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Maryland Judges Uphold State Anti-Handgun Law
cbsnews.com ^ | November 3, 2009 | Declan McCullagh

Posted on 11/04/2009 11:53:26 AM PST by neverdem

I've written recently about how courts in New Jersey and Illinois have concluded that the Second Amendment poses no obstacle to local governments enacting stringent anti-gun laws.

Now a Maryland appeals court has followed suit. A three-judge panel ruled last Thursday that the Second Amendment does not interfere with a Maryland law that generally restricts state residents from carrying handguns.

That's not much of a surprise. What is remarkable is that Judge Albert Matricciani went out of his way to write that even if the Second Amendment applied to state laws, Maryland's statute would be perfectly constitutional in the wake of the U.S. Supreme Court D.C. v. Heller decision last year to invalidate the District of Columbia's handgun ban.

Matricciani wrote:

Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL Sec. 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the state." This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right.

Translation: Your right to keep and bear arms applies only to your own home.

The Maryland case started when an officer with the Prince George's County Police Department spotted a man named Charles Williams, Jr. rummaging through his backpack and then allegedly hiding something in the bushes. Williams allegedly told the police that he had concealed a handgun, and one was in fact recovered. Williams had purchased the gun legally, but carrying it without government permission -- which is virtually impossible to obtain -- is a crime.

(Like California, Maryland is one of those few states with a constitution that does not mention gun rights. A 1994 opinion(pdf) from the state attorney general says the Second Amendment does not apply to Maryland's laws because "in Maryland, the militia is 'well regulated' by Article 65 of the code" and "the needs of the militia can be met with state-owned firearms housed in secure locations.")

Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's Heller decision applied that prohibition only to the federal government and federal enclaves like Washington, D.C. Another case that the Supreme Court recently agreed to hear will decide whether that portion of the Bill of Rights applies to state and municipal governments (the concept is called "incorporation").

The problem for gun rights proponents is that, even if the Second Amendment is technically incorporated in the same way as the First Amendment has been, judges in more anti-gun states are sure to find creative ways to uphold even strict laws as constitutional.

Take the recent case in New Jersey, where a state appeals court upheld a state law saying that nobody may possess "any handgun" without obtaining law enforcement approval and permission in advance, saying it would be fine post-incorporation. Then there's the Ninth Circuit's decision(pdf), now effectively on hold, saying that while the Second Amendment applies to California municipalities, Alameda County's ordinance was acceptable.

This is all the more reason for the Supreme Court to guide lower courts considering whether or not an anti-gun law is permissible. We already know, thanks to Heller, that a flat ban on possessing handguns is out. But is mandatory gun registration permissible? Can a 17-year old be barred from buying a low-powered .22-caliber rifle? Can laws like California's one-handgun-a-month rule stand? Will what First Amendment lawyers call "strict scrutiny" be applied, or will a lower standard apply?

Another effort at clarification is a lawsuit that the Second Amendment foundation filed against the District of Columbia arguing that Americans generally have the right to carry firearms in public for self-defense. Both pro- and anti-gun types may be hoping for wildly different outcomes, but both should be able to agree that some legal clarity would be useful right about now.

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.


TOPICS: Constitution/Conservatism; Crime/Corruption; Extended News; Politics/Elections; US: District of Columbia; US: Maryland
KEYWORDS: banglist; heller

1 posted on 11/04/2009 11:53:26 AM PST by neverdem
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To: neverdem

How do they establish that the blanket, all inclusive phrase in the 2nd Amendment “shall not be infringed” does not apply?


2 posted on 11/04/2009 11:56:47 AM PST by Natural Law
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To: neverdem

I remember reading somewhere that the UN wanted a global gun ban. If true all the more reason to hold on to gun rights.


3 posted on 11/04/2009 11:57:42 AM PST by opentalk
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To: opentalk
I remember reading somewhere that the UN wanted a global gun ban.

Bring on the shiney blue helmets.
4 posted on 11/04/2009 12:00:08 PM PST by randomhero97 ("First you want to kill me, now you want to kiss me. Blow!" - Ash)
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To: neverdem
Art 6 Para 2. "Judges of every State shall be bound thereby,..."

Amendment 2. "Shall not be infringed"...

Impeach them. Try them for violation of Title 18, Sections 241 and 242.

Do it NOW.

5 posted on 11/04/2009 12:05:05 PM PST by Dead Corpse (III)
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To: neverdem
"Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL Sec. 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the state."

So, even if that means you can only keep a gun at home, it is apparently illegal to drive it from the store to your house?

6 posted on 11/04/2009 12:05:31 PM PST by Sans-Culotte
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To: neverdem

so if Maryland decided to ban a religion or to outlaw newspapers, that would be permissible?


7 posted on 11/04/2009 12:06:11 PM PST by Sgt_Schultze (A half-truth is a complete lie)
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To: randomhero97
United Nations Still After Your Guns> sep 2009

The UN General Assembly has been in session, and if typical of the UN, some nasty things are probably in store for American gun owners as a result.

The Citizen's Committee For The Right To Keep and Bear Arms (CCKRBA), in a recent mailing, said that The UN is still actively pursuing the guns you own, and the ones you want to buy.... Rebecca Peters was largely responsible for the disarming of Australians and the associated increase in violent crimes there as a result of criminals retaining and using their firearms in assaultive crimes while the now defenseless law abiding general public turned theirs in for destruction.

I don't know much about this , but do not trust UN to care about our constitution or rights.

8 posted on 11/04/2009 12:09:59 PM PST by opentalk
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To: neverdem

I wonder if I can keep an armed bear in my home and also carry one around with me?


9 posted on 11/04/2009 12:12:10 PM PST by GreyFriar (Spearhead - 3rd Armored Division 75-78 & 83-87)
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To: Sgt_Schultze

What we need is Ehrlich back as governor and to flush the Leftist maggots out of Annapolis-!!


10 posted on 11/04/2009 12:13:48 PM PST by imjimbo (The constitution SHOULD be our "gun permit")
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To: Sans-Culotte

My thought, too. Also, how would you practice with your home weapon at a range in order to be truly effective if the state says it’s illegal to transport it? I am finding this out first-hand as I am taking the NRA Personal Protection Class this month and having fired a weapon only once about 15 years ago. Making it illegal to transport a gun to a location where one can actually practice with the weapon effectively disarms an individual...but I guess that’s the point of these idiotic laws.


11 posted on 11/04/2009 12:16:21 PM PST by missycocopuffs
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To: imjimbo

Good luck with that. Aren’t the folks who vote dem in your state the ones who cheer when somebody’s business is screwed? If so, they’ll probably stick with their favorite dem crook of choice.


12 posted on 11/04/2009 12:22:50 PM PST by Sgt_Schultze (A half-truth is a complete lie)
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To: Sgt_Schultze

Way too many brain-dead here. Baltimore and P.G. county are lousy with them.


13 posted on 11/04/2009 12:34:21 PM PST by imjimbo (The constitution SHOULD be our "gun permit")
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To: neverdem

And p-ss on the victim.


14 posted on 11/04/2009 12:45:04 PM PST by Waco (Stay as bootiful as ya are Karvile.)
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To: neverdem

Of course “important” people in Maryland will no doubt have the option of concealed carry. Chicago aldermen may carry concealed weapons, while average, “indispensable” citizens may not!


15 posted on 11/04/2009 1:01:17 PM PST by Oldpuppymax (AGENDA OF THE LEFT EXPOSED)
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To: missycocopuffs
I am taking the NRA Personal Protection Class this month and having fired a weapon only once about 15 years ago.

Luckily for me, I live in Texas. I have to go in and renew my concealed carry this month.

16 posted on 11/04/2009 1:08:08 PM PST by Sans-Culotte
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To: Natural Law
Yeah, after 230 years, Congress has yet to acknowledge our 2A Rights in the law.
17 posted on 11/04/2009 1:29:16 PM PST by Jacquerie (Democrats soil Institutions.)
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To: missycocopuffs
am finding this out first-hand as I am taking the NRA Personal Protection Class this month

Attending your class is clearly illegal because you will not be on your property. Even if the owner were to lend you a gun you would have possession of a handgun somewhere other than your home or property.

18 posted on 11/04/2009 1:33:06 PM PST by BubbaBasher ("Liberty will not long survive the total extinction of morals" - Sam Adams)
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To: neverdem

It’s too bad the western panhandle of Maryland can’t become a part of West Virginia.


19 posted on 11/04/2009 1:33:53 PM PST by the_devils_advocate_666
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To: Jacquerie
"Yeah, after 230 years, Congress has yet to acknowledge our 2A Rights in the law."

It would make an interesting House and Senate Resolution. Getting a role call vote on it before the 2010 elections would help to, as they say down south, south the fly sh*t from the pepper.

20 posted on 11/04/2009 1:53:25 PM PST by Natural Law
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To: missycocopuffs; Sans-Culotte
My thought, too. Also, how would you practice with your home weapon at a range in order to be truly effective if the state says it’s illegal to transport it? I am finding this out first-hand as I am taking the NRA Personal Protection Class this month and having fired a weapon only once about 15 years ago. Making it illegal to transport a gun to a location where one can actually practice with the weapon effectively disarms an individual...but I guess that’s the point of these idiotic laws.

I found the Maryland handgun law here. You will have to navigate to Maryland Code | Criminal Law | Title 4: Weapon Crimes. And the disclaimer ... IANAL ...

Maryland's handgun law is similarly structured to California's (though not the same) in that it makes a blanket prohibition and then codifies certain exceptions. Exceptions exist to allow transport of your handgun from place of purchase to your home, home to business (if you're the business owner/operator), home to repair shop, home to target shoots and other shooting activities. When transporting it, the handgun must be unloaded and in an enclosed case or enclosing holster. You must travel directly to/from the allowed locations.

If you are going to own firearms you really need to know the laws that will affect you. I have How to Own a Gun & Stay Out of Jail (California edition). You should find something like this which includes coverage for Maryland.

21 posted on 11/04/2009 1:59:11 PM PST by Database
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To: Database

I should have been more clear in my post. I am in Michigan where we are *slightly* more gun-friendly.

My point was the Maryland law does effectively disarm individuals if they aren’t allowed to practice with the weapon they are going to be using to defend their homes and families...and that was a statement based on what I had read in the posted article. But it would appear from what you have posted from Maryland handgun law that transporting an unloaded, enclosed weapon between home and gun range is legal. Thanks for providing that info, which wasn’t in the original article.

Actually, Maryland’s law sounds pretty close to my understanding of MI laws regarding transport of handguns. Yep, I am trying to learn them all :-)


22 posted on 11/04/2009 2:09:43 PM PST by missycocopuffs
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To: imjimbo

ehrlich is not a friend of the constitution... especially the 5th amendment when i was regulated out of my farm...

t


23 posted on 11/04/2009 2:43:45 PM PST by teeman8r (i liked GWB... really, i did.)
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To: teeman8r

The more we learn about the agenda, getting rid of guns is part of it. I believe they will fail, but am concerned about the courts going along with Obama. Chicago politics use dirty tactics.


24 posted on 11/04/2009 3:08:56 PM PST by opentalk
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To: opentalk

Read Wayne Lapiere’s book about the UN - it’s true, and it’s shocking....


25 posted on 11/04/2009 4:02:35 PM PST by majormaturity
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To: Oldpuppymax

Gee, that’s the way it was under Communism.....


26 posted on 11/04/2009 4:05:11 PM PST by majormaturity
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To: neverdem

Incompetent and opinionated judicial a-hole with a Napoleon Complex. Too bad that these days there are so very, very many just like him.


27 posted on 11/04/2009 4:23:27 PM PST by Jack Hammer
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To: opentalk

It’s just TOO BAD that the 4th 9/11 hijacked plane, which crashed into the PA field, DIDN’T slam into the UN building in New Jack City! We would be RID of that liberal atrocity!


28 posted on 11/04/2009 4:27:26 PM PST by 2harddrive
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To: imjimbo

Way too many brain-dead here. Baltimore and P.G. county are lousy with them.

Don't forget Montgomery County - the home of nuclear-free and hippie-laden Takoma Park. If it wasn't for Baltimore City and P.G. & Montgomery counties, Maryland would be a red state.

29 posted on 11/04/2009 4:50:49 PM PST by Ten Beers Gone (1/20/13)
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To: neverdem; Abundy; Albion Wilde; AlwaysFree; AnnaSASsyFR; bayliving; BFM; cindy-true-supporter; ...

No surprise here.

Maryland “Freak State” PING!


30 posted on 11/04/2009 5:15:21 PM PST by Tolerance Sucks Rocks (Barack Hussein Obama: the country's greatest firearms salesman!)
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To: missycocopuffs; Sans-Culotte

As I understand it, you CAN transport a firearm in your car, at least to and from a gun range, and presumably from store to home, as long as it is unloaded and stored in the trunk. But check the statutes to make sure.


31 posted on 11/04/2009 5:18:35 PM PST by Tolerance Sucks Rocks (Barack Hussein Obama: the country's greatest firearms salesman!)
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To: neverdem
A 1994 opinion(pdf) from the state attorney general says the Second Amendment does not apply to Maryland's laws because "in Maryland, the militia is 'well regulated' by Article 65 of the code" and "the needs of the militia can be met with state-owned firearms housed in secure locations.")

See what happens when the revisionists hijack history? For that matter, is Maryland History still a requirement for graduation (I doubt it).

At the outbreak of the War Between the States, the militia were told to bring their weapons to the armories. During the subsequent series of invasions of the State by Northern States' Militias, the militiamen awaited the callup--which never came. Instead, as the occupation of the State continued, the citizenry rioted, inspiring the lines in the State song "Avenge the patriotic gore/That flecked the streets of Baltimore...", written by an expatriate Marylander in Louisiana during the War.

The Legislature was placed under house arrest (at Fort McHenry), and never permitted to vote on secession.

It did not work very well last time, and it won't in the future.

32 posted on 11/04/2009 6:08:36 PM PST by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing.)
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To: Sans-Culotte

Negative. But you better have gun, ammo, separated and be on the way to a hunt or gun range.


33 posted on 11/05/2009 9:09:54 AM PST by fightinbluhen51 ("MOLON LABE")
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To: Natural Law

The Second Amendment is not “incorporated” and therefore not binding on the several States. That is one of things that the NRA is trying to get changed.


34 posted on 11/05/2009 9:14:15 AM PST by Little Ray (The beatings will continue until GOP comes to heel.)
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To: Little Ray
"The Second Amendment is not “incorporated” and therefore not binding on the several States."

Yes, but state constitutions must be compliant with the federal constitution.

35 posted on 11/05/2009 9:19:21 AM PST by Natural Law
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To: Natural Law

This is true...

“DECLARATION OF RIGHTS.
We, the People of the State of Maryland, grateful to Almighty God for our civil and religious liberty, and taking into our serious consideration the best means of establishing a good Constitution in this State for the sure foundation and more permanent security thereof, declare:

Article 1. That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient.

Art. 2. The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.

Art. 3. The powers not delegated to the United States by the Constitution thereof, nor prohibited by it to the States, are reserved to the States respectively, or to the people thereof. “

A blanket statement that the rights of the citizens of this state, where silent by the Maryland Constitution, are supposedly deferred to the Federal Constitution.

When, 2A is incorporated Maryland will be forced to allow Constitutional open carry without a permit.


36 posted on 11/05/2009 10:08:23 AM PST by fightinbluhen51 ("MOLON LABE")
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To: Little Ray
It never needed "incorporation". Period.

Read the full text of the legislation ratified by the States, they included a passage stating that the BoR would apply as PART of the Constitution upon ratification.

This means that Art 6 Para 2 applies RKBA to the States as much as it was ever needed to. The inclusion, and judicial obfuscation of, the 14th later on set an even worse precedent.

These are OUR Rights as US Citizens regardless of which State we live or work in. Period. Full stop. "Shall not be infringed" is the "Supreme Law of the Land" everywhere the United States Constitution rules.

Everything else is judicial activism, legislative malfeasance, and a travesty of what our Republic was supposed to be.

37 posted on 11/05/2009 10:17:43 AM PST by Dead Corpse (III)
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