IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 ________ APRIL LOVE, Petitioner v. ROBERT G. PEPERSACK, SR., MERRILL A. MESSICK, JR., ERNEST ELDON PLETCHER, and ELMER HUNT TIPPETT, JR. Respondents ________ PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ________ April Love respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit affirming the dismissal of her amended complaint filed in the United States District Court for the District of Maryland. OPINIONS BELOW The published opinion of the United States Court of Appeals for which review is sought is Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995). The slip opinion in case No. 94-1582 was dated February 3, 1995 [App. 25a-32a]. An appeal to that Court was taken by petitioner from an oral ruling rendered by the United States District Court for the District of Maryland, the Hon. Peter J. Messitte, Judge, on April 1, 1994 in the United States District Court for the District of Maryland in Civil Action No. 93-2609-PJM [App. 10a-24a]. The District Court's opinion is unreported. JURISDICTION Jurisdiction is conferred in this case pursuant to 28 U.S.C. Sec. 1254(1). The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of the petitioner's amended complaint in a published opinion dated February 3, 1995. A Petition For Rehearing and Suggestion Of Rehearing In Banc was denied by order of that court on March 2, 1995 [App. 33a]. RELEVANT STATUTES AND CONSTITUTIONAL PROVISIONS Set forth in App. [1a-9a] are U.S. Const., Amendment 2, U.S. Const., Amendment 14, Section 1, 42 U.S.C. Sec. 1983, Fed. Civ. Procedure 12 (b)(6), Md. Ann. Code art. 27, Sec. 442, and Md. Ann. Code art. 27, Sec. 445. STATEMENT OF THE CASE Jurisdiction is conferred in this case pursuant to 28 U.S.C. Sec. 1254(1). A. The Parties and The Underlying Action. Petitioner's 42 U.S.C. Sec. 1983 complaint arises out of the unlawful interference by the Maryland State Police with her attempt to purchase a handgun. Respondents include three State Troopers and the Superintendent of State Police, all of whom are alleged to have acted in their official capacities under color of state law [App. 35a-36a]. They are being sued, however, only in their individual capacities [App. 36a]. Petitioner sought to purchase a handgun from a retailer in Prince George's County, Maryland. She filled out an "Application To Purchase A Firearm" (Maryland State Police Form #77R) which was forwarded to the licensing division of the Maryland State Police [fn 1] [App. 36a]. Petitioner properly completed her application and all information given by her was true and correct [App. 37a]. It is undisputed that petitioner was not legally disqualified from purchasing a handgun. However, in violation of state law, respondents disapproved her application solely on the basis of several prior arrests [fn 2] without determining the ultimate disposition of those arrests [App. 38a-40a]. Respondents, without any lawful basis, sent a notice to the seller of the handgun that a transfer to petitioner could not be completed [App. 40a]. Respondents maintained a long standing policy of disapproving applications solely on the basis of prior arrests despite their knowledge that Md. Ann. Code art. 27, Sec. 442 permitted them to send a notice of disapproval to the seller of a handgun only when they determined that an applicant provided false information or that the application had not been properly completed [App. 41a-42a, 44a]. Petitioner alleges that as a result of respondents' unlawful conduct she was denied the ability to purchase a handgun and was compelled to obtain the services of legal counsel to represent her in an appeals process. [App. 45a] The appeals process culminated in an order entered in her favor by the Circuit Court for Prince George's County, Maryland whereby the respondent Tippett was ordered to "forthwith approve [petitioner's] Application To Purchase A Firearm" [App. 45a]. The state court held that the disapproval of petitioner's application had been "arbitrary and capricious" [App. 17a]. All the individual respondents are alleged to have acted willfully and maliciously and with a reckless disregard of the constitutional rights of petitioner [App. 45a]. Petitioner alleges that respondents' conduct was deliberate and made with knowledge that there was no lawful basis for disapproval of her application [App. 38a-41a, 45a]. Petitioner alleges a deprivation of rights guaranteed to her by the Second and Fourteenth Amendments to the United States Constitution, namely, the right to keep and bear arms, freedom to contract and due process of law [App. 46a]. B. Respondents' Motion To Dismiss. Respondents filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a cause of action. This motion was granted by the District Court after a hearing on April 1, 1994 [App. 10a]. C. The Appeal. Petitioner noted an appeal to the United States Court of Appeals for the Fourth Circuit. The case was captioned Love v. Pepersack, No. 94-1582. In a published opinion dated February 3, 1995, Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), the Court of Appeals affirmed the dismissal of petitioner's amended complaint by the District Court [App. 31a]. The Court of Appeals held that the Second Amendment "preserves a collective, rather than individual right" [App. 31a]. This holding runs contrary to several opinions of this Court. See Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812, (1894); United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 3 L.Ed. 1206 (1939). In each of these cases in which this Court discussed, or touched upon the Second Amendment, it never conditioned the right to keep and bear arms upon affiliation with or service in an organized militia. Even today, this Court still refers to the Second Amendment in the context of individual rights, such as the right to freedom of speech and freedom from unreasonable searches and seizures. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 10 S.Ct. 1056, 108 L.Ed.2d. 222, (1990); Planned Parenthood v. Casey, 112 S.Ct. 2791 120 L.Ed.2d. 674 (1992). The opinion of the Court of Appeals is also in conflict with the opinion of the United States Court of Appeals for the Ninth Circuit in Fresno Rifle And Pistol Club v. Van De Camp, 965 F.2d 723, 731 (9th Cir. 1992) affirming the holding of a district court that the Second Amendment guarantees an individual right (although declining to hold it applicable to the States via the Fourteenth Amendment). The Court of Appeals also relied upon United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876) and Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) as sole authority for the proposition that the Second Amendment is inapplicable to the states [App. 30a]. In doing so, the Court of Appeals ignored almost a century of case law in which this Court has repudiated Cruikshank's holding that none of the Bill of Rights are applicable to the states. The Court of Appeals stated as fact things that are not apparent from the record in order to excuse respondents' unlawful disapproval of petitioner's application to purchase a firearm. In particular, the Court stated that "[the licensing division] was strapped for time" [App. 26a]. The Court also stated as fact that "[respondents] were forced by extreme time constraints to streamline investigations" [App. 29a]. Neither of these facts upon which the Court so heavily relied are apparent from the record. That the respondents were "strapped for time" was never even suggested by the respondents in their brief. The Court of Appeals also treated this case as if it were one alleging unintentional conduct, although the amended complaint clearly alleges that respondents all acted willfully and maliciously. The Court held that a violation of substantive due process occurs: only where the government's actions in depriving a person of life, liberty, or property are so unjust that no amount of fair procedure can rectify them [App. 29a]. This is an appropriate standard in a case involving unintentional conduct. Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d. 662 (1986). However, petitioner's amended complaint clearly alleges that respondents' conduct was deliberate and respondents acted with knowledge that there was no lawful basis for disapproval of petitioner's application [App. 38a, 41a, 45a]. The Court of Appeals ignored an established standard of review in evaluating a Rule 12(b)(6) motion. That is whether the complaint, accepting the allegations as true, allows a recovery. Waterford Citizens Ass'n v. Reilly, 970 F.2d 1287, 1290 (4th Cir. 1992). D. The Petition For Rehearing. In her Petition For Rehearing And Suggestion Of Rehearing In Banc all of the points raised immediately above were brought to the attention of the Court of Appeals. The petition was denied on March 2, 1995 [App. 33a]. REASONS FOR GRANTING THE PETITION I. IN HOLDING THAT THE SECOND AMENDMENT "PRESERVES A COLLECTIVE, RATHER THAN AN INDIVIDUAL RIGHT" THE COURT OF APPEALS DECIDED A FEDERAL QUESTION IN A WAY THAT CONFLICTS WITH APPLICABLE DECISIONS OF THIS COURT. The Court of Appeals reaffirmed its earlier decision in United States v. Johnson, 497 F.2d 548 (4th Cir. 1974) that the "Second Amendment preserves a collective, rather than an individual right" [App. 31a]. It also suggested that petitioner, in order to prevail on any Second Amendment claim, would have to identify "how her possession of a handgun will preserve or insure the effectiveness of the militia" [App. 31a]. In holding that the Second Amendment preserves only a collective right (and suggesting that affiliation with a militia is required to assert a Second Amendment claim) the Court of Appeals decided a federal question in a way that conflicts with applicable decisions of this Court. On those occasions where it has discussed the right to keep and bear arms, this Court has always treated it as an individual right. Furthermore, this Court has never conditioned the right to keep and bear arms upon affiliation with an organized state militia. In Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857) this Court addressed the question of whether persons of African descent could be citizens. It held that they could not in an opinion written by Chief Justice Taney, a Southerner from Maryland (where slavery was both legal and widely practiced). In 1857, Southerners were not keen on the idea of freeing the slaves, much less bestowing upon them the rights of citizens. The concerns of his fellow Southerners were not lost upon Chief Justice Taney, who wrote that if blacks were recognized as citizens in any State of the Union, they would have the right to travel freely, engage in free speech, hold public meetings on political issues, and "keep and carry arms wherever they went." 60 U.S. at 416-17. If the Second Amendment guaranteed only the collective right of states to maintain militias, there would have been no reason for Taney to fear that black citizens could "keep and carry arms" since citizenship does not automatically entail service in an organized state militia. What concerned Chief Justice Taney was the rights blacks would enjoy as citizens. This Court's opinion in Scott v. Sanford also listed the right to keep and bear arms with other rights which the Court has held to be of an individual nature, such as freedom of religion, free speech, freedom of the press, peaceable assembly, trial by jury, and the right against self-incrimination. 60 U.S. at 450. In United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876) this Court effectively repealed the Due Process Clause of the Fourteenth Amendment by holding that the Second Amendment, like the rest of the Bill of Rights, only operated as a restraint upon the federal government. In discussing the right to "bear arms for a lawful purpose" this Court stated that "the people" should look to localities (not the National Government) for protection against "their fellow citizens" of rights recognized by the Second Amendment. 92 U.S. at 553. Cruikshank affirmed an order arresting judgments of conviction for conspiracy to deprive freed blacks in Louisiana of their civil rights. The fact that the black citizens who were victimized were not affiliated with an organized state militia had no bearing on the case. This Court in Cruikshank also used the phrase "the people" in the same context as "their fellow citizens". 92 U.S. at 553. It obviously viewed "the people" referred to in the Second Amendment as meaning individuals. States, unlike individuals, do not have "fellow citizens". In Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) this Court upheld the conviction of a man charged with parading a body of armed men through Chicago without a license. Illinois law prohibited bodies of men to associate together as military organizations or to drill or parade in cities and towns unless authorized by law. Presser challenged this law as violating the Second Amendment. The Court held that these provisions did not infringe the right of the people to keep and bear arms. Citing Cruikshank, Presser also held that the Second Amendment is a limitation only upon Congress and the federal government. Presser did, however, hold that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States and of the States; and that even without the Second Amendment states may not prohibit people from keeping and bearing arms "so as to deprive the United States of their rightful resource for maintaining public security." 116 U.S. at 265, 6 S.Ct. at 584. Presser thus drew a clear distinction between "the people" and "States". As in Scott v. Sanford and Cruikshank, this Court in Presser never conditioned the right to keep and bear arms upon affiliation with an organized state militia. If the Second Amendment guaranteed only a collective right, this Court could easily have disposed of Presser's Second Amendment claim by holding that he lacked standing to assert it. Instead, this Court addressed Presser's Second Amendment claim on its merits. In Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (1894) this Court declined to rule on the appellant's Second Amendment claim due to his failure to raise it in a timely fashion, stating, "[i]f the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court." 153 U.S. at 538. Miller had been convicted of murder and on appeal argued that Texas law forbidding the carrying of weapons violated the Second Amendment. Once again, if the Second Amendment guaranteed only a collective right, such a claim could have been easily disposed of due to Miller's lack of standing. However, Miller's claim was not ruled upon because he, as an individual, lacked standing to assert it. This Court held that he had failed to assert it in a timely fashion. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) involved the indictment of Jack Miller and a cohort for unlawfully transporting a short-barrelled shotgun in violation of the National Firearms Act of 1934. The federal district court sustained Miller's demurrer to the indictment, holding that the section of the act under which he had been indicted violated the Second Amendment. The United States appealed. Miller absconded. Only the Solicitor General for the United States filed a brief or appeared to argue the case. What this Court was concerned with was whether the shotgun possessed by Miller had "some reasonable relationship to the preservation or efficiency of a well-regulated militia, . . ." 307 U.S. at 178, 59 S.Ct. at 818. This Court refused to take judicial notice that a short-barrelled shotgun "is any part of ordinary military equipment or that its use could contribute to the common defense", 307 U.S. at 178, 59 S.Ct. at 818, and the case was remanded to the district court for further proceedings. If the Second Amendment guaranteed only a collective right, this Court could have simply held that Jack Miller, as an individual, lacked standing to assert a right to keep and bear arms. However, the fact that Miller was not affiliated with an organized state militia had no bearing on the case. Miller never even suggested that the possessor of a firearm must be a member of a militia, and the individual nature of the right to keep and bear arms went unquestioned. United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed. 2d. 222 (1990) involved the search of a residence in Mexico by agents of the United States Drug Enforcement Agency. The occupant of the residence was a Mexican citizen who later sought to suppress evidence that had been obtained during the search. This Court held that the Fourth Amendment did not apply to a search by American police of the Mexican residence of a Mexican citizen and resident who had no voluntary attachments to the United States. Although this case involved a claim under the Fourth Amendment's prohibition against unreasonable searches and seizures, the opinion by Chief Justice Rhenquist makes it clear that the phrase "the people", as used in the Bill of Rights, means individuals: "The people" seems to have been a term of art employed in select parts of the Constitution. . . . The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") . . . . While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U.S. at 265, 110 S.Ct. at 1057 (emp. added) In his dissenting opinion in Verdugo-Urquidez, Justice Brennan noted that, "the term `the people' is better understood as a rhetorical counterpoint to `the government,' such that rights that were reserved to `the people' were to protect all those subject to `the government.'" 494 U.S. at 287, 110 S.Ct. at 1072 (emp. added) In Planned Parenthood v. Casey, ____ U.S. ____, 112 S.Ct. 2791, 120 L.Ed.2d. 674, (1992), this Court considered the constitutionality of provisions in a Pennsylvania abortion statute requiring the informed consent of the patient, a 24-hour waiting period, parental consent, spousal notification, and reporting and recordkeeping. The plaintiffs claimed that such provisions constituted a deprivation liberty in violation of the Due Process Clause of the Fourteenth Amendment. Planned Parenthood held that the substantive liberties protected by the Fourteenth Amendment against interference by the States was not limited to those rights already guaranteed against federal interference by the first eight amendments to the Constitution. In doing so, this Court listed the right to keep and bear arms in the same context as other rights which it has held to be of an individual nature: Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9. As the second Justice Harlan recognized: "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting from dismissal on jurisdictional grounds.) 112 S.Ct. at 2805 (emp. added) That this Court would even mention the right to keep and bear arms in a discussion of the rights protected by the Due Process Clause of the Fourteenth Amendment demonstrates that it considers the Second Amendment to guarantee an individual right. The touchstone of due process is protection of the individual against arbitrary action of government. Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889); Wolff V. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935, 2976 (1974). The First and Fourth Amendments guarantee individual, as opposed to collective, rights. See Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925)(First Amendment guarantee of freedom of speech applicable to States); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 168, 46 L.Ed.2d. 1081 (1961)(barred use of evidence seized in violation of Fourth Amendment). The Court's opinions in Verdugo-Urquidez and Planned Parenthood demonstrate that if "the people" whose rights are guaranteed by the First, Fourth, Ninth, and Tenth Amendments are individuals, "the people" whose rights are guaranteed by the Second Amendment must also be individuals. All of the above cases were cited by petitioner below. The Court of Appeals, however, dismissed the petitioner's authorities as being only "law review articles". [App. 30a] One of those law review articles was The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1166 (1991), in which Prof. Akil Reed Amar of Yale Law School wrote: The states' rights reading [of the Second Amendment] puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to "the people," not the "states." As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means "states," it says so. Thus, as noted above, "the people" at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens. Another law review article cited by petitioner below was The Second Amendment and The Personal Right to Arms, 43 DUKE L.J. 1236, 1243-44 (1994) in which Prof. William Van Alstyne writes: [The Second Amendment] looks to an ultimate reliance on the common citizen who has a right to keep and bear arms rather than only to some standing army, or only to some other politically separated, defined, and detached armed cadre, as an essential source of security of a free state. In relating these propositions within one amendment, moreover, it does not disparage, much less does it subordinate "the right of the people to keep and bear arms." To the contrary, it expressly embraces that right and indeed it erects the very scaffolding of a free state upon that guarantee. It derives its definition of a well-regulated Militia in just this way for a "free State:" The Militia to be well regulated is a Militia to be drawn from just such people (i.e. people with a right to keep and bear arms) rather than from some other source (i.e. from people without rights to keep and bear arms). (emp. in original) During the Constitutional Convention, language qualifying the right to keep and bear arms by inserting the phrase "for the common defense" next to the words "bear arms" was rejected. This underscores the drafters' refusal to limit the right to military purposes. Dowlut, Federal And State Constitutional Guarantees To Arms, 15 U. DAYTON L. REV. 59, 66 (1989). II. THE OPINION OF THE COURT OF APPEALS IS IN CONFLICT WITH THAT OF ANOTHER UNITED STATES COURT OF APPEALS ON THE SAME MATTER. The opinion of the Court of Appeals is in conflict with the opinion of the United States Court of Appeals for the Ninth Circuit in Fresno Rifle And Pistol Club v. Van De Camp, 965 F.2d 723 (9th Cir. 1992) on the question of whether the Second Amendment guarantees an individual right. In Fresno, the ninth Circuit Court of Appeals affirmed the holding of a district court that the Second Amendment guarantees an individual right. Id. at 731. A conflict therefore exists between the Circuit Courts as to the nature of the right guaranteed by the Second Amendment. III. IN HOLDING THAT "THE SECOND AMENDMENT DOES NOT APPLY TO THE STATES" THE COURT OF APPEALS DECIDED A FEDERAL QUESTION IN A WAY THAT CONFLICTS WITH APPLICABLE DECISIONS OF THIS COURT. Citing only Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) and United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876) the Court of Appeals held that "[t]he Second Amendment does not apply to the states" [App. 30a]. United States v. Cruikshank held that the Second Amendment was intended only as a bar to action by the federal government. 92 U.S. at 553. Cruikshank was cited for this proposition ten years later in Presser v. Illinois. 116 U.S. at 265, 6 S.Ct. at 584. Actually, Cruikshank held that the none of the Bill of Rights acted as a restraint upon State action. As the Court stated succinctly: The First Amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the Government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State Government in respect to their own citizens, but to operate upon the National Government alone. 92 U.S. at 553 (emp. added) This Court has long since abandoned such a restricted application of the Bill of Rights in a series of cases beginning in 1897. Utilizing what has come to be known as the "incorporation doctrine" this Court has held that various individual rights guaranteed by amendments to the U.S. Constitution may not be infringed upon by the states. See, e.g., Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897)(compensation for taking of property); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925)(freedom of speech); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 168, 46 L.Ed.2d. 1081 (1961)(barred use of evidence seized in violation of Fourth Amendment); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d. 758 (1962) (prohibition against cruel and unusual punishment); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d. 799 (1963)(right to counsel); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d. 653 (1964)(self-incrimination); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d. 1 (1967)(speedy trial); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 20 L.Ed.2d. 491 (1968)(jury trial); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d. 707 (1969)(double jeopardy). In The Second Amendment and The Personal Right to Arms, 43 DUKE L.J. 1236, 1239, n. 10 (1994) Prof. William Van Alstyne writes: [T]here are a few nineteenth century decisions denying any relevance of the Second Amendment to the States; but these decisions (they have never been revisited by the Supreme Court) merely mimicked others of the same era in holding that none of the rights or freedoms enumerated in the Bill of Rights were made applicable by the Fourteenth Amendment to the states. See, e.g., Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1876). The shaky foundation of these cases ("shaky" because the effect was to eviscerate the Fourteenth Amendment itself) has long since been recognized -- and long since repudiated by the Court in general. While Cruikshank (and its progeny, Presser) did hold that the Second Amendment does not apply to the states they did so only in the context of holding that none of the Bill of Rights applied to the states. To the extent that the principle enunciated in Cruikshank has since been repudiated, the Court of Appeal's reliance on that case as precedent conflicts with this Court's ultimate rejection of the principle Cruikshank espoused. [fn 3] IV. WHETHER THE SECOND AMENDMENT IS APPLICABLE TO THE STATES VIA THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IS AN IMPORTANT QUESTION OF FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT. What is generically referred to as "gun control" [fn 4] is an issue that, like abortion, generates a lot of controversy. Like abortion, many of the attempts to restrict, or prohibit [fn 5] the private ownership of firearms take place at the state or local level. The infringement of a right is no less significant when accomplished via state or local law, as opposed to an act of Congress. Whether the protections afforded by the Second Amendment are applicable to the States is, therefore, of great importance to millions of Americans whose possession of firearms may be adversely affected by local laws. People have a fundamental right to defend themselves against criminal assaults. United States v. Panter, 688 F.2d 268, 271 (5th Cir. 1982). For many adults firearms offer the only practical and effective means of self-defense against armed, violent attackers. The importance of having access to firearms for self-defense is underscored by the fact that local governments have no obligation to protect any particular individual. Ironically, the same localities who would disarm their inhabitants can disclaim any obligation to protect them. [fn 6] The legislative history of the Fourteenth Amendment demonstrates that its drafters intended the first section to restrain the power of the States to abridge personal rights guaranteed by the first eight amendments to the Constitution. Cottrol & Diamond, The Second Amendment: Toward An Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 346 (1991), Van Alstyne, The Second Amendment and The Personal Right to Arms, 43 DUKE L.J. 1236, 1251-52 (1994). However, not long after ratification of the Fourteenth Amendment this Court held that the Bill of Rights operated only as a restraint upon the federal government. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). Via Cruikshank, this Court effectively repealed the Due Process Clause of the Fourteenth Amendment. As noted above, beginning in 1897 this Court has subsequently held other portions of the Bill of Rights as being applicable to the States via the Due Process Clause. In The Embarrassing Second Amendment, 99 YALE L.J. 637, 653 (1989), Prof. Sanford Levinson of the University of Texas Law School questions whether Cruikshank and Presser should still be considered binding precedent: The first "incorporation decision," Chicago, B. & Q. R. Co. v. Chicago, was not delivered until eleven years after Presser; one therefore cannot know if the judges in Cruikshank and Presser were willing to concede that any of the amendments comprising the Bill of Rights were anything more than limitations on congressional or other national power. The obvious question, given the modern legal reality of the incorporation of almost all of the rights protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, is what exactly justifies treating the Second Amendment as the great exception. Why, that is, should Cruikshank and Presser be regarded as binding precedent any more than any of the other "pre-incorporation" decisions refusing to apply given aspects of the Bill of Rights against the States? (emp. in original) V. IN AFFIRMING THE DISMISSAL OF THE COMPLAINT BY THE DISTRICT COURT, THE COURT OF APPEALS DISREGARDED WELL-ESTABLISHED PRECEDENT. A. The Court of Appeals mis-applied a standard that is relevant only in cases of unintentional conduct. In holding that the Due Process Clause was not violated in this case, the Court of Appeals relied on Rucker v. Harford County, 946 F.2d 278 (4th Cir. 1991) cert. denied, 112 S.Ct. 1175 (1992) [App. 29a]. Rucker involved the unintentional shooting of a bystander while police were attempting to apprehend a fleeing criminal. In Rucker, 946 F.2d at 281, the Court of Appeals cited Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d. 662 (1986) in support of its holding that the residual protections of "substantive due process" run only to state action so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any pre-deprivation procedural protections or of adequate rectification by any post-deprivation state remedies. Daniels v. Williams, like Rucker, involved unintentional conduct on the part of the defendants. Daniels held that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." 474 U.S. at 328, 106 S.Ct. at 663 (emp. in original). In discussing the Due Process Clause, this Court in Daniels stated that "Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." 474 U.S. at 331, 106 S.Ct. at 665 (emp. in original). Cf., Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990). In Kellogg the Supreme Court of Indiana upheld a Sec. 1983 action in which the City of Gary refused to even issue applications for handgun carry permits. In doing so, the court held that a state law right to bear arms for self-defense and for defense of the state is an interest in both liberty and property protected by the Fourteenth Amendment and which can serve as the basis for a Sec. 1983 action. Id. at 694-95. The decision to disapprove petitioner's application to purchase a firearm is alleged to have been deliberate and made with knowledge that there was no lawful basis for disapproval. In the context of a case alleging deliberate misconduct, Daniels v. Williams is inapplicable. B. The Court of Appeals overlooked its usual standard in reviewing Rule 12(b)(6) motions, and stated as fact something that is not apparent from the record or even suggested by respondents. In order to excuse the respondents' unlawful conduct in disapproving the petitioner's application to purchase a firearm, the Court of Appeals stated as fact something that is not apparent from the record, or even suggested by the respondents in their brief. Petitioner asks only that her case be decided on the basis of the record. The Court of Appeals concluded that although respondents apparently violated state law, they were compelled to do so because of time constraints: The licensing division of the Maryland State Police received the [petitioner's] application [to purchase a firearm] on September 18, 1990. It was strapped for time -- Maryland law gives the police only seven days to deny the application; if it does not act, the dealer may legally sell the firearm. 27 Md. Code Ann. Sec. 442(b)(1992) [App. 26a]. The Court also discussed what "forced" the respondents to "streamline" the investigation required by the legislature: Though their acts apparently violated state law, these police officers were forced by extreme time constraints to streamline investigations. They erred on the side of caution by denying applications where a computer check showed arrests with unknown dispositions. We cannot say that this corner cutting was "unjustified by circumstance or governmental interest" or that its effect was "literally incapable of . . . adequate rectification by any post-deprivation state remedies" [App. 30a]. The statute giving the State Police seven days in which to disapprove an application to purchase a firearm was enacted in 1966. Legislatures are presumed to intend to enact statutes which are constitutional and otherwise valid. Port Const. Co. v. Gov't Of Virgin Islands, 359 F.2d 663, 665 (3rd Cir. 1966). Since 1966, the Maryland General Assembly has never seen the need to expand the period of time in which the State Police must decide whether to disapprove an application to purchase a firearm. The Court of Appeals substituted its judgment for that of the Maryland legislature in holding that the seven day period was not sufficient for respondents to conduct the investigation required by law. By excusing respondents' unlawful conduct which is sanitized as "streamlining" or "corner cutting") the Court of Appeals laid the foundation for its conclusion that respondents' conduct was: (a) justified and/or (b) not incapable of "adequate rectification by any post-deprivation state remedies." There is nothing in the record below which justified respondents' willful disregard of the law they were sworn to uphold, regardless of whether it is characterized as mere "streamlining" or "corner cutting". Petitioner alleges that respondents knew they had no lawful basis to disapprove her application, and that they acted willfully and maliciously and with a reckless disregard of the appellant's constitutional rights. The standard of review used in evaluating a Rule 12(b)(6) motion is whether the complaint, accepting the allegations as true, allows a recovery. Waterford v. Citizens Ass'n v. Reilly, 970 F.2d 1287, 1290 (4th Cir. 1992). Petitioner ultimately prevailed in a judicial appeal of the respondents' conduct. Unfortunately, no post-deprivation state remedy could restore to petitioner the free exercise of her right while the case was on appeal in state court. By way of analogy, if petitioner had been denied the right to vote solely on account of her race she could undoubtedly have that denial overturned by a state court. However, in the interim, she would have been denied the exercise of that right, which no post-deprivation remedy could restore to her. CONCLUSION For the reasons set forth above, petitioner prays that her Petition For Writ Of Certiorari be granted. Respectfully submitted, Howard J. Fezell 8 East Street Post Office Box 588 Frederick, Maryland 21705 (301) 846-0241 Counsel For Petitioner FOOTNOTES 1. Md. Ann. Code, art. 27, Sec. 442 requires that any persons seeking to purchase a handgun from a dealer must first submit an application to the Superintendent of State Police. By signing the application a prospective purchaser certifies that he or she is not disqualified from purchasing or possessing a handgun by any factors set forth in art. 27, Sec. 442(f). The Superintendent is required to conduct an investigation into the application. Md. Ann. Code, art. 27, Sec. 442(g). For 7 days from the date the application is submitted a transfer of the handgun to the prospective purchaser may not take place. If, after seven days, the dealer does not receive a notice of disapproval from the Superintendent a transfer may take place. The Superintendent may send a notice of disapproval only if "[i]f it be thereupon determined that any false information or statement has been supplied or made by the applicant, or that the application has not been properly completed, . . . " Id. 2. Petitioner worked as an exotic dancer. Of her three arrests in Florida, two were for participating in an obscene show and one was for indecent exposure. All three were misdemeanors. Only one resulted in a conviction when she pleaded guilty to participating in an obscene show and paid a fine. Petitioner's arrest in Illinois was for two counts of battery and one count of resisting arrest. This did not result in a conviction. 3. Despite the fact that Cruikshank's holding that none the Bill of Rights are applicable to the States has been long since discarded by the Supreme Court, the Court of Appeals clings to it like it did to Plessey v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) when, in a one-page opinion, it upheld racial segregation of athletic activities in public parks and playgrounds in Baltimore. See Boyer v. Garrett, 183 F.2d 582 (4th Cir. 1950). 4. To people who oppose the private ownership of firearms, "gun control" is often a euphemism for prohibition. Attorney Ronald Goldfarb wrote in an op-ed piece in the Washington Post, "[n]o reform can be meaningful without a tough program for dismantling existing arsenals, applying not just to handguns but to all assault weapons (and ammunition). After a brief period of amnesty, the dismantling of all unregistered and unregulated weapons must be swift and thorough." "Domestic Disarmament", Washington Post, November 21, 1993, page C3. Sen. Daniel Patrick Moynihan of New York advocates that a 10,000 percent tax be levied on certain types of ammunition, effectively raising its cost out of sight. "Guns Don't Kill People. Bullets Do." New York Times, December 12, 1993, page E15. Adoption of a "prohibitive excise tax on the sale of ammunition" is also advocated by Lloyd Cutler, White House Counsel to both Presidents Carter and Clinton. "License and Restrict Handguns", the Washington Post, December 21, 1993, page A23. After passage of the "Brady Bill" (which imposed a five business day waiting period on the sale of handguns) the Washington Post editorialized that, "[t]here remains much more to do (especially in regard to banning assault weapons), . . ." "Gun Law From Barth to Brady", Washington Post, December 1, 1993, Page A24. In another editorial entitled "Gun Control In Haiti", this newspaper equated gun control with firearms confiscation by American troops occupying that island. Washington Post, November 29, 1994, Page A22. 5. Any comprehensive listing of attempts to seriously restrict or prohibit the private ownership of firearms would exceed the limits imposed by Rule 33. What follows is only a minuscule sampling of efforts at local attempts at prohibiting private gun ownership. The Chicago Housing Authority has adopted lease provisions prohibiting tenants from possessing firearms or ammunition. This applies even to persons who are otherwise in compliance with applicable state and city laws, such as the registration requirements of Chicago Code Sec. 8-20-040. Dowlut, Bearing Arms In State Bills Of Rights, Judicial Interpretation, And Public Housing, 5 St. Thomas Univ. L.R. 203, 212-214 (1992). Similar lease restrictions imposed by the Portland, Maine Housing Authority were recently invalidated by the Maine Supreme Judicial Court on grounds other than the Second Amendment. John Doe v. Portland Housing Authority, Decision No. 7191, April 4, 1995. Morton Grove, Ill. Village Ordinance No. 81-11 bans the private possession of handguns, subject to certain exceptions. No exception is made for people who simply want to keep a handgun at home for self-defense. The ordinance was unsuccessfully challenged as being violative of the Illinois State Constitution and the Second and Ninth Amendments of the United States Constitution. See Quilici v. Village Of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). The cities of Kenosha and Milwaukee, Wisconsin held referendums in November, 1994 on virtually identical ordinances that would have outlawed private possession of handguns with a barrel shorter than 10 inches. None of the exemptions in either ordinance would have permitted possession of a handgun at home for self-defense. The measure lost in Milwaukee by a 2 to 1 margin with 47,721 votes in favor, and 97,421 against. In Kenosha the ordinance lost by a margin of almost 3 to 1 with 6,382 votes in favor, and 17,537 votes against. The District of Columbia has prohibited the acquisition of new handguns by its residents since 1976. All firearms, including handguns, must be registered. D.C. Code, Sec. 6-2311. However, D.C. Code, Sec. 6-2312(4) provides that no registration certificate shall be issued for a pistol not validly registered prior to September 24, 1976. 6. See note 5, supra.