by Woollard v. Sheridan – Amended Complaint Filed
At the end of 2010, Judge J. Frederick Motz partially denied the State of Maryland’s motion to dismiss the Second Amendment Foundation’s challenge to Maryland’s concealed carry law requirement of “apprehended danger”. He did, however, dismiss that portion of the case claiming violation of the Equal Protection Clause of the Fourteenth Amendment because it did not make a claim upon which relief could be granted. Fortunately, he gave the plaintiffs until the January 21st to file an amended complaint correcting this defect.
Alan Gura filed the amended complaint on January 19. The amended complaint follows the original complaint word for word up until the statement of a claim in Count II.
Maryland Public Safety Code § 5-306(a)(5)(ii)’s requirement that handgun carry permit applicants demonstrate cause for the issuance of a permit impermissibly classifies individuals with respect to the exercise of a fundamental constitutional right. The provision creates two classification of individuals. Applicants who have demonstrated to Defendants’ satisfaction that a handgun carry permit is “necessary as a reasonable precaution against apprehended danger,” or that they face a greater than average level of danger, are given permits; applicants who cannot satisfy that burden are not given permits. The classification system is inherently arbitrary, irrational, and deprives individuals of their fundamental right to bear arms based on criteria that cannot be justified under any means-ends level of scrutiny for the security of a fundamental constitutional right. The provision thus violates Plaintiffs’ Fourteenth Amendment right to equal protection of the law, damaging them in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision.
Bold text represents the addition to the complaint.
The most significant part of this restating of the claim is that it argues that under any level of scrutiny the Maryland requirements are unconstitutional. A “means-end level of scrutiny” refers to the rational basis level of scrutiny which is the lowest used in consideration of constitutional rights. The Fourth Circuit Court of Appeals’ recent decision in Chester calls for intermediate scrutiny – or a level higher – as the minimum in Second Amendment cases.
Indefensible Is Right
Judge Milton Shadur denied attorneys fees to the plaintiffs in McDonald v. Chicago saying that because Chicago changed their gun laws the case was moot. Since it was moot, then there was no prevailing party which, to be blunt, is utter bullshit. Chicago lost and McDonald won.
Dave Hardy has the whole ruling and his comments on it at Arms and the Law.
This ruling is, I’m sure, simply indefensible. They fought all the way to the U.S. Supremes, won there, Chicago (with no choices left) changed its ordinance … and the court still rules McDonald was not the “prevailing party.” I trust this is going to appealed, although it may be assigned to the same Seventh Circuit panel (which definitely did not like the McDonald result and thus may, like the District Court, let it show).
Why They Hate Us
The Wall Street Journal’s Weekend Edition ran a travelogue by journalist Kate Bolick on her visit to Austin, Texas. On her last day she visited a shooting range. Here is how she described it:
Day Four: Monday
9 a.m. Close out your trip with a bang—literally! Red’s Indoor Range (6200 Highway 290 West; 512-892-4867; redsguns.com) in the aptly named Convict Hill, is only a 15-minute drive away, and for the uninitiated, shooting a gun can be shockingly intoxicating. There’s no better way to imbue yourself with a dose of Texan swagger—and the testosterone rush will embolden you for the trial to come: flying home.
The gun prohibitionists of the Brady Campaign, the Violence Policy Center, and others of their ilk would have you believe that the only reason to have and shoot a firearm is to kill someone or something. In their dour, almost Calvinistic, worldview, the thought that someone – especially a woman – could enjoy herself by indulging in an hour or two of target shooting is inconceivable. That there are sports like IDPA, sporting clays, and cowboy action shooting which involve firearms and no killing is beyond their comprehension.
I don’t know Ms. Bolick’s background with guns and don’t know if this was the first time she ever handled a firearm but her experience reinforces the idea that taking someone shooting is the best way to inoculate them against the anti-gun message peddled by the prohibitionists and their allies in the media. What these groups fear most of all is the feeling that Ms. Bolick describes – the sheer joy combined with the feeling of empowerment that can come from shooting.
And that is why they hate us.
Astroturfing By ThinkProgress
Reporters from ThinkProgress, which is the lefty website for the Center for American Progress Action Fund, attended the SHOT Show this week. They were trolling for people who would say that standard capacity magazines were not needed for self-defense. As might be expected in an edited video, they found the answers they wanted. I imagine this clip will be shown to Congressional staffers and wavering Representatives in an effort to pass HR 308.
You have to wonder how many of the people answering the question realized that they were being used. It points out just how tricky it can be dealing with the press and advocacy groups.
ThinkProgress attended the SHOT Show convention in Las Vegas this week — “the largest and most comprehensive trade show for all professionals involved with the shooting sports and hunting industries” — and asked many attendees if they thought these types of clips are necessary for self-defense. Most we talked to concurred, “Not really”:
TP: Do you think that for self defense purposes it matters whether you have 10 or 15 rounds in your magazine?
ATTENDEE 1: Probably not. No probably not. Honestly. […]
ATTENDEE 2: It takes one shot to kill. … Anything more than one shot is excessive. I mean if someone is breaking in to your house at a panic you’re might going to shoot him once. You’re not going to empty your load on him while they’re lying on your kitchen floor. […]
TP: If someone were to use a gun for self protection purposes, would they need 10, 30 rounds?
ATTENDEE 3: No, I hope not. I don’t know why. If ten rounds of ammunition can’t do the job you probably shouldn’t own a gun. I don’t want to live next to that guy.
The Other Brady Bill – HR 318
Congressman Bob Brady (D-PA) of Philadelphia has followed through on his promise to introduce a bill to criminalize threatening speech against members of Congress. His bill would piggy-back on existing law that makes it a crime to threaten the President or Vice-President. The existing law, 18 USC 871, makes it a crime to:
Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.
The text of Brady’s bill, HR 318, is below. Currently, it has no co-sponsors.
H.R.318
Mr. BRADY of Pennsylvania introduced the following bill; which was referred to the Committee on the JudiciaryA BILL
To amend title 18, United States Code, to punish threats to commit violent crimes against Members of Congress, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. AMENDMENTS TO SECTION 871.
Section 871 of title 18, United States Code, is amended by striking `or Vice President-elect’ and inserting `Vice President-elect, Member of Congress or Member-of-Congress-elect’.
SEC. 2. AMENDMENT TO SECTION HEADING AND TABLE OF SECTIONS.
(a) Section Heading- The heading for section 871 of title 18, United States Code, is amended to read as follows:
`Sec. 871. Threats against President, Vice President, and Members of Congress’.
(b) Table of Sections- The item for section 871 in the table of sections at the beginning of chapter 41 is amended to read as follows:
`871. Threats against President, Vice President, and Members of Congress.’.
I know Members of Congress are convinced of their own importance but frankly they are not the Head of State and don’t need to have the Secret Service following up on every letter from an angry constituent. This is not to say that credible threats should not be investigated. They are and should be investigated. However, there are plenty of other laws on the books, both Federal and state, which can take care of these type of offenses without making one specifically for Members of Congress. People have spoken of the Imperial Presidency for decades. We don’t need to add the Imperial Congress to that list.
Holster Testing
One of the things mentioned at Everyday, No Days Off is that the holster is a Raven Concealment which has been featured in Magpul Dynamics videos. Travis Haley, who was a founder of Magpul Dynamics and interim CEO of Magpul Industries, left Magpul this week to start another company, Haley Strategic Partners. He “starred” with Chris Costa in the Magpul videos. This is from a report in GearScout. The parting of ways is reported to be friendly.
Another By-Product Of The Tucson Shootings
Beyond the call for more gun control, another by-product of the shootings by the madman in Tucson is an upsurge in the media calling for the confirmation of Andrew Traver.
Helping to push this is Mayor Bloomberg and his Mayors Against Illegal Guns. They are calling for “common sense” measures. Number three on their list released on January 11th is this:
Fill the Leadership Gap and Appoint an ATF Director – The Bureau of Alcohol Tobacco Firearms and Explosives, the federal law enforcement agency responsible for fighting gun crime, has operated without a Director for four and a half years. President Obama has nominated Andrew Traver, a career law enforcement officer, to fill the position. The nomination has the strong support of Mayors Against Illegal Guns, and the Senate should give Mr. Traver a careful and prompt review to help ATF spearhead the fight against gun crime.
From Jonathan Alter in Newsweek comes this from a piece entitled Can Obama Turn Tragedy Into Triumph? Saturday’s shooting spree could prove a turning point in the Obama presidency. How the White House should talk about the tragedy:
Finally, the president should speak out forthrightly for better enforcement of existing gun control laws, which the gun lobby is always fighting to undermine. He should re-state his support of Andrew Traver to be head of the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF). The NRA is currently blocking the nomination because Traver once had the temerity to serve as an adviser to a police association on its gun violence reduction program. Obama can reiterate his (and Giffords’) support for the 2nd Amendment while using this chance to make a case for common sense gun control.
Alter is hoping that Obama could turn the shootings in Tucson into an Oklahoma City bombing sort of event and use Jared Loughner just like Bill Clinton used Timothy McVeigh.
The New York Daily News devoted an entire editorial to the Traver nomination accusing “NRA toadies in the Senate” of keeping the Bureau of Alcohol, Tobacco, Firearms, and Explosives without a permanent Director. In typical, over-the-top, Daily News fashion they said:
The truth is, the National Rifle Association and its puppets in Congress push just as hard to hogtie enforcement as they do to gut the nation’s all-too-feeble statutes.
And the prime example is their blockade against confirming a permanent chief for the Bureau of Alcohol, Tobacco, Firearms and Explosives – the federal front-line force against gun trafficking.
In the editorial they also try to link the shootings at Virginia Tech, Fort Hood, and Tucson to the lack of an ATF Director. They conclude by urging Senators to confirm Traver saying “As bodies pile up, it’s the least they can do.” Obviously, they haven’t heard Obama’s call for civility in political discourse.
In California, the Sacramento Bee has picked up the call for Traver saying that we shouldn’t let the NRA dictate who should be “the top gun cop.” After dismissing Traver’s cozy relations with the gun ban lobby, they say:
The bureau responsible for enforcing the nation’s gun laws has not had a permanent director since 2006. Senate Republicans even held up the Bush administration’s appointee to the post at the behest of gun-rights groups. The bureau is under siege by the powerful gun lobby as illegal gun trafficking within the United States and abroad is rife. Our neighbor, Mexico, is being held hostage by vicious and well-armed drug cartels that buy their weapons in the United States.
The NRA is pushing so-called reform legislation that would make it even harder for law enforcement agencies to prosecute illegal gun dealers. In the face of relentless pressure from the gun lobby, Congress and even the president have shown themselves unwilling and unable to support even the most common-sense gun-safety laws.
Traver’s nomination is a test for the nation and its lawmakers. If a cop with an exemplary record of going after illegal gun sales can’t win confirmation as ATF director following last Saturday’s rampage, we are likely to see more Tucsons, more Columbines and more Virginia Techs.
These incendiary editorials have just begun as well as the push for more gun control – ineffective though it would have been in preventing Jared Loughner from doing this deranged act. We can expect more calls and more pressure on Senators to approve Andrew Traver.
If you haven’t called, written, emailed, or faxed your two Senators, what the hell are your waiting for? Do it and do it now.
UPDATE: In what should be no surprise, NPR is the latest media outlet reporting that ATF has been without a permanent Director and asking why Traver hasn’t been approved.
The Senate has yet to hold a hearing on Traver. A Judiciary Committee aide says the panel is waiting for the administration to submit the necessary paperwork.
Cavanaugh says the lack of a Senate-confirmed director with the backing of the president is disconcerting.
“The agency goes on because law enforcement people are ‘can do’ people and they’re mission people, but nevertheless there’s not an agency in government that has to face that kind of problem,” he says. “Can you imagine a big city police force not having a chief for 4 1/2 years?”
And while that might suit the gun lobby, gun control advocates hope the shootings in Tucson will spur the administration to push for Traver’s confirmation.
For some reason, James “Waco Jim” Cavanaugh must be the only former ATF person in the mainstream media’s Rolodex. Rachel Maddow had him on within the last week and now NPR uses him to push their story. Heck, even the SPLC has used Waco Jim.