2020 MDGA - Testimony in Opposition to SB55

Bill Link: http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0055?ys=2020RS

This bill would create a new “buyback fund” in the Maryland State Police for the purpose of paying persons for the voluntary surrender of what the bill calls “assault weapons.”  It first defines “assault weapons” to include “A SELF–LOADING, SEMI–AUTOMATIC OR FULLY AUTOMATIC ACTION FIREARM WITH A DETACHABLE MAGAZINE THAT FIRES AN INTERMEDIATE OR HIGH–POWERED CENTERFIRE CARTRIDGE” and to include “A REGULATED FIREARM, AS  DEFINED UNDER § 5–101 OF THIS ARTICLE.”  To create the buyback fund, the bill would direct the Comptroller to create a checkoff on the income tax form that allows taxpayers to contribute $5.00 to the fund, either by reducing the refund or adding to the tax liability of the taxpayer.  The State Police are directed to administer the fund by “SETTING THE PRICES OF ASSAULT WEAPONS THAT THE STATE MAY BUY” and further directs the State Police to either destroy or donate any guns turned in to “the Armed Forces of the United States.”  The bill compels the Governor to include, starting in FY 2022, an annual budget appropriation of $50,000 to the Fund. 

The Bill Conflicts With Existing Maryland Law and Is Grossly Misleading and Misguided:

First, the bill erroneously defines what constitutes an “assault weapon” under Maryland law.  As of enactment of the Firearms Safety Act of 2013, any gun on the list of guns set forth in MD Code Public Safety 5-101(r)(2) was deemed to be an “assault long gun.”  MD Code, Criminal Law, § 4-301(b).  An “assault long gun” is part of the definition for “assault weapon” under Section 4-301(d) (“’Assault weapon’" means: (1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon.”).  An “assault pistol” is defined in MD Code, Criminal Law, § 4-301, to include a very specific list of pistols.  This very specific definition of “assault weapons” does not include “A SELF–LOADING, SEMI–AUTOMATIC OR FULLY AUTOMATIC ACTION FIREARM WITH A DETACHABLE MAGAZINE THAT FIRES AN INTERMEDIATE OR HIGH–POWERED CENTERFIRE CARTRIDGE.”  There are many rifles, for example, that are semi-automatic firearms that do not appear in the list of so-called assault weapons in Maryland.  No “fully automatic” firearm is on that list either, as such firearms are heavily regulated by the ATF under the National Firearms Act of 1934 and are separately regulated under Maryland law.  Indeed, the bill does not even define the term “intermediate or high-powered” cartridge.  That term is hopelessly vague. 

The bill further blunders in defining as an assault weapon every “A REGULATED FIREARM, AS DEFINED UNDER § 5–101” of the Public Safety article. Under Section 5-101, a “regulated firearm” is defined to include not only the long guns listed in Section 5-101(r)(2), but also “a handgun” under Section 5-101(r)(1).  An ordinary handgun is not an “assault weapon” under Maryland law. Thus, calling an ordinary handgun (which includes any single-action, .22 caliber revolver) an “assault weapon” is both massively wrongheaded and legally wrong. 

More fundamentally, handguns are fully protected arms under the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), and may not be banned. Thus, while the State has (thus far) been successful in banning the firearms listed in Section 5-101(r)(2), Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017), the State may not ban handguns under Heller and has wisely made no attempt to do so. In short, defining handguns as “assault weapons” is simply an abuse of the term, which is already a made-up term used for purely political purposes.  See Kobayashi & Olson et al., In re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of “Assault Weapons,” 8 Stan. L. & Pol’y Rev. 41, 43 (1997) (“Prior to 1989, the term ‘assault weapon’ did not exist in the lexicon of firearms. It is a political term, developed by anti-gun publicists to expand the category of ‘assault rifles’ so as to allow an attack on as many additional firearms as possible on the basis of undefined ‘evil’ appearance.”). 

The bill is also a waste of taxpayer funds and utterly misguided in its assumptions.  First, the bill directs the State Police to establish, by regulation, the prices at which the State Police would pay out of this fund for all these firearms that the bill now defines as “assault weapons.”   That includes a huge universe of literally tens of thousands of different guns made by all manufacturers over many years.  Each one of these guns may have a different fair market value. Attempting to establish prices that would attract voluntary surrenders for all of these thousands of guns would require a Herculean expenditure of resources by the State Police. That effort is not only hopelessly complex, it is sure to fail.  Either the price will be too low, in which case there will be no surrenders by economically rational gun-owners (making the Fund useless other than for virtue signaling), or the price will be too high, in which case the owners will happily sell their perfectly legal, but worn out, firearms and turn around and use that cash to buy new firearms.  This is precisely what happened recently in the Baltimore buyback of guns and magazines.  The State Police surely have something better to do with their time.

Second, the bill is further misleading in suggesting that the State Police could donate these guns to the military.  The bill fails to grasp that the Armed Forces of the United States are not in the slightest bit interested in acquiring these civilian firearms. To even suggest otherwise simply misleads the public into thinking that these guns are actually used by the United States military, when they most certainly are not.  See Kolbe, 849 F.3d at 158 (Traxler, J., dissenting) (noting that Maryland’s so-called assault weapons “are not in regular use by any military force, including the United States Army”).  Not even the majority in Kolbe disputed this point. Kolbe, 849 F.3d at 144. 

In sum, the bill is just more misleading anti-gun propaganda dressed up as a voluntary income tax increase.  It misuses established statutory legal terms, mandates expensive use of scarce State Police resources and makes promises that the State Police cannot possibly keep.  At the very least, it is a waste of $50,000 a year, money that could be used to hire teachers or address the opiate crisis.  For all these reasons, we request an unfavorable report.


Mark W. Pennak
President, Maryland Shall Issue, Inc.

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August 2023 Legal Update

Novotny v. Moore - Challenge against aspects of SB 1 and current public carry restrictions

Maryland Shall Issue, the Second Amendment Foundation, the Firearms Policy Coalition, and three individuals have challenged SB 1. That bill passed this last Session of the General Assembly places many unconstitutional restrictions on the right to carry with a permit in Maryland. The case is styled Novotny v. Moore and has been consolidated with Kipke v. Moore in federal district court in Baltimore. Kipke was brought by the Maryland State Rifle and Pistol Association. Plaintiffs in both cases have filed motions for preliminary injunctions and motions for summary judgment with the aim of stopping enforcement of certain restrictions placed by SB 1 by October 1st, the bill’s effective date. Briefing is ongoing in both cases and then the court will decide whether to hold an oral argument and simply move to the issuance of a decision. The court is not required to decide the case within any set time. We will provide updates of importance as they occur. Find all of the filings in both of these cases HERE.

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