The following is posted from a semi-private forum.
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http://ia600501.us.archive.org/1/ite...72.docket.htmlGo to document 53. It's a PDF of the order.
This ruling is good, solid reasoning that will stand up, and be tough to get around - but it's not as good as it could have been.
The Court views the carrying of handguns outside the home as outside the core areas of 2nd amendment protection as Heller's ruling focused on the fundamental rights to have a firearm in the home for protection; therefore, this court reasons that the right must exist outside the home, as the bearing of arms doesn't occur at home, but it's not part of Heller's core rights.
Carrying of arms, and by extension, the permit process attached thereto, is protected under intermediate scrutiny:
Intermediate scrutiny requires more; the government‘s interest must be ―significant,‖ ―substantial,‖ or ―important,‖ see, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994), and the ―fit‖ between the challenged regulation and the asserted objective must be reasonable, though not perfect. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001).
The MD law does not meet this burden at all as it stands:
ii. Intermediate Scrutiny
As stated, Maryland‘s permitting scheme, insofar as it requires a ―good and substantial‖ reason for a law-abiding citizen to carry a firearm outside his home, is subject to intermediate scrutiny. In order to prevail, the State must demonstrate that the challenged regulation is reasonably adapted to a substantial governmental interest. Under this standard, the ―degree of fit‖ between the regulation and ―the well-established goal of promoting public safety need not be perfect; it must only be substantial.‖ Heller v. Dist. of Columbia, 698 F. Supp. 2d 179, 191 (D.D.C. 2010).
Beyond peradventure, public safety and the prevention of crime are substantial, indeed compelling, government interests. See, e.g., United States v. Salerno, 481 U.S. 739, 748–50 (1987) (noting that ―the Government‘s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual‘s liberty interest‖ and holding that the government‘s interest in preventing crime is not only important, but compelling); Schall v. Martin, 467 U.S. 253, 264 (1984) (―The legitimate and compelling state interest in protecting the community from crime cannot be doubted.‖) (citations and quotation marks omitted).
The Maryland statute‘s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end. The requirement that a permit applicant demonstrate ―good and substantial reason‖ to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States‘ laws do, limit the carrying of handguns to persons deemed ―suitable‖ by denying a permit to anyone ―whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.‖ See Kuck v. Danaher, No. 3:07cv1390(VLB), 2011 WL 4537976 at *11 (D. Conn. Sept. 29, 2011).
Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate ―good reason‖ beyond a general desire for self-defense.
In support of this limitation, Defendants list numerous reasons why handguns pose a threat to public safety in general and why curbing their proliferation is desirable. For example, they argue that an assailant may wrest a handgun away from its owner, and cite evidence that this possibility imperils even trained police officers. See Defs.‘ Mot. Summ. J. 15, Docket No. 26. They note that when a police officer is engaged in a confrontation with a criminal, the presence of an armed civilian can divert the officer‘s attention. Id. at 16. In addition, Defendants urge that while most permit holders are law-abiding, there is no guarantee that they will remain so. They cite studies purporting to show that the majority of murderers have no previous felony conviction that would have prevented them from obtaining a permit. Id. at 35. Thus, they argue, a permitting scheme that merely denies permits to convicted felons is inadequate.
These arguments prove too much. While each possibility presents an unquestionable threat to public safety, the challenged regulation does no more to combat them than would a law indiscriminately limiting the issuance of a permit to every tenth applicant. The solution, then, is not tailored to the problem it is intended to solve. Maryland‘s ―good and substantial reason‖ requirement will not prevent those who meet it from having their guns taken from them, or from accidentally shooting themselves or others, or from suddenly turning to a life of crime. Indeed, issuing permits specifically to those applicants who can demonstrate an increased likelihood that they may need a firearm would seem a strange way to allay Defendants‘ fear that ―when handguns are in the possession of potential victims of crime, their decision to use them in a public setting may actually increase the risk of serious injury or death to themselves or others.‖ Id. at 15. If anything, the Maryland regulation puts firearms in the hands of those most likely to use them in a violent situation by limiting the issuance of permits to ―groups of individuals who are at greater risk than others of being the victims of crime.‖
Id. at 40.
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered ―reasonably adapted‖ to a government interest, no matter how substantial that interest may be. Maryland‘s goal of ―minimizing the proliferation of handguns among those who do not have a demonstrated need for them,‖ id. at 40, is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly.
Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself. ―[E]ven the most legitimate goal may not be advanced in a constitutionally impermissible manner.‖ Carey v. Brown, 447 U.S. 455, 464–65 (1980).
At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method. The showing, however, is always the Government‘s to make. A citizen may not be required to offer a ―good and substantial reason‖ why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.
The Court wishes to emphasize the limits of this decision. While it finds Maryland‘s requirement that a permit applicant demonstrate ―good and substantial reason‖ to be unconstitutional, the Court does not address any of the State‘s other regulations relating to the possession and use of firearms, many of which would qualify as presumptively lawful.
Nor does the Court speculate as to whether a law that required a ―good and substantial reason‖ only of law-abiding citizens who wish to carry a concealed handgun would be constitutional.11 Finally, the Court does not speak to Maryland‘s ability to declare that a specific applicant is unfit for a permit because of some particular aspect of the applicant‘s character or history.
This case is not the ringing decleration of the RKBA we'd all hope for.
Instead, it's an attack agains arbitrary and caprecious laws restricting the RKBA.
It says to MD "If you want to have a permit process, fine. Have one with a goal that is acceptable - public safety - and a law's methods reasonably and substantively related to that goal that is applied fairly. I'm not going to tell you want that is, just that the goal of burdening the right to make it unexcercised is NOT going to be tolerated. I'm not saying you have to go Texas...but I'm telling you that you aren't going to pass muster with a law designed as a winnowing process from the get-go."
