Federal judge upholds strict new Maryland gun laws

[2damnold4this]

Looks like the Maryland assault weapons ban and magazine capacity restrictions will stand. The judge cited statistics saying that the banned firearms and large capacity magazines were rarely owned but disproportionately used in mass shootings and in murders of leos. Will this be appealed? What can we do to counter the arguments that firearms and magazines that hold over ten rounds are unusual and dangerous arms?


link


Edit to add a quote from the judge:

“Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual,” Judge Blake wrote.

Read more: http://www.washingtontimes.com/news/...#ixzz3ADa3hu6c
Follow us: @washtimes on Twitter

[rd_zzyzx]

Dangerous by design, else they would be useless.
Unusual - I don't see how that matters. A blunderbuss is unusual too, so by that logic those have to go.

The court doubts that the long guns are kept for lawful purposes. They make judgements on doubts? I doubt they can tie their shoes for themselves, but that doesn't make it true.

[JWT]

The Judge 'seriously doubts' but apparently has no proof. Nonetheless, she is the ruling Judge.

[zxcvbob]

Lawlessness and contempt for The Constitution is not just limited to executive branch and a few elite member of Congress. It's spreading. When the laws (and recent USSC decisions) say one thing and you ideology says something else, enforce your ideology 'cause "It's good to be the king."

[TXAZ]

This is not the first ridiculous ruling she has made. Google her.
Apparently Federal Judge Cathy doesn't know that the AR and AK are far from "unusual", and I question her impartiality, submitting her past rulings make her unfit to substitute for Judge Judy.

The Polity needs to become activist with activist judges and move for their impeachment when the political pendulum swing back the other way.

[kilimanjaro]

Next stop, Supreme Court in a year or two.

[Tom Servo]

In sum, the defendants have met their burden to demonstrate a reasonable fit between the Firearm Safety Act and the government’s substantial interests in protecting public safety and reducing the negative effects of firearm-related crime.

"Reasonable fit" is too close to rational basis, and that's not supposed to be the standard when enumerated rights

Next stop, Supreme Court in a year or two.

Actually, this ruling was in District court. The next step would be the 4th Circuit.

[publius42]

“Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual,” Judge Blake wrote.

And we're back to the "indoor militias" argument.

The Heller Court said:

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.

...

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

Just because the need is "most acute" within the home does not mean it does not exist outside the home.

Paul Revere did not ride along yelling for everyone to get inside.

[Bartholomew Roberts]

Originally Posted by Tom Servo

"Reasonable fit" is too close to rational basis, and that's not supposed to be the standard when enumerated rights

Why no, it is "intermediate scrutiny." You know the drill, pervert the reading of Heller to say that it only protects the core right of keeping a handgun in the home for home defense (not self defense mind you as that might go awkward places), then decide the law in question does not infringe on that core right, then apply "intermediate scrutiny" that is really rational basis in all but name and find the law constitutional. Done.

The really offensive part of the decision is the Judge claims she can grant a Motion for Summary Judgment because there is no dispute as to the material facts, then the Judge proceeds to list about half a dozen examples where each side is giving different material facts (How many assault rifles are in the United States? Is the law too overbroad given the harm it seeks to prevent? How common is ownership of these firearms? etc.)

I can't even fathom how you can declare normal capacity magazines that have existed for 100 years "uncommon" and then cite a "disproportionate use in crime" (85% of all gun crimes involve them) - Well, duh... That's because they've been around for 100 years and every damn magazine fed firearm in the U.S. uses them - they are in fact, extremely common. One more disputed statement of material fact where the Judge swallowed the Defendant's argument whole while barely acknowledging the Plaintiff's facts to the contrary.

I wouldn't be surprised if it got remanded just on the MSJ issue, though that would delay any ultimate decision on the real Second Amendment question - which may well have crossed her mind given the current political realities and court makeup.

[thallub]

As wacky as the Maryland law is i expect it to stand.

Heller was not a resounding win for us. Heller was watered down in order to get a fifth justice on board.

From the Heller decision (paragraphed for easier reading):

III
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333.

For example, the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884).

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
Cite as: 554 U. S. ____ (2008) 55
Opinion of the Court
arms.26

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson,
Works of the Honourable James Wilson 79 (1804); J.
Dunlap, The New-York Justice 8 (1815); C. Humphreys, A
Compendium of the Common Law in Force in Kentucky
482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable
Misdemeanors 271–272 (1831); H. Stephen, Summary
of the Criminal Law 48 (1840); E. Lewis, An Abridgment
of the Criminal Law of the United States 64 (1847); F.
Wharton, A Treatise on the Criminal Law of the United
States 726 (1852). See also State v. Langford, 10 N. C.
381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849);
English v. State, 35 Tex. 473, 476 (1871); State v. Lanier,
71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.

It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
——————
26 We identify these presumptively lawful regulatory measures only
as examples; our list does not purport to be exhaustive.

[carguychris]

Originally Posted by thallub

Heller was not a resounding win for us. Heller was watered down in order to get a fifth justice on board.

+1. As I've argued in past threads, I'm not certain that Heller's language helps us to undo AWB-style bans.

Problem #1: Scalia's nebulous "presumptively lawful" language implies that feature-focused prohibitions could stand.

Problem #2: Our own rhetoric works against us.

Us: "No decent shot requires 18 rounds to stop a burglar."

Them: "Then you can make do with 10 and get more practice." (This, and you can get 10rd mags for almost any semi-auto sold in large numbers after 1990 or so; hence, such mags are certainly in "common use", to use another Heller phrase.)

Us: "The magazine ban is pointless because, with practice, I can shoot a semi-auto with 10-round mags almost as fast as I can shoot with 17-round mags."

Them: "Then what's the problem with the magazine ban? It sounds like the problem is that YOU need more practice."

Us: "Banning flash hiders, bayonet lugs, and pistol grips is stupid, because they're just cosmetic, and the basic gun still works without them."

Them: "If those features are just cosmetic, and the basic gun still works without them, then you don't really need 'em. Stop yer whining."

IMHO we need to draw a lesson from recent setbacks for the pro-choice* movement, and NOT assume that we can rest on our laurels when faced with new legislation, simply because we've prevailed in the courts against past legislation.

(*Let's NOT discuss this issue further- I'm just drawing a comparison.)

[Uncle Buck]

But if Walmart sells them (AR-15 type rifles) isn't that proof that it is a common weapon? Also the fact that 8 Million people have them?

I would love to see the source of the statistic the judge used to make her ruling.

[Brian Pfleuger]

Originally Posted by Uncle Buck

I would love to see the source of the statistic the judge used to make her ruling.

I believe you'd have to be a Proctologist to see where that evidence came from...

[Tom Servo]

I believe you'd have to be a Proctologist to see where that evidence came from.

I haven't been able to grab a copy of the opinion, but my guess would be a study performed and funded by the Brady Campaign or VPC.

[zukiphile]

I haven't been able to grab a copy of the opinion...

Here it is.

http://www.scribd.com/doc/236628112/...urt-gun-ruling

...Allen Decl. ¶ 15 (indicating that, over the last three decades, LCMs were used in 85% of mass shootings where the magazine capacity was known, and that, in the past two years, LCMs were used in 5 of the 7 mass shootings with known magazine capacity); ...

***

First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population. The court is also not persuaded by the plaintiffs’ claims that assault weapons are used infrequently in mass shootings and murders of law enforcement officers.

Note the flexibility in reasoning: 8.2 Million items legally possessed isn't common, but 5 "mass shootings" in two years is frequent.

She really leans heavily on the concept of appellate deference to trial court factual determinations, but it is her reasoning that is egregious. She can't find an instance except for one she assures us does not apply, of a defensive use of an AR in MD. She then concludes that since this specific employment isn't present, "common use for lawful purposes" is substantially absent. It isn't a finding of fact that she asserts, but an argument resting on a misreading of Heller.

According to her reasoning, second amendment protections would not survive an absence of crime, since the common use (employment) for self defense would evanesce and take the right along with it.

Of course, the lawful purpose present in keeping (as in "keep and bear") an AR can be defensive even where it is never employed that way. Spare tires are common, and are kept for the purpose of replacing flats, even though flats are rare.

The appellate brief should be a good read.

[TDL]

I don't support the ruling but predict the ruling will stand including at SCOTUS.


As far as this:

The judge cited statistics saying that the banned firearms and large capacity magazines were rarely owned but disproportionately used in mass shootings and in murders of leos

this is not correct. I have seen those statistics. Mass shootings definitions are all over the place. The definition used to claim they are not down, non fatal shootings of two people, is comprised by great majority of non modern weapons. The other definition, mass fatality events, are down significantly per capita as "assault weapons" and high cap magazines have proliferated (order of magnitude growth in 20 years.)

[Glenn E. Meyer]

Awhile ago, I started a thread that stated that Scalia's prose had major weaknesses and not an unconditional Gift from the Gun Deity. Some person - who we haven't seen again - chose to argue that Scalia was a wonder wily old bird and his decision would be the the road to the promised land.

Hmmm?

As I also have ranted about, the claim that the AR and AK pattern guns are modern sporting rifles as a defense against the prose we see in MD or CO is again shown to be ludicrous. They must defended on the grounds to have such. I've started to see media call the gun in police hands military style rifles. I think incidents like Ferguson and the pictures of the officers' guns will flush the modern sporting rifle whine down the toilet of history.

To identify them with sport is giving folks a perfect reason to ban them.

[TDL]

I think incidents like Ferguson and the pictures of the officers' guns will flush the modern sporting rifle whine down the toilet of history.

When you have crackpots like Adam Winkler making Ferguson about American gun ownership there is a danger of that. I work on the hill. The militarization of police is more about pork than anything else. The post 911 distribution of military grade weapons and mrps to every department was a political trade for funding actual threat amelioration in the actual foreign terrorism target cities. The secondary driver to that drug gang armaments. As policeone shows, police are not worried by law citizens with "assault rifles" and as the data show, that is not the real threat. The claim that it is by writers such as winker is a specious because racial violence and police killings has always been about much more than that in the US. Need we recall the most recent preceding event was a choke hold killing?

Scalia's decision was not a gift from a "gun deity" but we have not had a appropriate high level decision on common use yet.

As far as predictions, the cultural trend shows an evolving existential threat to lawful civilian gun ownership. Actuary tables on liberal and conservative justices on SCOTUS indicate next presidential election will shape the court for a generation

[Gary L. Griffiths]

Scalia's decision wasn't a "gift from the gun diety" perhaps, but the alternative might have been to see the majority opinion written by Brennan or Ginsberg. THAT would have been a gift from the anti-gun diety.

[Tom Servo]

but the alternative might have been to see the majority opinion written by Brennan or Ginsberg.

...in which case, we'd have had all sorts of bans and onerous regulations on the federal level five years ago.

When you have crackpots like Adam Winkler making Ferguson about American gun ownership there is a danger of that.

I wouldn't call Winkler a crackpot. He disagrees with us on a few things, but he's sympathetic on others. He may not be in our court, but he's not against us either.

[Glenn E. Meyer]

The risk of Heller going the wrong way was one reason why the NRA didn't want to go to the SCOTUS. Heller was on the knife's edge.

My point is that we shouldn't overestimate it. I'm betting that we don't see another major victory that overturns the majority of current laws to lead us to the promised land of no permits needed, total reciprocity, FA for all, or overturning state AWBs. Like to be wrong but I didn't see Heller as a precursor to more great rulings.

I think we will see total handgun bans disallowed and states will have to offer some kind of shall issue (whose rules may be onerous). But the CA, NY, MA, CO, CT, etc. gun type rules will stand.

[CowTowner]

But the CA, NY, MA, CO, CT, etc. gun type rules will stand.

I hope I live long enough to see the residents of those states use the power of the polls to change the laws and avoid more court costs.

I can dream.

[Glenn E. Meyer]

Good thought, my read of the research on attitudes in those areas suggest that the urban populations are for the most part antigun. This isn't race, BTW - it seems to be urban east coast and parts of CA.

[Bartholomew Roberts]

While Scalia certainly wrote parts of Heller that can be criticized, his "presumptively lawful" language has been both a blessing and a curse. Courts aren't doing the required analysis - they are just blessing the regulation and quoting the presumptively lawful language.

On the one hand, it has screened out a lot of undesirable plaintiffs who might have made bad case law at the appellate level. On the other hand, we're still getting bad case law at the appelate level because those courts aren't really going much further in analysis either.

Either way, the decision was going to have to have language like that or you wouldn't have lost one Justice but several. Thomas is really the only Justice whose shown an interest in interpreting things even if it upsets the apple cart.

[TDL]

Good thought, my read of the research on attitudes in those areas suggest that the urban populations are for the most part antigun. This isn't race, BTW - it seems to be urban east coast and parts of CA.

We have pretty good data.

The first clear demographic is that anti gun views are a profoundly gender based.

The next clear determinate is political orientation.

Third, but still very significant is urban/not urban