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


Latest News

Court Uphold's MD's Taking of Rapid Fire Trigger Activators

 

In a sharply split, 2-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit has held that Maryland may ban the possession of "Rapid Fire Trigger Activators" by existing owners without paying just compensation under Fifth Amendment or the Maryland Constitution.  The majority ruled that no just compensation was owed to existing, lawful owners because the ban “does not require owners of rapid fire trigger activators to turn them over to the Government or to a third party.”  In short, as far as this majority is concerned, the State is free to ban the possession of any personal property without paying just compensation unless the State puts the property into its own pocket or the pocket of a third party.  If that is the law, then no personal property, of any kind, is safe from the grasping clutches of the General Assembly.  For example, the State could ban possession of your existing car and not pay a dime.  The dissenting opinion ably demolishes the majority's reasoning.  Needless to say, we will be seeking further review.

You can read the ruling HERE.  Stay tuned.

Maryland Shall Issue will continue to fight for the interests and rights of its members and the public, but to do so requires resources and your help. Consider joining or donating to MSI.

Background Checks for Firearms Purchases and Licenses Interrupted

Due to a systems failure on the morning of June 21st within the Maryland Department of Public Safety and Corrections Services (DPSCS), the Maryland State Police (MSP) was no longer able to complete background checks for Handgun Qualification Licenses (HQL), regulated firearms transfers (77R transfers), and Wear and Carry Permit background investigations. DPSCS have since restored their systems and the MSP have been processing background checks as fast as they can. We appreciate the efforts of the State Police to remedy the backlog as quickly as possible, though the bureaucratic processes created by the General Assembly compounds these issues for Marylanders who are merely trying to protect themselves.

From the MSP:

Background Checks Underway After Data System Restored

(PIKESVILLE, MD) — Maryland State Police Licensing Division employees worked throughout the night and will continue to work around-the-clock to address pending regulated firearm purchase applications after a state data system was restored late yesterday.

At about 8:30 p.m. yesterday, the State Police Licensing Division was notified by officials at the Maryland Department of Public Safety and Correctional Services that the data system had been restored and access to background check information was available.  Employees at the Licensing Division immediately began completing background check investigations on the regulated firearm purchase applications that had been pending since a system failure occurred on June 21st.

Licensing Division employees worked throughout the night and will continue to work around-the-clock until all pending and incoming regulated firearm purchase applications have been reviewed and are being completed within Maryland’s required seven day waiting period.  Even with employees working 24-hours-a-day to address this, the process is anticipated to take several days to complete.  The Licensing Division continues to work with Maryland’s licensed firearms dealers to track any regulated firearm released after the waiting period, but before full completion of the background check process.

As of 4:00 p.m. yesterday, information from Maryland firearms dealers indicated that of the 893 firearm purchase applications eligible for release, 54 regulated firearms had been released to customers after the seven day waiting period had passed.  The individuals receiving those firearms were the first ones background checks were conducted on during the night.  There were no prohibiting factors found for any of those applicants.


As far as we know, there's no evidence or information to suggest that anyone's personal information was comprimised while the systems were down and none of the applicants whose dealer released firearms to them failed or would have failed background checks.

While the MSP have asked the Dealers to hold off on releasing any regulated firearms (handguns) until the checks completed, dealers may release regulated firearms on the 8th day after a transaction at their discretion. From the MSP's latest advisory on 6/25:

Should the RFD elect to exercise their statutory option to release a regulated firearm on the eighth day, we ask that the procedure listed below be followed:

1. The RFD will access their Licensing Portal;
2. locate the application to be released within the “SUBMITTED APPLICATIONS” section;
3. print a copy of the application;
4. verify that all information in “Section 4” is accurate;
5. both the RFD and the applicant will sign and complete “Section 6;”
6. scan and send the completed copy of the 77R to .

Additional Coverage:
Maryland Handgun Background Check System Crashes, Leaving Gun Buyers in Limbo - Washington Free Beacon
Citing a ‘catastrophic hardware failure,' Maryland State Police report delays in gun background checks and licenses - Baltimore Sun
Guns sold without completed background checks in Maryland - WUSA9
After ‘Catastrophic Hardware Failure,’ Dozens Of Guns Were Released Without Completed Background Checks In Maryland - WAMU

Contact Info

Headquarters:

Maryland Shall Issue®, Inc.
9613 Harford Rd
Ste C #1015
Baltimore, MD 21234-2150

Phone:  410-849-9197
Email: 
Web:   www.marylandshallissue.org