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Old January 6, 2011, 08:59 AM   #1
Bartholomew Roberts
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Williams v. State of Maryland

In the case of Williams vs. State, the Court of Appeals heard the case of Williams, who was convicted of carrying a loaded Glock in a backpack and claimed to be picking the firearm up from his girlfriend's house and headed home. Williams did not have a Maryland-may-issue permit to carry a handgun concealed.

Williams claimed a Second Amendment defense, which the state first denied saying the Second Amendment didn't apply to states. After McDonald clarified this, the Court of Appeals held that because there is a statutory exception for wearing/carrying a handgun in the home without a permit, the statute is not unconstitutional.

While I might agree that Williams conviction could withstand Second Amendment scrutiny, the reasoning by the Court of Appeals was horrible and left gaping holes in its logic. Prof. Eugene Volokh gives a very charitable assessment of some of those problems at the Volokh Conspiracy.[/quote]

I was mostly surprised that the court chose to focus on the "outside the home" argument rather than the "without a permit" argument. I think ultimately, if this case did go to the current SCOTUS, the court will find the "outside the home" argument doesn't stand up under either McDonald or Heller.
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Old January 6, 2011, 09:36 AM   #2
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This sentence from the opinion neatly sums up why the court held as it did:

Quote:
If the Supreme Court, in this dicta [from the MacDonald opinion], meant its holding to extend beyond home possession, it will need to say so more plainly.
The "dicta" referred to by the court is this sentence from the Supreme Court's opinion (emphasis added):
"[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."
I don't see this as a surprising result, given the statutes at issue in Heller and MacDonald, and the Court's holdings in those cases. We really need a further case to be granted cert, that would test the extension of the RKBA beyond mere home possession. I don't think Williams is that case, though.

Bartholomew, please refresh our memories: What do you see as the best candidate among the various pending cases, that might extend the Heller and MacDonald holdings beyond home possession?

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Old January 6, 2011, 09:58 AM   #3
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Sooo...... Maryland maintains that the Second Amendment provision to bear arms ends at your front door?
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Old January 6, 2011, 10:00 AM   #4
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Incredible.


I guess I shouldn't be surprised by these things anymore, but I always am.

I don't know how or why we got to the place where the written word no longer simply means what it says or how we managed to end up with so many apparently well-educated judges and lawyers who seemingly have no capacity for rationale, logical, independent thought.
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Old January 6, 2011, 10:12 AM   #5
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My issue with the Maryland Court of Appeals holdings is they overlooked a lot of dicta that strongly supports a right to lawfully use a firearm for self defense outside the home. The reasoning was just bad. You could have easily reached the same result without ignoring larges swaths of Heller and McDonald; but the Court of Appeals seems to have made a conscious decision to set the bar as low as possible.

Not that I am complaining, ultimately restrictive overreaching supported by poor logic helps us more than it hurts us; but I am still surprised when I see it.

Quote:
Bartholomew, please refresh our memories: What do you see as the best candidate among the various pending cases, that might extend the Heller and MacDonald holdings beyond home possession?
I think Palmer vs. DC and the various California cases are probably going to be the cases clarifying the right beyond home possession, though it seems that Alan Gura and SAF are challenging the Maryland "good cause" requirement for CCW in Woolard v. Sheridan.

I don't think you'll see a single case that does it as much as a series of small victories in many different cases that builds up a solid foundation over all.
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Old January 6, 2011, 10:18 AM   #6
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I can't believe that even though I possess a CCW from PA I cannot CC on my way to visit my daughter near Baltimore.
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Old January 6, 2011, 10:27 AM   #7
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I feel bad for folks who live in oppressive states but I am all for the complete and total boycott of those states by anyone who cherishes their 2A rights. They sure as hell ain't going to change because they have lucid moment on the meaning of that Amendment.
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Old January 6, 2011, 12:51 PM   #8
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Quote:
They sure as hell ain't going to change because they have lucid moment on the meaning of that Amendment.
I don't really think a boycott would do much to change their minds, though. All it does is punish business owners in Maryland, some of whom might actually be on our side.

Still waiting for the results of Woollard, which as Bartholomew says, takes a slightly different tack, but may have the same result: an easing of Maryland's dreadful carry statutes.
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Old January 6, 2011, 01:57 PM   #9
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This is my favorite passage from this decision:
Quote:
This is not the case, because Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession, the dicta in McDonald that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self defense within the home,” notwithstanding. __ U.S. at __ , 130 S. Ct. at 3044, 177 L. Ed. 2d at 922. Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.
What? Is Justice Battaglia writing a primer on how to pick a fight with the highest court in the land?

While obiter dicta is not binding, when such dicta is the only inference a lower court has to go on, dicta is very, very compelling... Such as the very first sentence by Justice Alito in McDonald,

Quote:
Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and [then] we struck down a District of Columbia law that banned the possession of handguns in the home.
that this court chose to ignore. They aren't the first, nor will they be the last to do so. I suspect most federal district courts will ignore, what to us, are clear implications of the RKBA.

It is becoming very clear to me that the lower courts will pick and choose what they can interpret to keep the status quo. It will be in the various Circuit Courts where we may begin to see some clarity.

Another point to remember, is that MD has no 2A analog, so it is much easier for their State Courts to dismiss what was said in Heller and McDonald.
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Old January 6, 2011, 02:08 PM   #10
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I hear you Tom; I may have chosen my words poorly. I don't care where anybody else spends their own money. I just ain't sending them any of mine.
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Old January 6, 2011, 02:13 PM   #11
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Election have consequences and judges hold the RKBA in the balance. Trying to remember red or blue state.
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Old January 6, 2011, 03:18 PM   #12
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Quote:
Originally Posted by Al Norris
...that this court chose to ignore. They aren't the first, nor will they be the last to do so. I suspect most federal district courts will ignore, what to us, are clear implications of the RKBA.
Is it possible (or likely) that the higher courts will eventually begin embarrassing/chastising the lower courts for their blatant disregard for what should be (and is) obvious and sometimes explicit intention of the high courts?

I mean, when a court can say this:

Quote:
If the Supreme Court, in this dicta [from the MacDonald opinion], meant its holding to extend beyond home possession, it will need to say so more plainly.
when the decision to which they refer says this:

Quote:
The Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.
How can the SCOTUS not come back with a much more sophisticated, lawyerly and wordy version of "Hey, quit being a idiot. You know what we meant."

"Most notably" is inarguable implication that "within the home" does not stand alone. It's basic english reading comprehension.
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Old January 6, 2011, 04:41 PM   #13
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But did the Court in either Heller or MacDonald actually hold that the RKBA extends beyond the home? Didn't the statutes at issue in both of those cases prohibit possession of an assembled/loaded handgun in one's home, and wasn't that what was actually challenged as unconstitutional?

The Supreme Court usually tries to confine its precise holding to no more than what is required to decide the actual case or controversy before it. It's not unreasonable to read Heller and MacDonald as deciding only that any law prohibiting possession of a working handgun in one's home for self-defense is an impermissible infringement of the Second Amendment.

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Old January 6, 2011, 05:13 PM   #14
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DogoDon, so far the lessor courts are holding to what was said in Heller and mostly ignoring the incorporating statements made in McDonald.

This is disingenuous, at best.

Quote:
Originally Posted by Justice Alito
Two years ago ... we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense ...
The above is, in my opinion, the proper sense of the incorporating decision. The lessor courts do not want to go there, hence reading into Heller what they want to see and not what's actually there.

The best argument to date, is the Motion for Summary Judgment by the attorneys in Muller v. Maenz, the New Jersey case challenging the NJ laws on their face.

This brief attacks every angle you have previously seen used by the opposition and wondered why it was left as it was. All of the other cases are being challenged As Applied. This case is a Facial challenge, and spells out in no uncertain terms that the right includes carry, away from the door-step of your home.

Not every law can be challenged in such a manner, which is why most of our cases are worded the way they are. Muller is different.

Look at the other thread, and how Aitkins was convicted for doing what most of the nation takes for granted. That is how severe the restrictions on possession are in NJ.

The case this thread is about, just shows how picking the right client, in the right place and using the right venue, makes for better law than those criminal cases we cannot control.

This is not to say that this case could not go the way of Miranda. It could, but not with the current attorney at the helm.
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Old April 23, 2011, 09:43 PM   #15
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Hang On To Your Hats, Folks!

This case is not going away, just yet. On April 5, 2011, Stephan Halbrook has taken the case and has filed a writ for certiorari in Williams v. Maryland, case 10-1207.

Question Presented:
Whether peaceably carrying or transporting a
registered handgun outside the home, without a carry
permit that is unobtainable by ordinary, law-abiding
citizens, is outside of the scope of “the right of the
people to . . . bear arms” protected by the Second
Amendment to the United States Constitution.

The Petition is here. The response is due on May 5, 2011.

You may want top refresh your memory on the Maryland opinion. It is here.

As you know, the Court of Appeals of Maryland has basically thumbed its nose at the U.S. Supreme Court, in its decision. Stephan Halbrook takes them to task and shreds what little logic the State High Court used in its opinion.

I'm going to blatantly post what Patrick wrote over at Calguns, as I can't lay it out any better then he has:
Quote:
Second, this is about as good a criminal case as we will ever have to get to the Supreme Court. Here are the facts, uncontested by both Maryland and the Plaintiff:
  1. Williams legally purchased his handgun at a Maryland dealer, took a training course and took lawful possession of the gun a month later
  2. Williams had the gun at his girlfriend's house and stopped by to take it home
  3. A cop saw Williams rummaging in his bag at a bus stop and turned his cruiser around to check him out. The LEO saw Williams place something in some bushes
  4. LEO asks Williams what was in the bushes. Williams states "my gun".
  5. Arrest and hilarity ensue
Notice something here?

Williams was doing nothing wrong. No crime was alleged to occur, other than his possession of a lawfully acquired and owned handgun. He followed all the rules, save on: he did not have (or apply for) a carry permit.

This is a pure 2A case. This is not Chester - where some ******* beat his wife, kicked his daughter and then said "Gimme some guns!"


When it comes to that pesky permit, Halbrook dispenses with it here:
Quote:
It is undisputed that Petitioner did not file an application for a handgun carry permit. He contended instead “that as a result of the regulatory scheme, ‘any such application would have been denied.’” The record does not disclose any documented threats, assaults or robberies against Petitioner that are a prerequisite to even potentially being able to obtain a carry permit for personal defense under the Maryland statutory scheme.
Of course, Maryland can try to argue that Williams should have applied for a permit before making this claim, but Maryland just argued in Woollard that absent any documentary evidence they can and will deny any and all who request it. That made the permit unattainable to Williams.

(My Argument/Point): Add to that the fact that even if he had applied, the process would have exceeded the time in which his arrest occurred. He was arrested barely two weeks after getting the gun from the dealer - Maryland routinely takes 90 days to rule on a permit.

None of that really matters, though. If the Court takes up this case, there are no arguments over little things like "standing". Simply put, if SCOTUS wants to take the case, it wil be all 2A all the way.

So let's get to the core argument Halbrook is making:
Quote:
Instead of analyzing Heller in more detail, the Maryland court opined that Heller (and McDonald) only “address[ed] prohibitions against handgun possession in the home . . . .” Id. at 1176 & n.10 (string citing to cases). The court referred to “dicta in McDonald that ‘the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home . . . . .’” Id. at 1177, quoting McDonald, 130 S.Ct. at 3044. The Maryland court continued:
"Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."
The Maryland court concluded that the right to bear arms exists only in one’s home: “It is the exception permitting home possession in Section 4-203(b)(6) that takes the statutory scheme embodied in Section 4-203 outside of the scope of the Second Amendment, as articulated in Heller and McDonald.”

No fewer than ten state and federal courts have refused, relying on Heller, to recognize a constitutional right to bear arms outside the home. See Part II.B., below. Several have expressly acknowledged that they will not recognize such a right unless this Court does. The Fourth Circuit, relying on the Maryland Court of Appeals’ decision in the instant case, recently stated:
"On the question of Heller's applicability outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State,... ("If the Supreme Court, in [McDonald's] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.")"

United States v. Masciandaro,
Although this Court has specifically ruled only on the right to keep a handgun in the home, it is evident from the Court’s analyses and plain statements in Heller and McDonald that the right to bear arms exists outside the home. See Part I.B., below. Thus, the Maryland court’s decision and the other decisions limiting the scope of that right to the home (discussed in Part II.B.) have decided an important federal question in a way that conflicts with relevant decisions of this Court. If it should be contended that Heller and McDonald did not clearly establish that the Second Amendment applies outside the home, then this is an important question of federal law that has not been, but should be, settled by this Court.

The Big Question

"Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution."

Let's break it down:
  • "Whether peaceably carrying or transporting": only covers the good guys
  • "a Registered Handgun": oops But what does "registered" mean other than "lawfully purchased", as some states will consider a 4473 enough? This is a smart move because it takes the question of registration off the table, if the court so chooses.
  • "outside the home": non-specific and leaves sensitive places (whatever that means) intact
  • "without a carry permit that is unobtainable by ordinary, law-abiding citizens": a way to work around the fact Williams didn't even try to get one, but leaves open the door that SCOTUS might prefer to leave permits as a required item for RKBA (smart move...plays this both ways)
  • "is outside the scope" of 2A: the big question.


Summary:

If the Court wants this case, they could take it. The only real reach here is the fact Williams never tried to get a permit, but the way Halbrook phrased the query, the court is not cornered into deciding that issue right now. They can answer the particular question over public RKBA and ignore whether a permit is even required. Or they can rule there, too.

This is a case of whether the right supersedes the state's willingness to recognize it.
And there you have it folks. Should the Court take this case, we will have a decision, end of the calendar, like the two that proceeded it, on whether or not the 2A stops at the doorstep of our homes.

This will affect many of the cases that are currently being litigated.
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Old April 23, 2011, 10:07 PM   #16
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Can't wait to see what happens on this one.
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Old April 23, 2011, 10:31 PM   #17
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Is this one gearing up to be the next Heller or McDonald?
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Old April 23, 2011, 10:32 PM   #18
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Halbrook did a nice job of putting the underlying issue squarely in front of the court.

Quote:
(Muller v. Maenz) All of the other cases are being challenged As Applied. This case is a Facial challenge, and spells out in no uncertain terms that the right includes carry, away from the door-step of your home.
Bateman v. Perdue is also a facial challenge, that not only takes the RKBA out of the home, but also beyond one's property, as well as explicitly addressing ammunition.
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Old April 23, 2011, 11:27 PM   #19
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Let's hope the SCOTUS takes it. I think we still have the votes to carry it. It would be my hope that the SCOTUS will not take kindly to a lower court basically digging in and trying to tell the big guys what they should have written.
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Old April 23, 2011, 11:32 PM   #20
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Quote:
Originally Posted by Davey
Is this one gearing up to be the next Heller or McDonald?
In a word . . . YES!

But only if the SCOTUS grants cert.
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Old April 24, 2011, 02:19 AM   #21
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I am just a little bothered by the fact that the guy didn't apply, although I understand it would have been futile. The fact that the gun was loaded doesn't bother me as much, because if he has a right to carry it, then he has a right for it to be functional. Man, a 3 year sentence just for trying to take your gun home. Brutal.

This truly is a pure 2A case, and I gotta love it for that. I sure do miss the punchy, concise Gura-style writing that we become accustomed to. This is a long read.

The fact that the appeals court basically poked a stick in the eye of the SCOTUS over clarity can't hurt. It's as if they are double-dog-daring them to confirm that the amendment, and their rulings actually mean what they say.
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Old April 24, 2011, 06:40 AM   #22
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Quote:
Originally Posted by maestro pistolero
. . . .The fact that the appeals court basically poked a stick in the eye of the SCOTUS over clarity can't hurt. It's as if they are double-dog-daring them to confirm that the amendment, and their rulings actually mean what they say.
My thoughts exactly. The MD court sounds like it's picking a fight, and I hope SCOTUS gives them one.

I haven't done a review of the courts, but if ten state and federal courts have refused to recognize the RKBA right outside the home, but others have recognized it, there's a good chance SCOTUS will take this one. And it sounds like the Fourth Circuit is pretty well begging for them to do so.
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Old April 24, 2011, 06:48 AM   #23
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OK, I didn't read the the documentation that closely, so nudge me if I missed something.
Does Maryland law allow for legal transport of the legally purchased firearm in any way? If so, does that cover those citizens which do not drive a car?
Why? Well, If I own a gun and want to go to the range with it, and I don't drive, how am I allowed to transport it? For that matter, how do I legally get it home from the gun shop?
Just asking........
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Old April 24, 2011, 08:29 AM   #24
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CowTowner, I suspect the underlying issue is that the gun was loaded.
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Old April 24, 2011, 08:46 AM   #25
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Quote:
Does Maryland law allow for legal transport of the legally purchased firearm in any way?
Yes; see pages 137-139 of the SCOTUS petition for a list of exceptions. MLeake is correct that, without a carry permit, the exceptions all require the gun to be unloaded; Williams' gun was loaded.
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