MSI Winter Update

Well, the Legislative Season is upon us.  More on that below.  But the really big news is that the Supreme Court has granted certiorari (agreed to decide) its first major Second Amendment case since McDonald v. Chicago was decided back in 2010. 

The case comes out of New York City.  New York state law requires that any person who wants to keep a handgun in the home must first apply for and obtain a "premises" license that allows that person to possess a handgun in the home. Under that law, New York City is allowed to charge an exorbitant amount, $340, for a three-year license.  See Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013), for details.

New York City then added a new wrinkle all its own. It passed a law that provides that the licensee may not transport the licensed handgun anywhere outside the city limits of NYC. The only place the handgun may be transported is to one of seven firing ranges within the City itself.  That ban applies to taking your handgun to a second home in the State, or even across the river to nearby ranges in New Jersey.  The Court of Appeals for the Second Circuit sustained this irrational ban, purporting to apply "intermediate scrutiny," but actually applying a "rational basis" test. New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018).  The plaintiffs then petitioned for certiorari (a copy of the petition can be found here).

On January 22, 2019, the Supreme Court agreed to hear the case.  While petitioners raise Commerce Clause arguments, the lead contention is that the New York City ban violates the Second Amendment under any conceivable standard of review.  The Supreme Court's argument docket is full for this Term, but we expect the case to be briefed over the summer and argued in October 2019, at the beginning of the Court's next Term.  This is potentially huge.  Squarely at issue is the "scope of review," viz., the legal standard under which such Second Amendment challenges are judged.  We don't yet know what arguments the petitioners will present (the petition is quite broad), but they are represented by Paul Clement, one of the premier lawyers in the exclusive Supreme Court Bar.

This decision by the Supreme Court to review the Second Circuit's decision has not gone without notice.  In an inexplicable editorial, the Sun newspaper bemoaned the decision, complaining that it might mean more guns on the streets of Baltimore. According to the Sun, “Baltimore’s murder problem and its gun problem are essentially one and the same.”  We had something to say about that in a letter to the editor. Alas, the Sun chose not to publish the response.  We can only wonder why.

On to the General Assembly.  For this year, MSI has instituted a new service to keep track of Second Amendment related bills filed in the General Assembly.  It uses Legiscan and it is extremely informative.  You can find it here.  Please take a look.  It is updated on regular basis, as new bills are filed.

One of the most draconian bills up this year is HB 96, sponsored by Delegate Kathleen Dumais (D. District 15, Montgomery County). That bill would require every temporary transfer or loan of a handgun, including between spouses and other family members, to go through the 77R State Police transfer process, including the seven-day waiting period.  That would mean that if one spouse left for a business trip, for example, the other spouse could not access (or have access) to any handgun owned and registered to the first spouse.   And no transfer is permitted under the 77R process unless the person has a Handgun Qualification License, with all that entails. The penalty for a violation?  Five years in prison for one or both parties for participating in this "transfer." This bill is scheduled for a hearing before the House Judiciary Committee in Annapolis on February 25.  We invite you to be there for the hearing.  An identical bill (SB 860) was filed last year.  Our testimony on that bill can be found here.  Our opponents are nothing if not persistent.

Another bill, Senate Bill 8, would prohibit a person from possessing, distributing, transmitting, publishing, selling, transferring, or purchasing computer software that could be used to make a gun.  Possession of any gun thus made would also be banned. This bill is an over-the-top, hysterical reaction of some lawmakers to Defense Distributed 3-D software, currently being separately attacked by Maryland in other federal court proceedings.  These lawmakers don't quite appreciate that the federal courts have held that that computer software is speech, rather like a book, and is thus entitled to First Amendment protections.  In essence, these lawmakers want to be book burners and censors.  George Orwell would approve.  A hearing on this bill has not yet been scheduled, so stay tuned.

In other litigation matters, MSI and the individual plaintiffs have appealed the district court's dismissal of the bump stock case to the Fourth Circuit.  Under the briefing order, our opening brief is currently due February 12, 2019.  The State will then have 30 days to file a response (March 14) and we will have 21 days to file a Reply Brief.  Oral argument won't be for mouths.  We may have to be selective in the arguments we present on that appeal, in light of the decision of the ATF to ban bump stocks on the federal level.  Litigation challenging that ATF ban is underway in multiple courts, but those cases will not be resolved anytime soon.

The HQL litigation is now completely briefed on cross-motions for summary judgment.  Our opening papers can be found here.  Our Reply Brief can be found here.  A hearing in federal district court will likely be held soon but has not yet been scheduled.  We think we have made a powerful case that the HQL requirements and the State Police regulations are unconstitutional under any standard of review, including both strict scrutiny and intermediate scrutiny.  This litigation may well be affected by any Supreme Court decision in the New York City transport case, discussed above.

The First Amendment litigation challenging the unlawful arrest and jailing of the Hulbert brothers in Annapolis last year has been fully briefed on the State's motion to dismiss since last May.  Our brief on the State's motion to dismiss can be found here. The State is claiming that the Capitol Police officers have immunity for these unlawful arrests.  There has been no hearing set and no word from the district court.  We have no idea why it is taking the court this long to set a hearing or issue an order on the motion.  We can only speculate that the district court is writing an extensive opinion.  Maybe something will be forthcoming soon.

All of this litigation is expensive.  With the Supreme Court agreeing to consider the New York City transport case, we anticipate that more litigation will be in the offing.  Please help with your donations.  Lawyers are a necessity but they are expensive.  We know from experience that getting a favorable bill through the General Assembly is next to impossible.  The courts are thus our only avenue of relief from unconstitutional actions by Maryland.  All the officers and Board members of MSI are unpaid volunteers. Please help us. If you are not a member, please become a member.  If you are a member, please donate, if you can!

Mark Pennak
President, Maryland Shall Issue

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