2020 MDGA - Testimony in Opposition to HB35

Bill Link: http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0035?ys=2020RS

This bill would require the Maryland State Police to study and make recommendations to the General Assembly concerning the feasibility of “FIREARM TELEMATICS” which the bill defines to mean “AN ELECTRONIC SENSOR OR EQUIPMENT INSTALLED ON A FIREARM DESIGNED TO TRACK THE LOCATION OF THE FIREARM IF IT BECOMES LOST OR STOLEN.”  The obvious intent underlying such firearm telematics is trace and locate any firearm so equipped.  Presumably, such equipment could be made mandatory if the study were to determine that doing so would be technically feasible.  Indeed, the bill contemplates such equipment for “PREVIOUSLY MANUFACTURED FIREARMS.”

The Bill Is Pointless As Under the Fourth Amendment Telematics Devices May Not Be Installed Without A Search Warrant Based On Probable Cause Of A Crime:

The Supreme Court has made clear in recent decisions that the use of tracking devices, including the very types of devices that this bill contemplates, violate the Fourth Amendment to the Constitution. In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court held  that the government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search under the Fourth Amendment, requiring a search warrant.  Such a search, the Court ruled, was a “trespassory intrusion on property.” (565 U.S. at 414).  Justice Sotomayor concurred, stating flatly that “[w]hen the Government physically invades personal property to gather information, a search occurs.”  Id. Such a search requires that the government obtain a judicial warrant based on probable cause of a crime. 

The Court’s decision in Jones was most recently followed by Carpenter v. United States, 138 S.Ct. 2206 (2018).  There, the Supreme Court concluded that the Fourth Amendment was violated by the warrantless search of cell phone records held by third parties (wireless carriers) of a person’s physical movements as captured by cell-site location information.  Relying on the principles recognized in Jones, the Court held that “[w]hether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell-site location information].”  (138 S.Ct. at 2217).

Under Jones and Carpenter, a State Police study of telematics would be pointless as these cases make clear that the government simply may not attach or require the attachment of telematics equipment, either on existing firearms or new firearms, without a warrant.  Exactly like the GPS tracker used in Jones, such telematics equipment would constitute a “trespassory intrusion” on private property.  Just as in Carpenter, records of any movement of firearms to which the telematics equipment is attached are governed by the Fourth Amendment, as it is would permit the State to monitor firearms owners as they move around with their firearms. See also Taylor v. City of Saginaw, 922 F.3d 328 (6th Cir. 2019) (applying Jones to government’s use of chalk to mark tires of legally parked cars).  These concerns are at their zenith here, as firearms are typically stored in the home, and thus attachment of a telematics device would involve an intrusion into the home itself. 

Indeed, the bill is Orwellian in its implications.  A device that can be used to track a stolen firearm can obviously be used to track the movements of a non-stolen firearm.  The risk is real that such tracking devices would be misused by law enforcement to illegally track the movements of gun owners, just as the GPS device was illegally used in Jones.  Gun owners, like the defendants in Jones and Carpenter, have a constitutionally protected interest in their movements.  The State may not condition the exercise of one constitutional right (the right under the Second Amendment to possess firearms) by requiring firearm owners to relinquish their Fourth Amendment right to privacy. Any attempt to do so would violate both the Second Amendment and the Fourth Amendment. Indeed, under the “unconstitutional conditions doctrine,” that would be true even if there was no Second Amendment right involved at all. See United States v. American Library Assn., Inc., 539 U.S. 194, 210 (2003) (“the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit”).  See also United States v. Scott, 450 F.3d 863, 868 (9th Cir. 2006) (applying the doctrine to the Fourth Amendment context). That the State may have a public safety interest in locating lost or stolen firearms is simply not sufficient to justify the trespassory intrusions necessary to monitor the movements of these firearms. For all these reasons, we request an unfavorable report.

Sincerely,

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

PDF Available Here

 


Latest News

Shooting Ranges and Dealers Are Critical Infrastructure and May Remain Open!

Gun Ranges and and Federal Firearms Licensees may remain open!

Governor Hogan's latest order (dated March 30, 2020) states:

This Order controls the occupancy and use of all businesses, organizations, establishments, and facilities that are not part of the critical infrastructure sectors identified by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (currently described at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19) (collectively, “Non-Essential Businesses”).

That cross reference to the DHS website is controlling as to the scope of the Governor's definition of "non-essential businesses."  Stated differently, the order expressly does NOT apply to businesses that are part of the "critical infrastructure sectors," as defined by DHS.  That cross reference thus requires reference to the DHS site in order to determine what is a "critical infrastructure" business. 

At that DHS website is the Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response Version 2.0 (March 28, 2020), available at https://www.cisa.gov/sites/default/files/publications/CISA_Guidance_on_the_Essential_Critical_Infrastructure_Workforce_Version_2.0_Updated.pdf.  That document sets out the "identified essential critical infrastructure workers," which includes:  "Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges."  Those businesses may remain open, including "firearm or ammunition . . . retailers" and "shooting ranges." 

We endorse the Governor's recommendations for safe practices while at these facilities.  See https://coronavirus.maryland.gov/.  If you have any questions on the scope of the Governor's orders, you should consult your lawyer.  The Governor's orders have the force of law and a violation of the orders is a criminal misdemeanor.  See MD Code, Public Safety, § 14-114.

Link to Governor Hogan's Fourth Executive Order

Link to the latest guidance from the Department of Homeland Security

Maryland Shall Issue has joined the AGC!

As of March 19th, 2020, the AGC is currently closed due to Governor Hogan's Executive Orders in efforts to mitigate COVID-19. You can find those orders here: https://governor.maryland.gov/wp-content/uploads/2020/03/Amending-Gatherings.pdf

 


MSI is now an AGC club!


Maryland Shall Issue, inc. is proud to announce that it has formally joined the Associated Gun Clubs of Baltimore (AGC) as an Associated Club. Therefore, anyone who is a current member of MSI in good standing is eligible to purchase an AGC range badge upon completion of a range safety orientation. This is an important benefit for members as the AGC range is one of the finest shooting facilities on the East Coast. 

Read more ...

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