Posted on 03/21/2013 1:53:33 PM PDT by marktwain
The case is Woollard v. Gallagher (4th Cir. Mar. 21, 2013).
UPDATE: The court claims that it’s not deciding whether the Second Amendment right to keep and bear arms in self-defense extends to carrying a gun outside the home. Rather, the court concludes that, even if such a right exists, Maryland’s licensing scheme — which requires a “good and substantial” reason for a license to carry and which doesn’t treat a general desire for self-defense as an adequate reason — passes intermediate scrutiny.
But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.
A constitutional right that can be trumped in some of its applications under intermediate scrutiny (or for that matter strict scrutiny) is a right, albeit a qualified one; consider, for instance, the right to engage in commercial speech, or the right to be free of sex discrimination. But a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.
This also reflects, I think, the fact that intermediate scrutiny (which requires that “the legislature’s policy choice substantially serves a significant governmental interest”), coupled with deference to the legislature’s factual judgments (“[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments”), essentially means per se validation of pretty much all gun controls that will be tested under such scrutiny. The legislature will always be able to assert a significant governmental interest in preventing crime, reducing the use of police resources, and so on, and will nearly always be able to plausibly argue that it has “weigh[ed] conflicting evidence” in concluding that the law “substantially serves” the interest. (Intermediate scrutiny without deference to legislative weighing of evidence might offer more protection, but that’s not the intermediate scrutiny being applied in this case.) Indeed, the same might even apply to strict scrutiny, except that courts might be more reluctant to read strict scrutiny as essentially eviscerating the right than they are as to intermediate scrutiny (and courts might be more inclined not to defer to legislative conclusions about facts under strict scrutiny).
I discuss this issue in more detail in my Implementing the Right to Keep and Bear Arms in Self-Defense article (pp. 1464-70). But the main point is that verbal distinctions such as significant governmental interest (intermediate scrutiny) vs. compelling governmental interest (strict scrutiny) or even substantially serves (intermediate scrutiny) vs. narrowly tailored (strict scrutiny) are unlikely to make much of a difference. What is likely to make a difference is (1) the degree to which courts do or do not defer to legislative evaluation of the facts, and (2) the degree to which courts say that a core aspect of a constitutional right must be protected regardless of legislative or even judicial judgments about the supposed harm that the right causes. (See pp. 1464-64 for more on that.)
Every chance they get, the Democrats put crooked judges into office. I hope that the Supreme Court would reverse this, but with Obama back in office, we are on the edge of losing that Court once again.
After all, it was scummy Supreme Court justices back then who decided that human life wasn’t worth anything if it interfered with unlimited sex without consequences.
I can’t seem to find the decision on google. Who were the judges on this?
Rights can not be licensed or else they cease to be rights.
I think everybody should have to get a license to own a computer or use the internet, and only on those websites that the govt deems appropriate.
This was just a panel of the 4th, with one Clinton appointed and two Obama appointed, judges. The entire 4th Circuit is majority Democrat appointments, so it will likely survive appeal. Then up to the SCOTUS.
Importantly, Chief Justice Roberts is the SCOTUS justice responsible for both the D.C. Circuit and the 4th Circuit, so it will be up to him, and three other justices, to determine if the SCOTUS will hear this appeal.
Then, too, they should be required to look at government licensed kiddie porn (/s)
No Right to self defense outside the Home? Wow. I gues Obama can dump the SS whenever he leaves the White Hut.
I’ll go with the old standby, “I would rather be Judged by 12 than Carried by 6”.
Yeah, I Bear Arms because they make such great paperweights and conversation pieces.
Well, this is the 4th Circuit speaking, so the loss below was appealed. The next step is to petition the US Supreme court to take the case away from the 4th Circuit. I predict SCOTUS will deny cert.
A general desire for self-defense?
Where did Fourth Circuit judges go to law school? Probably same place that Obama went to.
The Supreme Court has already officially clarified that the purpose of 2A is not to confer gun rights, but to essentially clarify that bearing arms is an appropriate way (my term) to exercise the natural right to self defense.
"The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States." --United States v. Cruikshank, 1875.
And since the court's decision concerns constitutional limits on state powers to regulate arms, please note the following. John Bingham, the main author of Section 1 of the 14th Amendment, had included 2A when he read the BoR to the HoR as examples of constitutional statutes containing personal privileges and immunities which 14A applied to the states. See 2A in the middle column of the following page from the post Civil War congressional record.
Congressional Globe, House of Representatives, 42nd Congress, 1st Session
So if activist judges regard 2A as out of date because of 911 (sarc.), they can recommend an Article V ConCon for a new amendement to the Constitution to repeal 2A instead of trynig to do so from the bench.
Anyone that believes this will not be necessary is not being honest with their self, IMO.
The only way to get a carry permit in Maryland is to kiss the Maryland State Police’s ass.
yes, but there is a Circuit conflict between the 4th, 5th and the 10th at this point.
funny guy..
we don’t need a reason to bear arms.
The 5th Circuit is Scalia, but the 10th is Sotomayor.
http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Justices_as_Circuit_Justices
Maryland “Freak State” PING!
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