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District Court Win for Carry Rights

In Maryland. John Richardson offers some analysis of the decision. My only analysis is this: Judge Legg, who decided this case, was put on the federal bench by world class RINO and gun banner George H.W. Bush. Just remember that if the contest comes down to a choice between Obama and Romney. There is a difference.

UPDATE: More here from the media.

UPDATE: Joe notes a quote from Judge Legg, and sends a nice donation to the Second Amendment Foundation. This was their case.

27 Responses to “District Court Win for Carry Rights”

  1. Hooray! from Westminster, MD.

    Of course, the State Police will appeal, and it will be years before they are finally forced to comply, but at least the process is underway.

  2. Lamont says:

    Quote Arson Beetle – Good…Good!

  3. dustydog says:

    If you happen to know –
    Who funded this case? I see SAF and Gura’s name, but did NRA help? MSI (Maryland Shall Issue) seems to be implying they helped, but I can’t tell whether they helped in the sense of deserving a donation or helped in the moral support sense.

    • Patrick says:

      SAF was the primary funding source.

      MSI later added some funding of our own, but it was not on the level of SAF. Alan Gottlieb kindly said he would have added us as an organizational plaintiff had the two groups spoken earlier. At the time, MSI was primarily an in-state group focused on Annapolis and legislation, but as we have grown (rapidly grown) we have added a new management team (no drama…just additional help) to work judicial and national issues. Our exec group now contains a pretty handy set of experienced litigators who help us craft strategy and who provide endless explanations of process and minutia on the federal court systems.

      Hope this helps. We certainly do not want to steal SAF/Gura/Hansel’s thunder. They were/are the primary drivers. We continue to help where we can.

      To my knowledge NRA did not directly contribute funding, but they supported via amicus, I believe. That goes a good distance in the courts.

      Respectfully,

      Patrick
      President, Maryland Shall Issue

  4. Soooo …

    If this decision is appealed,and SCOTUS doesn’t grant cert (or if SCOTUS grants cert and affirms), then intermediate scrutiny will be the standard for firearm-related issues outside of the “core” right to arms, right?

    Because if that’s the case, how can 922(o) withstand intermediate scrutiny, especially since machineguns registered prior to May ’86 are still legal, but those manufactured after are not? What “significant”, “substantial”, or “important” government interest is served by 922(o) that would not also require that pre-ban machineguns be relinquished?

    IMHO, Judge Legg’s ruling is impeccable in that it retains all of the objective requirements for a permit (as in shall-issue)and disallows the subjective requirement (may-issue).

    I know that litigation requires baby steps, but I don’t see that we can’t also encourage parallel actions.

    • Harold says:

      First it gets appealed to the 4th Circuit Court, only after that will is almost certainly get appealed to the Supremes. See the analysis by Eugene Volokh at the end of the 2nd link in this post for how that’s likely to play out depending on the 4th’s ruling.

      I note that the 2nd says “right to keep and bear arms”; it would seem to me there has to be a core right in the latter. One that was even at issue in Heller since the D.C. law didn’t even let you bear arms in your house (!).

      As far as machine guns go, we’re almost certainly going to have to wait for a culture change there, just like this success is almost certainly due in part to the nationwide sweep of shall issue laws starting in 1987 (and without the always predicted “Dodge City” blood baths). Even though there are 100,000 legal machine guns out there in civilian hands with very criminal uses (and at least one by a cop), I have to wonder how the argument “we should be allowed to add more to the pool” would go down. David Kopel has shown that Federal judges always rule against assault rifles/”weapons”….

    • Sebastian says:

      Machine guns are lost. Even Gura will tell you that, and Gura is a pretty optimistic fellow. You’re not getting protection from the courts for machine guns. That’s going to have to come politically, and we’re a good ways from that.

      With MGs, what you have to overcome is the American people.

      • With respect, Sebastian, address my argument (not what you think).

        If intermediate scrutiny is to be applied to 922(o), how does it stand?

        If the government’s “substantial”, “significant” or “important” interest is to ban machineguns, then why did it not ban those manufactured pre-May ’86?

        If the government’s “substantial”, “significant” or “important” interest is to ban only post-May ’86 machineguns, shouldn’t the government have the burden to show how post-May machineguns are more dangerous than pre-May machineguns?

        Like you, I dont think that the NFA will ever go away (but a fellow can dream, can’t he?!) – I do not think that full-auto is a lost cause. It’s my laymans’ opinion that the course that Alan Gura has chosen will eventually reap benefits for the full-auto crowd.

        @ Harrold:

        As far as machine guns go, we’re almost certainly going to have to wait for a culture change there

        I disagree, because there was no culture change that brought about 922(o); in fact, if there were not anyone complaining I doubt that the average American would even realize it had passed. If you disagree, ask anyone off the street if they knew that machineguns were (mostly) legal?

        • Sebastian says:

          Ah, OK… I misunderstood you. It’s a reasonable argument, to be sure. But the courts are likely just going to say there’s no constitutional right to own a machine gun, so all that’s required is rational basis review.

          • Maybe, but or course that begs the question: Why is it ok for me to own a not-really-all-that-dangerous pre-May ’86 machinegun, but not ok to own one of the murderously-evil-and-most-probably-black post-May ’86 machineguns?

            Remember that Miller is the SCOTUS case that considered militia relevance, and decided that a sawed-off shotgun was not relevant to a militia. A machinegun is obviously relevant and at least deserves intermediate scrutiny.

            And if intermediate scrutiny applies, how can 922(o) stand? that’s all I’m asking.

        • Harold says:

          @ Harrold:

          As far as machine guns go, we’re almost certainly going to have to wait for a culture change there

          I disagree, because there was no culture change that brought about 922(o)….

          None was needed since “the culture” has been against machine guns since the ’20s or so, and the 1933 NFA severely restricted them and priced them out of most people’s budget ($3,500 in 2012 dollars and this was after the depression had gotten “Great”). As I recall pretty much every Federal action WRT machine guns was “anti-” except for one war trophy amnesty … which of course got those registered.

          So no cultural change was required, 922(o) was well aligned with the Zeitgeist. Which was just starting to change, i.e. it was part of the Firearm Owners Protection Act which really did protect gun owners and sellers and Florida went shall issue the next year.

          You would seem to agree, if I read you right in saying “anyone off the street” thinks machine guns are illegal.

          • None was needed since “the culture” has been against machine guns since the ’20s or so

            I believe this to be nothing but media fiction. Prior to NFA ’34, there were already machineguns in private hands, and they stayed mostly under wraps or at appropriate places like a firing range. It was the government that sought to elevate the St Valentine’s Day Massacre into something about which they should do … something … and what better ‘something’ to do than to restrict the rights of law-abiding machinegun owners (since their efforts against bootleggers was going as predicted … badly).

            • Sebastian says:

              I doubt the public was beating down the door for the government to ban machine guns. It was, I agree with you, something the elites did because they didn’t trust the common man with that kind of firepower.

              But, and this is important in the political process, gun owners didn’t rise up and punish the elite for usurping a right of the people. The reason is because Americans have never really viewed machine guns as being part of their Second Amendment rights. Polling today reflects that. Whether that was because the elite got to MGs quick enough that the people never developed an affection for them is relatively immaterial. We are where we are, and you have to convince enough other gun owners that MG ownership is an important component of the Second Amendment.

              • Alpheus says:

                I think there’s a lesson there, somewhere. Someone once commented that the Founding Fathers would never have sanctioned licensing schemes (either for driving or for the cars themselves) if they were alive today…which is probably true. Car licensing was made possible, though, because only rich people had them at first, and everyone else was terrified by these new-fangled machines. There ought to be a law!

                The lesson is this: when a new technology comes out, rather than rush in and put together a new regulatory scheme, we should just wait and see what happens to the new technologies. Chances are, little to no regulation will be needed!

            • Harold says:

              None was needed since “the culture” has been against machine guns since the ’20s or so

              I believe this to be nothing but media fiction. [And fed by the government.]

              True, which is why I used scare quotes. At least a small part of the gun culture wasn’t against them (although one wonders when Fudds appeared and when they grew so numerous), but echoing Sebastian their newness as practical and affordable weapons, even before considering ammo costs, plus the early severe restrictions (e.g. just when the Germans came up with the general purpose machine gun, something we didn’t clue into for decades and then only pathetically (the M60)), ensured they never became a significant part of our gun culture.

              All this in my mind became a severe problem when our service rifles transitioned to select fire and then the silly 3 round burst. For the first time in the nation’s history a citizen could effectively no longer own the nation’s service rifle, which to me is a white line violation of the 2nd Amendment, and I might note this would even include the finding in Miller. That I think is just as bad or worse in principle as the ban on ownership of new machine guns.

        • Patrick says:

          MGs are not protected for personal defense under 2A because they fail the “Common Use Test” set up by Scalia in Heller.

          Yeah…they are not common because of the unconstitutional ban…which is why they are not protected today…because the ban made them not common…

          Seriously. Easy stuff. ;)

          MGs are out from a judicial perspective, unless we get four more Alitos.

          • Harold says:

            And such may be the civilian fate of new firearms technologies; the antis sure tried with the modest innovation of a polymer frame (“plastic guns!”). If the G11 project hadn’t been canceled due to the end of the Cold War we might be fighting today for the right to use caseless ammo. And the antis certainly aren’t fond of the PS-90 which adopted the G11’s layout (although that’s more another “cop killer bullet” gambit: the original was designed to defeat Warsaw Pact body armor, but those AP rounds were and are never sold to civilians).

          • Patrick, I appreciate your comment, but as I see it, the fact that MG’s are not in common use only makes their scrutiny not strict scrutiny, and that the militia holdings in Miller would afford MG’s intermediate scrutiny (essentially what we would have again if Hughes were repealed).

            Hughes, in my layman’s opinion, cannot withstand a rational basis test because it bans MG’s based on date of manufacture, not capability or lethality, while other types of NFA weapons are still available that are as (if not more) lethal than MG’s.

            I realize the case at hand still has a way to go to be played out, but I see no reason not to brainstorm a little.

            • Sebastian says:

              You’re making the mistake of thinking rational basis review actually means rational. Rational basis review basically means the government can’t just ban possession of unicorn farts, then charge you for possessing unicorn farts… because Congress decided they just didn’t like unicorn farts. Since there’s no such thing as unicorn farts, it doesn’t pass rational basis.

              But Hughes passes rational basis review just fine. Congress was concerned about the number of machine guns in civilian hands, and put a freeze on new registrations. That’s enough to make it.

              • Sebastian, I’ll concede that “rational” is anything but, but I also believe that 922(o) has never been attacked correctly, nor has it had the precedent to be attacked correctly until perhaps now.

                Judge Legg is owed a great debt for realizing that someone has to push the envelope on rights in order for SCOTUS to rule on a question. His doing so may bring about more definite structure to our firearms laws, that being intermediate scrutiny in those things that aren’t within the “core right” of the 2A.

                Realize that within Heller is language that enables the legislature to regulate arms outside the home, notably concealed carry and the like; it is within this parameter that I believe that MG’s could ultimately fall. Now, hear me out.

                In Rock Island, the court found that prosecutions could not move forward under 26, 5822 and 5861, but also in the decision are, I believe, the seeds to repealing Hughes. While deliberating NFA ’34, at least two congressmen queried AG Cummins about regulation vs prohibition:

                In the 1934 hearings, Attorney General Homer S. Cummings explained in detail how the NFA would be based on the tax power. National Firearms Act: Hearings Before the House Committee on Ways and Means, 73rd Cong., 2d Sess., 6 (1934). Cummings denied that machineguns could be banned, because “we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under … the power of taxation, that we can act.” Id. at 8.

                So the framers of NFA ’34 admitted that the federal government had no power to ban MG’s, only regulate (tax) them. How then can Hughes stand at all (don’t answer that …”rational”)?

                If firearms outside of the core right are at least afforded intermediate scrutiny, then the fact that Hughes doesn’t ban MG’s, just new MG’s … that pre-ban MG’s are still in circulation, and that banning MG’s serves no substantial public interest, then Hughes will go down (I hope). We can argue whether we need weapons that will fire that many rounds or hold that many rounds in the mag, but I believe we’ve won that argument.

                Witness the number of rounds we fired on Memorial Day last year. It is undeniable that full auto weapons are extreme fun (especially when someone else is paying!), that within safety rules they are as safe as any other weapon and that those who own them legally are no more likely than anyone else to misuse them. The same cannot be said for criminals.

                And I believe it’s irrelevant that they aren’t in common use for defense purposes, I’d much rather have an H&K MP5SD with a laser as my home defense weapon than a handgun of any caliber

                • Patrick says:

                  How then can Hughes stand at all (don’t answer that …”rational”)?

                  The short answer, Sir, is “just because”.

                  A great deal of jurisprudence has come since the Founders, allowing the fed to do all sorts of crazy things, like fine a farmer for growing his own feed for his own hogs, under the theory that it damages the national price controls in effect for the same feed.

                  I think the Federal actually has an easier time banning MGs or SBRs today, because McDonald stuck 2A directly into the federal crosshairs. That power can be used for good (national reciprocity, castle doctrine, etc.) or for evil (banning stuff). The upshot to the current case is that any new bans must survive some form of heightened scrutiny – but that is a crapshoot, at best.

                  Things change. Things stay the same. We are winning, but we never, ever can stop looking at all the angles. Friends today can make trouble tomorrow.

                  I don’t like NFA. I want it gone. The good news is that there is a group on the Hill that also want it gone. They will chip at it slowly. Suppressors may come right behind statutory time limits for approvals.

  5. Tam says:

    My only analysis is this: Judge Legg, who decided this case, was put on the federal bench by world class RINO and gun banner George H.W. Bush.

    Yeah, so was Souter.

    • Sebastian says:

      The story behind Souter’s nomination is actually kind of interesting. See here:

      An opinion article by The Wall Street Journal some ten years after the Souter nomination called Souter a “liberal jurist” and said that Rudman took “pride in recounting how he sold Mr. Souter to gullible White House Chief of Staff John Sununu as a confirmable conservative. Then they both sold the judge to President Bush, who wanted above all else to avoid a confirmation battle.”[20] Rudman wrote in his memoir that he had “suspected all along” that Souter would not “overturn activist liberal precedents.”[7] Sununu later said that he had “a lot of disappointment” about Souter’s positions on the court and would have preferred him to be more similar to Justice Antonin Scalia.[7]

      There is a risk someone could pull one over on Romney too, but I’ll take that chance. There is virtually no chance Obama will put pro-2A people on the bench. Bush’s record for the court was 50/50. Had Dukakis won, and put two justices on the Court, we’d have lost Heller, and there never would have been a McDonald.

  6. Ian Argent says:

    As I noted at Guns and Money, this ruling is in opposition to the analogous suit in NJ, Mueller vs Maenza. Interesting times.

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