Federal judge upholds strict new Maryland gun laws

[Al Norris]

Filed yesterday, March 4th

A majority of judges in regular active service and not disqualified having voted in a requested poll of the court to grant Appellees’ petition for rehearing en banc,

IT IS ORDERED that rehearing en banc is granted.

The parties and amici curiae shall file, within 10 days of the date of this order, 16 additional paper copies of their briefs and appendices filed under the original briefing schedule.

En banc oral argument of this case is scheduled for Wednesday, May 11, 2016, at 9:00 a.m. in Richmond, Virginia.

 

[Ocraknife]

Looks like the Maryland assault weapons ban and magazine capacity restrictions will stand. The judge cited statistics saying that the banned firearms and large capacity magazines were rarely owned but disproportionately used in mass shootings and in murders of leos. Will this be appealed? What can we do to counter the arguments that firearms and magazines that hold over ten rounds are unusual and dangerous arms?

I'm not a lawyer, I don't even play one on TV so it's no wonder that I'm confused by this.

If someone is willing to commit the crime of murder, the fear of punishment of the lesser crime of possessing a banned gun couldn't possibly be a deterrent.

By nature, only the law abiding respect a ban. Those seeking to commit murder are not bound by law lest they not be murderers.

If it is a question of access, I concede that fewer of a thing makes that thing less obtainable by the aggregate but perhaps not by those for whom the ban was intended. A ban does not prevent a targeted item from entering a restricted area but it DOES limit the consumer base of that item to those willing to break the law in order to obtain it.

 

[Aguila Blanca]

If it is a question of access, I concede that fewer of a thing makes that thing less obtainable by the aggregate but perhaps not by those for whom the ban was intended. A ban does not prevent a targeted item from entering a restricted area but it DOES limit the consumer base of that item to those willing to break the law in order to obtain it.

I can't see inside legislators' minds, but my gut feeling is that magazine capacity limits are nothing more nor less than a kneejerk reaction to some of the more spectacular mass shootings, such as Sandy Hook. Lawmakers who know nothing about guns read the horrific reports about shooters carrying all those "bullets," and they get it in their heads that reducing the capacity of the magazines will somehow make a difference. If they could get away wityh requiring all firearms to be single-shot, they would do that in a heartbeat, but they know that won't fly (yet), so magazine capacity limits is their first step.

To them it makes sense -- but that's because they have no idea how quickly a shooter with even moderate practice can change magazines. On top of that, I think I recall reading in connection with Sandy Hook that the police found partially expended magazines along the shooter's path. In other words, he was doing tactical reloads between classrooms in order to minimize his time lost for magazine changes while in a classroom and engaging targets.

I periodically wonder if it would help us or hurt us to show them the video clip of Travis Tomasie doing a mag change ...

Don't blink

https://www.youtube.com/watch?v=Hgdq1FBYTUE

https://www.youtube.com/watch?v=8d2VdaiIodo

 

[ATN082268]

If someone is willing to commit the crime of murder, the fear of punishment of the lesser crime of possessing a banned gun couldn't possibly be a deterrent.

The way the justice system is now, someone who commits multiple crimes at once, frequently gets a "discount" to the penalty leveled on them by serving time for all of them at the same time (concurring sentences). So, a murder conviction of, say, 20 years, can effectively negate virtually all the other crimes committed around the time of the murder. So, even if the gun laws were enforced, the penalties would largely be levied against those who solely committed a gun crime (carry concealed without permit, etc) but did not commit any other crimes with the gun.

 

[ATN082268]

I can't see inside legislators' minds, but my gut feeling is that magazine capacity limits are nothing more nor less than a kneejerk reaction to some of the more spectacular mass shootings, such as Sandy Hook.

Some of it was undoubtedly to make the creepy politicians look good. I think stuff like magazine capacities, though, are more of an incremental approach to banning all guns. Once you get handgun magazine capacities down to around a revolver, more people will just buy revolvers. Once that happens, politicians will ban semi-auto handguns without too much fallout. Etc. Etc.

 

[62coltnavy]

"I periodically wonder if it would help us or hurt us to show them the video clip of Travis Tomasie doing a mag change ..."

Well, let me put it to you this way...Using the recent San Bernardino shooting as an excuse (because the rifles used were not configured with "bullet buttons" in compliance with current California law), two bills have been (re)introduced to ban the bullet button because this work-around for the California requirement of fixed magazines for AR/AK pattern rifles apparently allows shooters to reload too quickly. If (when) passed by the Legislature (and unless vetoed by Gov. Brown, which is quite possible), the proposed law will require opening the action to reload the fixed internal magazine. You will be able to keep your BB equipped rifle, but will be required to register it with the State DOJ as an "assault weapon", the effect of which is to prohibit all in-state transfers of that firearm.

Another bill, finding this approach not good enough, proposes banning sales of ALL semiauto rifles and shotguns with detachable magazines. I do not know if there is a grandfather clause in this proposed law, but assume there must be.

 

[Glenn E. Meyer]

Don't assume that in new legislation. The folks analyzing the AWB of the past are quite aware that existing stocks of weapons and mags made it useless.

Confiscating all semis and mags has been proposed.

 

[62coltnavy]

"The Second Amendment was written as a clear prohibition against federal government interference in an area perceived to be the domain of the states."

I disagree. The first clause reads "A well regulated militia being necessary to the security of a free State," reflecting the prior disdain for a federal army, and recognizing that the individual States had the sovereign power to provide for their own defense." So your position is partially correct.

However, the dominant clause reads: "the right of the people to keep and bear Arms, shall not be infringed." The important words here are "the people." The Constitution provides in its very first sentence: "We the People of the United States." Numerous provisions of the constitution distinguish between the States and the People (or people), recognizing their separate sovereignties. So when the Second Amendment refers to "the people," it is not referring to the rights of the States to form militias, but the individual rights of the individual citizens to keep and bear arms. [One might note that most militias of the day were armed with the rifles the militiamen brought with them. Without a right to keep and bear, these militiamen could hardly have done so.]

All nine justices agreed that the Second guaranteed an individual right, disagreeing as to the scope of that right.

 

[zukiphile]

All nine justices agreed that the Second guaranteed an individual right, disagreeing as to the scope of that right.

That's quite difficult to square with the substance of the four justice dissent. The dissent written by Stevens does begin:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

The balance of Stevens' dissent explains how the rights isn't individual at all, but is really just a right to serve as a soldier in the military.

The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.”
***
The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble.

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

https://www.law.cornell.edu/supct/html/07-290.ZD.html

An individual right to serve a government controlled entity isn't an individual right in any substantive way. Only five of the justices on the Heller court endorsed an right of an individual to act as an individual.

 

[press1280]

Caetano may have made it that much more difficult for CA4 to try to pull a fast one. Since this law is effectively a ban, it seems meaningless for them to argue over scrutiny when the ban shouldn't be upheld under any elevated scrutiny.

 

[Bartholomew Roberts]

En-banc decision of 4th Circuit:
http://www.ca4.uscourts.gov/Opinions/Published/141945A.P.pdf

Summary: Semi-automatic weapons and standard capacity magazines not protected by the Second Amendment.

The Fourth Circuit basically said in a summary judgement that these arms are completely outside the Second Amendment and even if they aren't, Maryland's ban satisfies intermediate scrutiny. Really biased, hackneyed opinion.

 

[lefteye]

Before I read the entire opinion, does it mean the 2nd Amendment only applies to muzzle loading firearms?

 

[raimius]

They even tried to say Heller allowed the banning of arms useful for military service...Talk about an intellectually bankrupt court!

 

[natman]

From the 4th's opinion:

That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach.

Can anybody explain just where in Heller SCOTUS said anything of the sort? They refer to US 554 (which is Heller) 627, but I don't have a copy of Heller with line numbers.

The closest thing I can find supports the right:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.
DC v Heller, p55

 

[amprecon]

So judicial rulings are based on statistics now? How about a little constitutional law consideration?
As a born and bred Marylander, this is exactly why I left that miserable state 15 years ago.

 

[natman]

Before I read the entire opinion, does it mean the 2nd Amendment only applies to muzzle loading firearms?

No. Heller was quite specific on this point:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
DC v Heller p8

SCOTUS has already smacked down one lower court who tried the muzzleloader ploy post-Heller. I don't think even this court would be stupid enough to try it again.

 

[TomNJVA]

While Heller clarified a facet of the 2nd amendment that handguns for self defense in the home are protected, this court seems to be assuming that self defense in the home is the only protection afforded by the 2nd amendment, and that any firearm beyond their perception of adequate for that use is not protected. How is a 10 round magazine adequate for self and home defense in the event of a home invasion?

 

[doofus47]

TomNJVA

How is a 10 round magazine adequate for self and home defense in the event of a home invasion?

Well, wait... Lessee.... California has a 10 round mag limit. How could that arsenal in the hands of a home owner not stop a zombie apocalypse?

http://www.scpr.org/blogs/news/2012/11/27/11253/ontario-police-botched-home-invasion-led-triple-ho/

Hmm, you might be onto something here... Perhaps it's best to keep in mind that the life saved by a 10 round magazine might not be YOURS....

 

[Glenn E. Meyer]

1. Once again, Heller is not the blessing some thought it was.

2. 10 round - limit. Watch what you say. How many times have folks on this forum and elsewhere in the gun choir mocked those who say to carry higher capacity handguns or magazines? How many shotguns used for home defense (who hasn't read - pump shotgun, just rack it, 'enuf said - in HD home thread) carry more than 10 rounds?

3. How many folks recommend a revolver like a SW Model 10 with 6 rounds for home defense?

Get the point - Heller for handguns and reasonable restrictions was a giant gift to AWBs and capacity bans.

Given the Scotus won't touch it in the foreseeable future, that's all she wrote folks.

By the way, the Garand - the greatest battle rifle ever - carried 8 rounds.

If you have to justify higher capacity weapons with something beyond 'shall not be infringed', you had better know your stuff on this one.

 

[ShootistPRS]

You have to go back to the Miller case. The supreme court made no decision of the legality of the short shotgun but instead made this statement before referring the case back to the lower court:

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

In effect saying that the second amendment protects the right to have military type guns.