Supreme Court Decides Not To Hear Carry Case

The US Supreme Court today denied certiorari to Raymond Woollard in his challenge to the state of Maryland’s “good and substantial reason” requirement for a carry permit. While he had won at the District Court stage in a surprising decision, the 4th Circuit Court of Appeals ruled in Maryland’s favor on their appeal using intermediate scrutiny.

From the Baltimore Sun summation of the chronology of events:

Among the subsequent cases was the challenge to the Maryland permit law, originally brought by Raymond Woollard. The Baltimore County resident had twice been given a handgun permit after his son-in-law broke into his home on Christmas Eve 2002. But when Woollard applied to renew the permit in 2009, state police decided the threat against him had passed and declined the application.

Woollard sued over the denial of his application and a federal district judge struck down the permitting law last year. The 4th U.S. Circuit Court of Appeals overturned that decision, ruling that the law is reasonably adapted” to the state’s “significant interests in protecting public safety and preventing crime.”

In asking the Supreme Court to have the final say, Woollard’s lawyers said the issues at stake were broad and involved questions that were not spelled out in the Heller ruling.

The appeals court that upheld Maryland’s law found that “the Second Amendment has no practical impact beyond the threshold of one’s home,” attorney Alan Gura wrote in a court filing.

But he said other federal courts have reached different conclusions, including a ruling from the 7th U.S. Circuit Court of Appeals that “asserts that the right is equally important outside the home as inside, and should (subject to regulation) be generally accessible to law-abiding individuals.”

Gura urged the Supreme Court to sort out the issue once and for all.

Maryland’s lawyers argued in court filings in response that the case was a simple question of the appropriate state regulation of firearms and did not warrant a look by the high court.

Maryland Attorney General Doug Gansler, who is now running for governor of the state with a running mate who describes herself as “Trayvon Martin’s Mom”, was pleased with the decision of the Supreme Court saying it would make Maryland a safer place.

In related news from little more than a month ago, Kris Lee Abbott was found dead of a self-inflicted gunshot wound after he had attacked his parents and his estranged wife. Abbott was the son-in-law of Raymond Woollard whose attack led to Maryland initially issuing a carry permit to Woollard.

I quite agree with Bitter’s comment on the denial of cert.

The fact that the Supreme Court is completely unwilling to protect your right to actually bear the arms instead of just keeping them should motivate gun owners to get involved in the political fights. It is absolutely clear that you cannot count on the courts, and elections have consequences.

One need look no further than the potential Democratic nominee for governor and his running mate in Maryland. I doubt you could get two more anti-gun politicians on a ticket together unless you found a way to pair Michael Bloomberg with Dianne Feitnstein.

In Gun Rights Litigation News

It has been a busy day for gun rights litigation. On the down side, the 4th Circuit Court of Appeals overturned the decision in Woollard v. Gallagher which had overturned the State of Maryland’s “good and substantial reason” requirement for the issuance of a carry permit. In brief, that court found that Maryland’s interest in public safety met the standards of intermediate scrutiny.

I have not read the full decision so I will defer to Professor Eugene Volokh and Second Amendment attorney Dave Hardy for their learned commentary on the decision.

First, Prof. Volokh:

The court claims that it’s not deciding whether the Second Amendment right to keep and bear arms in self-defense extends to carrying a gun outside the home. Rather, the court concludes that, even if such a right exists, Maryland’s licensing scheme — which requires a “good and substantial” reason for a license to carry and which doesn’t treat a general desire for self-defense as an adequate reason — passes intermediate scrutiny.

But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.

Next, Dave Hardy:

 I cannot think of any other right considered a fundamental right, whose
exercise can be (1) punished unless the person receives a government
permit and (2) there are no standards for the permit issuance beyond a
government official’s feelings.

I quite agree with Sebastian that this one is destined for the Supreme Court. This combined with Kachalsky and the twin Illinois cases of Shepard v. Madigan and Moore v. Madigan present a split between the circuits. There is no word yet from the Second Amendment Foundation or Alan Gura but I cannot believe they won’t appeal.

In more positive news, word comes from Louisiana that the state’s felon in possession law was struck down as violating strict scrutiny. In November 2012, the voters of Louisiana overwhelmingly adopted a provision to their state constitution that said,  “The right of each citizen to keep and bear arms is fundamental and shall
not be infringed. Any restriction on this right shall be subject to
strict scrutiny.”

Finally, the NY State Rifle Association – the NRA’s affiliate in that state – along with a number of other organizational and individual plaintiffs filed suit in US District Court for the Western District of New York challenging the new NY SAFE Act. The defendants include Gov. Andrew Cuomo and Attorney General Eric Schneidermann among others.

The suit seeks a declarative judgement and injunctive relief based upon the law violating the right to keep and bear arms under the 2nd and 14th Amendments, the equal protection clause of the 14th Amendment, the Dormant Commerce Clause, Article I, § 8 of the Constitutions, and the due process clause of the 14th Amendment.

The lead attorney in the lawsuit is noted Second Amendment attorney Stephen Halbrook. The complaint can be found here.

Busy Week For Alan Gura

This has been a busy week for Alan Gura. He has had not one but two oral arguments on back to back days before the 4th Circuit Court of Appeals. Moreover, both cases involve gun rights.

The first case, Lane v. Holder, is a challenge to the Gun Control Act of 1968’s ban on the sales of handguns to non-residents of a state. The case was filed in 2011 and challenged the law on behalf of Michelle Lane, a resident of the District of Columbia, who had purchased two handguns in Virginia and could not pick them up there. At the time of the original filing, there was no active FFL in DC. The Second Amendment Foundation, Amanda Welling, and Matthew Welling are also plaintiffs in this case.

US District Court Judge Gerald Bruce Lee of the Eastern District of Virginia denied the motion for a preliminary injuction in July 2011. He also dismissed the case at that time. A few days later, Lane and the Second Amendment Foundation filed notice of appeal to the 4th Circuit Court of Appeals.

The oral argument in this case were on Tuesday and an audio file is available here. The case was heard by Judges Diana Gribbon Motz, Allyson K. Duncan, and Henry F. Floyd. They were appointed to the 4th Circuit by Presidents Bill Clinton, George W. Bush, and Barack Obama respectively.

The arguments presented by both Alan Gura and the attorneys for Department of Justice and the VA State Police centered primarily around the issue of standing. Does the plaintiff have standing to ask for an injunction given the Federal and state laws in question restrict the FFL? Gura argues that they do and compares this case to other cases involving interstate wine shipments and contraceptives. The Supreme Court find in those cases that the restriction of distribution channels amounted to an Article III injury or, in layman’s terms, interference with interstate commerce. The counter-arguments from the attorneys for Holder and the VA State Police argue that there is no standing for the plaintiffs. The attorney for Virginia argued that their law would be valid if the Federal law was found unconstitutional or amended. They would transfer handguns to out of state residents because the person would meet the new requirements. The Department of Justice attorney argues that the out of state residents are not harmed as they can purchase a firearm anywhere and have it shipped to an in-state FFL. She also argued that Federal law merely backs up local laws and regulations regarding handgun sales.

Much of the questioning by the judges centered around having only one dealer in DC and the fees charged by Charles Sykes. One judge, I believe Judge Duncan, brought up the Ezell case and wondered how this differed from that. This question was aimed at the DOJ attorney.

The second case, Woollard v. Gallagher, has attracted more attention because the District Court ruled against the State of Maryland’s may-issue carry laws. The State of Maryland promptly appealed and the oral arguments were present yesterday. The audio of the oral arguments should be made available on Friday. In the meantime, thanks to Sebastian, there is a link to the Baltimore Sun’s coverage of the oral arguments.

UPDATE: The Washington Post has more on the oral arguments. The 3 judge panel consisted of Judges Andre Davis (Clinton), Robert King (Clinton), and Albert Diaz (Bush 44). 

UPDATE II: The audio file for Woollard v. Gallagher has been posted. You can download or listen to it here.