So Much For Being “The Free State”

One of the state nicknames for Maryland is the Free State. With the passage of draconian gun control by the Maryland House of Delegates yesterday, that nickname should be called into question. The bill in question, SB 281, now returns to the State Senate for concurrence.

The bill would ban the sale of semi-automatic rifles with cosmetics the proponents don’t like; would require training, a license, and fingerprinting to purchase a handgun; and would ban the sale and transfer of  all magazines with greater than 10 round capacity. The bill would also require the registration of all currently possessed “assault pistols” and “assault weapons”.  Failure to do so would result in fines and an up to one year prison term. Maryland Shall Issue has an excellent summary of the provisions of the bill here.

The NRA-ILA issued an alert last night urging Marylanders to contact their state senator and Senate President Mike Miller. As they noted, this will be the last chance to stop this legislation. Gov. Martin O’Malley (D-MD) has been a major proponent of gun control legislation and will sign this bill if passed by the Senate.

UPDATE: The Maryland Senate gave final approval to the bill yesterday and it has been sent to Gov. Martin O’Malley for his signature. At this point, the only thing that could delay its implementation is if opponents gather enough signatures to get it put on the ballot in November 2014 as a referendum item.

Huge Turnout Wednesday In Maryland For Gun Rights

When the Washington Post runs a story that says “Gun rights advocates marshaled one of the biggest crowds to descend on Annapolis for a bill hearing in years”, you know it was a big turnout. In other words, it was too big a crowd for even the anti-rights mainstream media to minimize.

While the question remains whether the Democrat-dominated legislature will listen to gun rights supporters or to Gov. Martin O’Malley (D) who is trying to vie with Gov. Andrew Cuomo (D) of New York on gun control, the report from Maryland Shall Issue (see below) on the event gives some measure of hope on the issue.

Yesterday Maryland Shall Issue, in concert with the NRA, the Associated Gun Clubs of Baltimore, staged the largest “Gun Day” rally in the history of our state – official state estimates count 4,000 pro-rights supporters who converged at our statehouse for a morning rally and afternoon hearings in the Senate.

We literally shut the place down. Soon after the hearing, I got a call from the MD Capital Police. They told us the building was already at maximum capacity and that fire code meant no more entrants.

This was more than a rally. Our people all showed up to attend the hearing and to testify. Even after locking out our many members, there would be more than 1,000 people in line to testify. Just getting your name on the list of witnesses took six hours. Every person stood in line, eager to get their voices heard. Unfortunately, the chairman of the committee – Senator Brian Frosh – is a the largest Gun Control Advocate in the state. He decided to unilaterally cut off testimony after 4 hours from each side. Even when reduced, the Gun Controllers ran out witnesses. They had them on the list to testify, but after 5 PM many were no where to be found. They were mostly government employees – it looks like their interest in Gun Control ended when the paychecks ran out. The Chairman eventually reduced “testimony” to nothing more than your name and town. That’s it. That was was his idea of how to let people petition their government. Our side went until they literally told us to leave. The last name was spoken at almost 10 PM.

We had an effect. Publicly many admit that licensing is dead; that registration is about to fail; and privately there is talk that even the AWB is at risk. They are splitting the Governor’s bill into smaller bills, because as of today they big one would not pass either chamber.

We are not guaranteed a final win on everything. But this was supposed to be a cake walk for them, and the people of this state are going to make them work for it.

Maryland Shall Issue has been asked what we would compromise – whether we could “throw them a bone.” We told them that we would not compromise a single right. They told us that means we could lose. Our membership is united: we would rather have all of our rights stolen from us, than to willingly give up even one.

Everyone keep us in their prayers. We are holding our line in this fight. Pray we hold it until the end.

Perhaps this testimony from Maryland-based gun maker Beretta as reported by the Washington Post might have some influence as well.

Jeffrey Reh, general counsel for firearm manufacturer Beretta, which has a plant in Accokeek, warned lawmakers that O’Malley’s bill, which outlaws 45 types of weapons and their knockoffs, could have a severe impact on the company’s business. He also said that because gun manufacturers in Maryland are required to register as firearm dealers, it’s unclear whether the company would still be allowed to export guns for sale in other states.

“We’re confronted with a state government that wants to ban the products we make,” Reh said. “Not surprisingly, we are concerned.”

Woollard v. Sheridan – A Review Of The Opinion

U.S. District Court Judge Benson Everett Legg’s Memorandum of Opinion in the Maryland carry case – Woollard et al v. Sheridan – is not everything we could have wanted but it is good enough.

After the reviewing the facts of the case which were not disputed by either side, Judge Legg says this case presents two questions. First, do the Second Amendment’s protections apply outside the home? And second, if these rights do exist beyond the home, does “Maryland‘s requirement that a permit applicant demonstrate ‘good and substantial reason’ to wear or carry a handgun” pass constitutional muster? He then notes that the 4th Circuit Court of Appeals’ decision in United States v. Masciandaro will guide him in answering these questions.

Judge Legg says the court in the Masciandaro case applied intermediate scrutiny because the Second Amendment right claimed in that case was outside the home. As such, the 4th Circuit concluded “a lesser showing is necessary” and intermediate scrutiny was appropriate. Likewise in Woollard, he notes:

Woollard‘s asserted right falls within this same category of non-core Second Amendment protection. He already enjoys an unchallenged right to possess a handgun in his home; but, like Masciandaro, he also seeks to carry one into the wider world for general self-defense. The statute he challenges, therefore, is properly viewed through the lens of intermediate scrutiny, which places the burden on the Government to demonstrate a reasonable fit between the statute and a substantial governmental interest.

In his opinion, Judge Legg found that by necessity he had to go beyond that of the 4th Circuit in examining the scope of the Second Amendment right claimed by Raymond Woollard. Here he looks to Masciandaro again as well as to Heller. He notes the reasoning of Judge Niemeyer in Masciandaro that the right to bear arms does apply in some form where the need is not “most acute” such as hunting or militia service which both occur outside the home. He then looks to Heller where its use of “bear arms” indicates the Second Amendment protections, while they can be limited, do not stop at one’s front door. Moreover, the Supreme Court’s discussion of “presumptively lawful” restrictions points to a greater level of scrutiny than rational basis which “all laws are presumed to satisfy.” He then concludes:

For all of these reasons, the Court finds that the right to bear arms is not limited to the home. The signposts left by recent Supreme Court and Fourth Circuit case law all point to the conclusion that Woollard‘s “claim to self-defense—asserted by him as a law-abiding citizen . . . -does implicate the Second Amendment, albeit subject to lawful limitations.”

The Court then looks at the “good and substantial reason” requirement of Maryland for the issuance of a carry permit and examines the three major arguments put forth by Alan Gura. The first was that the Maryland law amounted to prior restraint on the exercise of Mr. Woollard’s Second Amendment rights because it gives unlimited discretion to the licensing officials. Judge Legg rejected this argument saying that “while the applicant bears the burden of demonstrating a “good and substantial reason,” licensing officials are not simply left to their own views of what such a good reason might be.

The second argument put forth by Gura was that while the state has an interest in public safety, the current “law was not sufficiently tailored to that interest to withstand intermediate scrutiny.” Here Judge Legg agrees and notes that the Maryland is just too broad.

The Maryland statute‘s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end. The requirement that a permit applicant demonstrate “good and substantial reason” to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States’ laws do, limit the carrying of handguns to persons deemed “suitable” by denying a permit to anyone “whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.”

He goes on to say that  the regulation at “issue is a rationing system” whose goal is merely to reduce the total number of firearms carried outside the home. Dismissing the arguments about potential threats from those with handguns put forth by Maryland, he notes that “the challenged regulation does no more to combat them than would a law indiscriminately limiting the issuance of a permit to every tenth applicant.” Moreover, he says If anything, the Maryland regulation puts firearms in the hands of those most likely to use them in a violent situation by limiting the issuance of permits to ‘groups of individuals who are at greater risk than others of being the victims of crime.'”

At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method. The showing, however, is always the Government‘s to make. A citizen may not be required to offer a “good and substantial reason” why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

Judge Legg says his decision had limits and does not address any of the other regulations relating to the possession and use of firearms. Moreover, if the Maryland law had been limited to only concealed carry instead of all carry, the “good and substantial reason” section of the law might have passed scrutiny.

Finally, the Court declined to address the third argument put forth by the plaintiffs that the law violated the Equal Protection Clause of the 14th Amendment finding that it was unneccesary. This was because the Second Amendment analysis was sufficient, because the Equal Protection argument was a restatement of the Second Amendment argument, and because it would have applied a higher level of scrutiny than necessary.

As I said in my earlier post, the Motion for Summary Judgment by the plaintiffs was granted and that of the Defendants’ was denied. This is a win to be sure. However, while the “good and substantial reason” section of the law is invalidated, the rest remains and there is nothing the stop the Maryland legislature from recrafting the law to continue their practice of “may issue” carry especially as it relates to concealed carry.

UPDATE: The Maryland Attorney General’s Office has issued a statement indicating that will both appeal the decision and seek a stay of the ruling until the appeal is heard according to a story at WBAL Radio.

“We disagree with this ruling. In light of the very important implications of the ruling for public safety, the defendants will be appealing to the Fourth Circuit Court of Appeals. The defendants will also be seeking a stay of the ruling pending appeal.”

I can’t say I’m surprised by the state’s actions. I would have been more surprised if they had given up.

Professor Eugene Volokh writing about the case had this to say about the probable appeal of Woollard. It should be noted that Professor Volokh thought the District Court got it right in finding the Second Amendment applies outside the home.

This having been said, most recent court decisions that have squarely considered the matter have upheld broad restrictions on carrying, though some — like the Fourth Circuit — have suggested that such restrictions’ constitutionality remains unsettled, and a Puerto Rico appellate decision reached the same result that this Maryland federal court decision did. Indeed, Maryland’s highest court has upheld the Maryland statute, concluding that gun possession outside the home is outside the Second Amendment; it’s possible to read that decision more narrowly as simply upholding the permitting requirement but leaving open the question whether permits must be granted to pretty much all law-abiding applicants, but I think the logic of the Maryland high court opinion is broader than that, and would lead to the rejection of the very claim that the federal district court accepted in this case.

So it will be interesting to see what the Fourth Circuit does with this on appeal. And if the Fourth Circuit agrees with the district court, that will likely be seen as creating a split between the Fourth Circuit and Maryland’s highest court — plus state courts in some other states — which would mean there would be a substantial chance that the Supreme Court will agree to hear the case. (If the Fourth Circuit reverses the district court, and rejects the Second Amendment claim, then the Supreme Court will be quite unlikely to grant review.)

Maryland Handgun Carry Permit Review Board

Michael Smigiel is a member of the Maryland House of Delegates representing District 36. This district lies on Maryland’s Eastern Shore and consists of Caroline, Cecil, Kent, and Queen Anne’s counties. He is also a practicing attorney.

One of his constituents who is also a client had applied for a handgun carry permit. Smigiel wondered how his constituents were treated by the Handgun Carry Permit Review Board so he applied for a permit. The video below is from his hearing before that Board. Mind you, he is a Delegate so his treatment is probably going to be much more cordial than for someone like Raymond Woollard. According to this thread on Maryland Shooters Smigiel’s experience is not typical.

Good Things Happen In Three’s

Yesterday, the Owner-Operator Independent Drivers Association, the CalGuns Foundation, the NRA, the Folsom Gun Club, and two individuals brought the third suit in California over the state’s new handgun ammunition law. Today, Alan Gura and the Second Amendment Foundation filed their third lawsuit after their win in McDonald v. Chicago.

The newest case involves a Baltimore County, Maryland man who’s renewal of his handgun carry permit was turned down by the Maryland State Police because he couldn’t demonstrate “a reasonable precaution against apprehended danger.” The case, Woollard et al v. Sheridan et al, was filed in U. S. District Court for the District of Maryland. In addition to Raymond Woollard, the Second Amendment Foundation is also a plaintiff.

The Second Amendment Foundation said in their release,

The lawsuit alleges that “Individuals cannot be required to demonstrate that carrying a handgun is ‘necessary as a reasonable precaution against apprehended danger’ as a prerequisite for exercising their Second Amendment rights.” Plaintiffs are seeking a permanent injunction against enforcement of the Maryland provision that requires permit applicants to “demonstrate cause” for the issuance of a carry permit.

 On Christmas Eve, 2002, Mr. Woollard and his family were attacked in a home invasion by a burglar. He and his family finally subdued the intruder and had to wait  2 1/2 hours for the police to arrive. The police were confused as to whether he was in Baltimore County or not. The home invader was convicted of 1st Degree Burglary and given a sentence of three years probation.

Mr. Woollard was granted a handgun carry permit after this incident. His permit was renewed in 2005 after the home invader (who lives a mere three miles from him) was released from prison on probation violation charges. When Mr. Woollard went to renew his permit in 2009, he was denied a renewal because he didn’t provide proof that he was in danger. He appealed this denial to the Handgun Permit Review Board. They affirmed his denial saying “has not submitted any documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun.”

The lawsuit is suing the Maryland State Police and the Handgun Permit Review Board on Second and Fourteenth Amendment grounds. The suit contends,

28. Individuals cannot be required to prove their “good and substantial reason” for the exercise of fundamental constitutional rights, including the right to keep and bear arms.

29. Individuals cannot be required to demonstrate that carrying a handgun is
“necessary as a reasonable precaution against apprehended danger,” or that they face a greater than average level of danger, as a prerequisite for exercising their Second Amendment rights.

30. Maryland Public Safety Code § 5-306(a)(5)(ii)’s requirement that handgun carry
permit applicants demonstrate “good and substantial reason to wear, carry, or transport a handgun, such . . . that the permit is necessary as a reasonable precaution against apprehended danger,” violates the Second Amendment to the United States Constitution, damaging Plaintiffs in violation of 42 U.S.C. § 1983.

The suit seeks to permanently enjoin the Maryland State Police and Handgun Permit Review Board from requiring a showing of “apprehended danger as well as “from denying a permit to carry firearms on grounds that the applicant does not face a level of danger higher than that which an average person would reasonably expect to encounter.” The suit is also asking for Mr. Woollard’s permit to renewed, cost of the suit, and attorney’s fees.

I see this lawsuit as well as the Westchester County, NY case as a direct frontal assault on “may issue” states. A win in either or both of those cases would mean that one doesn’t have to be rich, famous, or well-connected in order to secure a carry permit.

The whole complaint can be found here.

UPDATE: Dave Hardy at the Of Arms and the Law blog has a very perceptive observation.

And to think — it was only a few years ago that Brady and others were suing gun manufacturers right and left, as part of a campaign to bankrupt the industry, a campaign that had a good chance of succeeding. Today, they’re on the defensive (to the extent they act at all) and the progun side is on the offense. Since almost all of it has occurred over the last month or so, it’s more than an offense, it’s a legal blitzkrieg.

 UPDATE II: Sebastian at Snowflakes in Hell makes a very good point about Maryland. It is in the 4th Circuit but is the outlier in terms of concealed carry. The other states in the 4th Circuit – Virginia, West Virginia, and the Carolinas are all “shall issue” states.

UPDATE III: The Baltimore Sun didn’t even cover this in today’s paper. The Washington Post did have a story but it was buried on page B6. I’m sure they be screaming bloody murder if and when Woollard wins.