The Court’s conclusion here appears to ignore a lot of places in Heller where the right to carry outside the home is taken as a given:
We shall hold that Section 4-203(a)(1)(i) of the Criminal Law Article, which prohibits wearing, carrying, or transporting a handgun, without a permit and outside of one’s home, is outside of the scope of the Second Amendment. We also shall hold that, because Williams failed to apply for a permit to wear, carry, or transport a handgun, he lacks standing to challenge Section 5-301 et seq. of the Public Safety Article, Maryland Code (2003),4 as well as COMAR 29.03.02.04.5 As a result, Williams’s conviction will stand.
It’s outside the scope because the right is only at force in the home, per the Supreme Court rulings. This supposedly a constitutional right that has no force outside the home. The standing issue might make sense, since he never applied for a permit. We all know that’s a fruitless endeavor in Maryland, since they routinely deny permit applications for nearly anyone who applies, but I think they might have a point that because he never was denied a permit, he can’t challenge the law this way. In other words, he would have been better off applying, then suing over the denial, than just breaking the law anyway.
It seems clear, however, that Maryland Courts are joining the other anti-gun state courts who continue to pretend the right to bear arms is meaningless, and without substantive effect, except for places where the Supreme Court has made it abundantly crystal clear. In fact, they even go so far as to say, “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly,” as if the Supreme Court didn’t mention in multiple places carry outside the home in Heller.
There was at least one opinion that concurred in upholding the conviction, but added:
While I agree with the majority that the Petitioner’s conviction should be affirmed, I would not hold that the Petitioner’s conduct is “outside of the scope of the Second Amendment.†I would affirm on the ground that, although the Second Amendment is applicable to an “on the street†possession of a handgun, that Amendment is satisfied by a statute that places reasonable restrictions on the constitutional right to bear arms.
A reasonable restriction such as you need a permit that no one can really get. Slightly different way to fry the same fish, but probably on more sound footing than the main opinion. It may be reasonable to require a license, and perhaps Maryland is wronging their citizens by their subjective non-issuance policy, but the proper way to challenge it is the way SAF is approaching the problem. This case can be appealed to the Supreme Court, but for various reasons I don’t think it’s the ideal case to take forward, and suspect the Court would deny cert. I would not like to head back to the Supreme Court with a poorly thought out criminal case.
It is crucial to be aware that Maryland refuses to accept permit applications. One can file a protest to demand that the application be processed and denied. The court’s note on page 10 that 93% of applications are approved is misleading.
I’m not so sure it’s such a bad case to take up. Assuming that the defendant here is not a felon or prohibited person (and he had a permit to purchase a gun, so that apparantly is not the case) his crime here is nothing more than possessing a constitutionally guaranteed item.
Had he been commiting a crime, or threatening a person, it may be different. Had he simply kept the gun in his backpack instead of panicking and hiding it, he probably wouldn’t be in this mess; after all, it was concealed, and presumably, backpacks are not routinely searched without probable cause in Maryland (if that’s not the case, you have bigger problems than just the 2nd Am. issues). He could have legally transported the item from a shooting range; does it matter that he was coming from one place to another?
In other words, this gentlemen now has a criminal conviction for nothing more than possessing a constitutionally protected item: a firearm. He put no one at risk. He threatened no person. He, paraphrase Jefferson, picked no one’s pocket nor broke anyone’s leg. Given that is the case, and given the constitutionally protected status of the particular item here, under what authority does the State make his conduct here illegal? Statutes of this kind are as nonsensical as “zero tolerance” rules in schools. Moreover, they are massively constitutionally suspect.
Frankly, a statutory scheme which presumes that a firearm is something one has to have a permit to merely possess or purchase in the first place is constitutionally suspect, but that’s for another day.
It would be nice if SCOTUS would GVR and say “The 2A applies outside of the home. That clear enough, you anti-civil rights pieces of crap?”
Just to be clear what Sebastian is talking about:
Even though this is a case in which the central issue is whether “bear arms” in the Second Amendment includes carrying handguns for self-defense, the Maryland court never quotes the passage from D.C. v. Heller where the U.S. Supreme Court defined what “bear arms” means in the Second Amendment.
In that passage, the Supreme Court concluded: “Putting all of these textual elements together, we find that [the Second Amendment] guarantee[s] the individual right to … carry weapons in case of confrontation.” Heller, 128 S.Ct. 2783, 2797 (2008).
This passage is entirely absent from the Maryland court’s opinion, which renders the court’s admonition that the U.S. Supreme Court “will need to [speak] more plainly” somewhat offensive. Why, when you won’t even acknowledge what they already have said?
If that weren’t enough, SCOTUS also held in Heller that to “bear arms” means to “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id. at 2793. Again, this passage from the Heller decision is neither quoted nor discussed by the Maryland court.
“I would not like to head back to the Supreme Court without a poorly thought out criminal case.”
Did you REALLY mean to say this?
No :)
Seeing as “Parker” turned into “Heller” as only Heller was found to have “standing”, I have to wonder if we would have ever gotten anywhere if some lowlife bureaucrat down at DC local government had failed to stamp and return “,a href=”http://www.gurapossessky.com/news/parker/documents/SJExhibitA.pdf”>Exhibit A†for Mr. Heller.
Standing seems to be, at least 75% of the time, entirely bullshit. The thought that someone arrested for breaking an unconstitutional law has less “standing” to challenge the law than someone who asked politely to be able to exercise a right, and had that right delayed or denied, and most importantly was given a chit back from the government that admits that the right actually was denied, is a pretty scary thought.
MD will accept your application, but every trooper and bureaucrat you deal with along the way will say you will not succeed and to save your money. MD claims a 95% issuance rate in light of these tactics.
The same permit is required to open or concealed carry in MD and you may only transport handguns between your house(s), gun stores, gun ranges and hunting activities. Technically you cannot transport your handgun from MD to VA for the purposes of carrying in VA if you are not also going to a range or gun store due to the way the MD law is written.
I wish his lawyer would have attacked the MD permit application.
http://www.mdsp.org/Downloads/Licensing_Application.pdf
One could argue it is unreasonable to apply, since it requires information a regular person just doesn’t have: “There must be documented evidence of recent threats, robberies, and/or assaults, supported by police reports or notarized statements from witnesses.”
The application also demands that sign that “I agree to supply any additional information requested.” It demands disclosure of medical information, and whether the applicant has ever been arrested. Requiring a person to apply, in order to have standing, is a clear civil rights violation.
When I go from MD to Virginia and I take a firearm if is for the allowed-by-Maryland purpose of an “target shoot, formal or informal target practice, sport shooting event, hunting, trapping or dog obedience training class or show” or “moving any part or all of his gun collection from place to place for public or private exhibition”
If I happen to legally carry concealed in Virginia as well it is inconsequential.
Sometimes the informal target practice gets cancelled. But private exhibition always happens in that case.
Standing seems to be, at least 75% of the time, entirely bullshit.
Justicability rules are like this. In principle they’re an important part of the separation of powers; in practice, though, they’re frequently a way for judges to duck issues they’d prefer not to deal with, or to meddle in areas in which they have no portfolio.
Sebastian writes:
It seems clear, however, that Maryland Courts are joining the other anti-gun state courts who continue to pretend the right to bear arms is meaningless, and without substantive effect, except for places where the Supreme Court has made it abundantly crystal clear. In fact, they even go so far as to say, “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly,†as if the Supreme Court didn’t mention in multiple places carry outside the home in Heller.
A little elementary law explains what the Maryland court means when it refers to “dicta.”
1. Courts may address only cases and controversies. That is to say, they may only address the actual problem that is placed before them.
2. The problem that was placed before the Heller Court was whether DC could prohibit the carrying of a handgun in one’s home for purposes of self defense. Heller at 2.
3. The Heller majority held:
“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Heller at 64.
4. By its terms, this holding applies to the possession and use of handguns in the home for self-defense.
The Maryland court seems to believe any discussion in Heller about the general meaning of the Second Amendment is dicta (beyond what is necessary to decide the case), and it is not, therefore binding or a part of the holding.
A way around this is to argue that the dicta is not really dicta, but is necessary to the decision of the issue. I have not studied Heller sufficiently to say whether this is viable or not.
I believe the court cited incorrect statistics in footnote 7 of the opinion, where it says that (according to the State) nearly 93 percent of handgun permit applications from 2006 to 2009 were issued. The discussion in that footnote is about “carry” permits but I think the figures relate to applications to purchase. The court cites the 2009 State Police annual report. See the link in the court’s opinion. I combed that report and all I can find is this: On p. 30 of the report (which is p. 36 of the PDF), there is a table listing the number of applications to purchase for each of the years 2006 to 2009, and the number of final sales for each of those years. If you do the math, you find that 92.63 percent of the purchase applications resulted in final sales. That appears to be the basis of the phrase “nearly 93 percent” in the court’s opinion. So the court has confused applications to purchase with applications to carry. Do I have it right or have I made a mistake?
I’m a democrat who supports gun rights but despises the NRA.