MSI Letter on Baltimore's Proposed Toy Gun Ban

A Letter From the President of MSI

Well, we had an impact, but the City Council is tying itself in legal knots in an effort to have it both ways. I mean, you can’t make this stuff up. It is just bizarre.

As previously noted, City Council’s original desire was to ban any toy gun that “could be reasonably be perceived” to be an actual firearm. The original bill can be found here. Then MSI and the NRA sent strongly worded letters to the Council on October 20 pointing out all the flaws, including the reality that the City’s ban was preempted by federal law. The MSI letter can be found here and the NRA’s letter can be found here. Then the City Solicitor’s office weighed in with an opinion that it would survive the federal preemption by amending the bill to state that the ban on possession imposed by the bill would be "subject to federal law on imitation firearms.” That was too clever by half. So MSI responded with another letter, pointing out all the flaws associated with that approach.

That letter must have caused a stir because the bill was thereafter substantially amended. Yesterday, the Council voted in favor of a new, amended bill. So what’s the difference between the original bill and the amended bill? A lot on the surface, but the underlying illegality remains. First, the amended bill still purports to ban “any toy, imitation, facsimile or replica pistol, revolver, shotgun, rifle, air rifle, b-b gun, pellet gun, machine gun, or other simulated weapon, which because of its color, size, shape, or other characteristics, can reasonably be perceived to be a real firearm.” But the amended bill then adds a series of “exclusions” to the ban.

Specifically, the possession ban does not apply to any toy gun that “is in compliance with U.S. Code title 15, chapter 76, § 5001, and “its implementing regulations in 15 C.F.R. § 272.3.” Those provisions cover toy guns that are specifically marked in the manner defined by the regulations. Yet, that doesn’t even begin to fix the legal problem for the City because, as we pointed out to the City in our last letter, the federal law, Section 5001 also expressly leaves unregulated “Traditional B–B, paintball, or pellet-firing air guns that expel a projectile through the force of compressed air, compressed gas or mechanical spring action, or any combination thereof.” The federal law then contains, in Section 5001(g), an express preemption provision under which a State (including the City) simply may not “prohibit the sale” of “B-B” guns, “paintball guns”, or “pellet-firing air guns.” So the City permits the possession of toys marked in accordance with federal regulations, but the bans the very toys that Congress has expressly prohibited the City from regulating. That is blatant lawlessness in action.

What really is rich about this is the City’s rationale. According to today’s Baltimore Sun article, the City thinks it can ban these toys notwithstanding federal law because the federal law only precludes the City from banning the “sale” and the City’s bill doesn’t ban “sales” it only bans “possession.”  So, apparently, the City thinks that a seller doesn’t “possess” the toy gun before selling it? Or that the purchaser doesn’t possess the toy gun after buying it? The legal reality is that if the City may not ban the “sale” of a toy gun, it simply may not ban the “possession” of the toy gun thus sold. There is a rather simple legal explanation for that result: A state law is preempted where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). Where Congress expressly protects the “sale” of these toys from State prohibition, the State may not seek to avoid that prohibition by banning the “possession” resulting from the sale as such a ban also effectively bans the “sale” as well. That well-established legal concept is lost on the City. The City plainly needs better legal advice.

The bill was amended in other ways. For example, the bill, as amended, now exempts from the ban replicas used in “the production of a television program, a theatrical or motion picture presentation, or a historical reenactment,” replicas “actively being transported in intrastate, interstate, or foreign commerce,” replicas used in “a firearm training class taught by a certified qualified firearm instructor pursuant to Maryland law,” in “competitions, or in training for competitions, that test the shooting skills of competitors,” replicas on “display or use on real property owned by the owner of a replica gun, provided the display or use complies with all applicable laws, rules, or regulations concerning the display or use,” and finally the amended bill exempts “paintball, provided the use complies with city code article 19, § 59-26 (gas- or air-pellet guns).”

While these exceptions are a nod to plainly legitimate uses, none of these exceptions to the ban ameliorate the general ban on any BB gun or air pellet gun that “can reasonably be perceived to be a real firearm.” That general ban remains, despite being contrary to Federal law. Indeed, the ban reaches right into the sanctity of the home for all toys that were legally purchased and owned up until now. The exception carved out for the home only applies replicas displayed or used “on real property owned by the owner of the replica gun.” If the owner of the replica doesn’t “own” the property, then no possession is permitted on that property. If you are not the “owner” of the replica, then your possession is banned (even if you live with the “owner”). Renters are completely unprotected by this exception. Talk about a trap for the unwary. The bill continues to contain the same criminal penalties: “any person who violates any provision of this subtitle after having twice previously been found to have violated this subtitle is guilty of a misdemeanor, and upon conviction, is subject to a fine of not more than $1,000 or to imprisonment for not more than 30 days or to both fine and imprisonment for each offense.” That’s right: Jail time for toy possession.

Additionally, MSI sent this letter to the City Council today.

If you live in the City of Baltimore, it is time for you to contact your representative on the Council and let him or her know your views. We are advised that a final vote on this amended bill is set for December 5, 2016. Your district and Council representative can be found here.  While you are at it, MSI also needs your support. For those who have not joined MSI, I ask that you please do so!

Mark W. Pennak

President, Maryland Shall Issue

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