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Old October 9, 2010, 09:53 PM   #1
Al Norris
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Woollard v. Sheridan: Cert Denied - see pg 14

This is the case that challenges Maryland's Carry permit law that requires applicants demonstrate "good and substantial reasons." Filed 28 July, 2010 in the U.S. District Court for the District of Maryland. It is an SAF/Alan Gura case.

In the initial complaint, there are 2 claims. First, that MD cannot require by statute, that its citizens must prove their "good and substantial reason" for the exercise of a fundamental constitutional right. Second, by demanding that citizens demonstrate cause for the permit, it violates the 14th's equal protection clause. The relief sought is a permanent injunction against the statutes, Maryland Public Safety Code § 5-306(a)(5)(ii). The 8 page complaint can be read, here.

On 09-20-2010, MD filed a Motion To Dismiss (MTD). The motion made three claims. 1)The State claimed Younger's abstention (the plaintiff did not avail himself of all state remedies before filing his federal claim); 2) The SAF has no standing; and 3) The complaint failed to state a claim on which relief may be granted. The 21 page MTD can be read, here.

Thursday, 10-07-2010, Alan Gura filed his response in opposition to the MTD. The 19 page response can be read, here.

Mr. Gura spends very little time explaining why the state is wrong about the SAF having no standing (part II of the response) and even less time demonstrating that MD is wrong about the complaint not stating a proper claim for relief (part III of the response). The answers are straight out of a 1A textbook on civil procedure.

Where Gura spends most of his time, is in part I, where he deals with the States claim for the Younger Abstention. The abstention is a rarely used exception to the Federal Courts jurisdiction. In demolishing this claim of the State, Gura uses fairly ordinary language which makes it plainly obvious, for even a laymen, what this is about and why it is not relevant to this case.

It is not lost on me, that Gura is taking this opportunity to "instruct and educate" the States attorneys on how not to file an MTD (this is legal humor, at its best).
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Old October 9, 2010, 10:24 PM   #2
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Gura's wording in the original complaint was quite interesting in that, "[t]he Second Amendment guarantees individuals a fundamental right to carry functional handguns in non-sensitive public places for purposes of self-defense." This complies with Scalia's dicta in the Heller decision, which did not rule out the idea of carrying arms, but advanced the idea that some restrictions would possibly be defensible.

A bit of background: Raymond Woollard's home was broken into on Christmas Eve, 2002. Woollard was beaten by the intruder, and it took police over two hours to respond to his wife's 911 call. His assailant was sentenced to probation at first, then imprisoned later after assaulting a police officer.

Upon the assailant's release only three years later, Mr. Woollard was issued a permit. In 2009, his renewal was denied by the defendants, who cited a lack of evidence to "support apprehended fear (i.e. - copies of police reports for assaults, threats, harassments, stalking).”

The man who assaulted Mr. Woollard in his home now lives three miles from him. If that doesn't qualify as "apprehended fear," I'm not sure what does.

The primary reason the review board chaired by the defendants refused Woollard's renewal was that he could not prove "threats occurring beyond his residence, where he can already legally carry a handgun.” Under this logic, the plaintiff would be defenseless should his assailant confront him while out picking up the morning paper.

I wonder how the state can justify someone having to prove prior victimhood in order to protect themselves.

I've no doubt the Maryland District Court will be hostile to this case, which will likely leave matters to the 4th Circuit. Does anyone know if we've got any guideposts towards predicting their views?

//

Also, here's a link [pdf] to the actual Maryland license application. Their process is one of the hardest and most arbitrary in the country. I know this from experience.
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Old October 9, 2010, 10:43 PM   #3
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I don't have anything to offer regarding how the MD lower and district courts will probably view it, but earlier to day I stumbled onto some discussion of an unrelated matter on the Maryland Shooters' forum and this case was mentioned. Reference was made to two older cases:

Murdock v. Pennsylvania, 319 U.S. 105, US Supreme Court (1943):
The purported essence of this one was cited as the statement that "No state shall convert a liberty into a privilege, license it, and charge a fee therefor."

Follett vs. Town of McCormick, S.C., 321 US 573 (1944)

I have not yet read either of these, but it would be great if one of you lawyer types could check them out and let us know if they seem to provide encouragement for the good guys.

Does Gura cite either of these cases?
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Old October 9, 2010, 11:14 PM   #4
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Aguila, I'm not familiar with Follet. But here's a few that I am familiar with:
The state cannot diminish rights of the people.” Hurtado v. California, (1884) 1 110 US 516.

“Statutes that violate the plain and obvious principles of common right and common reason are null and void.” Bennett v. Boggs, 1 Baldw 60 (CCDNJ 1830).

“The claim and exercise of a constitutional right cannot be converted into a crime.” Miller v. US, 230 F 486, 489.

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda v. Arizona, (1966) 1 384 US 436, 491.

“There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.” Sherer v. Cullen, 481 F 946.

“The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 US 22, at 24.

“The power to tax the exercise of a privilege is the power to control or suppress its enjoyment... A state may not impose a charge for the enjoyment of a right granted by the federal constitution.” Murdock v. Pennsylvania, (1943) 319 U.S. 262.

“If the state converts a liberty into a privilege the citizen can engage in the right with impunity.” Shuttlesworth v. Birmingham, (1963) 373 U.S. 262.

In Marchetti v. U.S., 390 US 39,57; See v Seattle, 387 US 541, the Court reiterated what it said in U.S. v Miller, “The exercise of a constitutional right cannot be the basis of a crime.”

“A license is a mere permit to do something that without it would be unlawful.” Littleton v Burgess, 82 P 864, 866, 14 Wyo 173.

“A license is a right granted by some competent authority to do an act which, without such license, would be illegal.” Beard v City of Atlanta, 86 SE 2nd 672, 676; 91 Ga. App. 584.

“The licensor has the power to prohibit. Since the licensor is in the position to grant a right or permission it logically follows that he has the power to prohibit the act also. Likewise, having the power to prohibit something from being done, it follows as a corollary that power also exists to permit its use.” Taylor v Smith, 140 Va. 217, 235.
The main reason these have not been used in many cases is that until now, the 2A has not been recognized as a fundamental right. I suspect we will be seeing more of these used, as these cases progress into the circuit courts.
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Old October 9, 2010, 11:25 PM   #5
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Both Murdock and Follett involved Jehovah's Witnesses and the question was whether they needed a license to be allowed to go door-to-door and distribute literature. Interestingly, one year apart the SCOTUS found for Murdock in the first case but for the town in the second. The difference seems to be that in the first case the books were offered for free and donations were requested. In Follett, Mr. Follett was selling the books as his sole means of income, and refused to buy a $1.00 to be allowed to sell door-to-door.

Doesn't look like either has much to do with the RKBA. I don't know why the individual on MD Shooters was so excited about these cases, and I apologize for having mentioned them before reading them.
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Old October 10, 2010, 09:32 AM   #6
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There's also the Minneapolis Star case, which ruled that a taxing supplies used by newspapers constituted a tax on a liberty.

The Nordyke plaintiffs cited in in the amicus brief for the McDonald case.
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Old October 10, 2010, 11:02 AM   #7
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Wow, that is a remarkably poor brief from Maryland. I keep seeing these briefs from the other side that are so badly written I have to think that they want us to win.
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Old October 10, 2010, 11:25 AM   #8
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The cases cited don't have to have a direct connection with the RKBA. What they do is to show a decided deference in treatment to fundamental rights. They will be used in future cases, if I understand the strategy correctly.

What is important at the moment, is to get the various States to recognize the fundamental nature of the right to carry; to realign their laws so that a concealed carry permit is not arbitrary or capricious. Essentially, the plan is to force all States to become "Shall Issue." Either through federal court action or through legislative means. Enough wins at the judicial level, will force the remaining legislatures hands.

Along the way, I see the side issues of where you can carry, coming up at appropriate times. Ezell is such a case, although on the surface it is about gun ranges. Beneath that surface lies the ability to take your gun out of your house and into the public.

Down the road, the citations above, will come into play. States will still be allowed to regulate the manner of carry, but will not be able to deny it altogether. This will lead to (mostly) unrestricted carry, either openly without a license or concealed (if the States refuses to allow open carry) without a license (or very minimal licensing requirements).

First and foremost, carry under even heavily taxed regimes, must be acknowledged as a right to anyone who wishes to apply for the permit. There may surface a few cases where the cost (and/or other requirements) of the permit will be challenged as excessive regulation. Theses cases will begin to avalanche as more and more cases over the right to carry are won.

There will be a lot of kicking, screaming and teeth gnashing. But that is the future of 2A rights.
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Old October 10, 2010, 01:14 PM   #9
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Quote:
Originally Posted by Al Norris
There will be a lot of kicking, screaming and teeth gnashing. But that is the future of 2A rights.
On both sides, I suspect ...
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Old October 11, 2010, 05:27 PM   #10
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Excuse me for interrupting, but I lived in MD for over 30 years, but left in 2000. During my residency I never had a problem purchasing, transporting and using most common sorts of firearms. From a 357 Mag revolver, Black powder, Shotguns, Rifles w/clip loads and loaded at home to my specs. Of course, I never applied for CCW permit, and never actually needed it. Read below as the procedures have changed somewhat:

Maryland

Maryland[10][143][144]

[show] Constitution
[show] Preemption and Local Regulation
[show] Registration
[show] Restricted or Prohibited Items
[show] Restricted or Prohibited Places
[show] Restricted or Prohibited Persons
[show] Manufacturing
[show] Sale, Purchase, and Transfer
[show] Transportation and Carry
v • d • e

The Constitution of Maryland contains no provision protecting the right to keep and bear arms. The State preempts some local firearm regulations, though local governments may regulate firearms with respect to minors and areas of public assembly. Annapolis, Anne Arundel County, Montgomery County, Gaithersburg, and Baltimore are known to have local firearm regulations.[10][143][144]

The Maryland State Police maintain a registry of "regulated firearms" that are allowed to be sold within the state. Dealers must forward the manufacturer-included shell casing in its sealed container to the Department of State Police Crime Laboratory upon sale, rental, or transfer of a "regulated firearm" for inclusion in their ballistics database, known as the Integrated Ballistics Identification System (IBIS).[143][144]

Detachable magazines capable of holding more than 20 rounds may not be manufactured or sold, though they may be possessed. Certain pistols are banned and are defined as "assault pistols." Any of the "assault pistols" on the list are lawful to possess only if they were registered prior to August 1, 1994.[10] Only handguns on the official handgun roster may be sold in the state. Private sales of "regulated firearms," which includes handguns, are prohibited. A person must obtain a safety training certificate prior to purchasing "regulated firearms" and present that certificate prior to each purchase. With some limited exceptions, only one "regulated firearm" may be purchased in any 30-day period. Handguns manufactured on or before December 31, 2002 must be sold or transferred with an external safety lock. Handguns manufactured after December 31, 2002 may only be sold or transferred if they have an internal mechanical safety device.[143][144]

Firearms are prohibited from certain places, including schools and demonstrations. Carrying a handgun, whether openly or concealed, is prohibited unless one has a permit to carry a handgun or is on their own property or their own place of business. The Maryland State Police may issue a permit to carry a handgun at their discretion and based on an investigation.[143][144]


Hangman
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Old October 11, 2010, 06:29 PM   #11
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Quote:
Originally Posted by zhangman
The Maryland State Police may issue a permit to carry a handgun at their discretion and based on an investigation.[143][144]
Therein lies the root of the problem.
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Old October 11, 2010, 08:10 PM   #12
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Under the reasoning of Murdock v. Pennsylvania, it could be argued that the imposition of any fee to obtain a firearm permit could be considered a tax on a constitutional right (to keep a firearm in one's home, for example), and would, therefore, be an illegal license tax. "A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce." (McGoldrick v. Berwind-White Co., 309 U.S. 33, 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R. 876).

Could it be that 49 states been wrong all these years whereas only Vermont, which does not have any licensing provision, been correct?
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Old October 11, 2010, 08:18 PM   #13
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Quote:
Under the reasoning of Murdock v. Pennsylvania, it could be argued that the imposition of any fee to obtain a firearm permit could be considered a tax on a constitutional right
Yes, but we still have to get the courts to see carrying a gun as a right. Strictly speaking, the Supreme Court defines the 2nd Amendment as protecting the right to own a handgun in the home for the purposes of self-defense.

Protection for the bearing of arms, even the meaning of "bear," is still pending.
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Old October 11, 2010, 09:09 PM   #14
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If I'm not mistaken, the Maryland permissible pistol list excludes any pistol manufactured before 1984. If it's not on the list, but mfr'd before 1984, it's OK to own or purchase.
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Old October 11, 2010, 09:18 PM   #15
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Quote:
Originally Posted by Tom Servo
Quote:
Under the reasoning of Murdock v. Pennsylvania, it could be argued that the imposition of any fee to obtain a firearm permit could be considered a tax on a constitutional right
Yes, but we still have to get the courts to see carrying a gun as a right. Strictly speaking, the Supreme Court defines the 2nd Amendment as protecting the right to own a handgun in the home for the purposes of self-defense.

Protection for the bearing of arms, even the meaning of "bear," is still pending.
I disagree. Both Heller and (perhaps especially) MacDonald affirmed the 2nd Amendment right to keep and bear arms. IIRC, Justice Alito (or maybe it was Justice Scalia in Heller) very carefully reviewed the meaning of the word "bear" in setting out the reasoning behind the decision. There is nothing in either Heller or MacDonald that limits the application of the 2nd Amendment to the "keep" portion.

The issue is not getting the courts to see carrying a gun as a right. That has now been clearly established. The problem is that both decisions (erroneously, IMNSHO) stated that the right is subject to "reasonable" regulation. What is being fought out in the courts now is not the right itself, but what degree of regulation of the right is deemed to be "reasonable."

If this Murdock view gains any traction, what it would mean is that states could (note "could") continue to require permits for either concealed or open carry (but probably not for both, since then we would be unable to exercise a fundamental right without a permission slip ... akin to needing a permit or license to attend church), but they would not be able to charge for them. States like Ohio and Pennsylvania would probably be okay -- open carry is legal without a permit (the Philadelphia exception may be blown out) but a permit is required if you wish to carry concealed. States like Texas and Florida, that require a permit for concealed carry and don't allow open carry at all, are clearly taxing the right to bear arms.

The question is: If the courts arrive at the determination that requiring training and a license is a reasonable regulation but the state can't charge for the resulting permit/license ... will the cash-strapped states still want to continue the licensing process, since it would be come a money pit rather a cash cow?
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Old July 20, 2011, 07:51 PM   #16
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Tomorrow, 07-21-2011, the Court will hold an oral hearing on cross motions for Summary Judgment. Alan Gura filed a notice of Supplemental Authority (citing Ezell), while the Court sent a memo on the hearing. The Docket is here.

Document #41, Notice of Supplemental Authority, is pretty much word for word with the one Alan Gura filed in Lane v. Holder.

Document #42, the Memo, is going to be the key to losing this case at the District level, as it signals the Judges predisposition:

Quote:
From my reading of the briefs and the relevant case law, it appears that the following points are not in serious dispute:
  • The “core” of the Second Amendment protection as articulated in Heller and McDonald encompasses the right of law-abiding individuals to possess handguns in the home for self-defense.
  • When considering legislation regulating conduct outside this core area, but still within the scope of the Second Amendment right, intermediate scrutiny is appropriate.
  • This case does not implicate any of the “presumptively lawful regulatory measures,” such as prohibitions on firearms ownership by convicted felons or the mentally ill, laws forbidding the carrying of firearms in sensitive places, or laws imposing conditions and qualifications on the commercial sale of arms.
  • The Court should consider the regulatory scheme as a whole rather than analyzing only the challenged portions of the law.

The key questions on which this case will turn, therefore, are the following:
  • Do the regulations here at issue satisfy intermediate scrutiny?
    • What is the nature and extent of the state’s interest in the regulations?
    • How are these regulations tailored to advance the state’s interest?
  • If the challenged regulations would not satisfy intermediate scrutiny, does the Second Amendment right extend outside the home at all? The majority in Masciandaro expressly reserved this question, and suggested that it should not be decided unless absolutely necessary.

Additional questions that will inform the above:
  • To what extent is First Amendment doctrine properly applied in the Second Amendment context? Is it merely instructive in determining the level of scrutiny applicable to the circumstances, or do concepts such as prior restraint and overbreadth apply as well?
  • What is the appropriate role of social science data in determining whether the state’s carry law passes constitutional muster?
Note well, the very first criteria of discussion. "In the Home," has raised its ugly head, once again.
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Old July 20, 2011, 08:37 PM   #17
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Quote:
I wonder how the state can justify someone having to prove prior victimhood in order to protect themselves.
The only thing government consistently does well is look after the interests of government. It regards everything else as optional.
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Old July 22, 2011, 08:21 AM   #18
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Patrick, over at MDShooters, went to yesterdays hearing on opposing MSJ's in the Woollard case. He has reported on this hearing in (so far) 2 very well noted posts. Here and again here.

There appears to be room for some modest optimism that Judge Legg will be the first Federal Judge to recognize a right to carry, outside the home. We will know in about 2 months (according to Patrick, at the close of the hearing, the Judge said he would attend to the decision in about 4 weeks (vacation?), so figure another 4 weeks to write it up).
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Old November 28, 2011, 08:12 PM   #19
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Defendants submitted notice of supplemental authority citing both Hightower and Kuck.


I don't remember the kuck case, went into the second circuit and couldn't find anything. Probably doing it wrong though.
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Old January 23, 2012, 07:39 PM   #20
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On 09/08/2011, the State filed a Notice of Supplemental Authority, citing the decision in Kachalsky. On 09-14-2011, Alan Gura responded.

On 10-03-2011, the State filed a Notice of Supplemental Authority, citing the decision in Hightower and Kuck. Alan Gura, didn't deem it necessary to respond.

Now, on 01-19-2012, the State files yet another Notice of Supplemental Authority, citing the New Jersey Case (now named) Piszczatoski v. Filko.

Alan didn't waste any time. Today he filed a response to all three of these notices and adds some notices of his own! Gura cites 3 decisions by the 4th Circuit (Chester, Staten and Chapman) that relates to criminal cases and how the 4th used intermediate scrutiny to decide on their possession of guns (“the core right identified in Heller [is] the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense.”). Then Gura cites the recent 1st Circuit case, Rehlander.

Gura then goes on to describe how the cites the defense uses, are not even relevant to the issues at hand. But he starts that portion of his response with:

Quote:
Defendants have taken issue with Plaintiffs’ responses to their persistent citation of supplemental authority. Plaintiffs agree there is no need for further briefing. However, it is accepted practice in many courts to offer some minimal explanation of supplemental authority so that the court is not left guessing as to the authority’s relevance, or lack thereof.
Zing!

The next to last paragraph really stands out, as one of Gura's trademark zingers:

Quote:
It is manifestly clear that, regrettably, many courts simply refuse to follow Heller and McDonald. They read ambiguity into Heller’s clear sources, decline to apply Heller’s constitutional definitions, declare for no logical reason that the case was limited to its facts, or outright refuse to develop the law of the Second Amendment as though the Supreme Court were, for this one Constitutional provision, the court of first resort.
Ouch! ... That was meant to hurt.
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Old January 23, 2012, 08:11 PM   #21
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This was another good one, as was the closing line about having to prove entitlement to practice a right:

Quote:
If Heller confirms nothing else, it is that legislatures do not enjoy a general interest to limit the public’s use of guns.
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Old March 5, 2012, 02:01 PM   #22
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Decision in Woollard v. Sheridan

The Maryland District Court has just handed down a decision [pdf] in the Woollard case granting the plaintiff summary judgement.

If you need to brush up on the case, we had a thread here when it was first argued.

From the opinion:

Quote:
The Court finds that Maryland’s requirement of a “good and substantial reason” for issuance of a handgun permit is insufficiently tailored to the State’s interest in public safety and crime prevention. The law impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment.
Judge Legg maintains that the right to carry outside the home is only covered by intermediate scrutiny, but this is a step forward.

Quote:
The Supreme Court’s choice of phrasing connotes that the
restrictions it termed “presumptively lawful” pass muster under a heightened standard of review. It would likely not have used the modifier “presumptively” if those restrictions were subject, not to any form of elevated scrutiny, but only to the rational basis review that all laws are presumed to satisfy. If this is correct, and laws limiting the carrying of firearms in sensitive places are indeed implicated by the Second Amendment’s protections, then those protections necessarily
extend outside the home, at least to some degree.

For all of these reasons, the Court finds that the right to bear arms is not limited to the home. The signposts left by recent Supreme Court and Fourth Circuit case law all point to the conclusion that Woollard’s “claim to self-defense—asserted by him as a law-abiding citizen . . .
—does implicate the Second Amendment, albeit subject to lawful limitations.” [pp. 12-13]
While declining to address Woollard's Equal Protection claim, Judge Legg did leave us with this signpost:

Quote:
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them,” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself. [p. 20]
We couldn't get a "bear arms" case before the Supreme Court this session, and some folks think it was because the Court doesn't want to address the issue through criminal appeals (which is what Williams and Masciandaro were). Heller and McDonald were "pure" cases, in which the plaintiff was a law-abiding citizen arguing that their rights were being diminished by unjust laws. In that vein, I have high hopes for Woollard as such a case.
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Old March 5, 2012, 02:03 PM   #23
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an interesting SAF (Second Amendment Foundation) alert

Excuse me if someone has already posted this.

MARYLAND RULING A HUGE VICTORY'
FOR SECOND AMENDMENT, SAYS SAF



BELLEVUE, WA - A federal court ruling in Maryland, that the Second Amendment right to bear arms extends beyond the home and that citizens may not be required to offer a "good and substantial reason" for obtaining a concealed carry permit, is a huge victory, the Second Amendment Foundation said today.

The alert itself goes om in greater detail, and seems to quote from the District Court judges ruling. Read it for yourselves.
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Old March 5, 2012, 02:12 PM   #24
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Here is a link to the story:

http://www.bizjournals.com/prnewswir.../03/05/DC64486

This case has been discussed in the past on TFL here:
http://thefiringline.com/forums/showthread.php?t=425906

Sounds good to me.
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Old March 5, 2012, 02:16 PM   #25
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I wonder if the state will appeal or did we really get a win?
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