JMU Board of Visitors moves forward on weapons ban regulation

Posted on April 16, 2012 by John Pierce

Wilson Hall at JMU

During a Friday April 15th 2012 meeting, the Board of Visitors of James Madison University, located in Harrisonburg, Virginia, voted to promulgate a regulation banning weapons on campus.

While the exact text of the proposed regulation has not yet been released, it reportedly closely mimics the policy previously in effect at JMU.

In replacing their policy with a promulgated regulation, JMU joins the over half-a-dozen other Virginia colleges and universities that have moved to replace policies with regulations following the opinion by Attorney General Cuccinelli that policies have no force against permit holders whereas regulations, which have the force and effect of law, trump Virginia’s concealed handgun permit law.  Attorney General Cuccinelli based his opinion on the holding in DiGiacinto v. Rector and Visitors of George Mason University and § 18.2-308(o) of the code of Virginia which states:

[t]he granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law[.]

Since properly promulgated regulations have the force and effect of law, this generalized prohibition on the otherwise broad recognition of right-to-carry by permit holders withstands judicial review according to the Virginia Supreme Court.

This trend has also been facilitated by the fact that under current law, Commonwealth operated colleges and universities are largely immune to the requirements of the Virginia Administrative Process Act.

There are three distinct legislative remedies that gun owners need to seek in upcoming legislative sessions to address this problem.

1)  Remove the generalized prohibition in § 18.2-308(o) and require all prohibitions on the right-to-carry be specifically added to § 18.2-308 by the duly elected legislature rather than by administrative agencies.

2)  Enact a code section which extends preemption to the actions of administrative agencies. Virginia already preempts localities and their agents from regulating firearms in § 15.2-915.

3)  Remove the fast track administrative powers of Commonwealth operated colleges and universities where such administrative action will impact visitors and third-parties.

Tomorrow’s column will feature proposed legislation to accomplish these goals.

Posted in Administrative Regulations, Campus Carry, Virginia | 2 Comments

Maryland returns unprocessed handgun permit applications

Posted on April 13, 2012 by John Pierce

Col Marcus Brown, Superintendent MD State Police

I wrote last week about Maryland’s appeal in the Woollard v. Sheridan case.  I also noted that Judge Legg had issued a temporary stay of the ruling pending a May 23rd final hearing on whether or not a permanent stay should be issued until the appeal is heard or rejected.

Today, I was emailed a copy of the following letter.  It was received by one of the many people who had submitted applications to the state of Maryland after the original ruling struck down the requirement that an applicant have a “good and substantial reason” to receive a handgun permit.  One would surmise that a similar letter has been sent to all of the hundreds of applicants who did likewise.

GDE Error: Unable to load requested profile.

 

The person who sent me the email asked if it would be possible to seek a writ of mandamus forcing the state to process the application.  However, if one reads the letter very carefully, you see that Maryland is not actually refusing to process the application. Rather, they are advising the applicants that, absent the “good and substantial reason” language that is once again required until either the stay is lifted or the appeals court rules, the application will almost certainly be denied.

I am of course deeply disappointed with the state of Maryland for having this requirement to begin with and for appealing Judge Legg’s original ruling striking it down. However, given these facts, I am rather pleasantly surprised that Maryland chose to return the applications along with the accompanying fees rather than simply denying them.  They could just as easily have kept the fees and summarily denied the applications,.  Based upon the history of political bias against gun owners in Maryland, I would not have been surprised at all if that were the approach they had taken.

But there may be a reason for this act of unexpected ‘generosity’ by the state of Maryland. Despite the bravado with which the state is defending their decision to appeal, many legal scholars expect Maryland to lose and they may simply not want to face the flood of lawsuits that would arise from denied applicants in such an eventuality.

I should also note that there is another potential up-side for the applicants. On their permit applications, some states ask whether you have ever been denied a permit in another jurisdiction.  By not being denied in Maryland, these applicants will not have to answer “Yes” to such a question if they apply in another state in the future.

There is an active, ongoing discussion of this issue at the Maryland Shooters forum.

Posted in Abuse of Discretion, Gun Control, Maryland, Permit Requirements, Second Amendment Case Law | 1 Comment

Does the Second Amendment protect non-violent felons?

Posted on April 11, 2012 by John Pierce

The answer, according to the Wisconsin Court of Appeals, is “No”.

The court ruled today against Thomas Pocian, who, in 1986, was convicted of felony forgery. Subsequently, in 2008, Pocian shot two deer with a rifle borrowed from his father.  After reporting the deer to the DNR, he was charged with being a felon in possession of a firearm in violation of Wisconsin Statute § 941.29.  The trial court convicted Pocian and he appealed based upon both constitutional overbreadth and as-applied challenges to the statute.

In evaluating the overbreadth challenge, the court started with the general proposition from District of Columbia v. Heller, 554 U.S. 570 (2008), that state laws prohibiting “possession of firearms by felons” are presumptively lawful.  They went on to note that the court had previously upheld the Wisconsin statute against an overbreadth challenges in State v. Thomas, 683 N.W.2d 497 (2004).  However, since the ruling in Thomas was based upon a rational basis review, the court did not consider it precedential in light of Heller’s admonishment that rational basis is not appropriate in reviewing Second Amendment challenges.

The question before the court then was what standard of review would be appropriate in the case at bar.  Relying upon the analysis framework from United States v. Skoien, 614 F.3d 638 (7th Cir. 2010), the court of appeals determined that the statute should be analyzed using intermediate scrutiny.  Under that standard, a statute passes constitutional muster if it is “substantially related to an important governmental objective.”

Citing United States v. Williams, 616 F.3d 685 (7th Cir. 2010), the court held that public safety is an important governmental objective and denying firearms to convicted felons is substantially related to that objective.  Williams went so far as to state unequivocally that even an absolute ban on the possession of firearms by felons passes constitutional muster.

As for Pocian’s as-applied challenge, his argument was that since his crime was non-violent, the state’s objective of increasing public safety was not served by denying him the right to possess firearms.  Here, the court noted that public safety is more than just the prevention of physical violence but also includes the prevention of those other acts that we punish as felonies.

They ended their analysis by quoting United States v. Yancey, 621 F.3d 681 (7th Cir. 2010).

“[M]ost scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’”

 The court did encourage Pocian and others similarly situated to seek changes through the legislature.  However, in researching Wisconsin law, one sees that the same statute under which Pocian was convicted already provides a number of ways in which a prohibited person may seek relief from disability.

At the time I am writing this, Pocian’s attorney has not announced whether or not they will appeal this decision further but given the analysis from the Court of Appeals and the availability of methods to petition for relief from disability, I fear any such attempt would be unsuccessful.

Posted in Felons, Second Amendment Case Law, State Laws, Wisconsin | Leave a comment

Virginia Tech publishes final ‘Weapons on Campus’ regulation

Posted on April 11, 2012 by John Pierce

In the April 9, 2012 edition of the Virginia Register, the final Virginia Tech ‘Weapons on Campus’ regulation was published and now has the force and effect of law.

The regulation, which is codified at 8VAC105-20-10 through 8VAC105-20-40, addresses the “carrying, maintaining, or storing” of both “firearms” and “weapons.”

The regulation specifically separates the two terms and defines them broadly.  In 8VAC105-10, firearms are defined as:

… any gun, rifle, pistol, or handgun designed to fire any projectile including but not limited to bullets, BBs, pellets, or shots, including paint balls, regardless of the propellant used.

Weapons are defined in the same section as:

… any instrument of combat, or any object not designed as an instrument of combat but carried for the purpose of inflicting or threatening bodily injury. Examples include but are not limited to (i) firearms; (ii) knives with fixed blades or pocket knives with blades longer than four inches; (iii) razors or metal knuckles; (iv) blackjacks, foils, or hatchets; (v) bows and arrows; (vi) nun chahkas; (vii) stun weapons; or (viii) any explosive or incendiary device. Stun weapon is defined as any device that emits a momentary or pulsed output that is electrical, audible, optical, or electromagnetic in nature and that is designed to temporarily incapacitate a person.

From a legal perspective, it is interesting to note that this definition of ‘weapon’ clearly would encompass even pepper spray carried by an employee or student for self-defense since it is ultimately carried for “the purpose of inflicting or threatening bodily injury” when necessary.  And the exceptions to the general prohibition codified at 8VAC105-20-30 do not include any provisions that would allow even the most basic of non-offensive self-defense tools.

Since a jury recently held that Virginia Tech has a “special relationship” with students such that the students could be expected to be reasonably protected, forbidding such basic personal protection options to students will almost certainly give rise to future lawsuits against the university.

In any case, returning to an analysis of the regulation as promulgated, it addresses the behavior of two distinct groups of people.

The first group is comprised of “university’s employees, students, and volunteers.”  This group of people is generally prohibited from “carrying, maintaining, or storing a firearm or weapon on any university property.”

The second group is comprised of “[a]ny visitor or other third party.”  However, in attempting to bring this group under the auspices of the power granted to the University by their enabling statute at § 23-122 of the Code of Virginia, they limit the times that visitors and third parties are subject to the prohibition.  The regulation only applies to those visitors and third parties who are:

    • attending a sporting event
    • attending an entertainment event
    • attending an educational event
    • visiting an academic building
    • visiting an administrative office building
    • visiting a dining facility
    • visiting a residence hall
    • attending any events on campus where people congregate in any public or outdoor area

In drafting the regulation, Virginia Tech clearly paid close attention to the holding in DiGiacinto v. Rector and Visitors of George Mason University which held that a campus regulation is constitutional where it “is tailored, restricting weapons only in those places where people congregate and are most vulnerable – inside campus buildings and at campus events.”

One might argue that the last element in the Virginia Tech regulation is too vague and would have a chilling effect on non-regulated carry, exceeding the holding in DiGiacinto by not clearly defining “the open grounds of [the university], and … other places on campus not enumerated in the regulation” where carry is not prohibited.  But given the dicta in DiGiacinto, I believe the current court would ultimately uphold the regulation despite the thinly veiled attempt to impose what is effectively a total ban.

And Virginia Tech is not the only University to use the holding in DiGiacinto, coupled with the almost complete exemption to the Virginia Administrative Process Act (VAPA) that Virginia grants to colleges and universities operated by the Commonwealth to promulgate similar fast-track regulations.

Both Old Dominion University and Longwood University in Farmville Virginia published their final bans in the January 30, 2012 Virginia Register.

In the January 2nd, 2012 Virginia Register, VMI and William and Mary published their final bans and Richard Bland College published a proposed ban.

And in the December 5, 2011 Virginia Register, UVA and Virginia State University in Petersburg published their final bans.

UPDATE:  JMU has reportedly finalized their proposed regulation as well.

Long-time readers of this blog will remember that I wrote about Attorney General Cuccinelli’s opinion that UVA’s policy prohibiting carry on campus is trumped by Virginia’s concealed carry law but a properly promulgated regulation is not.  Consequently, UVA used their VAPA fast-track powers to start this trend which has lead us to where we are today.

So where do we go from here?  If we are serious about protecting the self-defense rights of adult students and employees of Virginia’s many fine colleges and universities, then we need to make Administrative Agency preemption one of our key goals in the upcoming legislative session.

Posted in Administrative Regulations, Campus Carry, Virginia | 7 Comments

New York City: Out-of-state guns are not the problem

Posted on April 11, 2012 by John Pierce

New York Mayor Bloomberg

New York Mayor Michael Bloomberg and Police Commissioner Ray Kelly both came out swinging in the sympathetic New York media yesterday after four police officers were injured by a violent ex-con in Brooklyn on Sunday.

Quoting Kelly, the headline on the cover of the Daily News screamed “I’m tired of this!”  But a closer read of the article shows that it is not criminals roaming the street that Kelly is tired of.  Rather, it is the fact that citizens in states where Kelly cannot stop and frisk them at gunpoint any time he wants are able to purchase guns as if they were real people.

Bloomberg also made the media rounds, complaining to all who would listen that the real problem in New York is not anything his administration has done, or even the prevalence of drugs and gangs in the community.  No … none of that has anything to do with crime in New York.  The only problem keeping New York from transforming into paradise itself is those evil “out-of-state guns.”

What neither Bloomberg nor Kelly will admit is that the problem isn’t out-of-state guns but in-state criminals and the system that creates those criminals.  Crime is a symptom of deeper societal problems that start with poverty and drug abuse, grow into hopelessness, and ultimately result in a parallel society of those who feel they can never be part of mainstream society nor participate in the mainstream economy.  Finding themselves in such a situation, these marginalized citizens turn to drugs and sink into the vicious cycle of crime that drug abuse brings with it.

But instead of working to eliminate poverty, integrate marginalized citizens into the economy, and reduce drug abuse, the Bloomberg administration has exacerbated the problem by creating a police-state culture in New York with the willing cooperation of Commissioner Kelly.

I imagine that many of you feel that the use of the phrase “police-state” is a literary exaggeration.  But in this case, I believe the term is completely accurate.  The New York Times reports that in 2011, NYPD officers conducted warrantless stop-and-frisk interrogations on over 685,724 New Yorkers, mostly minorities, 88% of which were freed without even a ticket being issued.

To put this into perspective, in 2011, the NYPD stopped and frisked, without probable cause, more minority citizens than the entire population of Boston!  If that doesn’t rise to the level of a police state, then I cannot image what would.

I can only imagine the effect this has upon those subject to such daily disrespect.  One of the most poignant articles I have read about how this police-state culture affects those who live under it was a December 17th opinion piece done by Nicholas Peart for the New York Times.

He admits that his entire view of his role in society has been changed.  “Essentially, I incorporated into my daily life the sense that I might find myself up against a wall or on the ground with an officer’s gun at my head.”  As for what such tactics are doing to the social fabric of the city, he notes that what New York has today is “a generation of young people who want nothing to do with [police] — distrust, alienation and more crime.”

Given the toxic environment he has created in the city, we should hardly be surprised that the idea of gun rights is so shocking to Mayor Bloomberg.  After all, in his city citizens do not even have the right to walk the streets unmolested.

Posted in Abuse of Power, Bloomberg, General Civil Rights, Gun Control, Gun Trafficking, Law Enforcement Misconduct, Media Views on The Second Amendment, New York, State Laws, Trends in Crime | 8 Comments

Much needed improvements to FOPA introduced in Congress

Posted on April 10, 2012 by John Pierce

Representative Morgan Griffith (R-VA)

Introduced by Representative Morgan Griffith (R-VA) and co-sponsored by Representatives Bill Owens (D-NY) and Ted Poe (R-TX), House Bill HR 4269 would make several much needed improvements to the interstate-transportation portion of the Firearm Owners’ Protection Act.

The Firearm Owners’ Protection Act, or FOPA, was passed in 1986 in response to numerous reported instances of gun dealers being harassed by the Bureau of Alcohol, Tobacco, and Firearms (ATF).  In addition to the regulatory reform of the ATF, FOPA also addressed a number of other issues including machine gun ownership, registration, background checks, and interstate transportation of firearms.

At the time of its passage, the bill was known as the McClure-Volkmer Act after the bi-partisan duo who sponsored the legislation; Senators Harold Volkmer (D-MO) and Jim McClure (R-ID).  Writing at the Volokh Conspiracy blog, Dave Kopel once called FOPA “one of the most far-reaching laws ever enacted by Congress to safeguard constitutional rights.”

The interstate transportation portion of FOPA was designed to protect innocent gun owners who might happen to travel through a state with draconian gun control laws while in lawful possession of firearms.  In order to enjoy the “safe passage” protections of FOPA, which are codified at 18 U.S.C. § 926A, a gun owner must meet the following requirements:

  • The firearm must be unloaded
  • The firearm must in a locked container
  • The container cannot be within easy reach of the vehicles passengers
  • The journey must start in a state where the person can legally possess and carry the firearm
  • The journey must end in a state where the person can legally possess and carry the firearm
  • It must be an uninterrupted journey (only gas and bathroom stops)

For example, you would be protected by FOPA if you were transporting an unloaded firearm in a locked case out of your reach through Maryland on a journey from Virginia to Pennsylvania but you would lose FOPA protection if you stopped in Maryland to visit family or decided to have Maryland be the end point of your journey.

It sounds simple enough right?  But despite the relatively straightforward requirements and the clear congressional intent to protect otherwise innocent gun owners from onerous transportation laws, New York and New Jersey both have a history of ignoring FOPA and subjecting innocent gun owners to malicious prosecution.

HR 4269 attempts to remedy this by making the following changes to 18 U.S.C. § 926A:

  • Defining the travel thus protected as specifically including “temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental to the transport.”  This would seem to overturn the disastrous ruling from the 3rd Circuit in Gregg C. Revell v. Port Authority of New York and New Jersey
  • In the case of prosecution, places the burden on the state to prove “beyond a reasonable doubt, that the conduct of the person did not satisfy the conditions” protected by the statute instead of requiring the gun owner to prove the elements as an affirmative defense.
  • Makes it clear that both firearms and ammunition are thus protected

But from a legal perspective, I believe the most important change that HR 4269 will make to 18 U.S.C. § 926A is to affirmatively create a cause of action against any person, state, or political subdivision of a state who deprives a gun owner of the safe passage rights granted by 18 U.S.C. § 926A.  Even better, any plaintiff winning in such a suit may also be granted “reasonable attorney’s fees” insuring that plaintiffs will not have trouble finding attorneys willing to handle their cases.

But none of this will happen if HR 4269 doesn’t pass.  You need to take action today.  Contact your representative at (202) 225-3121 and urge them to support HR 4269!

Posted in Abuse of Discretion, Abuse of Power, Gun Control, New Jersey, New York, State Laws, Travel | 4 Comments

A cowboy’s Easter

Posted on April 6, 2012 by John Pierce

This is a poem I had written several years ago for an Easter church service at a Cowboy Mounted Shooting event.  I would like to share it with you.  I hope that even those of you who are not Christian will appreciate the message and the symbolism.  Happy Easter!

……..

Last night I dreamt I had run my race
And reached the finish line
And walked the darkened desert path
That waits for all in time

And when I reached the trailhead there
I was rounded up and penned
Inside the ranch that’s called The Grave
The destiny of men

Well, the ramrod was a wicked man
His name was simply Death
He ruled over all the herd
Of those who once drew breath

Now in the center of the ranch
Was a spring of water sweet
That sang to us of life anew
As we suffered in the heat

But struggle though we tried and tried
We never could get near
For the ramrod had a gun of fire
And a whip of solid fear

But when our hopes had died away
And turned into despair
A mighty wondrous thing occurred
For all the mortals there

A cowboy rode into the ranch
And the ramrod seemed to pale
For this had never happened
But he had heard the tale

For ancient legend had it
That one day a man would ride
Down the dark and twisted path
With a wound upon his side

And his hands would also bear twin scars
And his hat would hide a crown
And he would take this ranch
And he would cast it down

Now this cowboy really looked the part
His shirt was stained with blood
And his reins were also slick with it
Where he held them in his gloves

But battle weary though he was
His eyes held naught of fear
And all of us who saw him
Felt salvation was near

And though the ramrod has been called
Pale Rider as you know
Never had he looked so pale
As he faced his mighty foe

When the cowboy swung down from his horse
And he faced the one called Death
Then all of Heaven and of Earth
They all just held their breath

And the cowboy spoke to Death
So everyone could hear
“Do not mistake me for the lamb.
I am a lion here.”

“The price I paid to walk this path
Was steep, but gladly paid.
And now I call you out
For your destiny is laid.”

And on his hip a sixgun shone
Forged by divinity
And on his holster was a brand
The mark of Trinity

And Death went for his gun of fire
But the cowboy was too fast
And in a flash of blessed light
The age of Death was past

Posted in Philosophical | Leave a comment

There are no super heroes

Posted on April 6, 2012 by John Pierce

“A hero is someone who understands the responsibility that comes with freedom.” – Bob Dylan

I have written about this before, but with the pending release of the Avengers movie, I find myself once again in the mood to wax poetic about our collective fixation with heroes.

I should first disclose the fact that no one is more a fan of the superhero genre than I am.  I read every comic book I could get my hand on as a child and, until recently, had a  monthly standing order with my local comic store.  That is until my wife noted, rather pointedly, that our budget required me to cut back.

Nevertheless, suffice it to say that I plan to be in line the first night that the Avengers movie arrives in theaters.

Having said all that, what I have to tell you pains me. It truly does. But you need to know …

There are no super heroes. There never were.

At an intellectual level, we certainly know this to be true. But a quick review of modern media will reveal how deeply we want to believe. Our attraction as a society to bigger-than-life hero characters reflects a visceral reaction to the helplessness that the average citizen feels when confronted by the dangers of daily life. Deep down, we know that the world is a place of equal parts beauty and evil and ultimately we face it alone, prey to all the predators that inhabit it.

We do know that there actually are human heroes among us. Soldiers, policemen, firemen, EMTs and a myriad of others who daily go into harms way for the betterment of mankind are all true heroes. But we seek something more than mere human heroes and when you think about it, it is easy to see why.  The policeman, as much as they might wish otherwise, will not be there when we are assaulted.  They can only try to bring the assailant to justice. They are our avengers … not our shield … and they do not hold back the dark.

After all, while we know that there are no super heroes, we also know that there are monsters. Oh yes … there most definitely are monsters. They walk amongst us every day, watching us the way that wolves watch over the flock. And we live in constant fear of the day that their gaze flicks to us or our loved ones.

The bitter truth is that when there is a scream in the night, there will not be a masked avenger to swoop in the window and save the day. Nor will a plucky, super-intelligent detective solve a trail of enigmatic clues at the last minute and kick in the door just before anyone is harmed.

Sadly, when a a scream echoes in the night, the victim is on their own! The tools of self defense they have prepared are their only hope of salvation and if they have not prepared, then the monster will almost certainly win.

If we wish to be heroic in our own small way, we need to do our part to prevent the monsters from winning. We do this by preparing ourselves to be able to defend our families and by educating our friends, neighbors and relatives about the reality of self-defense in an imperfect world.

Gamma radiation and cosmic rays may empower super heroes, but in the real world, copper-jacketed lead empowers citizens!

Posted in Philosophical | Leave a comment

Illinois Supreme Court Remands Second Amendment Challenge in Wilson v. County of Cook

Posted on April 5, 2012 by John Pierce

Features that make firearms 'evil' according to Cook County

The Illinois Supreme Court has just now released its opinion in Wilson v. County of Cook and it contains ‘slightly’ good news for Second Amendment advocates.

If you recall, Wilson was filed by Illinois residents and gun owners Matthew D. Wilson, Troy Edhlund, and Joseph Messineo as a challenge to the 2006 ordinance Cook County passed in response to the September, 2004 expiration of President Clinton’s so-called ‘Assault Weapons Ban.’

The Cook County ordinance (06-O-50), named the ‘Blair Holt Assault Weapons Ban’ is codified at §§ 54-211 – 213 of the Cook County Code of Ordinances and mimics the now defunct federal ‘Assault Weapons Ban’ in prohibiting certain firearms based upon broad, ill-defined categories of characteristics.

The Wilson plaintiffs challenged the bill seeking injunctive and declaratory relief based upon vagueness, equal protection and Second Amendment claims.

This challenge having been filed prior to the Supreme Court decision in McDonald v. Chicago, the circuit court dismissed, noting that, at that time, the Second Amendment was not incorporated against the state and therefore did not restrain the police power thereof.  The appellate court upheld the circuit court decision.

Following the decision in McDonald, the Illinois Supreme Court issued a supervisory order sending Wilson back to the appellate court, directing it to vacate its previous judgment and review the case on its merits.  The appellate court once again upheld the dismissal of the case holding that the Second Amendment did not extend to ‘assault weapons.’

Many Second Amendment advocates noted at the time that this ran counter to the District of Columbia v. Heller court’s reaffirmation of the premise from United States v. Miller that the Second Amendment protects “the sorts of weapons … ‘in common use at the time'” and many of the firearms thus banned by the Cook County Ordinance are the best selling firearms in America today, including the wildly popular AR & AK semiautomatic sporting rifles.

Following the ruling of the appellate court, the Illinois Supreme Court granted certiorari.  The oral arguments were held earlier this year.

In the just issued opinion, the court quickly dismissed both the due process vagueness and equal protection arguments, remanding the case back to the trial court based solely upon the Second Amendment claim.  In doing so, the court offered limited hope to the plaintiffs, noting that they did so in order to give the County “an opportunity to present evidence to justify the nexus between the Ordinance and the governmental interest it seeks to protect.”  They seemed to imply that should the County live up to this burden, that the court could reasonably find that such a ban was constitutional.

The judicial battle to define the full scope of the Second Amendment will undoubtedly continue for decades and will involve many more trips to the United States Supreme Court.  But I have little hope that the Illinois court system will stand on the side of citizen’s right in any meaningful way except to provide cases of abuse on which the High Court may rule.

Posted in 'Assault Weapons', Chicago, Gun Control, Illinois, Incorporation, Second Amendment Case Law | Leave a comment

Maryland to appeal the ruling in Woollard v. Sheridan

Posted on April 4, 2012 by John Pierce

Maryland Attorney General Gansler

As expected, the Maryland Attorney General’s office has filed a timely notice of appeal in the case of Woollard v Sheridan.

The state had signalled their intention to appeal in a Motion For Immediate Stay Pending Appeal which they filed on March 7th, only days after Judge Legg’s ruling came down.

On March 30th, Judge Legg granted a temporary stay of the ruling in order for both parties to submit briefs regarding the request for a permanent stay.  The temporary stay order requires the state to file their first brief by April 19th.  The plaintiffs will have until May 9th to respond and the state will then have until May 23rd to submit their final brief.  I will share these briefs with you and comment upon the arguments made therein as they are filed with the court.

After May 23rd, Judge Legg will rule on whether or not a permanent stay is appropriate.  Under Federal Rule of Civil Procedure 62(c), a court “may suspend, modify, restore, or grant an injunction on … terms that secure the opposing party’s rights.”  In their motion, the state cites Goldstein v. Miller[1.  Goldstein v. Miller, 488 F. Supp. 156, 172-73 (D. Md. 1980)] for the proposition that a stay should be granted pending an appeal “when the equities of the case suggest that the status quo should be maintained.”

In support of their argument that the status quo should be maintained in regards to Maryland’s draconian discretionary permitting scheme, the state cites to the dicta by Judges Wilkinson and Duffy from the 2011 4th Circuit case United States v. Masciandaro.[2.  United States v. Masciandaro, 638 F.3d. 458, 475 (4th Cir. 2011)]

In Masciandaro, the majority held that “the general preexisting right to keep and bear arms for participation in militias, for self-defense, and for hunting is thus not strictly limited to the home environment but extends in some form to wherever those activities or needs occur.”  However, Judges Wilkinson and Duffy, while concurring in the holding, dissented on this point, stating “[w]e do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.”

It was this dicta from Masciandaro that the state quoted in their motion, implying that there would be “significant adverse consequences for public safety” if the stay were not granted.  The state is effectively arguing that citizens of Maryland, who are not otherwise prohibited by law from possessing a firearm and who are capable of passing a background check in order to receive a permit to carry a handgun for self defense purposes, are somehow far more likely to commit “unspeakably tragic act[s] of mayhem” than the citizens of the 42 states which do not have such restrictions on permit issuance.

For those who are unfamiliar with the holding in Woollard, it was a challenge to Maryland’s requirement that an applicant for a handgun [carry] permit demonstrate a subjective “good and substantial reason.”  Judge Legg’s resulting opinion contained several important holdings.

Perhaps most portentous, Judge Legg joined with the majority in Masciandaro in holding that “the right to bear arms is not limited to the home.”

Secondly, Judge Legg held that, while permit requirements to carry firearms outside the home are ‘presumptively lawful’ as noted in Heller, such presumptions are challengeable under “a heightened standard of review.”

In reviewing (and ultimately striking down portions of) Maryland’s discretionary scheme under such a standard, he cited the 1995 4th Circuit case of Chesapeake B & M, Inc. v. Harford Cnty[3.  Chesapeake B & M, Inc. v.  Harford Cnty., 58 F.3d 1005, 1009 (4th Cir. 1995)].

A licensing or permitting scheme is unconstitutional when characterized by “unbridled discretion” of a government official or agency, which exists “when a licensing scheme does not impose adequate standards to guide the licensor’s discretion.”

As Woollard moves through the appeals process, I would like to believe that we will soon see an end to the “unbridled discretion” that is may-issue across the country.

UPDATE:  The state has filed their first brief and Plaintiffs have filed their response brief

Posted in Concealed Carry, Gun Control, Maryland, Permit Requirements, SAF Litigation, Second Amendment Case Law, State Laws | 11 Comments