Argument Monday in post-McDonald case
The case is State v. Charles Williams, pending in the Maryland Court of Appeals. I'm told Williams was charged with carrying without a permit, said permits being very difficult to get, and has raised the constitutionality of the requirement. I'd expect there will be procedural issues (e.g., an argument that he has to apply for a permit and see what happens, rather than breaking the law and raising it as a defense,
Argument will be broadcast live, here, at 10 AM EDT Thursday, October 7.
Hat tip to reader Alice Beard...
I suppose I should check for specific cases, but I think that the permit requirement has been litigated in states where there is a state RKBA constitutional provision, and it has been upheld.
The argument that he should have applied and been denied is a strong one. Still, it will be interesting to see what happens. As far as i know, no court yet has selected a level of scruitney for the 2nd, other than SCOTUS saying rational basis is too low.
Posted by: Jim at October 3, 2010 05:38 PM
"The argument that he should have applied and been denied is a strong one."
I disagree. If a law is unconstitutional are we required to obey it and sue later? It is my understanding that if you apply for a permit, then you are consenting to the constitutionality of the process and cannot sue later for being required to apply for a permit. Isn't there a first amendment case that required Jehovah's witnesses to be licensed/pay a fee prior to handing out leaflets? Wasn't it declared unconstitutional? Murdock V PA
Posted by: Anonymous at October 4, 2010 12:16 PM
Yes, we must obey even unconstitutional laws until they are struck down. A law getting struck down on the basis of it being unconstitutional is a pretty big if. Laws are presumed constitutional until it is demonstrated beyond a reasonable doubt that they are not. At least that's the standard used in Rhode Island. I'm not sure what standard the federal courts would use, but its not a low bar to leap.
Other things you have a constitutional right to do require permits. A government can require a parade permit, a permit to lobby, and other permits related to free speech and assembly. They can require you get a marriage license. They can require that you get a permit to expand your home on your own property. They can even charge reasonable fees for these permits. See this:
Now, if it is determined that a permit requirement is unconstitutional, then he has a shot at this. He may end up demonstrating that the process to get the permit is unconstitutional, so maybe that will save him. But my money is on him being cooked. BTW, I would not mind being proved wrong.
Posted by: Jim at October 4, 2010 01:21 PM
yes but is it constitutional to require you to get a permit in order to exercise a fundamental right...under penalty of prison for non compliance? Is that still a fundamental right then? I know this question is yet to be answered when it come to RKBA. Permits for parades, assembly speech etc are required when your right intrudes on someone's right to travel or be violated in some way; i.e. volume restrictions on amplified music etc. If a federal, state or local government required you to get a permit in order to posses violent movies or music would you obey? I know we are going to have a difference of opinion on this so I'm not going to debate constitutional rights on Mr Hardy's website. Its just one of my pet peeves when people reflexively accept politicans requiring them to get permits to exercise their fundamental rights. That's how they get away with it for so long. Also do you know for a fact that if you consent to the permiting process that you can still challenge it at a later date as an unconstitutional requirement?
Posted by: Anonymous at October 4, 2010 01:53 PM
Permits will be viewed as constitutional even after public carry is deemed a civil right. Even under a strict scrutiny regimen. It meets the tests (compelling government interest; narrowly focused; minimally invasive, etc.).
That doesn't mean I like it or think the arguments make sense (it won't stop criminals from carrying guns). It just means the permit will probably pass muster. The SAF and our hero Gura (of Heller/McDonald fame) have even stipulated in their briefings to various courts that they accept this will be constitutional. They argue not about permits or the manner of carry (concealed/open), but about the fact some states discriminate in the permitting process.
I agree this kid is probably toast. As of now there is no contravening caselaw in MD that recognizes that anyone has any 2A rights. And even if the court were to accept McDonald in whole, the permit is the object of the charge - not the gun. Nobody is arguing against the need for a permit right now, so his conviction will stand.
The only argument he could make is that the permit process is so outlandishly against the average person - and so exceptionally slow - that his carrying was a response to the implied inequity of the system. But that will require a finding of fact (he would have been denied a permit) before a finding of law (he should have gotten one). That's too far for this court to go.
Posted by: Patrick at October 5, 2010 09:05 AM
As Patrick said, the issue here is law, not what we think is right. I am not saying I like the permit requirement. In fact, I initially supported a permit requirement years ago but have come to see it as a waste of time, and worse. If it were up to me, every state would be like Vermont, Alaska and AZ.
This is a battle that needs to be won at the ballot box, not the courts. Sure it would be great if courts would instantly strike down these requirements, for a short time. The reality is that sweeping changes like this are best made when there is public support for them, not when they are rammed down our throats.
It took decades to desegregate southern schools after Brown v Board of Education. Even with a major court win, things don't change overnight. That said, I do want favorable court decisions. They improve our immediate situation and get the public thinking our way. But we still need to win the hearts and minds.
Posted by: Jim at October 5, 2010 10:47 AM
I think we all agree that carry permits are not going away anytime soon...at least until the scrutiny question gets resolved. I do disagree with "...It meets the tests (compelling government interest; narrowly focused; minimally invasive, etc.)."
Everything politicians want to do is a compelling government interest, which typically is not a compelling citizen interest. If someone is legally able to purchase a firearm and goes through NICS, what changes if they decide to carry that firearm outside of their home? What does a permit do that NICS has not already done? Some states require character references even if you pass NICS. Are character references constitutional in order for you to exercise a fundamental right, even after it has been determined through NICS you are not a prohibited person? Isn't the question of determining if a firearms purchaser is a prohibited person, the compelling government interest? Permits are not narrowly focused either as the purpose is to weed out criminals from carrying firearms however they only effect law abiding citizens. Will a criminal who is prohibted by law from touching a firearm going to apply for a carry permit? Some states you need a permit just to own a firearm...even in your own home. How would you all feel if that was deemed constitutional and was done throughout the country? The process for this can take months and cost hundreds of dollars. I hardly consider that minimally invasive.
Posted by: Anonymous at October 6, 2010 08:06 AM