fallujah was bad...". McCain might as well concede the next day, and the first order of business on the Dem's plate will be to undo Heller, either by Federal law or Constitutional Amendment.

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I disagree with this point. I think public sentiment towards gun control is radically changing in this country. The democrat politicians tried to manufacture outrage over the AWB expiration, but notice how no democrat will talk about reinstating it now. Banning guns is not a popular move right now and I think the democrats would simply keep shut about it.

There is also another option for SCOTUS which I have only seen written about once. This option would allow them to issue a ruling with absolutely no broad reaching effects on gun control. They could rule the existence of the local DC government to be unconstitutional as DC is to be controlled exclusively by congress.

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Based on the questions presented in Heller I believe the court will take a narrow view of the "keeping" and not the "bearing" of arms. Not that the court would not take it on but neither the petitioner or respondent seem to directly address or challenge any restriction on the bearing of arms within their arguments.

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lockman wrote:

Based on the questions presented in Heller I believe the court will take a narrow view of the "keeping" and not the "bearing" of arms. Not that the court would not take it on but neither the petitioner or respondent seem to directly address or challenge any restriction on the bearing of arms within their arguments.

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Brick by brick; you can't legally carry a handgun if you can't even legally own one. However, one of the provisions at issue is DC's lock-up law that basically requires all firearms to be inoperable. Technically you can "keep" long arms, but there is a severe restriction on bearing them that SCOTUS can rule to be unconstitutional.

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Liko81 wrote:

lockman wrote:

Based on the questions presented in Heller I believe the court will take a narrow view of the "keeping" and not the "bearing" of arms. Not that the court would not take it on but neither the petitioner or respondent seem to directly address or challenge any restriction on the bearing of arms within their arguments.

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Brick by brick; you can't legally carry a handgun if you can't even legally own one. However, one of the provisions at issue is DC's lock-up law that basically requires all firearms to be inoperable. Technically you can "keep" long arms, but there is a severe restriction on bearing them that SCOTUS can rule to be unconstitutional.

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I think that Gura's phrase "functional firearms" may turn out to be one of the best things he came up with in this case. If the court rules that functional firearms are what the 2A refers to, it means a lot more than just the term arms, as it would have to include ammunition.

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asforme wrote:

I disagree with this point. I think public sentiment towards gun control is radically changing in this country. The democrat politicians tried to manufacture outrage over the AWB expiration, but notice how no democrat will talk about reinstating it now. Banning guns is not a popular move right now and I think the democrats would simply keep shut about it.

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You may be right in that it hasn't been discussed recently, but both Democratic candidates are receiving substantial backing from the Brady Center and both of them have flip-flopped on gun rights; when talking to a group that favors it, they'll say how much they support the right to keep and bear arms, then they'll turn around and call us bitter gun-clingers. Now, you are probably right in that the Dems wouldn't put out a commercial, but you can bank on the Dems trying to force through more gun control measures if they get the White House and keep Congress, especially if Heller is decided against DC.

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Oh, and Smartz, two things: first, it's stare decisis (translated literally it means "to stand by a decision"), and second, it only applies in this casewhen consideringother SCOTUS rulings. The Court obviously will give weight to the appelate ruling as that ruling is the reason certiorari was requested, but as it is the highest court in the land the only precedents which must be applied by the SupremeCourt are its own. This is why Miller was so thoroughly discussed as to how it applied and what, if any, were its shortfalls, while the CoA ruling in Escobedo was largely ignored even though that ruling's only 7 years old; it's from a different appellate circuit and does not apply in Heller.

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asforme wrote:

Liko81 wrote:

Now, at this point you're saying "I fail to see the problem. Down with licensing! Down with the BATFE!". However, the Bush Administration and the RNC are shaking in their boots. The Democrats already have a lot of clout and a lot of political weapons at their disposal. For a High Court, to which Bush nominated two justices during his tenure, to strike down the Hughes Amendment or to issue a ruling that would make all licensing and registration offirearms and/or ownersillegal, would be to hand the Democratic Party a political thermonuke. Can't you see the commercials? "The Bush administration was responsible for the destruction of a law that has brought us decades of security and peace of mind. Now, for $200, anyone can buy a brand-new, fully-automatic AK-47. And we thought Fallujah was bad...". McCain might as well concede the next day, and the first order of business on the Dem's plate will be to undo Heller, either by Federal law or Constitutional Amendment.

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I disagree with this point. I think public sentiment towards gun control is radically changing in this country. The democrat politicians tried to manufacture outrage over the AWB expiration, but notice how no democrat will talk about reinstating it now. Banning guns is not a popular move right now and I think the democrats would simply keep shut about it.

There is also another option for SCOTUS which I have only seen written about once. This option would allow them to issue a ruling with absolutely no broad reaching effects on gun control. They could rule the existence of the local DC government to be unconstitutional as DC is to be controlled exclusively by congress.

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That won't happen. The ruling will have either strict or intermediate--or possible both to different sections, scrutiny. Strict will mean Chicago and other 3rd world shithole cities can and will be sued over then unconstitutional laws prohibiting all rights to own, because the 2nd is an individual right and only reasons of national security, not state or city, can restrict its application. Intermediate would say they cannot bar an individual from keeping and bearing, but would allow reasonable restrictions thereto, e.g., magazine limits probably could stand under that scrutiny, as well as CC laws, bans on underlength barrels, and so on.

BTW, it is stare decisis, not starry. But that has little to nothing to do with the instant case. This ruling is not really precident, but constitutional interpreative law of the land. Other cases, at Federal and state levels, will then become the groundwork of successive rulings; hence, stare decisis "that which went before." But the SCOUS sets groundwork upon which all else is framed.


PS, sorry Liko--noticed you corrected the spelling already.

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[align=left]I no longer feel safe in Maryland. After what happened at Virginia Tech, I have been searching for a handgun, and plan on getting a permit. If just one person had been armed, that shooter would have been stopped, a long time before all those poor people were executed, by this suspicious Asian, in his mentally-deranged state of mind.

It seems to me that this government wants to assume the task of protecting me, without the manpower to even try. I don't want to be murdered, while I wait for the police to decide the coast is clear enough, to go in.

It's my right to protect my own life. I don't see it any other way. Nobody is going to catch me in a victim-state, without my right to make sure that nobody murders me. I see people, left and right, getting murdered. This includes some powerful and wealthy people, who are murdered. They also bought the lie that this government has the resources to protect them.

Katrina showed us that this government does not have the resources to protect any of us, and if you rely on it, you will be waiting for Gordou.

For me? I'm not sure if there is anything after this life, but one thing is sure: I'm not going to wait around and let anyone else protect me, if I can take care of myself.

And, I can take care of myself. I don't need this government to pretend to do that.


[/align]

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Do you really still think that there is ANY difference between the present Democratic and Republican parties?? Seriously? After what Nancy Pelosi has done?

Look at our Congress. What have they done to listen to their constituants?
Hand in hand with powerful men who own the MSM, they have continually fed us lies and inaction, both parties reporting to the same number 1.

I don't see it in party terms, anymore. There is no "Democrat" or "Republican". Both parties died when nobody cared that our own President was murdered, in broad daylight, in front of cameras. Nobody questioned the Warren Commission in Congress, to the extent that the real perpetrators of public execution of our duly elected President got away, and most likely were promoted by whomever is number 1.

It's too late to play like this modern "politiks" is real debate and public representation. That went out when the people slept on their desire for justice.

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smartz wrote:

But doesn’t the way that Maryland currently issues CCW permits, or better yet doesn’t issue them, constitute a ban?

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I firmly believe that the lack of statewide (or better yet, nationwide) preemption effectively constitutes a ban.

If there are to be gun laws or restrictions upon the 2nd amendment (IMHO some are reasonable), wouldn't it make the most sense to have a citizenry that UNDERSTANDS the laws they're supposed to obey?

How can ANYONE be expected to comply with the significant contrasts in laws across this country? To travel safely, citizens should be armed. To travel legally in this country, citizens must know the federal, state, and local laws of every jurisdiction through which they will pass. A trip to the beach might take you through more than 100 different states/counties/cities/townships/indian reservations/whatever. Thousands of new laws enacted, repealed, amended every day, so even if you did research every law in every place you'll travel through, who's to say what was legal yesterday is still legal today? Or of course you could just travel unarmed! Legal=dangerous. Safe=probably criminal.

Gun bans aren't the problem. At least with a total ban you KNOW you can't have protection and can plan accordingly. It's the uncertainty that's the real danger. At least, until Department of Homeland (in)Security decides they don't like it anymore, the 5th amendment protects your right to remain silent. ALWAYS REFUSE to answer police questions (especially if you are armed). Don't explain, don't try to reason with them, don't say anything. But don't be rude either. The police aren't bad guys, they just have a tough job.

My wife is from New Hampshire and the most direct route from her father's house in NH to her cousins house in NH is on a road that enters Massachusetts for a few miles. I imagine many travel routes are similar across the country. In Virginia, OC is perfectly legal. But if you accidentally cross the river into Maryland, you've committed a felony! I used to work in the DC metro and I know that just during my commute I would venture into Maryland frequently.

Anyway, since you can't pack your lawyer in your suitcase, and being armed is probably illegal at some point along your journey, isn't the result effectively a ban, unless you risk committing some "criminal" act? What a crappy decision you have to make. Keep your family safe from bad guys at the risk of going to jail, or put your family's safety on the line so you can avoid breaking the laws that "protect" us? Dead or in jail, I'm useless to my family.

Tim

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Now thatSCOTUS has delivered it's Heller opinion, I was wondering if this will force a change in the manner the MSP doles out permits.Scalia used the term "arbitrarily and capriciously " whendescribing howfirearmslicenses can notbe granted. That term describes the MSP CCW licensing procedure to a "T".



Second. Maryland has a preemption law similar to our neighbors in PA, VA and WV. Except we interpret the same words differently. MD Counties are permitted to create ordinances to protect minors. The MD Attorney General has opined that trigger lock ordinances enacted by the counties are legit if they protect minors. Ahh, ya gotta love the MD AG.



I looked up the trigger lock stuff on the anti-gun website firearmslawcenter.org. Those guys are going to need a major re-write of their MD page starting with the MD AG's opinion that there is no individual Second Amendment right to posses a firearm in MD.

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Unfortunately the Heller opinion has very little impact on current MD state gun laws. Until such a time that the 2A becomes officially imcoprated to the states via the 14A little is likely to change. I would look more to the opinions that will/may be handed down regarding the challenges to the laws in CA and IL to have more effect on our suppressive laws here in MD than to what Heller may do. That said who knows the State may revamp things on their own before it comes to that point. (I can't believe I just typed that with a straight face).

JMO

Mike V

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I tend to agree that the USSC Ruling will have little immediate impact upon Maryland law, but any federal lawsuits filed will likely be resolved much quicker now that federal judges in lower courts have some pretty clear definitions from the USSC.

I also agree that the results from Illinois and California lawsuits will set more of a precedent for states like Maryland.

To me, whether states address it on their own or are forced to do so by the courts, taxpayers (whether they agree or not with the USSC ruling) ought not be tolerant of wasteful court battles.

Like Obama said (paraphrasing), don't we have more important things to worry about than gun rights? Why waste your resources as a state resisting the inevitable? Why not instead focus those resources where they're truly needed. Next time you pay taxes to the state, consider how much will be flushed down the toilet making lawyers rich? Pro-2A or Anti-2A, no one likes to throw away their hard earned money.

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I would think that defending the Constitutional rights of Citizens of the USA, wouldn't nor should it be considered as wasteful spending.

On the other hand I do take issue with wasteful spending and out of control Lawers that will put before the courts issues such as State's Rights to decide how they punish Criminals, protect traditional Family Values, and protect the nation as a whole against terrorists and such.

I also think that an equal portion of blame should be laid at the feet of the Judges who grant standing for those kind of cases.

But when it comes to Actual Constitutional Rights that are enumerated in the Constitution of the United States. Whatever it take to protect them and ensure that they remain for "ourselves and our posterity" is well worth the investment.

We may have other things to worry about as well as gun rights but don't be fooled, we do need to worry about all our Rights including guns!!

mike V