FEDERAL COURT RULES: GUN CONTROL UNCONSTITUTIONAL

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Federal Judge Struck Down Maryland Carry-License Law
March 06, 2012|By Tricia Bishop, The Baltimore Sun

Constitutional lawyers said Tuesday that a recent federal court
decision overturning a portion of Maryland's gun-control law
will likely be upheld on appeal and called the ruling groundbreaking
given the liberalism of the state from which it came.

The decision, made public Monday, relaxed state requirements for carrying guns
and broadly interpreted the Second Amendment's "right to bear arms" as extending beyond the home.
The analysis surprised some, who were used to seeing states like Maryland, which has a repressive approach to gun rights.
"The cases that have dealt with this question in recent years have almost all come out of the high-regulation states,"
said Eugene Volokh, a professor at the University of California Los Angeles School of Law.
Those states "also tend to have high-control judges ... said it doesn't
extend outside the home."

The Maryland attorney general's office has said it will appeal the decision,
but a spokesman declined to outline the potential grounds or provide
a timeline for next steps.

Some attorneys who study constitutional law said any challenge
to the ruling would face an uphill battle.
"The idea here is that if this is a constitutional right,
like all the other constitutional rights, then you shouldn't need the government's permission to exercise it,"
said Randy E. Barrett, a professor at Georgetown University Law Center in Washington.
"I think that the basic theory ... is an extremely powerful one,
that would give it a good shot at any court of appeals."
Before the ruling, Maryland was among a handful of states that follow a "may issue" policy for gun-carry licenses,
leaving the distribution of such licenses up to the discretion of local authorities after basic criteria are met.
In addition to proving that they weren't dangerous felons or addicts, Maryland applicants were required to show
that they had a "good and substantial reason" for carrying a gun, and
it was up to the superintendent of Maryland's state police to determine
if an applicant's rationale passed muster.

Last year, the state police received 5,216 applications for carry licenses,
and denied about 5 percent of them, most — 179 out of 251 — because officials rejected
the "good and substantial" reasoning, according to a spokesman.

The federal decision, signed Friday by U.S. District Judge Benson E. Legg,
struck down that requirement and effectively shifted Maryland to
a "shall issue" policy, like a majority of states, which automatically
issue gun-carry licenses once basic safety conditions are met.
"The reason there are very few rulings like this is that there are very few
states like Maryland ... that would ever impose a rule like" the "good
and substantial reason," said Michael I. Krauss, a professor at the
George Mason University School of Law in Arlington, Va.

Maryland wasn't so alone a couple of decades ago, but over the past 10 to 15 years,
states have moved to the "shall issue" system, leaving fewer than a dozen states
with discretionary restrictions. Other "may issue" states include
Alabama, which still approves most applications; California;
Connecticut; Delaware; and New York, according to gun rights groups.

The recent federal ruling grew from a Baltimore County man's lawsuit,
claiming the state inappropriately denied a renewal to his carry license.
Raymond Woollard's son-in-law broke into his home one Christmas Eve
and terrorized the family, according to court records, leading Woollard
to apply for a gun-carry license in 2003 and to renew the license in 2006,
but a 2009 renewal was denied, because Woollard couldn't show a continuing threat.

Woollard filed a lawsuit in federal court, and won when Legg, who was
nominated to his position by Republican President George H.W. Bush, found in his favor.

"I don't think it's going to go down as either the greatest bit of judicial wisdom
or the worst," said Mark Graber, a professor at the University of Maryland
Francis King Carey School of Law in Baltimore.

Graber found at least one flaw in the ruling that could provide grounds
for appeal, but he doesn't expect the decision to be overturned.

The 4th Circuit Court of Appeals said in a 2010 ruling that
the Second Amendment likely extends outside the home, he said.
Graber expects the state's attorney general's office to claim Legg
erred in his opinion by asserting that the "good and substantial"
requirement was no more restrictive than randomly excluding some applicants,
and therefore didn't help the state achieve a goal of reducing illegal gun use.

"That's not quite right," said Graber, who admits he's anti-gun. "What the law
tries to do is create the best ratio possible between legitimate use of guns and illegitimate use."

Others suggested that appeal grounds may include arguments that the
right to bear arms in fact is limited to the home by definition and that
the government's interest in preventing gun violence outweighs the entitlement.

"The appeal is obviously that the judge got the laws wrong," George Mason's
Krauss said "but I believe he got it right."
Baltimore Sun reporter Annie Linskey contributed to this article.

[All emfasis has been added by David.]

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This will probably rise to the USSC
which will apply the expressed principles of D.C. v. HELLER
554 US 290; 128 S.Ct. 2783 (2008) nationwide,
if the pro-freedom side still remains in the majority.

David

1 Reply

This will be felt in the larger, hi density states, most acutely,
like California n NY

David

1 Reply

From the perspective of those who want to control guns:
this is a calamity! Its like when the Berlin Wall was torn down presaging the end of communism.

David

1 Reply

In my opinion, striking down anti-gun laws as being unConstitutional
is very inimical to collectivism, in that it tends to bring forth radical self reliance,
instead of reliance upon the collective for one 's very existence.
Accordingly, it is against the well-being of the Democratic Party.

David

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

This will probably rise to the USSC
which will apply the expressed principles of D.C. v. HELLER
554 US 290; 128 S.Ct. 2783 (2008) nationwide,
if the pro-freedom side still remains in the majority.

David

Yep. A third home run by Gura.

After Gura has finished defending us from the freedom haters, I suggest he be nominated to the Supreme Court.

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

This will be felt in the larger, hi density states, most acutely,
like California n NY

David

Also cities like Chicago.

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

From the perspective of those who want to control guns:
this is a calamity! Its like when the Berlin Wall was torn down presaging the end of communism.

David

We also need to get assault weapon bans ruled unconstitutional.

I'd also like to see the militia brought back into existence, but that probably won't happen alas.

Armor-piercing rifle rounds would be nice too. They were never meant to be banned, but then the freedom haters fudged the language and got the rifle versions counted as handgun rounds.

1 Reply

Which one of you is going to go off first?

1 Reply

@JTT,

JTT wrote:

Which one of you is going to go off first?

I'm not sure I understand your question.

If you are asking about the order of the various steps I mentioned, Gura is arguing the case to have nationwide concealed carry, and it's probably a mistake to bet against Gura given his exemplary track record so far, so that will probably be the next step that we achieve.

On the other hand, assault weapon bans are so blatantly unconstitutional that the case will be an easy win for the pro-freedom camp. That one is likely to come in for a close second.

0 Replies

@oralloy,

The ORIGINAL concept of this Republic
was that the physical power was in the hands of the citizens.
Accordingly, the First Congress limited the US Army
to a maximum of 840 men. ( It has since, changed its mind. )

The idea was that if we did not like it,
we coud always dispose of it; (the New York ratification of the Constitution
was explicitly based on that concept).

HOWEVER, this feature of government in a free country has been lost n forgotten.

If obama suspended all elections indefinitely, because he expected to lose,
WHATAWE DO?????

Shall we just prove how meek n docile we can be ???

1 Reply

@OmSigDAVID,

OmSigDAVID wrote:

The ORIGINAL concept of this Republic
was that the physical power was in the hands of the citizens.
Accordingly, the First Congress limited the US Army
to a maximum of 840 men. ( It has since, changed its mind. )

The idea was that if we did not like it,
we coud always dispose of it; (the New York ratification of the Constitution
was explicitly based on that concept).

HOWEVER, this feature of government in a free country has been lost n forgotten.

If obama suspended all elections indefinitely, because he expected to lose,
WHATAWE DO?????

Shall we just prove how meek n docile we can be ???

Well, if the states actually had militia as the Constitution demands that they have, the state legislatures could vote to go to war with the federal government. And upon such a vote passing in a given state, the state's governor could then order that state's militia to stand against the federal government.

The militia in each state would of course receive conflicting orders from the federal government, and would have to decide which side they were going to be loyal to.

None of that will work very well if there is no actual militia to begin with though.

2 Replies

@oralloy,

OmSigDAVID wrote:

The ORIGINAL concept of this Republic
was that the physical power was in the hands of the citizens.
Accordingly, the First Congress limited the US Army
to a maximum of 840 men. ( It has since, changed its mind. )

The idea was that if we did not like it,
we coud always dispose of it; (the New York ratification of the Constitution
was explicitly based on that concept).

HOWEVER, this feature of government in a free country has been lost n forgotten.

If obama suspended all elections indefinitely, because he expected to lose,
WHATAWE DO?????

Shall we just prove how meek n docile we can be ???

oralloy wrote:

Well, if the states actually had militia as the Constitution demands that they have, the state legislatures could vote to go to war with the federal government. And upon such a vote passing in a given state, the state's governor could then order that state's militia to stand against the federal government.

It probably wouldn't work without actual militia to order into battle though.

What militia there r,
r woefully undergunned, relative to the US Army, Marines, Air Force n Navy.

Note that the militia of Article I Section 8
and the militia of the 2nd Amendment r 2 different concepts.
The first is selected militia (public, government sponsored militia)
as distinct from the private militia ( well regulated ) of the 2nd Amendment.
Neither is a match for the Army.

1 Reply

@oralloy,

I'll just leave you two boys to your 69.

Enjoy!

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

What militia there r,
r woefully undergunned, relative to the US Army, Marines, Air Force n Navy.

Note that the militia of Article I Section 8
and the militia of the 2nd Amendment r 2 different concepts.
The first is selected militia (public, government sponsored militia)
as distinct from the private militia ( well regulated ) of the 2nd Amendment.
Neither is a match for the Army.

Actually they are the same militia. The Framers feared that the government would use its power over the Article I Section 8 militia to destroy it (as in fact actually happened), so they created the Second Amendment to guard against that.

The first half of the Second Amendment demands that the government always have a militia on hand to defend the nation, to prevent the government from just deciding to never have an Article I Section 8 militia.

The second half of the Second Amendment demands that the government never weaken or disarm the militia. There was considerable concern that the federal government would use its power over the militia's weapons to deprive it of adequate weaponry, and they wanted to make sure that never happened.

Currently the militia is weak compared to the regular military mainly because the militia does not even exist. But if the militia were created and properly armed as the Constitution demands, they would be more of a match for the regulars.

Imagine something like the National Guard, but never being deployed outside US borders the way the Guard frequently is. That is more in line with what the Constitution demands. The Swiss Militia is another example that is close to what the Constitution demands that the US have.

1 Reply

@oralloy,

OmSigDAVID wrote:

What militia there r,
r woefully undergunned, relative to the US Army, Marines, Air Force n Navy.

Note that the militia of Article I Section 8
and the militia of the 2nd Amendment r 2 different concepts.
The first is selected militia (public, government sponsored militia)
as distinct from the private militia ( well regulated ) of the 2nd Amendment.
Neither is a match for the Army.

oralloy wrote:

Actually they are the same militia.

If the Founders had intended the 2nd Amendment to address public militia
(as Article I Section 8 obviously does), then the LAST thing
that thay 'd choose to describe it woud be: "well regulated militia",
which centuries ago was known as a term of art to be distinct from "selected militia"
which might very well be brought into combat with the private militia, if the occasion arose.
Those were the 2 kinds of militia that were known:
selected militia (as close as thay got back then to a "police dept.")
and well regulated militia, who were more like a volunteer library or a volunteer fire dept.
Either concept was used to distinguish one kind of militia from the other one.
Use of THAT language ("well regulated militia")
woud be known to introduce unnecessary confusion,
if thay had in mind PUBLIC, government sponsored militia.

The Royal Militia of Virginia (government militia) already existed
when George Mason & George Washington organized the Fairfax County Militia Co.

oralloy wrote:

The Framers feared that the government would use its power over the Article I Section 8 militia
to destroy it (as in fact actually happened), so they created the Second Amendment to guard against that.

If that were accurate,
then thay 'd have referred to a selected militia of a State GOVERNMENT,
or maybe refer to the militia of Article I Section 8,
as distinct from the plethoras of private militia that existed
in the absence of any police forces anywhere in the USA, or in England (until the 18OOs).

Re-stated in other words, the 2nd Amendment says that:
the right of the people to keep and bear arms shall not be infringed
because private, volunteer, non-governmental militia
are necessary to the security of a free state (NOT State government),
referring to all the citizens and their property within that state.

oralloy wrote:

The first half of the Second Amendment demands that the government always have a militia on hand to defend the nation, to prevent the government from just deciding to never have an Article I Section 8 militia.

With all respect, it does not demand anything.
It expresses the factually analytical declaration that private militia
are necessary to the security of a free state, not the government thereof,
but the entire state, the people in it and their wherewithal.

oralloy wrote:

The second half of the Second Amendment demands
that the government never weaken or disarm the militia.

It explicitly deprives governments of any authority to interfere with the armament of the citizens,
thereby to benefit the private militia to which thay may belong.

Please note that we have the professional analyses
of multiple grammarians who attest that the text of the 2 A defends
the rights of the people, as distinct from the militia.

oralloy wrote:

There was considerable concern that the federal government would use its power

Yes, or ANY government.
Note my rejection of the reasoning of Barron v. Baltimore,
as being historically very foolish and scandalous, on its face.
(Section 1 of the 14th Amendment was drawn to overthrow
the precedent of that case; thwarted by the USSC, fighting back
in the Slaughterhouse Cases.)

oralloy wrote:

over the militia's weapons to deprive it of adequate weaponry,
and they wanted to make sure that never happened.

There was much discussion of that.
Government was not trusted by people who 'd just suffered
the gruelling ordeal of ousting government. Thay knew (up close n personal) that it was hard and bloody.

oralloy wrote:

Currently the militia is weak compared to the regular military mainly because the militia does not even exist. But if the militia were created and properly armed as the Constitution demands, they would be more of a match for the regulars.

Historically, the idea was that the militia woud be huge in size
relative to the number of Army personnel. The theory was that
we 'd outnumber the Army by gigantic proportions.
Accordingly, sovereignty woud remain in the hands of the CITIZENS,
not in their hireling servant: government.
"The commonwealth is theirs who hold the arms:
the sword and sovereignty ever walk hand in hand"
Aristotle

If u 'll permit me to take a devil's advocate position,
what about aircraft carriers, B 52s etc.??

1 Reply

@OmSigDAVID,

OmSigDAVID wrote:

If the Founders had intended the 2nd Amendment to address public militia
(as Article I Section 8 obviously does), then the LAST thing
that thay 'd choose to describe it woud be: "well regulated militia",
which centuries ago was known as a term of art to be distinct from "selected militia"
which might very well be brought into combat with the private militia, if the occasion arose.
Those were the 2 kinds of militia that were known:
selected militia (as close as thay got back then to a "police dept.")
and well regulated militia, who were more like a volunteer library or a volunteer fire dept.
Either concept was used to distinguish one kind of militia from the other one.
Use of THAT language ("well regulated militia")
woud be known to introduce unnecessary confusion,
if thay had in mind PUBLIC, government sponsored militia.

The opposing term for "select militia" was "general militia".

"Well-regulated militia" meant something else. That was a term for a militia which had trained to such an extent that they were able to fight as a single coherent unit as opposed to as a bunch of uncoordinated individuals.

Note the way Alexander Hamilton used the term in Federalist 29, when he argued for a select militia because they would receive greater training:

Quote:

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.

http://thomas.loc.gov/home/histdox/fed_29.html

Also, while the general militia was composed of the entire populace, both a "select militia" and a "general militia" are government sponsored.

Either type of militia would be authorized by the government, organized by the government, would be under the command of the government, and would supply themselves with arms according to government specifications.

OmSigDAVID wrote:

oralloy wrote:
The first half of the Second Amendment demands that the government always have a militia on hand to defend the nation, to prevent the government from just deciding to never have an Article I Section 8 militia.

With all respect, it does not demand anything.
It expresses the factually analytical declaration that private militia
are necessary to the security of a free state, not the government thereof,
but the entire state, the people in it and their wherewithal.

The line of text has legal force. It has a meaning and it demands compliance with that meaning.

The language of the first half of the Second Amendment has a long history, starting out as a call to restrain the standing army, then becoming a call to both restrain the standing army and have a militia, then finally just a call to have a militia.

In the English Bill of Rights, it was just a call to restrain the standing army:

Quote:

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

. . . . .

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare:

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

http://en.wikisource.org/wiki/Bill_of_Rights_1689

Fast forward to the Revolutionary War and we get the first American expression of this language. Here it is a call to both restrain the standing army and to have a militia:

Quote:

XIII. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

http://en.wikisource.org/wiki/Virginia_Declaration_of_Rights

When Madison proposed the right to Congress, the part about restraining a standing army was dropped, leaving just the part about having a militia:

Quote:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227

OmSigDAVID wrote:

oralloy wrote:
The second half of the Second Amendment demands
that the government never weaken or disarm the militia.
It explicitly deprives governments of any authority to interfere with the armament of the citizens,
thereby to benefit the private militia to which thay may belong.

Please note that we have the professional analyses
of multiple grammarians who attest that the text of the 2 A defends
the rights of the people, as distinct from the militia.

In the minds of the Framers, the people and the militia were one and the same, as they chose to have a general militia where everyone was a member.

While they wanted everyone to have guns, they also wanted everyone to use their guns in the militia.

Also, the inclusion of the Second Amendment in the Bill of Rights was largely a reaction to Patrick Henry proclaiming that the federal government would abuse its "power to arm the militia" by providing them with inferior weapons. Note this speech in the Virginia Ratifying Convention:

Quote:

Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States--reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither--this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.

http://press-pubs.uchicago.edu/founders/documents/a1_8_16s10.html

The intent of the people who were pushing for the Second Amendment was to prevent the federal government from ever committing the abuses that Patrick Henry predicted.

OmSigDAVID wrote:

oralloy wrote:
Currently the militia is weak compared to the regular military mainly because the militia does not even exist. But if the militia were created and properly armed as the Constitution demands, they would be more of a match for the regulars.

Historically, the idea was that the militia woud be huge in size
relative to the number of Army personnel. The theory was that
we 'd outnumber the Army by gigantic proportions.
Accordingly, sovereignty woud remain in the hands of the CITIZENS,
not in their hireling servant: government.
"The commonwealth is theirs who hold the arms:
the sword and sovereignty ever walk hand in hand"
Aristotle

They also intended that militia to be very heavily armed, in addition to being huge in number.

The very first militia organized under President Washington included horse cavalry and field cannon, not just infantry with muskets.

OmSigDAVID wrote:

If u 'll permit me to take a devil's advocate position,
what about aircraft carriers, B 52s etc.??

B-52s probably, if a US-only version of the Air National Guard were created. However, either a state government or the feds would have to choose to buy them and provide them to the militia. And, keeping in mind the fact that the militia would only be active within US borders, it would have limited use. (Perhaps costal patrol loaded with anti-ship missiles?)

Aircraft carriers would be harder to justify. First, the Constitution puts the Navy under federal jurisdiction (and I don't think there is any precedent for the militia running a Navy). And second, the fact that the militia would only operate on US soil would prevent the carrier from ever legally leaving port.

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FEDERAL COURT RULES: GUN CONTROL UNCONSTITUTIONAL

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