Initial Woollard Review

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Oct 24, 2012

Report 1:

The Senior Judge on the panel was Judge King, and he did the lion’s share of the talking. Monday morning quarterback suggests he is likely going to be the one guaranteed vote against us.

State Atty Matthew Fader had the first time up in front of the panel. Judge King almost immediately started going into Younger Abstention. Younger Abstention was brought up in District. It suggests a plaintiff needs to exhaust all remedies before “bothering” the Federal Courts. In Woollard’s case, he was denied by MDSP, appealed to the hangun review board and was denied, he COULD have gone through the MD State Courts after that….that is where Judge King was leading…
1) Snowden & Scherr are two cases in the MD State cellar showing why it would be a waste of time exercising a Carrry case through State Cts
2) Why is this Appellate Judge wondering about this in the first place???
3) Perhaps, just wishing it wasn’t before him??
Back to Mr Fader’s time on the clock…
- Fader brought up to the Court that Younger was put to rest at District.
- That didn’t stop Judge King, he asked about Rooker Feldman Abstention, if Younger didn’t work….
- The State of MD recognizes the right outside the home….you can go to the range, militarily train, yada, yada, yada. Oh, only handguns are impacted by 5-306/4-203, so rifles & shotguns are OK. Yep, and the Judges had fun with that and the State held firm on that…
- Judge Davis chimed in, asking if the statute impacted Concealed Carry Only.  He’s clearly exploring the Open vs CCW angle. Recall, VA has no-permit Open Carry, permit-req’d CCW.
- Fader replies that it is only a “Carry” statute, not Open/Concealed specific.
- Judge Davis starts suggesting GSR for CCW, no GSR for Open…I want to catch the audio, but he was definitely going down that path…
- Judge Diaz (?) brought up that the District Court Injunction may have been “too broad”.  He definitely seemed to be probing to a degree at that time.
- Fader goes on with his prepared remarks, saying while Self Defense is core to the right, it only exists “In the Home”, outside the home hasn’t been established yet. (sorta truth)
- Discussion then went into the CA4 Masciandaro case. Much was brought up on Judge Niemeyer’s dissent (pro-2A) in Masciandaro.
- Judge Diaz mentions that the 2A doesn’t have a GSR qualifier…
- Judge Diaz (?) mentions that Open Carrying of Shotguns seems kind of counter-intuitive…
Alan Gura’s time came up next….
- Judge King almost IMMEDIATELY started querying on Rooker-Feldman. We’ll know for sure in a few days, but I believe it had to be at least the first 5 minutes of our 15 minute slot dialog abouto Rooker-Feldman. Gura says that this was explored at the Sister Case Kachalsky in NY, and was ruled out at District.
- After ~5 minutes of Rooker-Feldman, Judge King ate more time off the SAF clock (~2 minutes more) by going in the MD State Court case Williams (bus stop public carry of a gun). Gura had to explain this was a different animal. Judge King asked (knowing the answer) if this went to the Supreme Court (a petition was filed), Gura answered it had, but the Petition was denied. Judge King has a smile, I swear…
- Judge Davis (I’m starting to warm up to him) asks Gura if they could rule against a semi-auto, but permit a revolver with Open Carry (again, I like his thinking).
- Gura says probably not, brings up weapons in “Common Use” for “Lawful Purposes”, per Heller.
- Judge King then starts probing whether the existing statute may be Legit.  Clearly probing for a potential remand by my read….
Fader gets up for his rebuttal.
- States the state has not conceded the “scope” question (assuming this means outside the home), Judge King is nodding in agreement.
- Judge King, I think asked if Williams was Persuasive.
DISCLAIMER: I want to hear the tape to make sure I heard right…if so, we’re fugged. I can’t believe an Appellate Federal Judge would ask that question to begin with…again, I need to hear the audio, particularly during Fader’s rebuttal time.
Report 2: 
Judges David, King & Diaz for the first three trials.
Then, one judge was replaced – may have had to recuse herself for some reason?
Fader says the following in his argument;
Handgun use in City Halls could be potentially violent. {CP: Aren’t lawful, upstanding citizens the only ones prohibited from bringing handguns into government buildings?]
“Maryland does not distinguish between the two – open vs. concealed. [CP: So if I have a permit I can open carry if I have a permit?]
“It is not a crime to wear and carry if you have a permit.”
“The state does not distinguish between open carry and concealed carry” [CP: Oh yea, perhaps you should read the letter that accompanies all MD CHP’s]
“What the plaintiffs want is the right to carry outside the home not for self-defense, but for no reason at all… or to brandish or fire a gun, or in case of self-defense.”
“Handguns are the weapon of choice by criminals” [CP: Why Gura didn’t respond that handguns are the firearm most commonly used for self-defense as evidence by the choice by police officers and all law enforcement – was beyond me.
“… carry into the public square is limited” [CP: Fader said providing an example the states right to restrict manner and place. Yet in another argument he warned that those who receive permits might carry firearms into the public square.
“Williams decided the issue of licensing standards.”
CA4 Judge, “You can carry a long gun down the street”. “In this case they might”.
Judge referred to automatic [sic] pistols.
Fader in rebuttal;
“There is no second amendment right to carry a handgun outside the home that Maryland prohibits.”
Report 3: 
- It’s going to hard to overturn Woollard without directly facing a constitutional issue in which the Supreme Court has expressed an interest. The judges weren’t kidding about this moving up.
- The fact that the presumed gun-control judge focused significant energy on items that would require remand (Younger Abstention, standing, ripeness, etc.) are all signs that even he determined it was going to be hard to overturn the case on constitutional grounds. If he thought he could overturn based on 2A, he would have focused on 2A.
Remember, when they come up with excuses to avoid the question, it’s because they won’t like the answer. Gura was winning when the judge talked about anything but the merits of the ruling.
We’re winning. The simple fact is that – based on the initial reports – the most anti-gun judge on the panel could not find a way to challenge the merits of this ruling. That has real meaning. I think he’s probably seeking ways to leave open doors to restrictions. Even those will be tough.

A Special Note on Long Gun Open Carry as mentioned in the transcript:

 

Maryland does not suggest that Long Gun Open Carry (LGOC) is a “right”. They only note it is permitted under state law. In their eyes, that makes arguments over carriage of a handgun moot. Their view is that people could conceivably carry long guns for self defense in public using existing state law.
There are two facets to this approach. The first is that they think our argument is not worth making. We can carry in public, they say. So why the fuss over handguns?
The second facet is a defense against the inevitable ruling. Even they understand that the chances the Supreme Court will say that a fundamental, enumerated right ends at your home’s door is pretty low. So they are arguing two key things to mitigate that ruling: that the right is special and that public safety requirements can trump its free exercise; and that in the event people must be allowed to carry something for individual preservation in public, then Long Gun Open Carry would suffice.
Of course, they undercut their own argument extensively by noting that handguns are more convenient, concealable, easy to use and deploy…for criminals. They want the court inquiry to stop there – at the point where handguns are evil because evil people do evil things with them. Unfortunately, the Supreme Court was asked to do the same thing in 2007/8 with Heller and not only declined to take that bait, but affirmatively said that what is good for the goose is good for the gander. They said in no uncertain terms that handguns are useful for personal self defense, and that DC could not restrict possession in the home to long guns based on the same theory forwarded by Maryland today. In the eyes of the Supreme Court, the fact that most people choose a handgun for self defense makes it the “quintessential” expression of the right.
So LGOC is a desperation move. It’s designed to distract and to give an “out” to an anti-2A court (it worked in California two years ago) to either find the argument is not ripe, or to say the right is met via long guns. If a court knows it cannot deny the 2A outright, they can at least take the LGOC route and deny it in practical measure.
Maryland knows the inconvenience of carrying a long gun will stop most from carrying. That’s their goal.
A similar approach worked in California with a court disposed to avoid the right. It worked for a spell, but California stepped on their own toes by removing the permissibility to carry unloaded under law. That case is moving forward through appeal, and the courts have little left to grasp for.