Goldrush: Woolard v. Sheridan Not Such a Big Win

A TTAG commentator published this under one of our posts. As of this morning, I’ve learned that he is not the author. I’m contacting the copyright holder for permission to use the material. I apologize for any inconvenience or misunderstanding this may have caused.

Woolard v. Shedian was not really a great win. Read the opinion, and see what, really, we won. Sadly, our wins are having an ever narrowing scope of success. This “favorable” ruling contains much adverse language. Problems . . .

1. The Appellate Court in the 4th may reverse, though this is unlikely, since the holding is so weak.

2. If upheld by the S.C., at best, this may have swatted down some “shall issue,” so look for states to sharpen their issue language or dump permits, altogether, and allow carry only to narrow statutory classes.

3. If the case never makes it to the S.C., look for other states to ignore it. Additionally, other states are unlikely to have 1:1 language with Maryland, so look for potentially affected states to claim their language is different, thus falling outside the holding.

4. The case is utterly silent on non-permit carry, even suggesting that permits are well and good for states to require. If this case becomes binding on MD, their absolute right to RKBA has not been recognized. Their right is subject to the state legislature first enacting a permit scheme.

5. Per the court, the MD legislature may merely alter its criteria slightly, leaving intact “shall-issue” and forcing another, likely unsuccessful, lawsuit.

6. The Court violently refused to place the First and Second Amendments on the same footing, citing no authority, merely cheapening the 2A by force.

7. “Intermediate scrutiny” is barely protection against overreach and encroachment.

8. We now have a disastrous doctrine of “core” and “non-core” Second Amendment exercise.

In Heller and McDonald, Gura fought a city. Fighting states will be far tougher, and the Federal courts are going to be extremely unwilling to trod underfoot state sovereignty.

We don’t need more “favorable” rulings like this.

From Woollard v. Sheridan:

“[T]his Court is mindful of Judge Wilkinson‘s admonition that one should venture into the unmapped reaches of Second Amendment jurisprudence only upon necessity and only then by small degree.”

“States have considerable latitude to channel the exercise of the right [to keep and bear arms] in ways that will minimize th[e] risk [of misuse].”

“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.”

“Heller‘s definition of one of the Amendment‘s central terms, bear, further suggests that the right, though it may be subject to limitations, does not stop at one‘s front door.”

“Finally, the Court does not speak to Maryland‘s ability to declare that a specific applicant is unfit for a permit because of some particular aspect of the applicant‘s character or history.”

“[T]here are two ways of conceptualizing presumptively lawful restrictions. First, these restrictions may be so ingrained in our understanding of the Second Amendment that there is little doubt that they withstand the applicable level of heightened scrutiny. Alternatively, the right itself can be seen as failing to extend into areas where, historically, limitations were commonplace and well accepted.”

“Woollard argues that, because the right to keep and bear arms is ―fundamental within the meaning of Fourteenth Amendment jurisprudence, the challenged law must be given the most exacting scrutiny. See Clark v. Jeter, 486 U.S. 456, 461 (1988).

Of course, to accept this theory would be to erase, in one broad stroke, the careful and sensible distinctions that the Fourth Circuit and other courts have drawn between core and non-core Second Amendment protections and to ignore the principle that differing levels of scrutiny are appropriate to each. The Court declines such an approach.”

“Those courts that painstakingly developed and expounded the prior restraint analysis on which Woollard relies today surely did not have Second Amendment challenges in mind when they did so.” – Because courts don’t think all rights are equal.

“This Court shares that view. The Supreme Court‘s choice of phrasing connotes that the restrictions it termed presumptively lawful pass muster under a heightened standard of review.” – How dictum becomes law. Thanks, Scalia.

I guess i need to read the opinion again. Not to be the turd in the punchbowl, but it doesn’t read near as positive as everyone is suggesting.

comments

  1. avatar GS650G says:

    I guess they could have gone the other way and said they had to right to do whatever they felt like and left it at that.

    1. avatar ScottH says:

      I’m not suggesting this is a loss for us, only that there are problems with the decision. I like them brief without wiggle room for ‘strategic’ misinterpretation by our enemies. For instance, we have to waste time arguing that the 2nd applies outside the home, when Heller could have said more than just “most notably in the home.”

      I’d prefer the courts render the 2nd under ‘Strict scrutiny;’ In other words, be forced to decide issues in the most rigorous way. Instead we got Intermediate Scrutiny ‘which may just leave whatever issue subjective by how far, or close the issue is to the core meaning of the 2nd.

      Don’t get me wrong, ‘Intermediate scrutiny’ is certainly better than ‘Rational basis.’ Under rational basis ANY gun control law would stand.

      The level of scrutiny is a question which hasn’t been before the court yet. That issue, probably within some carry case will probably be next.

      1. avatar Glen says:

        The Supreme Court specifically rejected a “tiered scrutiny” analysis for the Second Amendment. Sadly, that hasn’t stopped lower courts from obsessing over meaningless terminology, nor does it allow district judges to ignore relevant precedents in their own circuit. Judge Legg did the best he could given the constraints he was under.

        The uneven progress of the Second Amendment in the courts is mostly self-inflicted. Poorly conceived actions have resulted in adverse decisions that are now binding precedents. Wishful thinking and unrealistic expectations have led many to ignore basic principles of sound litigation in the “rush to cert.” And with a very few exceptions (most notably by Alan Gura), the quality of representation has simply been inadequate.

        Just because a court opinion isn’t to one’s liking doesn’t make the judge evil, ignorant or hopelessly opposed to guns. Not every bad law will be overturned in the courts. For example, permits are not incompatible with civil rights, and those who expect the courts to recognize something called “Constitutional Carry” are guaranteed to be disappointed.

        Most of the time, court decisions are based solely upon the arguments and evidence presented and on controlling precedent. Plaintiffs and their representatives have almost unlimited control over their cases. In any loss, introspection is demanded. Unfortunately, in too many Second Amendment cases, we instead hear bluster and invective accompanied by fundraising appeals and promises to “fight onward and upward.”

  2. avatar Tom says:

    They could have ruled that the 2A applies only to the National Guard. An Anti favorite.

    1. avatar ST says:

      Scott H. is correct in that this ruling is at best neutral to the cause of the 2nd Amendment.

      From the Opinion:

      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.” See Kuck v. Danaher, No. 3:07cv1390(VLB), 2011 WL
      4537976 at *11 (D. Conn. Sept. 29, 2011).
      Rather, the regulation at issue is a rationing system. It aims, as Defendants concede,
      simply to reduce the total number of firearms carried outside of the home by limiting the
      Case 1:10cv02068BEL
      Document 52 Filed 03/02/12 Page 18 of 23
      19
      privilege to those who can demonstrate “good reason” beyond a general desire for self-defense.

      In real life words, the courts problem with Maryland’s restriction is not that there is one at all-which is OUR issue-but that the catchall phrase “A good cause beyond general self defense” doesn’t define anything. Had Maryland stated the applicant needed to show good cause to prevent firearms trafficking because mass issuance of permits would do so, that establishes a public good which according to the court would be a just reason to limit the 2nd Amendment.

      Bottom line, a state can pass any law they want to restrict or deny CCWs to anyone they see fit-as long as that reason has a concrete foundation in preventing a public safety threat. Say, if Los Angeles Sheriffs Dept. generates a statistic that people with a net worth over $1,000,000 a year don’t perpetrate crime as much, they are thus justified in denying concealed carry permits to anyone under that income.

      1. avatar pcrh says:

        Bottom line, a state can pass any law they want to restrict or deny CCWs to anyone they see fit-as long as that reason has a concrete foundation in preventing a public safety threat. Say, if Los Angeles Sheriffs Dept. generates a statistic that people with a net worth over $1,000,000 a year don’t perpetrate crime as much, they are thus justified in denying concealed carry permits to anyone under that income.

        Not even close. The law that was struck down was more permissive than that, and it didn’t survive intermediate scrutiny.

  3. avatar Stephen says:

    Well, given the fact that Maryland’s constitution has no equivalent to the 2A, any case that can finally get the Supremes off the dime on strict scrutiny and what ‘bearing’ arms is would be most welcome.

    In and of itself, yes, not that great a decision. Given the current state of RKBA in Maryland, its value will be in the SCOTUS decision it eventually engenders (G-d willing).

  4. avatar Ropingdown says:

    A Federal District Court judge does not have the freedom to ignore Supreme Court precedent, and they didn’t. That wasn’t an option. What they did do was highlight some of the remaining fog after Heller and McDonald as to the standard of review where a challenged law or state action burdens free exercise of the 2A rights. It will take time. A District Court is not the place to pronounce new law with emphatic force, but is instead the place to decide ripe cases based on settled law, letting the appeals process lead to clarification of “what the law is” where that law is being re-evaluated in light of possible infelicities of interpretation in prior otherwise-binding case law.

    1. avatar DaveL says:

      I agree. Let’s not indulge in the nihilism of idealism here; for the court where this was tried and the questions of law at issue this is a good result. It makes no sense to complain that the judge declined to expand his decision beyond the scope of the case, or that he failed to erase distinctions made in the case law, or that other circuits won’t use it as binding precedent. That’s just judges doing their jobs.

      And I still think it’s naive to think you can just import 1st Amendment case law wholesale into 2nd Amendment cases. Incarcerated criminals have a protected 1st Amendment right to practice their religion – should we apply the same standard and say they also have the right to carry loaded firearms? I think that argument was something of a Hail Mary on the part of the plaintiff.

      1. avatar ScottH says:

        As much as I would like to disagree, you are probably right that the court will settle on ‘intermediate scrutiny,’ instead of ‘strict scrutiny.’ Unlike the 1st, the 2nd will always be different in that there is an immediate potential for violence.

        In the end, widening 2A freedoms is still a cultural war. Regardless of the inroads we have made over the last couple of decades, we still must be able to convince Judges who may not be 2A advocates.

        1. avatar HSR47 says:

          Actually, the bit in the ruling about the government being able to deprive a man of the ability to exercise his rights if the government can supply a good enough reason would seem to counter your argument against strict scrutiny.

          To wit, if someone is incarcerated, especially due to the commission of acts of violence against others, the government would have a valid argument for depriving him of his RKBA, at the very least for the duration of his incarceration.

  5. avatar jkp says:

    I guess you can always count on a true gun aficionado to look at a court decision that takes five steps forward, and moan about how it’s really a defeat because it didn’t take thirty steps.

    1. avatar MadDawg J says:

      I like the choice of quoting the start of a statement, but not the end of it. Having studied court decisions for 15 years this is how every court decision is writen if it is to stand up to appeals.

  6. avatar Ropingdown says:

    It is also worth noting what the Court DID say in Woolard: That a citizen may not be forced to offer a so-called ‘good’ or ‘substantial’ reason to carry, given that that it is, after all, a right. The Court did hold that the restrictions in place were not sufficiently narrowed to withstand scrutiny, and held that the right necessarily extends outside the home for self-defense, militia, or hunting purposes. Most important, it seems to me, the Court’s holdings are in conflict with holdings from other jurisdictions (i.e. CA), which makes the issues in the case especially ripe for appellate adjudication.

    1. avatar MadDawg J says:

      +1

    2. avatar Mike OFWG says:

      And I thought distributed computing was convoluted. Thank goodness there are some folks here who understand this bullshit legalese.

  7. avatar Elliotte says:

    Actually for those of us in Maryland it is a big deal. The way the law is currently written, a person applying for a concealed handgun permit must show that they have a “good and substantial” reason for getting a permit. Accepted reasons according to the state include being politically connected, regularly making large cash deposits as a part of your work (in which case the permit is only valid going to and from the bank), and in a few rare cases if you have received multiple, documented (with police reports) threats against your life, then you might be eligible. In the case of Mr. Woolard he initially received a permit, but was denied when he attempted to renew the permit because he could not show he had been subject to threats occurring beyond his residence.

    Yes this court case may (and probably will) be appealed, but a win is a step in the right direction and it is important to keep moving in the right direction. In many situations the Supreme Court and other courts have either refused to hear a case or refused to address the 2A aspects of the case. ScottH may have missed it in his reading of the ruling, but Judge Legg does state:

    “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.”

    1. avatar ST says:

      The other edge of the sword is that Maryland-and other states-are free to restrict issuance of concealed carry permits as they see fit so long as the rationale has a foundation in the grounds of “public safety”.

      Thus, what will likely happen in MD and other areas with that policy is that instead of the citizen needing to show “good cause” for issuance of a permit, they must instead submit a demographic statement which the State Police can then use to ‘profile’ the applicant. If the profile fits a potentially criminal metric,hello large red DENIED stamp.

      “Applicant Elliotte is denied a concealed weapons permit, as the applicant posts on a firearm blog on the internet. Because terrorists associated with Al Qeida and Hamas utilize similar methods for communication with the intent on committing criminal acts of terrorism, the State finds that the Applicant shares traits with violent terrorists and thus is not fit to possess a license to carry”

  8. avatar JP in Tennessee says:

    http://www.denverpost.com/breakingnews/ci_20104814

    THIS is a win for gun rights!

    1. avatar Ropingdown says:

      If you live in Colorado, it’s a win. It has no implications for other jurisdictions. No federal laws or constitutional issues were involved. Nice to see students active and persistent in upholding their statutory Colorado rights, though.

  9. avatar Ralph says:

    God bless ya, ScottH. Only a true gunny could find a defeat in a victory.

    I learned this many centuries ago in law school: The rationale of the decision is nowhere near as important as the holding.

  10. avatar bobby b says:

    ScottH, I think you might be allowing your Inner Pessimist too much leash here. That’s understandable given what a struggle it seems to have been to get as far Constitution-wise as we are today, and it doesn’t help that the Court wrote about three times as many words as this opinion really called for. (Trying to define in writing exactly what you’re NOT saying usually doesn’t help clarity, as I hope this judge now recognizes.)

    He took far too many pages to say this:

    Heller has told us that the Second Amendment right to keep and bear arms refers to each of us individually, not merely as some unspecified arm of the state such as a militia. Further, Heller speaks clearly of how this right applies unquestionably in our homes, but with somewhat less forcefulness elsewhere. Elsewhere, the state may place limitations on our “bearing” of guns that are “reasonable and needed.” By the Supreme’s allowance of such regulations, we understand that such regulations are to be examined using intermediate scrutiny. The higher “strict scrutiny” test usually means that very few, if any, burdens may be placed on a right, and the Supremes made it clear that they thought that quite a few regulations might be acceptable when it comes to guns.

    And then the judge made most of that analysis moot by deciding that the state cannot burden a constitutional right by placing the burden on us to prove we should be allowed to exercise the right. Instead, it is the state’s burden to show that it is reasonable and necessary for the public good that we NOT be able to exercise that right.

    So, the state can insist that we fill out their forms, and then, if they discover that we’re ex-felons, or if they discover some other reason that satisfies some objective criteria, they can refuse to give us a permit. But they cannot sit back and say “go ahead, prove to me that you need a gun.” The Right belongs to us; it is the State’s burden to justify denying us the right.

    And the judge said, about six times, that “I’m not deciding anything else but this”, which helps greatly when someone tries to use his dicta later.

    So I think this is all Good. I don’t think it’s Very Good, since it will have little application elsewhere, but it was one small move in the right direction somewhere.

  11. avatar Gene Hoffman says:

    Yep. Striking down a gun control law is not such a big win…

    Striking down the first may issue carry law is not such a big win…

    You know what else wasn’t such a big win at first?

    Palmer v. DC.

    You now know it as Heller.

    No other judge has to be the first to find a right to bear arms outside the home after today.

    Not so big my…

    -Gene

    1. avatar ST says:

      Not to assume the role of Vice President of the Glass Half Empty Club, but after reading the opinion the statement of the 2nd Amendment applying outside the home is not so magnificent of a victory as we would wish it to be.

      It is a good thing, to be sure, but its a determination that was inevitable.As the Opinion states, the classic interpretation of the 2nd Amendment as a protection for a government regulated militia and for hunting only makes sense in a context that applies *outside* the home, because militias don’t practice in living rooms.The disarmament lobby now can take a different path to take in limiting our rights, as the ‘government’ has a recognized interest in public safety via this Opinion. Brass tacks, gun control of any kind is now kosher as long as it conforms with some system of enhancing public safety in a concrete way.

      There are some good developments in this ruling , but there are some poisonous pills to swallow with this development which are being ignored in the hosannahs regarding the 2a applying outside of the home.

    2. avatar ScottH says:

      If Heller had been a little less vague (…..most notably in the home…), we wouldn’t have had to fight broadening 2a protections to include outside the home. Its the inevitable understanding (from our point of view), but it shouldn’t have been necessary in the 1st place. That’s the point.

      And Gene, what’s it been? 25 months and 2 judges later since the Palmer orals. When’s that decision going to be released? 2 weeks or 20 years?

  12. avatar paschke789 says:

    goldrush is that you? lol

  13. avatar jkp says:

    Going forward…can we have fewer blog posts on TTAG about court decisions or statutes by people who haven’t been vetted?

    It’s one thing for people to offer reviews on guns, training courses, or whether or not Kelly Bachand should have to go to the elimination round in TOP SHOT this week again….but the law is complicated enough without having to sift through garbage posts about it.

    1. avatar ScottH says:

      Attacking the person over addressing the points is a typical strategy employed by people with nothing to say.

      I find we 2A advocates often live inside our own bubbles reinforcing our own belief system. This is common enough on forums. If the points made are invalid, (and they may very well be), then it should be simple enough to point out which and where.

      1. avatar jkp says:

        ScottH,

        I am not particularly interested in reading half-assed opinions on case law from people for whom ‘research’ equates to copying and pasting an article without attribution. I can get that by going to one of the many fine firearms-related fora that exist nowadays.

        No sir, I come to TTAG expecting at least a three-quarters-assed opinion!

  14. I feel that in order to get Kennedy to go along, the other 4 SC Justices had to water down the Heller decision. It left so much wiggle room that the anti-gun people who have been miss-interpreting the Miller decision for so long are now able to limit 2A rights to home only by claiming that the Heller decision only relates to the home even though it states that we have a natural right of self-defense and I feel that should include outside the home.

  15. avatar Gene Hoffman says:

    The judge who was handed the Palmer case to offload the previous judge got handed cases with worse timelines than Palmer. One is 6 years old.

    Second oral argument (which is rare) in Peterson v. Denver Sheriff is next Monday. It will be a case where the 3 judge panel doesn’t have to be the first to strike down a carry law.

    -Gene

  16. avatar pcrh says:

    2. If upheld by the S.C., at best, this may have swatted down some “shall issue,” so look for states to sharpen their issue language or dump permits, altogether, and allow carry only to narrow statutory classes.

    I don’t think the opinion supports this. “Maryland’s goal of ‘minimizing the proliferation of handguns among those who do not have a demonstrated need for them,’ is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly.” I read this to deny the “narrow classes” approach. Maryland’s law tried to describe “good and substantial reason” to carry a gun as limited to: business activities that had risk (like carrying lots of money), regulated professions (like security guards), professions that assume risk (like law enforcement), and “personal protection”. A law that tried to limit carrying to narrow statutory classes would be even more strict than the Maryland’s law, which had a catch all category of “pesonal protection.” And even that was not broad enough to survive the scrutiny the court applied. I don’t think the opinion supports the idea that they could have issued permits to an even narrower class.

    3. If the case never makes it to the S.C., look for other states to ignore it. Additionally, other states are unlikely to have 1:1 language with Maryland, so look for potentially affected states to claim their language is different, thus falling outside the holding.

    True, but this doesn’t narrow the 2A protections. It just means the fight isn’t over. And, this case gives weight that statutes that attempt to force citizens to justify why they should be able to carry are unconstitutional. The court said, “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.”

    4. The case is utterly silent on non-permit carry, even suggesting that permits are well and good for states to require. If this case becomes binding on MD, their absolute right to RKBA has not been recognized. Their right is subject to the state legislature first enacting a permit scheme.

    Completely unsupported by the opinion. The writer here suggests that the case could be interpreted to mean that you can’t carry unless the state first enacts a permit scheme. The case absolutely does not stand for this proposition.

    6. The Court violently refused to place the First and Second Amendments on the same footing, citing no authority, merely cheapening the 2A by force.

    The court actually used several analogies with the first amendment. The 1A has strict scrutiny on core speech, and intermediate scrutiny on content-neutral speech restrictions (such as time place and manner restrictions). The opinion adopts a parallel structure. They first ask if the right to bear arms extends outside the home, since Heller did not specifically say it did, and Heller did seem to say that defense of home was the “core” of 2A activity. But the court reads “bear” arms as meaning you can carry them outside the home, so this case expands the 2A jurisprudence in that way, at least. It then applies intermediate scrutiny (instead of strict scrutiny) to laws that limit 2A activities outside the home.

    While this isn’t as good as if they’d adopted strict scrutiny, it tracks with 1A legal analysis. Some speech receives strict scrutiny protection; other speech can be limited using only intermediate scrutiny. They also reference 1A activities in developing their 2A analysis.

    Admittedly, the court declined to adopt the plaintiff’s “prior restraint” analysis from 1A law. In that way, they don’t exactly run parallel to 1A analysis. But for the most part, they seem to use 1A analysis to guide their 2A analysis.

    7. “Intermediate scrutiny” is barely protection against overreach and encroachment.

    Intermediate scrutiny is much better than “rational basis” review, which is what the state argued for. The court pretty soundly rejected that, which is a victory. Again, they could have gone with strict scrutiny, which would have been better, but since no court had ever ruled on this, it is hard to argue this is a narrowing of 2A rights. Intermediate scrutiny definitely makes it harder to pass laws limiting the right than rational basis review. The court used intermediate scrutiny to reject the state of Maryland’s law in this case, for example. So to say it is “barely protection” is a bit of a stretch. The plaintiffs won, after all, and the law was struck down, under intermediate scrutiny.

    8. We now have a disastrous doctrine of “core” and “non-core” Second Amendment exercise.

    We had that since the Heller decision. This isn’t new. We also have that in 1A law, and in other areas.

    Overall, this seems like a solid, if not overwhelming, victory for 2A advocates. The use of rational basis review (which was the real question in the case–which standard of review to apply to carrying guns outside the home), would have been a loss. Intermediate scrutiny is what I expected them to adopt. Strict scrutiny was never really a possibility for carrying guns outside the home. The first amendment doesn’t even enjoy strict scrutiny in all cases.

    Sorry for the long post, I just couldn’t get over the negative, and sometimes outright flawed, analysis that was posted.

  17. avatar pcrh says:

    6. The Court violently refused to place the First and Second Amendments on the same footing, citing no authority, merely cheapening the 2A by force.

    The court actually used several analogies with the first amendment. The 1A has strict scrutiny on core speech, and intermediate scrutiny on content-neutral speech restrictions (such as time place and manner restrictions). The opinion adopts a parallel structure. They first ask if the right to bear arms extends outside the home, since Heller did not specifically say it did, and Heller did seem to say that defense of home was the “core” of 2A activity. But the court reads “bear” arms as meaning you can carry them outside the home, so this case expands the 2A jurisprudence in that way, at least. It then applies intermediate scrutiny (instead of strict scrutiny) to laws that limit 2A activities outside the home.

    While this isn’t as good as if they’d adopted strict scrutiny, it tracks with 1A legal analysis. Some speech receives strict scrutiny protection; other speech can be limited using only intermediate scrutiny. They also reference 1A activities in developing their 2A analysis.

    Admittedly, the court declined to adopt the plaintiff’s “prior restraint” analysis from 1A law. In that way, they don’t exactly run parallel to 1A analysis. But for the most part, they seem to use 1A analysis to guide their 2A analysis.

    7. “Intermediate scrutiny” is barely protection against overreach and encroachment.

    Intermediate scrutiny is much better than “rational basis” review, which is what the state argued for. The court pretty soundly rejected that, which is a victory. Again, they could have gone with strict scrutiny, which would have been better, but since no court had ever ruled on this, it is hard to argue this is a narrowing of 2A rights. Intermediate scrutiny definitely makes it harder to pass laws limiting the right than rational basis review. The court used intermediate scrutiny to reject the state of Maryland’s law in this case, for example. So to say it is “barely protection” is a bit of a stretch. The plaintiffs won, after all, and the law was struck down, under intermediate scrutiny.

    8. We now have a disastrous doctrine of “core” and “non-core” Second Amendment exercise.

    We had that since the Heller decision. This isn’t new. We also have that in 1A law, and in other areas.

    Overall, this seems like a solid, if not overwhelming, victory for 2A advocates. The use of rational basis review (which was the real question in the case–which standard of review to apply to carrying guns outside the home), would have been a loss. Intermediate scrutiny is what I expected them to adopt. Strict scrutiny was never really a possibility for carrying guns outside the home. The first amendment doesn’t even enjoy strict scrutiny in all cases.

    Sorry for the long post, I just couldn’t get over the negative, and sometimes outright flawed, analysis that was posted.

  18. avatar Mark N. says:

    I think the case is huge for several resons. First, and as many have adverted, it is the first case that expressly recognizes a right to bear arms outside the home. This is particularly significant in that this was a Md case, and remember that the MdSupreme Court expressly REJECTED such a suggestion in a prior case, holding that if the SCOTUS had intended to recognize a right to bear arms outside the home it had better say so in plainer language. Although the MdSupreme Court was undoubtedly wrong, its opinion reveals the antipathy that it holds to gun rights.
    Second, the district court rejected the typical government platitude that the interest in public safety is enough to warrant regulation of the carrying of weapons outside the home, a ploy that has prevailed twice in district courts here in California (Birdt and Peruta, both of which are on appeal to the Ninth Circuit). In the Birdt case, for example, plaintiff established testimony that the only reason the LAPD and LASO severely restrict concealed weapons permits is the belief that “more guns = more crime”, i.e., that reducing the number of lawfully carried firearms in public will somehow reduce the risk of violent crime. Birdt also proved that there isnot a single study that supports this belief–and in fact the studies that have been done refute it. The court in Birdt didn’t care, and , even though ruling in the context of a motion for summary judgment with conflicting expert testimony, held that the state’s/city’s/county’s interest in public safety was enough to trump the right to carry concealed firearms. (Birdt, it should be noted, was decided after a new statute went into effect that barred UOC, adding to the previous ban on LOC. Now, except for unloaded rifles, it is illegal to carry a firearm in any urban area of the state without a CCW. And in all urban areas other than Sacramento, permits are rarely issued.)
    Third, and most importantly, this case shifted the burden of proof from the applicant to the state. Whereas in “may issue” states citizens had to demonstrate a need to carry other than for personal protection, now it is the burden of the state to prove that the citizen should be barred from carrying. A right to carry a weapon is presumed from the existence of the right itself. Gotta love it.

  19. avatar Paul says:

    This was a huge win. If you are upset that this opinion did not endorse permitless “constitutional carry”, get over it. There will never be such an endorsement from a court of law, and with good reason. The imposition of training requirements and background checks for carry in public is completely consistent with Heller and makes good sense to boot. If certain states want to allow permitless carry, more power to them. But for those few remaining “may issue” states, we can at least now hope and expect that the arbitrariness and unfetterred discretion associated with “justifiable need” and “good cause” will go out the window.

  20. avatar Fred says:

    Another reference,
    http://www.baltimoresun.com/news/maryland/bs-md-gun-law-appeal-20120306,0,6673248.story
    with a comment by by Eugene Volokh, a well-respected constitutional law expert, ” these cases have tended to come from high-control states.”

    There is hope for California….

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