Williams v. State of Maryland

[Al Norris]

The folks over at Maryland Shall Issue have provided scores of cases where the individual was cited for unlawful transport. It never made a bit of difference to the authorities, if the firearm was loaded or unloaded.

Unless you can come up with scores of cases where the charges were never made or were dropped because the firearm was unloaded, I tend to believe the information that MSI has provided.

Let's assume for the moment, that you are correct, bigbaby. A conviction in MD for unlawful transport/carry carries an indeterminate sentence of up to 3 years imprisonment. That alone makes you a federally prohibited person. Your gun rights are lost forever. See Schrader v. Holder.

Was Williams stupid? I have already agreed that he was. The case is still an important case. If it were not for the convoluted MD carry laws (and lack of a meaningful method of acquiring a MD carry permit for ordinary citizens), Williams would not be a criminal.

[Al Norris]

Last week, I learned some more interesting tidbits on how the SCOTUS works.

Patrick and Krucam (from MDShooters) had a discussion with Lyle Denniston over at SCOTUSBlog and found out that if a petition for cert is made and no response is made, the case is usually (as in almost always) denied. If however, any Justice(s) is/are interested in a case, a "request" for a response is made.

The petition was set for conference on the 19th. So a "request" for response must be made before this date.

Today (05-16-2011), the Court requested a response by Maryland.

No. 10-1207
Title: Charles F. Williams, Jr., Petitioner
v.
Maryland

Docketed: April 5, 2011
Lower Ct: Court of Appeals of Maryland
Case Nos.: (16, September Term, 2010)
Decision Date: January 5, 2011

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 5 2011 Petition for a writ of certiorari filed. (Response due May 5, 2011)
Apr 20 2011 Waiver of right of respondent Maryland to respond filed.
May 3 2011 DISTRIBUTED for Conference of May 19, 2011.
May 16 2011 Response Requested . (Due June 15, 2011)

This response is due in 30 days from today, but a 30 day extension may be asked for and is generally granted.

So here is the current timeline for briefs (now that a response has been "requested"):

June 15 for opposition to certiorari (or if automatically extended, July 15).

July 1 for response to opposition (or Aug 1, if extended).

Amicus briefs are due on or about June 15, no extensions (Rule 37.2(a)). In general, amicus must have consent of both parties (at cert stage), but may petition to file if either or both parties do not give consent (Rule 37.2(b)).

In general, cert may be granted or denied anytime after Aug. recess - say Sept. 1, onward.

If cert is granted, the clock begins ticking again and a new set of rules come into play.

[Spats McGee]

Originally Posted by Al Norris

Last week, I learned some more interesting tidbits on how the SCOTUS works.

Patrick and Krucam (from MDShooters) had a discussion with Lyle Denniston over at SCOTUSBlog and found out that if a petition for cert is made and no response is made, the case is usually (as in almost always) denied. If however, any Justice(s) is/are interested in a case, a "request" for a response is made.

As an aside, I defended a case several years ago that I won at the 8th Circuit. The Plaintiff appealed to SCOTUS, and they sent me a form that basically asked, "Do you want to go ahead and respond to the petition, or wait for us to request a response?" I chose the latter, and no request ever came. The case was rejected by SCOTUS.

[maestro pistolero]

What's the Maryland response going to say? "If the court meant it's ruling to apply outside of the home, please say so more plainly?" LOL!

[hermannr]

I'm sorry, I do not know this case, and I have not read the whole discussion, but of what I have heard everyone is talking about a 2A argument....

How did the police LEGALLY (4A and 14A) come to find the firearm in the first place???

[Spats McGee]

The defendant was transporting the gun home from his girlfriend's place (IIRC), and hid the gun in the bushes when a police cruiser went by. The police officer saw him rummaging through his backpack and said that he saw the defendant put something in the bushes. Officer made contact and asked what was in the bushes. The defendant said, "my gun."

[Al Norris]

AG Gansler has replied in Williams v. Maryland. The reply is a little over 800KB and thus beyond the limits allowed at TFL. You can obtain a copy here or here (WARNING: You may have to be a registered user to download files at these sites).

Remembering that Halbrook has asked the Court to answer whether or not a citizen has the right to carry in public, Gansler avoids this. Instead, he tries to restate the question about permits and that this case is "ugly" (um, so was Miranda, Mr. Gansler). Gansler weaves his way around the petitioners question, treating it as a mere secondary issue. Halbrook was very careful, in that the carry question is the only question being asked. He was very careful to avoid the issue of permits, entirely.

It is clear that Gansler is hoping to create a complicated inquiry, so that the Court will avoid the issue.

As a secondary tactic, Gansler paints a picture of the lower courts in complete disarray. Instead of arguing that Halbrook has overstated the confusion in the lower courts, Gansler paints a really dismal picture and then argues that the Court should just let these other cases "percolate" in order to get some sort of coherent framework, because, "this case is more chaotic than the others...you should wait for one of them."

There is more that can be said about this response, suffice it to say that this was not unexpected. It's all Gansler could realistically do.

I strongly suspect that Stephan Halbrook will have fun pinning down the outright falsehoods that Gansler has woven into this brief.

[Al Norris]

Today, Stephan Halbrook filed his reply brief (attached).

From some of the opening remarks:

The Second Amendment provides that “the right of the people to keep and bear arms, shall not be infringed.” The Maryland court holds that there is no Second Amendment right to bear arms (that is, to wear or carry arms for purposes of confrontation or self-defense). See Part I below, and Pet. at 12-23. Any state-granted, discretionary privilege to carry a handgun in Maryland is restricted to a tiny minority of favored individuals, and by law is not available to the ordinary citizens who make up the people.

The State asserts that this case presents “none of the critical issues” being considered by lower courts after Heller and McDonald. Opp. at 5. To the contrary, this case presents perhaps the most critical issue of all: are the words “bear arms” devoid of meaning, thereby limiting the Second Amendment to the right to “keep arms” within the four walls of one’s dwelling? If so, it is an extraordinarily constricted constitutional right, that bears little resemblance to the robust right clearly envisioned by the Framers and exercised throughout American history. Yet numerous lower court decisions after Heller have refused to recognize the right to bear arms outside the home.

That's just the start! Like Gura's amicus brief in Masciandaro, Stephan Halbrook simply zings the MD AG's position, over and over.

[Aguila Blanca]

As I've mentioned in other threads here, especially in the McDonald decision Mr. Justice Alito frequently refers to "the" right (singular -- ONE right) to keep and bear arms.

How any lower court judge, in the face of the numerous such references throughout the McDonald decision, could possibly contend that the 2nd Amendment protects nothing more than a right to maintain a firearm within ones own home is beyond comprehension.

Unless, of course, one is willing to entertain the notion that some lower court justices might have their own agenda ...

[kilimanjaro]

All the more reason to be educated on who appoints the judges, and vote accordingly. In Washington, our State SC is elected, so the 2nd Amendment is a frequent platform.

It took decades of complacency and ignorance to get folks like these in office, and it's going to take decades to get rid of these folks. It begins with your local elections, right down to school board level.

[230therapy]

1) Is Williams a Federal or Maryland citizen? Dred Scott, which still stands, determines this.
2) Does MacDonald and Heller apply to only Federal citizens? I think Heller was scoped as only for Federal citizens.
3) 42 USC 1981, which is current law, plus rights incorporated under the SCOTUS 14A rulings, are the rights of Federal citizens.
4) How does article 2 of the Maryland constitution affect this case?

Art. 2. The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.

Does this not mean the 2A fully applies? That also means any laws preventing a person from bearing arms is NOT law. Maybe the last phrase causes the 2A to not apply.

5) Art. 28. That a well regulated Militia is the proper and natural defence of a free Government.

How does this apply? It would seem to me that this guy is part of the militia of Maryland.

[Al Norris]

230therapy:

1) Williams is both a citizen of the US and MD. Dred Scott does not figure into this at all.
2) Heller applied to the Federal Government. McDonald incorporated the 2nd via the 14th as applying against the States and local governments. In doing this, McDonald also incorporated the Heller decision. i.e. What was decided in Heller applies equally at the Federal level and to the States.
3) Rights incorporated via the 14th are rights that belong to the people, regardless of citizenship status. See United States v.
Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
4) Art 2 of the Maryland Constitution does not come into play in this case.
5) Art. 28 does not come into play, except as it may conflict with the rights defined under the 2nd.

[Jim March]

230therapy: the entire subject of "US citizen vs. state citizen" tells me you've been reading a lot of crap. Sorry, but those ideas are based on a very flawed understanding of the the 14th Amendment. Anybody who lives in a state is a citizen of that state if they are also a US citizen - it's both at once and we always have both sets of rights. We are not denied one set for having the other, ever. You're paying attention to a garbage line of reasoning that is wrongfully critical of the 14th Amendment, and grossly misunderstands it.

Suggested reading: "The Bill Of Rights", 1999 by Akhil Reed Amar, a Yale law professor. That book was a huge if indirect influence on the Heller decision...it tracks what exactly happened to the Bill Of Rights (item by item) when the 14th Amendment passed in 1868. I also recommend "The Day Freedom Died" by Charles Lane, 2008 which was directly cited in Heller.

[Aguila Blanca]

Originally Posted by Jim March

Suggested reading: "The Bill Of Rights", 1999 by Akhil Reed Amar, a Yale law professor. That book was a huge if indirect influence on the Heller decision...it tracks what exactly happened to the Bill Of Rights (item by item) when the 14th Amendment passed in 1868.

Am I mis-remembering, or was it Professor Amar who started off looking at the 2nd Amendment from a strictly anti-gunner perspective and after researching it came around (admittedly very reluctantly) to acknowledging that it really DOES guarantee an individual right to keep and bear arms?

[Jim March]

Yup! That's exactly what happened. His distaste regarding what he discovered re: the real meaning of the 14th is really obvious but to his credit he did report his findings.

I actually confronted him about this around 2002...and mentioned that if the 2nd Amendment protects the type of arms found in 1868, the Mormons had already invented the snubby big-bore revolver and the Union was fielding entire regiments of guys armed with 15shot leverguns - which by 1866 were in commercial production and sales. He looked sick .

Stephen Halbrook had discovered the same quotes on the 14th by John Bingham, the primary author of the 14th and the leader of the post-civil-war civil rights movement that failed, in Halbrook's 1984 book "That Every Man Be Armed". Nobody took him seriously until Amar independently discovered the same source material 14 years later. Amar actually documented it better and is the better book on the subject, esp. since it covers more than just the 2nd Amendment implications.

[Johannes_Paulsen]

Sanford Levison's "The Embarrassing Second Amendment," 99 Yale L.J. 637 (1989), was the first, I think, to bring discussion of the Second Amendment back into 'respectable' academic circles, although Amar did do A LOT to move it forward as well.

[Tom Servo]

His distaste regarding what he discovered re: the real meaning of the 14th is really obvious but to his credit he did report his findings.

That took an incredible amount of academic honesty on his part. There's a parallel to Gary Kleck, who also started off as an anti-gun guy. His research returned some troubling (to him) results, but he felt obliged to run with it anyway.

[Al Norris]

Yesterday, Sept. 26,2011, was the Long Conference of the Court before the opening session, next Monday.

Williams was one of the many cases listed for conference. This morning, the misc. orders were published. You will note that Williams was not granted cert.

Next Monday, another list will come out. This will be the list of cases that were denied cert. Hopefully, Williams will not be on that list.

It will mean that the Williams case was passed over for later review.

[secret_agent_man]

If SCOTUS does not accept the Williams case for review, what could it possibly be waiting on? Or, maybe SCOTUS just does not want to fill in the blanks left by Heller.

[Al Norris]

What could they be waiting on? Read my post in the 2A Cases Thread. It explains it all.

ETA: Link was broken when I inadvertently deleted the 2A Cases thread. sigh.

[WW2]

Al, your link does not work

[Al Norris]

Here's approximately what I wrote over at MDShooters, which is close to what I wrote here (in the now deleted 2A Cases thread):

When I made my prediction, I hadn't known about Lowery. I posted that prediction towards the end of August. We didn't hear about Lowery until the middle of Sept. The Lowery cert stage will be completed by Nov. 28th (I'm assuming a request for a 30 day extension - Oct 21st without the extension).

What is obvious (to me), is that some on the Court are, in fact, interested in these gun cases. If this were not so, then responses would not have been requested in all three cases. Stop and think about what that really means for a minute.

Adding Lowery into the mix and what Lyle Denniston wrote above, changes things a bit. That makes a much stronger case that at least one of these cases will be selected, and cert will be granted.

After looking hard at the three cases, Williams is still the best case. This case can be answered in such a way that will affect the outcome of the other two cases. So, assuming a hold on two cases, we will have a decision and then a GVR on the other two.

There's another reason that I think one (or more) of the three gun cases will be granted cert.

While I agree with Gene Hoffman (CalGuns) that a Federal Circuit does not get a pass in calling out the SCOTUS, Williams is still the best case to craft a question that answers all three cases.

Consider that it was the Maryland Court of Appeals that directly challenged the Heller Court. That was the case that Judge Wilkinson cited in Masciandaro.

Justice Scalia has to be "chomping at the bit" right about now.

Remember also, that in the McDonald decision, Justice Scalia filed a separate concurring opinion, just to get the last dig against retiring Justice Stevens, a long time adversary.

You can make bet that Justice Scalia would like nothing more than to rake Judge Wilkinson over the coals for that. These cases will give him just that opportunity. Williams in particular, as Scalia can rail against the State High Court, all the while making Wilkinson look extremely bad for relying upon a State Court in order to further dis Scalia on a Federal Issue. (Some of you may remember Judge Wilkinson. Right after the Heller decision, he wrote a scathing article about that decision and about Justice Scalia in particular)

[ChuckS]

Next Monday, another list will come out. This will be the list of cases that were denied cert. Hopefully, Williams will not be on that list.

After looking hard at the three cases, Williams is still the best case. This case can be answered in such a way that will affect the outcome of the other two cases. So, assuming a hold on two cases, we will have a decision and then a GVR on the other two.

Williams is denied...Williams

[BGutzman]

I suspect the underlying issue is that the gun was loaded

The underlying issue is the 2A isnt seen by most states as a civil right, if you applied the same types of laws against oh lets say the freedom of speech or freedom of religion they would have a riot beyond belief on their hands.

One day the SCOTUS must give it the same types of protections as the other provisions of the constitution and for whatever reason that simply hasnt been the case.

[Tom Servo]

Williams is denied...Williams

Drat. I've been largely out of the loop the last few weeks. Where does that leave Sheridan?