May-Shall Romance

5 03 2012

WBZ-CBS-13 Baltimore:

Md. Gun Law Found Unconstitutional

BALTIMORE (AP) — Maryland’s requirement that residents show a “good and substantial reason” to get a handgun permit is unconstitutional, according to a federal judge’s opinion filed Monday.

States can channel the way their residents exercise their Second Amendment right to bear arms, but because Maryland’s goal was to minimize the number of firearms carried outside homes by limiting the privilege to those who could demonstrate “good reason,” it had turned into a rationing system, infringing upon residents’ rights, U.S. District Judge [*****] wrote.

“A citizen may not be required to offer a `good and substantial reason’ why he should be permitted to exercise his rights,” [s/he] wrote. “The right’s existence is all the reason he needs.”

Plaintiff Raymond Woollard obtained a handgun permit after fighting with an intruder in his Hampstead home in 2002, but was denied a renewal in 2009 because he could not show he had been subject to “threats occurring beyond his residence.” Woollard appealed, but was rejected by the review board, which found he hadn’t demonstrated a “good and substantial reason” to carry a handgun as a reasonable precaution. The suit filed in 2010 claimed that Maryland didn’t have a reason to deny the renewal and wrongly put the burden on Woollard to show why he still needed to carry a gun.

“People have the right to carry a gun for self-defense and don’t have to prove that there’s a special reason for them to seek the permit,” said his attorney Alan Gura, who has challenged handgun bans in the District of Columbia and Chicago. “We’re not against the idea of a permit process, but the licensing system has to acknowledge that there’s a right to bear arms.”

The lawsuit, which names the state police superintendent and members of the Handgun Permit Review Board, was also filed on behalf of the Bellevue, Wash.-based Second Amendment Foundation.

Maryland’s Attorney General’s office was still reviewing the opinion and declined to comment immediately.

Many states require gun permits, but Illinois has a ban and six states, including Maryland, issue permits on a discretionary basis, Gura said. In most of those states, these challenges have not succeeded in U.S. District Courts, but they are being appealed, he said.

“Most states that choose to regulate the right to bear arms have licensing systems that are objective and straightforward,” Gura said. “That’s all that we want for Maryland.”

This might be precedent that ends the “May Issue” CCW paradigm.  Either a state will have to go “Shall Issue” or “No Issue.”

I’m having problems finding a PDF of the judge’s ruling, (help me if you can), but just reading between the lines of the the way this news source is covering it, the judge is saying that the 2nd Amendment doesn’t require a state to have CCW.  But if a state does CCW, then it can’t do “May Issue” because the discretionary powers that the “May Issue” paradigm gives to permit-granting authorities is a form of unconstitutional prior restraint against the 2nd Amendment, and/or that it violates the substantive due process implied the 5th Amendment, and/or it’s unequal treatment of individuals in violation of the 14th Amendment.

I can dig all that, but then there’s also the 10th Amendment.

On top of that, my fear is that most states who do May Issue will switch to No Issue instead of Shall Issue should this precedent take root.

UPDATE 3/6

RJP posted the PDF below in the comment section.  As it turns out, this ruling wasn’t the profound “civil rights” victory that Instapundit/Eric S. Raymond/Eugene Volokh/NRA/SAF would make it out to be.  The judge explicitly said “No” to a prior restraint challenge or a 14th Amendment challenge, and substantive due process wasn’t even on the table, even though it was hinted around in the reasoning the judge ultimately used.  Instead, the judge used the intermediate scrutiny test of the 2nd Amendment to find one part of one state’s “May Issue” CCW scheme unconstitutional.  The judge in fact endorsed all the other discretionary powers of the rest of Maryland’s “May Issue” scheme with the same intermediate scrutiny test.  Therefore, this is hardly a precedent-setting ruling that will change much of anything in Maryland or other “May Issue” states.

The judge is a Bush 41 appointee, and Republican judicial appointees on the Federal trial level are loath to make serious precedent with their decisions, they leave that to the Appellate judges and SCOTUS.

About these ads

Actions

Information

One response

6 03 2012



Follow

Get every new post delivered to your Inbox.

Join 1,716 other followers

%d bloggers like this: