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.