Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

...

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625–26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

 I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A “reasonable” regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.

Therefore, with a little help from Dave himself, here’s a quick list of stuff Dave’s done recently that most ordinary humans could not do:

Wrote an amicus brief in the McDonald v. Chicago Supreme Court case that was cited 3 times in the decision. Wrote a critical article for America’s 1st Freedom explaining the Supreme Court opinions in McDonald. Dave sat down with me for a podcast and a TV show about the crucial McDonald decision.

Here’s an America’s 1st Freedom article on Dave’s book Aiming for Liberty.

Dave flew to Washington DC to provide testimony on Supreme Court nominee Elena Kagan and her Second Amendment views. Here is video of Kopel’s testimony with a couple of followup Q&A from the Senators.

Catch Dave at Liberty on the Rocks Red Rocks this coming Monday the 19th at the Old Chicago in Lakewood.

After you’re done catching up with all that, Dave will have a dozen new things out to read, watch, and listen to, so stay tuned here.  We are so honored to have him here at Independence.  Thanks Dave for all you do!

A wonderful song at all times, and especially around Independence Day, especially this year.

“The Battle Cry of Freedom” was written during the Civil War, and sung by Union troops going into battle. This video pays tribute to Ulysses Grant, the General most responsible for winning the war for the Union. Elected President of the U.S. in 1868 and re-elected in 1872, U.S. Grant vigorously enforced federal civil rights laws to protect the freedmen. Not until Lyndon Johnson in 1963–69 would an American President work with such determination for civil rights. After leaving the White House, Grant served as the 8th President of the National Rifle Association.

The National Rifle Association’s brief in McDonald v. Chicago quoted President Grant:

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).

The brief  likewise quoted a report from General Grant about the conditions in Mississippi which had helped convince Congress of the necessity of the Fourteenth Amendment, to make the Second Amendment applicable to all state and local governments:

“The statute prohibiting the colored people from bearing arms, without a special license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).

McDonald v. Chicago brings the United States an important step closer to accomplishing a central purpose of the Fourteenth Amendment: making all of the Bill of Rights applicable to every state and local government in America. It was a national tragedy that the Supreme Court essentially nullified much of the Fourteenth Amendment for so long. It is a national blessing that America’s many civil rights organizations were able, over the long term, to revitalize the Fourteenth Amendment, and change the Supreme Court from a nullifier of the Amendment into an enforcer of the Amendment.