Federal judge upholds strict new Maryland gun laws

[natman]

Before I read the entire opinion, does it mean the 2nd Amendment only applies to muzzle loading firearms?

No. Heller was quite specific on this point:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
DC v Heller p8

SCOTUS has already smacked down one lower court who tried the muzzleloader ploy post-Heller. I don't think even this court would be stupid enough to try it again.

[TomNJVA]

While Heller clarified a facet of the 2nd amendment that handguns for self defense in the home are protected, this court seems to be assuming that self defense in the home is the only protection afforded by the 2nd amendment, and that any firearm beyond their perception of adequate for that use is not protected. How is a 10 round magazine adequate for self and home defense in the event of a home invasion?

[doofus47]

TomNJVA

How is a 10 round magazine adequate for self and home defense in the event of a home invasion?

Well, wait... Lessee.... California has a 10 round mag limit. How could that arsenal in the hands of a home owner not stop a zombie apocalypse?

http://www.scpr.org/blogs/news/2012/...led-triple-ho/

Hmm, you might be onto something here... Perhaps it's best to keep in mind that the life saved by a 10 round magazine might not be YOURS....

[Glenn E. Meyer]

1. Once again, Heller is not the blessing some thought it was.

2. 10 round - limit. Watch what you say. How many times have folks on this forum and elsewhere in the gun choir mocked those who say to carry higher capacity handguns or magazines? How many shotguns used for home defense (who hasn't read - pump shotgun, just rack it, 'enuf said - in HD home thread) carry more than 10 rounds?

3. How many folks recommend a revolver like a SW Model 10 with 6 rounds for home defense?

Get the point - Heller for handguns and reasonable restrictions was a giant gift to AWBs and capacity bans.

Given the Scotus won't touch it in the foreseeable future, that's all she wrote folks.

By the way, the Garand - the greatest battle rifle ever - carried 8 rounds.

If you have to justify higher capacity weapons with something beyond 'shall not be infringed', you had better know your stuff on this one.

[ShootistPRS]

You have to go back to the Miller case. The supreme court made no decision of the legality of the short shotgun but instead made this statement before referring the case back to the lower court:

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

In effect saying that the second amendment protects the right to have military type guns.

[ATN082268]

Originally Posted by ShootistPRS

In effect saying that the second amendment protects the right to have military type guns.

I wish that were true. More likely a reason for the court to strike down a certain type of weapon for private use. It seems the courts frequently use whatever logic that works to meet a particular end. And I wouldn't expect much in the way of consistency...

[rd_zzyzx]

I wish that were true. More likely a reason for the court to strike down a certain type of weapon for private use. It seems the courts frequently use whatever logic that works to meet a particular end. And I wouldn't expect much in the way of consistency...

I agree with this. The idea that judges and lawyers do not understand that the intent was to have an armed citizenry capable of facing regular military forces is just not the case. They know what was intended. They want something different. They intentionally confuse, confound, and misuse rulings to their cause. I believe that they are trying to usurp the Constitution.

[Aguila Blanca]

Originally Posted by Glenn E. Meyer

1. Once again, Heller is not the blessing some thought it was.

...

Get the point - Heller for handguns and reasonable restrictions was a giant gift to AWBs and capacity bans.

Agreed. Perhaps he had no choice, but I have been saying ever since Heller came out that Mr. Scalia didn't do us any favors with that "presumptively lawful" give-away. What he really meant (I think) was, "Those other restrictive laws aren't up for discussion in this case, so we'll leave them alone for now and presume that they're lawful until they come before us." So, of course, the anti-gun lower courts are latching onto that and acting as though Heller ruled that all those other restrictive laws ARE lawful, rather than that they should each be examined in their own right.

[Bartholomew Roberts]

The "presumptively lawful" language wasn't a giveaway. It was what was needed to get that fifth vote IMO. It would not shock me to learn that some of the majority justices were squeamish about signing an opinion that could end up striking down much of federal and state gun regulation. If you don't have that fifth vote, then the Second Amendment is a nullity - either a collective right of the states or an individual right so weak that no regulation is burdensome enough to trigger it.

If you want an individual right in Heller, you need five votes. You need to give some guidance to lower courts in order not to get Miller-esque rulings that appear to be pro-Second at first glance; but aren't. And finally, you need to not close the door on future possibilities if the court's makeup changes for the better, while limiting the damage done if it changes for the worst. And you need to do it all in an ethical manner limiting the opinion to the narrow set of facts in Heller.

And frankly, courts just saying "presumptively lawful" and upholding gun regulation isn't as bad for our future options as forcing courts to actually do real legal research supporting gun regulations. The lazier the courts are now, the better it is for us if the court makeup does improve.

[Frank Ettin]

Originally Posted by Bartholomew Roberts

...If you want an individual right in Heller, you need five votes....

Remember that Heller was for all the marbles. A "collective right" decision in Heller would have been the end of the Second Amendment.

[publius42]

Heller appears to have made the handgun the quintessential weapon that is most deserving of protection.

Irony abounds.

Handgun Control Inc. would be a really uncool name at this point. Probably just as well that they changed it.

[jdc1244]

the anti-gun lower courts

Nonsense.

The notion that Federal district and appellate courts are ‘anti-gun’ is unfounded and devoid of merit.

Indeed, jurists such as U.S. District Judge Marcia Krieger have acknowledged in their rulings the questionable nature of many firearm regulatory measures.

For example, in her decision upholding Colorado’s magazine capacity limit and background check regulations she noted that:

A court does not act as a super-legislature to determine the wisdom or workability of the legislation[.] Instead, it determines only whether legislation is constitutionally permissible. A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce.

http://www.governing.com/news/headli...ral-Judge.html

Judge Krieger also correctly noted in her ruling that Second Amendment jurisprudence is in its infancy, and still evolving – as with the First, Fourth, and Fifth Amendments, Second Amendment case law will in time realize its fruition, becoming settled, accepted, and beyond dispute, compelling the courts to rule in a consistent manner with that case law.

[ATN082268]

Originally Posted by jdc1244

Judge Krieger also correctly noted in her ruling that Second Amendment jurisprudence is in its infancy, and still evolving – as with the First, Fourth, and Fifth Amendments, Second Amendment case law will in time realize its fruition, becoming settled, accepted, and beyond dispute, compelling the courts to rule in a consistent manner with that case law.

I think the big question is why the 2nd Amendment is still in its infancy compared to the other Amendments. Is it a lack of cases brought before the courts and/or the courts trying to avoid the issue?

[Bartholomew Roberts]

Originally Posted by jdc1244

The notion that Federal district and appellate courts are ‘anti-gun’ is unfounded and devoid of merit.

He didn't say the lower courts were anti-gun as a general statement as your quote implies, he said anti-gun lower courts are latching onto it (presumptively lawful dicta) and using it to dismiss Second Amendment challenges - and I can certainly provide you with a few sterling examples of lower courts doing exactly that with a strong anti-gun bias. Not the least of which is the original trial decision in this case or the horrible en-banc opinion we are now discussing.

A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce

That's hogwash (and that's putting it mildly). Her statement may be true of laws based on a rational basis scrutiny; but the entire point of applying heightened scrutiny is that government can no longer use "because we said so" as an excuse. They have to show the laws aren't foolish or ineffective. And the fact that she said it in a decision upholding a ban on magazine capacity argues against the point you were trying to make.

[Glenn E. Meyer]

I would also point out that Heller did not make getting a handgun so easy in many states. Look at NY - it takes months and many, many hoops to jump through. A long wait, references, checks, etc.

The legal types get wrapped up in their arcane arguments and not the purity of the issue. A reasonable decision about handguns would have been that no state cannot the purchase of a handgun to a law abiding citizen who passes something like NICS. No waiting periods, no long waits to get permission, no references that have to be interviewed, etc.

You pass NICS, you get the gun that day. Does that happen - nope. So did the Earth really move from Heller? Maybe the slightest tremor.

I am not a lawyer, for sure, but the court fight doesn't seem so hot to me.

[Aguila Blanca]

Originally Posted by Bartholomew Roberts

The "presumptively lawful" language wasn't a giveaway. It was what was needed to get that fifth vote IMO.

I agree with that assessment. It's unfortunate, but we're stuck with it.

[Aguila Blanca]

Originally Posted by ATN082268

I think the big question is why the 2nd Amendment is still in its infancy compared to the other Amendments. Is it a lack of cases brought before the courts and/or the courts trying to avoid the issue?

Mr. Scalia answered that somewhere in Heller, as well. He pointed out that (even up to the time of Heller) the Second Amendment was not incorporated -- meaning that it had not been ruled by the SCOTUS that the Second Amendment applied to the states. In fact, that wasn't decided until McDonald. So up until McDonald almost all RKBA cases were in the state courts, pursuant to state laws with no recourse to the federal courts.

[Metal god]

Get the point - Heller for handguns and reasonable restrictions was a giant gift to AWBs and capacity bans.

Only because

The idea that judges and lawyers do not understand that the intent was to have an armed citizenry capable of facing regular military forces is just not the case. They know what was intended. They want something different. They intentionally confuse, confound, and misuse rulings to their cause.

IMHO the term " reasonable restrictions " was only put in there so not to completely undo "ALL" gun laws prior to the ruling . There are all kinds or reasonable restrictions . No neighbor hood watch patrols with F-16's . No hand grenades for CCW etc . There are many reasons some things should be restricted in a confined society . Some weapons are to indiscriminate to just use on a whim .

We need to push that type of argument and how that's what Heller was saying . I don't for a second believe nor do the judges and lawyers believe what " reasonable restrictions " meant was as many as possible should be past . We have plenty of so called reasonable restrictions . It's time we frame the debate showing that and how it's time to stop with the restrictions .

How come nobody talks about the in common use part . That was another way to say slow down on the restrictions but lets not undo all that's come in the past . How about the part that says to carry on ones person to be ready etc etc . Some how here in CA they think that to mean an unloaded firearm with ammo near by is a "ready to use" firearm . Is there any other item that you can remove a critical part of it's operation and still call it ready to use ? Sure the car is ready to drive , you just have to put the tire back on . IT"S NOT READY TO DRIVE IF A CRITCAL COMPONENT IS MISSING

They know very well what's being asked and what the intent was . I believe we need to get these other definitions worked out before we can move on .

[Aguila Blanca]

Originally Posted by Metal god

How come nobody talks about the in common use part . That was another way to say slow down on the restrictions but lets not undo all that's come in the past

Mr. Scalia discussed this in the Heller decision, as well. But there's a catch-22 involved in that. How many think machine guns (or at least magazine-fed submachine guns, maybe not belt-fed, crew-served machine guns) should be allowed under the 2A? But they're not in common use. Why aren't they in common use? Because the government hasn't allowed us to buy them (except for pre-existing ones, after buying a $200 tax stamp) since 1934. That's not a fair test of "in common use."

Same applies to those evil silencers.

[Metal god]

I don't disagree there's not an argument there and really goes to my point that he did not want to undo all gun laws prior . My point was the in common use phrasing was likely written in with the intent to stop the bleeding . It how ever does not seem to be argued in that way or judges don't see it that way .

[ShootistPRS]

Ultimately the people decide what law is lawful or whether a law applies in any situation by serving on a jury. As a juror we do have the power to nullify a law in general or as it applies to a particular case. Any decision made by a jury is final and only one juror has to nullify to make a hung jury.

[Isk]

The confusing part to me is the potential for forcing the Supreme Court to issue the ultimate limit on magazine capacity. If the lower courts continue to claim they are applying intermediate scrutiny, and uphold a ten round limit, what happens in the next case when a state enacts a law with a four round limit? A two round limit? Is that still constitutional? Will the Supreme Court someday have to decide exactly how many rounds are constitutionally protected (similar to the boondoggle over when abortions are "ok" vs. when they aren't)?

I can't see the court wanting to go there, knowing how well that's worked out with abortion restrictions. In my mind, forget all the arguments about public safety and "respect" for the second amendment...if a state can limit magazines to ten rounds, then they can limit it to three rounds or one. Most people seem to recognize that being allowed a single bullet is far from "the right to keep and bear arms."

Yet, I have not seen that argued in the briefs I've read in many of these cases. I wonder why that isn't a more prominent argument.

[jdc1244]

The confusing part to me is the potential for forcing the Supreme Court to issue the ultimate limit on magazine capacity.

The answer can likely be found in Judge Traxler’s dissent:

In terms of absolute numbers, these statistics lead to the unavoidable conclusion that popular semiautomatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.

[…]

Even accepting the most conservative estimates cited by the parties and by amici, the assault weapons and large-capacity magazines at issue are ‘in common use’ as that term was used in Heller.[]); Colorado Outfitters Ass’n v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014) (concluding that statute “affects the use of firearms that are both widespread and commonly used for self-defense,” in view of the fact that “lawfully owned semiautomatic firearms using a magazine with the capacity of greater than 15 rounds number in the tens of millions”)[.]

https://assets.documentcloud.org/doc...eapons-ban.pdf

The ‘in common use’ argument would then be comprehensive, encompassing each component of an AR- or AK-platform rifle – including the 30-round magazine – rendering the possession of such rifles entitled to Constitutional protections.

[Glenn E. Meyer]

About magazine bans and the states further reducing the capacities. That has an interesting history in NY State where the 7 round ban fell but 10 stuck:


http://buffalonews.com/2015/10/19/ap...-bullet-limit/

I have a question. In all these discussions of Heller, McD and the circuit court decisions we see theory, Miller, the militia and all kinds of arcane prose.

I pose a simple question based on my behavioral orientation from my profession.

It is this:

If we look at the laws, bans, permit/license rules and the like - what positive expansion of gun rights have been based on Heller and McD? If they were positive, did gun ownership and carry actually expand in an area. What negatives occurred despite these SCOTUS decisions?

So has handgun ownership become really easy in DC? I noted NY still is intensely restrictive for any type of ownership. IL seems to have eased up.

Thus - real world outcomes as far as getting people being able to exercise gun rights or real world outcomes that limit them. That's what counts as compared to Miller, Militias, original intent, scrutiny at different levels, blah, blah.

If the guns are still not getting to law abiding citizens - it's all hot air, IMHO.

[Bartholomew Roberts]

If we look at the laws, bans, permit/license rules and the like - what positive expansion of gun rights have been based on Heller and McD

I know there have been several defensive shootings in Chicago by people who would otherwise be banned from owning a handgun by city ordinance. I don't know that gun ownership has expanded there; but legal gun ownership appears to be expanding.