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Tue 6 Mar, 2012 09:01 pm
CONSTITUTIONAL RIGHT TO CARRY LOADED GUNS OUTSIDE THE HOME
By Dan Morse and Aaron C. Davis, Published: March 5
A federal judge in Maryland has ruled that state residents no longer
must show they have a good reason to carry handguns outside of
their homes, declaring a key provision of the state’s gun-control laws unconstitutional.
Gun rights advocates said the opinion — in a relatively liberal state
with some of the country’s tightest gun restrictions — would help as
they challenge similar laws in about a half-dozen states. Maryland
officials said Monday that they are seeking a stay and will appeal the decision.
U.S. District Judge Benson Everett Legg focused on one portion of
Maryland law that requires residents to show they have a “good and
substantial reason” to carry a gun, such as a “precaution against
apprehended danger.” Legg found that the requirement, kicking in
alongside background checks, was too broad and said it violates the Second Amendment.
“The Court finds that the right to bear arms is not limited to the home,” Legg wrote
in a 23-page ruling signed Friday.
The judge added that the requirement for issuing a handgun license
amounts to a “rationing system” to limit the number of guns carried
outside the home. “The law impermissibly infringes the right to
keep and bear arms, guaranteed by the Second Amendment,” he wrote.
The case centered on a Navy veteran, Raymond Woollard, who was
denied a handgun license in 2009.
In 2002, Woollard’s son-in-law broke into Woollard’s rural Baltimore
County home, high on drugs and looking for car keys so he could
drive to Baltimore and get more drugs, Legg wrote.
Woollard pointed a shotgun at his son-in-law, who managed to wrestle
it away before being subdued by Woollard’s son, who also pointed
a gun at the intruder.
Woollard applied for and was granted a license to carry a handgun,
according to the ruling. He was allowed to renew his license in 2006,
shortly after his son-in-law was released from prison, the judge wrote,
but three years later, his renewal was denied, prompting him to
appeal to the state’s Handgun License Review Board.
The board ruled that Woollard had “not demonstrated a good and
substantial reason to wear, carry or transport a handgun as a
reasonable precaution against apprehended danger in the state of Maryland.”
In the summer of 2010, Woollard sued.
Under state law, applicants for a carry license must show, among
other things, that they are not addicted to drugs or alcohol, don’t
have a history of violence and haven’t been convicted of a crime
and sentenced to more than a year behind bars. Those requirements
still stand.
Legg’s ruling only upended the “good and substantial reason” requirement.
In his ruling, he said Maryland State Police have issued licenses to
people in professions that may carry a risk, such as armored-car drivers,
security guards, police officers and prosecutors. Licenses also go to
those who can show they need “personal protection.”
The judge wrote that the requirement doesn’t ensure that guns are kept away
from people “most likely to misuse them,” criminals or the mentally ill, for instance.
“It’s definitely a great boost for the right to bear arms,” said Alan Gura,
a lawyer in the case who earlier helped overturn gun-control measures
in the District. “People around the country are a little more secure
in their freedoms today.”
Others said that an important safeguard in Maryland — the ability to
judge whether someone really needs to carry a gun in public — has
been stripped away.
“This is a potentially very dangerous decision,” said Jonathan Lowy,
director of the Legal Action Project at the Brady Center to Prevent
Gun Violence, which supported the state in the lawsuit.
“People of Maryland have right to decide who can carry loaded guns
in the public places that we all enjoy.”
“I don’t think this is a decision that will enhance public safety,”
said Daniel Webster, co-director of the Johns Hopkins Center for
Gun Policy and Research. “It will more likely harm public safety.”
The fight over gun rights in Maryland also reaches into the state
legislature and produces a perennially heated debate in Annapolis,
with Republicans blasting Democrats for imposing gun laws on the
state’s entire population that are tailored for the Baltimore and
Washington areas.
Republican lawmakers have four bills pending in the House of Delegates
to repeal the “good and substantial reason” requirement. Similar
bills have failed repeatedly in recent years. There are now about
12,000 active handgun licenses in Maryland, according to the state police.
Officials have denied an average of 214 applicants annually since 2009
on the basis of a finding that the person did not have a substantial
reason to wear, carry or transport a gun, according to the state
Department of Legislative Services.
During debate on the Republican-sponsored bills this year, state
police warned that undoing the requirement would result in an
initial wave of 15,000 applicants for handguns in the budget year
beginning in July and that an additional 10,000 people would apply,
on average, every year thereafter, but the state’s nonpartisan
budget analyst’s office took issue with those estimates. It said the
state police had failed to provide a rationale for such a large
projected increase. The analyst’s office, nonetheless, estimated
that the number of gun applications statewide would double, to
about 3,600 annually.
During a Feb. 21 hearing in the House Judiciary Committee, dozens
of gun rights advocates crowded the committee room to testify
about the difficulty of obtaining a license to carry a gun in Maryland.
Del. Michael D. Smigiel Sr. (R-Cecil), the lead sponsor of one of the bills,
argued that the ability to carry a gun is an “unalienable right that comes from God”
and grilled Maryland State Police Lt. Jerry Beason about the necessity
of the “good and substantial reason” clause. Beason conceded that
the phrase is “impossible” to define.
“Shame on the state of Maryland,” Smigiel said.
Staff writers Fredrick Kunkle and Greg Masters and staff researcher Jennifer Jenkins contributed to this report.
[All emfasis and colored font have been added by David.]
Cool. Gura wins another one!
I can't wait until the Supreme Court enforces nationwide concealed carry.
@oralloy,
oralloy wrote:Cool. Gura wins another one!
I can't wait until the Supreme Court enforces nationwide concealed carry.
YES, and then
unites it with the right to travel, nationwide, like carrying your Bible,
thereby restoring the
status quo ante, before the liberal
perversion of
gun control.
David
@OmSigDAVID,
OmSigDAVID wrote:oralloy wrote:Cool. Gura wins another one!
I can't wait until the Supreme Court enforces nationwide concealed carry.
YES, and then
unites it with the right to travel, nationwide, like carrying your Bible,
thereby restoring the
status quo ante, before the liberal
perversion of
gun control.
David
Not quite fully restored. Just one more step in that direction.
Another key step will be the overturning of all assault weapon bans.
@oralloy,
Well, the USSC can accomplish that by correctly interpreting
and applying its holding in
U.S. v. MILLER 307 U.S. 174 (1939).
It already made that point, in that case.
If a weapon is useful to a militia,
then possession thereof has 2nd Amendment protection.
Did u like this passage, in the
HELLER case?
D.C. v. HELLER 554 US 290 (2008)
" It may be objected that if weapons that are most useful
in military service—
M-16 rifles and the like—may be banned,
then the Second Amendment right is completely detached
from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons
that they possessed at home to militia duty.
It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful
against modern-day bombers and tanks.
——————
But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right.
"
David
@OmSigDAVID,
OmSigDAVID wrote:Well, the USSC can accomplish that by correctly interpreting
and applying its holding in U.S. v. MILLER 307 U.S. 174 (1939).
I don't think they want to do so though. They seem intent on protecting personal self-defense gun rights while doing nothing to further the cause of the state militia.
Rather, they will use "strict scrutiny" to say that the government has no compelling interest in banning cosmetic features like a pistol grip. And that any law which includes a ban on such cosmetic features is not narrowly tailored, even if other parts of the law might pass muster by themselves.
OmSigDAVID wrote:Did u like this passage, in the HELLER case?
D.C. v. HELLER 554 US 290 (2008)
" It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be banned,
then the Second Amendment right is completely detached
from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons
that they possessed at home to militia duty.
It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful
against modern-day bombers and tanks.
——————
But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right."
David
I didn't like it a lot, because it meant that they were only going to recognize the personal self defense aspects of the right, and intended to ignore the state militia aspects.
I'd have preferred that they recognized all aspects of the Second Amendment.
@oralloy,
Within recent memory, the principles of State militia (selected militia), have not been litigated b4 the USSC;
neither have those of private militia (well regulated militia) e.g. the Mormon militia of the 18OOs,
nor the merchants' militia of more recent race riots.
Thay did not adjudicate those questions.
Thay were not argued.
Nothing was received into evidence on those points, in the trial courts.
The pleadings included no relevant allegations qua State militia.
Such a case woud arise from a very different source.
Note that the explicit reference to
M-16s in
HELLER
gives favorable consideration to personal possession of
FULLY AUTOMATIC rifles.
This addresses your expressed concern.
I love the B.A.R. (sawn off) and the Thompson sub,
but I 'm too old to heft one around much.
David
@OmSigDAVID,
OmSigDAVID wrote:Note that the explicit reference to M-16s in HELLER
gives favorable consideration to personal possession of FULLY AUTOMATIC rifles.
This addresses your expressed concern.
But they didn't give favorable consideration to it. They were saying that even though they are the very sort of weapon that a militia would use, it is still OK to ban full autos as "unusual weapons".
You are probably right that Heller is mere dicta to the issue of arms used by a state militia. But we are nowhere near having such a case heard.
Anyway, even just having them support personal self-defense rights is pretty nice. We are likely to have them enforce nationwide shall-issue CCW due to this case. And assault weapon bans are also almost certainly doomed.
I'm less confident about armor-piercing rifle bullets. The government can argue that they have a compelling need to prevent criminals from firing bullets that can penetrate hard body armor worn by SWAT teams. That would be balanced against an argument that such ammo is necessary for civilians to defend themselves from criminals who wear hard body armor during home invasions.
@oralloy,
OmSigDAVID wrote:Note that the explicit reference to M-16s in HELLER
gives favorable consideration to personal possession of FULLY AUTOMATIC rifles.
This addresses your expressed concern.
oralloy wrote:But they didn't give favorable consideration to it. They were saying that even though they are the very sort of weapon that a militia would use, it is still OK to ban full autos as "unusual weapons".
I respectfully disagree that the USSC said that.
Maybe u missed the word "if".
Look again:
" It may be objected that
if weapons that are most useful
in military service—M-16 rifles and the like—may be banned,
then the Second Amendment right is completely detached
from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons
that they possessed at home to militia duty.
It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful
against modern-day bombers and tanks.
——————
But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right."
The ruling does not hold that "sophisticated arms"
can Constitutionally be banned.
( Of course, if it
DID, it 'd only be
obiter dictum. That issue was not litigated.)
oralloy wrote:You are probably right that Heller is mere dicta to the issue of arms used by a state militia. But we are nowhere near having such a case heard.
Anyway, even just having them support personal self-defense rights is pretty nice. We are likely to have them enforce nationwide shall-issue CCW due to this case. And assault weapon bans are also almost certainly doomed.
I'm less confident about armor-piercing rifle bullets. The government can argue that they have a compelling need to prevent criminals from firing bullets that can penetrate hard body armor worn by SWAT teams. That would be balanced against an argument that such ammo is necessary for civilians to defend themselves from criminals who wear hard body armor during home invasions.
@OmSigDAVID,
OmSigDAVID wrote:oralloy wrote:OmSigDAVID wrote:Note that the explicit reference to M-16s in HELLER
gives favorable consideration to personal possession of FULLY AUTOMATIC rifles.
This addresses your expressed concern.
But they didn't give favorable consideration to it. They were saying that even though they are the very sort of weapon that a militia would use, it is still OK to ban full autos as "unusual weapons".
I respectfully disagree that the USSC said that.
Maybe u missed the word "if".
Look again:
" It may be objected that
if weapons that are most useful
in military service—M-16 rifles and the like—may be banned,
then the Second Amendment right is completely detached
from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons
that they possessed at home to militia duty.
It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful
against modern-day bombers and tanks.
——————
But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right."
When they say the Second Amendment allowed people to show up bearing lawful weapons, they are excluding the M-16 from the category of lawful weapons.
What they are saying can be summed up as: "Even though our ruling paradoxically allows the banning of military weapons, we still claim it to be the correct interpretation."
OmSigDAVID wrote:The ruling does not hold that "sophisticated arms"
can Constitutionally be banned.
But it says that "dangerous and unusual" weapons can be banned.
Note this from just before the section you quoted:
"We also recognize another important limitation on theright to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
OmSigDAVID wrote:( Of course, if it DID, it 'd only be obiter dictum. That issue was not litigated.)
Yes. I feel a little better about the matter since you pointed that out.
@oralloy,
oralloy wrote:
But it says that "dangerous and unusual" weapons can be banned.
Not to get all nit picky about it, but a non-dangerous weapon sounds like a contradiction in terms, or oxymoronic as they say nowadays.
@oralloy,
oralloy wrote:
OmSigDAVID wrote:oralloy wrote:OmSigDAVID wrote:Note that the explicit reference to M-16s in HELLER
gives favorable consideration to personal possession of FULLY AUTOMATIC rifles.
This addresses your expressed concern.
But they didn't give favorable consideration to it. They were saying that even though they are the very sort of weapon that a militia would use, it is still OK to ban full autos as "unusual weapons".
I respectfully disagree that the USSC said that.
Maybe u missed the word "if".
Look again:
" It may be objected that
if weapons that are most useful
in military service—M-16 rifles and the like—may be banned,
then the Second Amendment right is completely detached
from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons
that they possessed at home to militia duty.
It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful
against modern-day bombers and tanks.
——————
But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right."
When they say the Second Amendment allowed people to show up bearing lawful weapons, they are excluding the M-16 from the category of lawful weapons.
What they are saying can be summed up as: "Even though our ruling paradoxically allows the banning of military weapons, we still claim it to be the correct interpretation."
OmSigDAVID wrote:The ruling does not hold that "sophisticated arms"
can Constitutionally be banned.
But it says that "dangerous and unusual" weapons can be banned.
Note this from just before the section you quoted:
"We also recognize another important limitation on theright to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
OmSigDAVID wrote:( Of course, if it DID, it 'd only be obiter dictum. That issue was not litigated.)
Yes. I feel a little better about the matter since you pointed that out.
The one and
ONLY single issue that was litigated & adjudicated
is whether "the people" have a Constitutional Right to keep and bear arms in their homes.
Nothing else has precedential value.
David
@roger,
oralloy wrote:But it says that "dangerous and unusual" weapons can be banned.
roger wrote:Not to get all nit picky about it, but a non-dangerous weapon
sounds like a contradiction in terms, or oxymoronic as they say nowadays.
Under the doctrine of
US v. MILLER 3O7 US 174 (1939)
that has
no protection from 2 A,
if it is
not dangerous.
In other words: the 2 A protects weapons
NOT junk.
Possession by citizens of weapons that are suitable to aiding militia
have 2 A protection (
NOT junk).
David
"Some " Americans won't be happy till they can defend their homes and themselves when shopping....... with Just a couple of rocket launchers and half a dozen sub machine guns a ton or so of munitions and when shopping a 10 ton tank suitably armored plated, also with a armored helicopter gun ship for long distance holidays.
@tenderfoot,
Gosh, I don't believe I've ever seen that thought expressed before.
@tenderfoot,
tenderfoot wrote:"Some" Americans won't be happy till they can defend their homes and themselves when shopping.......
with Just a couple of rocket launchers and half a dozen sub machine guns a ton or so of munitions
That sounds cumbersome to carry around all the time.
I have found it better to be happy, regardless of my environing circumstances,
including when robbers shot at me (until I took my
OWN defensive gun out).
tenderfoot wrote: and when shopping a 10 ton tank suitably armored plated,
DEFINITIONALLY, tanks r suitably armored,
tho 1O tons is
unrealisticly lite weight for a battle tank.
The M-1 Abrams Tank is heavier than
6O tons. Is your tank made out of
helium instead of steel??
tenderfoot wrote:also with a armored helicopter gun ship for long distance holidays.
"Holidays" are points in
TIME (
days = 24 hour rotations of the Earth),
NOT measures of distance.
David
@tenderfoot,
tenderfoot wrote:"Some " Americans won't be happy till they can defend their homes and themselves when shopping....... with Just a couple of rocket launchers and half a dozen sub machine guns a ton or so of munitions and when shopping a 10 ton tank suitably armored plated, also with a armored helicopter gun ship for long distance holidays.
Tanks are already legal. You just have to be rich to afford them. And I've never heard of anyone wanting an attack helicopter.
But yes, I'll not be happy until you can buy belt-fed machineguns with armor-piercing ammo, grenades and grenade launchers, and shoulder-fired anti-tank missiles at Wal-Mart after passing an instant background check.
But, I'm not likely to get what I want on that score. The courts are definitely going to strike down bans on assault weapons, and also the New Jersey ban on hollowpoint ammo. But they aren't likely to go any farther than that.
@oralloy,
tenderfoot wrote:"Some " Americans won't be happy till they can defend their homes and themselves when shopping....... with Just a couple of rocket launchers and half a dozen sub machine guns a ton or so of munitions and when shopping a 10 ton tank suitably armored plated, also with a armored helicopter gun ship for long distance holidays.
oralloy wrote:Tanks are already legal. You just have to be rich to afford them. And I've never heard of anyone wanting an attack helicopter.
But yes, I'll not be happy until you can buy belt-fed machineguns with armor-piercing ammo, grenades and grenade launchers,
and shoulder-fired anti-tank missiles at Wal-Mart after passing an instant background check.
But, I'm not likely to get what I want on that score. The courts are definitely going to strike down bans on assault weapons,
and also the New Jersey ban on hollowpoint ammo. But they aren't likely to go any farther than that.
Looking directly at the text of the 2nd Amendment and looking at the prohibition against discrimination,
requiring
"equal protection of the laws" I fail to see how such discrimination as intended by background checks
qua people defending their lives & property can be logically tolerated.
Government has
NO jurisdiction to
DISCRIMINATE,
and government has
NO jurisdiction to infringe
ANY person's right to KABA.
Government
HAS jd to get rid of feloniously violent, recidivistic
predators (the men, not the guns).
It blows my mind that liberals believe that while it is
UNCONSTITUTIONAL for a victim of discrimination
to get a relatively
poor seat on a public bus for a few minutes,
it is OK for that person to be a victim of discrimination concerning the defense of
the very LIFE of that person,
who is delayed or denied access to defensive emergency equipment.
Q.E.D.
: LIBERALS ARE HYPOCRITS
David
@OmSigDAVID,
OmSigDAVID wrote:Looking directly at the text of the 2nd Amendment and looking at the prohibition against discrimination,
requiring "equal protection of the laws" I fail to see how such discrimination as intended by background checks
qua people defending their lives & property can be logically tolerated.
Government has NO jurisdiction to DISCRIMINATE,
and government has NO jurisdiction to infringe ANY person's right to KABA.
Government HAS jd to get rid of feloniously violent, recidivistic predators (the men, not the guns).
I don't see the discrimination of an instant background check. It only prohibits the purchase of a gun if the purchaser is a felon.
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