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Old March 30, 2012, 02:54 PM   #76
Daugherty16
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Another Dumb Question

Just yesterday i read Gura's appellate brief in Hightower, and found it compelling reading. It seems clear that in that case, as in Woolard, his argument is based on the USSC declaring the 2nd Amendment a fundamental right, elevating it to the same scrutiny and judicial tests that are embodied in the vast body of decisions on 1st Amendment questions. However, decisions related to free speech don't carry nearly the political or emotional weight as 2nd Amendment questions always seem to. People in general don't seem to fear free speech in the way so many seem to carry an irrational fear of firearms (in the hands of law-abiding citizens, no less).

Judges, like everyone else, have emotions and bias but their positions require them to set those aside in weighing evidence, argument and precedent (like that ever happens). Their positions also enable them to enforce their leanings on the masses, if so inclined. We've all seen decisions that used circular logic, or employ entirely new interpretations or applications of prior case law, to reach a desired and probably predetermined outcome. I think they call that legislating from the bench.

So here's the dumb question: anyone care to opine on how far from his prior leanings Judge Legg really reached here? I am trying to gauge whether Legg was brought around to this decision by a compelling legal argument, or whether he was already receptive to this position and this case provided a perfect medium for his viewpoint. By way of comparison, i'm thinking of the Hightower case and others that will use this same argument - was a fairly liberal judge persuaded by an airtight argument and is that likely to happen elsewhere, or did this case land in the lap of a judge already likely to rule in this way?

Some of the early posts indicated an expectation of unfavorable rulings. So i'm just asking for opinion here.
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Old March 30, 2012, 07:30 PM   #77
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Judge Legg is a very fair Judge, in that he does not rule by his own political leanings. He rules on what is before him.

In this case, the Judge did his homework. You can see this in doc #42 (dated July 19, 2011), where he lays out the questions he wants the parties to answer in the upcoming Summary Judgment Hearing. That hearing was held on July 21st. The transcript of the hearing was posted (presumably by Alan Gura) on August 25th (doc #44).

While the transcript is about 77 pages, you should read it to get an idea of what this judge is about.

Unlike the other District Judges, Judge Legg actually did what Heller demanded: He did the required historical research on what the amendment meant at the time it was ratified, and placed the context of "bear" within the context of "self defense." He didn't just use the specific remedy of Heller to justify a lame and inexcusable result, as so many of the other courts have done.

Using the guidance of the 4th Circuit in both Chester and Masciandaro, Judge Legg used a true Intermediate Scrutiny and found that the right to carry beyond the home was only a step away from where self defense is most acute, the home.

Whatever his leaning, there was only one outcome after that.

What is happening now, is that the Judge is dotting his "I's" and crossing his "T's" in order to have his ruling survive anything the 4th can throw at it. Procedural correctness, if you will.

The docket and the referenced docs, is here: http://www.archive.org/download/gov....72.docket.html
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Old March 31, 2012, 12:30 PM   #78
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Quote:
Then whatever opinion the 4th Circuit publishes affirming the District Court become the law in the 4th Circuit.
For the casual reader, the key term is "publishes." Opinions may be designated as "published" or "unpublished." Published opinions are considered binding precedent but unpublished opinions are not. They could only be used for persuasive authority. Fourth Circuit Rule 32.1 does allow citation to unpublished opinions issued after 1/1/07. I would think the 4th Circuit would publish the opinion.
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Old March 31, 2012, 12:42 PM   #79
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Quote:
Originally Posted by KyJim
...Fourth Circuit Rule 32.1 does allow citation to unpublished opinions issued after 1/1/07. I would think the 4th Circuit would publish the opinion.
Jim, in the 4th Circuit are there any standards or criteria for not certifying a decision for publication. I believe that in some jurisdictions an opinion would not be published only if it adds nothing new.
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Old March 31, 2012, 10:21 PM   #80
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We now have a glimmering of how AG Gansler may attack the ruling by Judge Legg at the Circuit.

In the long timed-out case of Palmer v. D.C., Alan Gura noticed the court of the Woollard and Weaver cases, back on March 8th.

On March 16, D.C. made its response to those cases. http://www.archive.org/download/gov....37887.30.0.pdf It may be considered weak, but it is there, nonetheless.

Of course, on the 29th, Gura noticed Bateman. It may shed more light how D.C. responds to that.
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Old April 2, 2012, 10:34 PM   #81
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Late Friday night, Judge Legg issued his amended order of clarification: http://www.archive.org/download/gov....80772.63.0.pdf

Judge Legg does three things with his amended decision:
  1. The Judge issues a Permanent Injunction against the State from enforcing the "Good and Substantial" clause of the MD Wear and Carry laws.
  2. The Judge orders the State to proceed with whatever is needed to issue Mr. Woollard his permit.
  3. The Judge then issues a temporary Stay until he is briefed and issues a decision to dissolve the Stay or order it held, pending the Appeals.

So, as it stands, his entire decision is stayed pending the briefing on continuing the Stay temporarily pending appeal. This also means that Mr. Woollard will not get his permit until possibly after the Judge lifts the stay or the CA4 affirms the District Courts decision.

As a result of this clarification, today, MD noticed their appeal: http://www.archive.org/download/gov....80772.64.0.pdf

So here's what is going to happen.
  1. The defendants will file their opening brief on Apr. 19th.
  2. The plaintiffs will file their response on May 9th.
  3. The defendants will file their reply on May 23rd.
Judge Legg will issue his considered opinion sometime after that. Expect it to be on or around June 2nd.

If the State cannot meet the 4 criteria of a Stay, Judge Legg will dissolve the temp Stay that is currently in effect. The State may then appeal directly to the CA4 Motions Panel for a Temp Stay. If the Motions Panel agrees with Legg's reasoning, the Injunction will be in full force.

Judge Legg is being very careful about all of this. He is providing MD with everything they need. This is serious and Legg does not want to be overturned. A good reasoned opinion for not granting the Stay will influence the Motions Panel.
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Old April 3, 2012, 02:08 PM   #82
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Thanks Al, for sharing that opinion and all the updates. This is obviously a ground-breaking case, and it does indeed sound like Judge Legg is disinclined toward reversal. He is the first, to my knowledge, to detemine that the RKBA does indeed extend beyond one's home.

The idea that he is being extraordinarily careful about procedure even at this point after the ruling says something about him as a judge also. If i had to guess, though, I would presume that he is just as careful about all his decisions. I'd guess he was a heck of a lawyer once.
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Old April 3, 2012, 05:50 PM   #83
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Quote:
Jim, in the 4th Circuit are there any standards or criteria for not certifying a decision for publication. I believe that in some jurisdictions an opinion would not be published only if it adds nothing new.
That's basically correct. Local Rule 36(a) for the 4th Circuit states:
Quote:
Opinions delivered by the Court will be published only if the opinion satisfies one or more of the standards for publication:
i. It establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or
ii. It involves a legal issue of continuing public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a legal rule that is not duplicative; or
v. It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.

The Court will publish opinions only in cases that have been fully briefed and presented at oral argument. Opinions in such cases will be published if the author or a majority of the joining judges believes the opinion satisfies one or more of the standards for publication, and all members of the Court have acknowledged in writing their receipt of the proposed opinion. A judge may file a published opinion without obtaining all acknowledgments only if the opinion has been in circulation for ten days and an inquiry to the non-acknowledging judge’s chambers has confirmed that the opinion was received
Probably more than most wanted to know.
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Old April 3, 2012, 07:18 PM   #84
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Jim, that's perfect. Thank you very much. I would always prefer more and complete information.
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Old April 4, 2012, 09:05 AM   #85
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Thanks, KyJim. That's actually very helpful. Publication is one of the issues that comes to my mind whenever I hear that "show-me-a-case-that-says-XYZ" argument in one of these threads.
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Old April 6, 2012, 03:58 PM   #86
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Training Bill Proposed by Delegate Smigiel

In an effort to try and mitigate Judge Legg ruling in the Woollard v. Sheridan case two amendments to House Bill 579 (titled: Exemption from Training Course) were added to the bill.

The first amendment changes the title from "exemption from training" to "Training Requirements" and creates and open ended training requirement not yet specified.

The second amendment still proposes the "good and substantial reason" requirement. the bill with amendments can be found at:

http://marylandshallissue.org/wp-con...04/hb0579t.pdf

and note a full story is given on Maryland Shall Issue website

http://www.marylandshallissue.org/

Last edited by trandolph1174; April 7, 2012 at 08:42 AM.
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Old April 10, 2012, 12:37 AM   #87
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The Maryland legislature was e-bombed by hundreds of MSI (Maryland Shall Issue) members all weekend, and continuously during today's session, to fight against the amended HB579. It went right up to the end of the session at midnight 4/9, and the bill was not brought to a final vote, killing it for this session.

There's an 80+ page thread giving a minute-by-minute discussion of the closing day of the session, which I found pretty exciting to read all at once; your mileage may vary. It's available on marylandshooters . com, under MD 2A Issues, if you really want to get into the sausage-making aspects of politics in Maryland, Cradle of Graft.
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Old April 11, 2012, 11:07 AM   #88
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In Maryland, do you guys have the opportunity to testify about legislation?

Do you have witness slips or electronic witness slips?
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Old April 11, 2012, 10:35 PM   #89
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We do have opportunities to testify.

It's a real lesson in government to watch our legislators check their email, nod off or just leave the room when we present our testimony.
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Old April 13, 2012, 08:36 AM   #90
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Right after the decision was handed down, Maryland Shall Issue (MSI - A grass roots organization) suggested that those who could afford to lose the money, should immediately apply for their carry permits. This was an effort to either 1) force the State to process and/or 2) drop the States 90% approval rate, they have touted in more than one court case.

OK. So between the time that Judge Legg rendered his decision and then placed a temporary Stay on the decision, more than a few folks submitted their application for carry permits in MD.

Presumably, the State is now just sitting on those apps, to await a final determination by the CA4.

A new wrinkle has appeared.

Some folks have submitted their apps after the stay and their apps and checks were returned (uncashed), with a letter stating that the app wasn't processed because they failed to provide a "Good and Substantial Reason" on the application. A copy of one letter is here: http://www.box.com/s/92306766413790660714

As is talked about, over at MDShooters, refusing to process a lawful application is a denial (a proof of providing a Live Scan of their fingerprints was required with that app. That cost everyone about $50 plus the permit fees. So the process was started, regardless). It is suggested that those folks in MD should do two things. 1) Keep their application alive via the administrative appeal process. 5-312, and 2) Send copies of the denial letter to Alan Gura (or at the least, provide this to MSI, so they can forward it to Gura).

I would suggest a third action. Make sure you are a member of SAF. They have standing in this matter. As a member of SAF, they will sue on your behalf. If you are not a member, they cannot help you.
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Old April 19, 2012, 08:31 PM   #91
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Item number 68 on the docket. The supplemental response brief by the MD AG is in: http://www.archive.org/download/gov....80772.68.0.pdf

Interesting phrase from the supplemental brief by MD on their Motion To Stay:

Quote:
The equities to be balanced, therefore, are the plaintiffs’ desire to wear and carry, in public, a particular type of firearm—which happens to be the type of firearm most frequently used in criminal activity.
One problem that MD may find out, is that the above completely gives lie to the idea that "assault weapons" are a danger to the public, since they are very rarely used by the criminal element.

The second (and most telling) problem is that it completely ignores what the Supreme Court determined, in Heller:
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 overwhelm*ingly chosen by American society for that lawful purpose.
Regardless of what criminal use handguns are put to, it is the firearm chosen by American society for self defense.

Here's an interesting tidbit. In section III, the MD AG uses a bunch of really cherry picked stats in how permit holders are not so law-abiding. But he starts it off with:
Quote:
The vast majority of these killings were committed by individuals who obtained a concealed carry permit in a “shall issue” state, including the recent killing of Trayvon Martin by Florida concealed permit holder George Zimmerman.
So AG Gansler uses name recognition to imply permit holders are murderers.

I call this wholly unprofessional, if not unethical. Gansler can have no information as to the guilt or innocence of anyone whose trial has yet to be started.

The entire "supplemental brief" is nothing more than a rehash of the merits arguments that Judge Legg has already dismissed. Alan Gura will have fun with this, in his opposition in reply, May 9th.
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Old April 20, 2012, 12:08 AM   #92
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I can't believe that an AG would use a case that has not even gone to trial in an attempt to sway a ruling. I'm flabbergasted at the gall Gansler has.
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Old April 20, 2012, 09:31 AM   #93
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Gansler is out of arguements and desperate to prevent getting rolled over by reality. His arguements, to include the reference to Zimmermann, are what works in the progressive echo chamber and people who draw conclusions about life from single data points.
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Old April 20, 2012, 09:52 AM   #94
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Some things that immediately popped out at me:

Footnote 1:
Quote:
At the end of the March 22 call, the Court asked whether Mr. Woollard could get a permit even if other relief were stayed. The defendants note that the injunction (ECF No. 63) contains two paragraphs, one generally prohibiting enforcement of good and substantial reason and the second prohibiting consideration of good and substantial reason with respect to Mr. Woollard's application. It is within the Court's discretion to grant a stay of the first paragraph, but not the second. In that case, MSP would promptly process Mr. Woollard's application.
Hmm, so the AG is saying that the court could (& should) allow the MSP to continue to enforce the "good and substantial reason" requirement except everyone except the Plaintiff?

Maybe my problem lies somewhere in the reasoning put forth by the AG as to the consequences of not issuing a stay:

Quote:
I. The Failure to Enter a Stay Could Result in Harm to Individuals Eligible to Receive a Permit Under Existing Maryland Law.

The first question posed by the Court is what would happen if the injunction were not stayed pending appeal, but the Fourth Circuit later reversed. If the injunction were not stayed, and the Maryland State Police ("MSP") was therefore precluded from enforcing the good and substantial reason requirement, MSP will not necessarily know who among those receiving permits while the injunction is in effect (the "Interim Period") have good and substantial reason. If the Fourth Circuit were later to reverse, all permits that had been issued to individuals who had not demonstrated good and substantial reason during the Interim Period would be inconsistent with valid Maryland law. MSP, a law enforcement agency, would therefore be required to revoke those permits. Ex. A, Declaration of Marcus Brown, April 18, 2012 ("Brown Decl."), ¶ 5.

In this scenario, the greatest impact of denial of a stay would fall on individuals with good and substantial reason to wear and carry a handgun in public, those individuals who, by definition, have the greatest need for a permit. Although MSP would process applications received from individuals whose permits were revoked as soon as reasonably practicable, there would almost certainly be delays for individuals with good and substantial reason as a result of the likely glut of applications to process. Id. ¶ 11.

[Spats Edit: The AG then goes on to list several categories of folks who could be able to demonstrate “good and substantial” cause for requesting a permit, and the possible consequences of a delay in the issuance of their permits due to the “likely glut of applications to process.”

The AG then continues by saying that the MSP expects to continue to ask people to voluntarily provide "good and substantial" reason, in an attempt to mitigate the problems raised by this case, if a stay is not issued, and the 4th Circuit reverses. The AG makes such points as:]
. . . . in light of the strong feelings surrounding this issue, MSP nonetheless expects that a significant number of applicants who have good and substantial reason may decline to provide it during the Interim Period as a matter of principle. Id. . . . .

. . . . Because it would be impractical for MSP to track down and recover all of the permits that would not be returned [by folks who did not demonstrate a good and substantial reason], a number of permits would remain in circulation that would appear facially valid, but that had been revoked. Id. Police would therefore be significantly hindered in their ability to enforce the law.

Finally, a failure to stay the injunction pending appeal would adversely affect the processing of permit applications for individuals who have good and substantial reason. MSP resources for processing permit applications are already strained, and would become much more so if a large number of new permit applications need to be processed. Id. ¶ 163 . . . .
I'm sorry that this is so long-winded, but if I understand the AG's first point, it's this: (1) The MSP really, really needs to be allowed to continue to enforce this law that the judge already declared unconstitutional, to protect the people who are willing to comply with it, and really do need to carry a weapon; and (2) the MSP budget is tight, and it would be really inconvenient to have to hire and train new people to go out and reclaim licenses that were issued, if we win on appeal, because we expect some people not to answer the question that we're not supposed to be asking.

Unless I have totally missed the boat in my ~6 years of constitutional litigation, inconvenience generally isn't a factor in deciding how to restrict fundamental individual rights.

The other big problem that I had on first reading was his use of the statistics, as Al already mentioned. The AG puts on these statistics about CCL users committing crimes, but he only puts on the raw numbers, omitting other relevant ones.

For example, he cites to the Texas Dept of Public Safety & some of their numbers. (By the way, I noticed these stats a while back, and they're very interesting.) For example:
Quote:
Texas, which only reports convictions, reports that 101 license holders were convicted of crimes-including one for murder, four for terroristic threat, three for sexual assault of a child, 19 for deadly conduct and 45 for some other form of assault-in 2009, the most recent year for which data are available. Texas Dcp't of Pub. Safety, Reg. Servs. Div., Conviction Rates for Concealed Handgun License Holders (2009), available at: http://www.txdps.state.tx.us/administration/crime records/chl/ConvictionRate sReport2009.pdf. Before Texas law limited reporting to convictions, Texas had reported that license holders were arrested for 5,314 crimes from January 1, 1996 through August 31, 200 l. Karen Brock & Marty Langley, License to Kill IV, More Guns, More Crime, Violence Policy Center, 2 (2002).
Looking more closely at that report, the last line in the statistics table notes that the 101 convictions of CHL holders is out of a total of 65,561 convictions. Well, that juicy tidbit got skipped right over. That means that CHL holders accounted for 0.1541% of those convictions. (I haven't done the math. I'm just going off the table. Dammit Jim, I'm a lawyer, not a mathematician!)
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Old April 20, 2012, 10:52 PM   #95
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It would be very simple for the Maryland State Police to continue asking for a good and substantial reason and to include a field in their database indicating which license seekers met that requirement. If the 4th Circuit reverses, the MSP could simply mail a letter and require those without good and substantial reason to return their licenses. I'm betting there's some sort of fine or misdemeanor which they could cite to leverage compliance.

The failure to return the license is not a real problem anyway. Practically the only time it is used is when there is a police stop or other encounter with the police. The police routinely run these and could then confiscate the license and arrest the offender for carrying without a valid license. In short, the whole argument does not hold water.
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Old April 20, 2012, 11:06 PM   #96
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In order to succeed in getting a Stay, one of the criteria is that you have to show some reasonable basis that you will win on the appeal.

If you notice, they never touched upon that.
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Old April 20, 2012, 11:56 PM   #97
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Quote:
Originally Posted by Al Norris
I call this wholly unprofessional, if not unethical. Gansler can have no information as to the guilt or innocence of anyone whose trial has yet to be started.
I'll go with unethical. I'll even toss in "sleazy" for good measure.
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Old April 21, 2012, 07:49 PM   #98
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Quote:
Originally Posted by Al Norris
In order to succeed in getting a Stay, one of the criteria is that you have to show some reasonable basis that you will win on the appeal.

If you notice, they never touched upon that.
I didn't even think about it in reading the supp brief, but you're absolutely right.
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Old April 21, 2012, 09:39 PM   #99
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Spats I wrote this post a while back and will reproduce it for you here. As it turns out I'm an economist, which is like a mathematician except we deal with policy All numbers are for Texas:

Just for fun I crunched the numbers for 2007 (most recent year for available data). Some of the findings were pulled right from statistical information, some I derived myself...

Total # of convictions: 61,260
Total # of convictions where the criminal had a CHL: 160
% of convictions in which the criminal had a CHL: .2612%

# of "Active CHL Holders": 288,909
% of Texans with an "Active CHL": 1.208%

And just to go off of what Mike Irwin said,

# of murders in Texas: 1,420
# of murder convictions: 371
# of murder convictions in which the criminal had a CHL: 2
% of murder convictions in which the criminal had a CHL: .5391%

And what alloy said:

# of ALL child drowning deaths in Texas: 63
# of murder convictions in which the criminal had a CHL: 2
# of MANSLAUGHTER convictions in which the criminal had a CHL: 1

And car accidents:

# of Motor Vehicle Accident deaths in Texas in 2006: 3,781


That means that the general populace of Texas in 2007 is 4.624 times MORE LIKELY to be convicted of a crime than an "Active CHL Holder". The general populace of Texas in 2007 is 2.24 times MORE LIKELY to be convicted of murder than "Active CHL Holders".

Wasn't gonna source this but then I got carried away, so here are all sources:

http://www.txdps.state.tx.us/adminis.../convrates.htm
http://www.txdps.state.tx.us/adminis...Report2007.pdf
http://www.txdps.state.tx.us/adminis...dInstr2007.pdf
http://www.disastercenter.com/crime/txcrime.htm
http://www.texascancer.info/scripts/mgwns.html
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Old April 21, 2012, 11:14 PM   #100
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For those not familiar with what I referenced earlier, Here are the 4 criteria that the State of Maryland must satisfy, in order to get their Stay (pulled directly from Alan Gura's brief on the merits of issuing the injunction - doc #59):

Quote:
Consideration of a motion for stay under Fed. R. Civ. Proc. 62(c) requires the Court to balance “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (emphasis added); Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). “Defendants, as movants, have the heavy burden of establishing that the aforementioned factors weigh in favor of a stay.” Cayuga Indian Nation v. Vill. of Union Springs, 317 F. Supp. 2d 152, 155 (N.D.N.Y. 2004).
In regards items 2 and 3, the State tried to insist that they couldn't properly process the applications because they had no way of knowing who would actually merit a "wear and carry" permit. Because of that, the public would be harmed when they revoked all the permits.

This is a self-made crisis. Under the G&S rules, those required to have the permit for their jobs, are in fact sponsored by the companies they work for. It would take little to no effort to construct the proper database to single out those that are security guards, retired police, prosecutors, judges, etc., from the ordinary Joe.

As regards the revocation of a permit and the (former) permittee not returning the permit, it is easy enough to discover. They do this with drivers licenses, no? So were is the public harm?

Items 2, 3 and 4 are so transparent as to be a slap in the face to Judge Legg.

And, as I said, no where does the State even try to show that they could succeed on the merits, at appeal. I'm sure that Alan Gura will point this all out, in his response.

There is virtually nothing the State can do to rebut this. What happens next is the mere formality of the process.
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