2020 MDGA - Testimony in Opposition to SB208
The bill (as well as its cross-filed bill HB4) would add a wholly new set of restrictions on temporary and permanent long gun “transfers” which would be defined in an extremely broad manner. The bills would severely criminalize any non-compliance with its many and highly complex new restrictions. The bills would effectively eviscerate loans of guns between law-abiding individuals, including fellow hunters and effectively destroy the market value of countless gun collections, as their sales would be all but banned. The bills mandate the use background checks by Federal Firearms Licensees (“FFLs”) for private loans of long guns in a manner that would actually violate federal law. The bills would create nightmarish uncertainty in violation of the Due Process Clause of the Fourteenth Amendment. Finally, the bills ignore the well-documented reality that these sorts are long guns are almost never used in crime. Indeed, FBI statistics demonstrate that a person far more likely to be killed by a knife or hands or feet than a long gun. There is simply no public safety purpose that would be served by these bills.
B. THE BAN ON PRIVATE TRANSACTIONS AND LOANS OF
HUNTING RIFLES AND SHOTGUNS
The bill would amend MD Code Public Safety 5-201 and create a new Section 5-204.1 in the Public Safety Article to impose new restrictions on the private “transfers” of all regular (non-regulated) rifles and shotguns, such as conventional hunting guns of the type that have been in use for decades in Maryland. The term “transfer” is very broadly defined to include “A SALE, A RENTAL, A FURNISHING, A GIFT, A LOAN, OR ANY OTHER DELIVERY, WITH OR WITHOUT CONSIDERATION.” The bills first impose a broad ban on any such transfers, providing that “A PERSON WHO IS NOT A LICENSEE MAY NOT COMPLETE THE TRANSFER OF A RIFLE OR SHOTGUN OTHER THAN A REGULATED FIREARM, AS A TRANSFEREE OR TRANSFEROR, UNLESS THE PERSON IS IN COMPLIANCE WITH THIS SECTION.” The bills then provide that such transfers may take place only through a licensed firearms dealer (a “licensee”), stating that “BEFORE A TRANSFER IS CONDUCTED, THE TRANSFEROR AND TRANSFEREE SHALL MEET JOINTLY WITH A LICENSEE AND REQUEST THAT THE LICENSEE FACILITATE THE TRANSFER.” The dealer is free to decline to do so and is free to charge any “REASONABLE” fee if the dealer elects to do. The bills then state that “A LICENSEE WHO AGREES TO FACILITATE A TRANSFER UNDER THIS SECTION SHALL PROCESS THE TRANSFER AS THOUGH TRANSFERRING THE RIFLE OR SHOTGUN FROM THE LICENSEE’S OWN INVENTORY TO THE TRANSFEREE.” The “licensee” is then directed to “COMPLY WITH ALL FEDERAL AND STATE LAW THAT WOULD APPLY TO THE TRANSFER, INCLUDING ALL BACKGROUND CHECK AND RECORD–KEEPING REQUIREMENTS.” A violation of these requirements is severely punished with “IMPRISONMENT NOT EXCEEDING 5 YEARS OR A FINE NOT EXCEEDING $10,000 OR BOTH.”
1. The Premise Of The Bill Is Contradicted By Recent Studies
The proffered premise of the bill is supposedly public safety. Specifically, the idea appears to be that requiring comprehensive background checks for private sales and loans of long guns will reduce homicides and suicides by keeping guns out of the hands of prohibited persons or persons who may use them to commit suicide. That premise is flawed. In a recent study concerning California's comprehensive background check (“CBC”) and misdemeanor violence prohibition policies conducted by researchers from the UC Davis School of Medicine, and by Daniel Webster of the Johns Hopkins Bloomberg School of Public Health (among others), the study concluded that California’s long standing comprehensive background check system “was not associated with a net change in the firearm homicide rate over the ensuing 10 years in California.” (Study at 1, Abstract). A copy of the study is attached. The researchers further concluded that the same was true for suicides, finding that “[t]he decrease in firearm suicides in California was similar to the decrease in nonfirearm suicides in that state” and that the “[r]esults were robust across multiple model specifications and methods.” (Id.). As the study also states, “a more rigorous time-series analysis found no effect on firearm suicide and homicide rates from repealing CBC policies in two states.”
In other words, imposing comprehensive back ground checks beyond those already required by federal law does nothing to promote public safety. Given its authors (Daniel Webster of Johns Hopkins testified before the General Assembly in support of the Firearms Safety Act of 2013), this study is entitled to considerable weight. Indeed, the California CBC law, addressed in the study, covered both long guns and handguns and Maryland already requires the same sort of comprehensive background checks on private sales of handguns. See MD Code, Public Safety, § 5-124. The study’s conclusion thus applies with even greater force to Maryland. As detailed below, the bill criminalizes an enormous amount of innocent conduct in order to criminalize private transfers and loans of rifles and shotguns, even though these firearms are very seldom used in crime. These bills would thus mint thousands of new criminals for engaging in private transactions that have been legal for centuries and that is less risky to the public safety than a private sale of a knife. The General Assembly should require strong factual support of the public safety benefits before severely criminalizing conduct that has been common and legal since before Maryland became a State. As this latest study makes plain, that support is lacking here. After all, “[m]aking something a crime is serious business.” Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731 (6th Cir. 2013) (Sutton, J., concurring).
2. Existing Federal and State Law
Under current law, dealers are required by federal law to conduct a background check through The National Instant Criminal Background Check System (“NICS”). The NICS system is run by the FBI, as required by the Brady Handgun Violence Prevention Act of 1993, codified at 18 U.S.C. § 922(t). https://www.fbi.gov/services/cjis/nics. Current federal law bans the sale of firearms that have moved in interstate commerce by persons other than a Federal Firearms Licensee (“dealer” or “FFL”). 18 U.S.C. § 922(a). Federal law provides that a dealer must do a NICS check for all sales of long guns. See 18 U.S.C. § 922(t). See also Preamble to ATF Regulations at 63 FR 58272-01, 1998 WL 750214 (October 29, 1998), currently codified at 27 C.F.R. Part 478 (“the law clearly states that the permanent provisions apply to all firearms, including rifles and shotguns”). A “dealer” is defined as “any person engaged in the business of selling firearms at wholesale or retail.” 18 U.S.C. § 921(11)(A).
As clarified in 1986, the term “[e]ngaged in the business” means “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” 18 U.S.C. § 921(21)(C). Sales by persons who are not “engaged in the business” of firearm sales are not regulated by federal law. NICS checks are not performed by the FBI for secondary sales between private citizens who are not “engaged in the business” of selling firearms,
Background checks for sales of rifles and shotguns in Maryland are governed exclusively by federal law. Specifically, Maryland is a Point of Contact state for NICS checks purposes only for dealer sales of handguns. Thus, for handgun sales by a dealer, the Maryland State Police serves as the Point of Contact for purposes of contacting the FBI for a NICS check on a dealer sale of a handgun. However, the Maryland State Police is not a Point of Contact for long gun sales and thus does not conduct a background check for sales of long guns. Only the dealer does the NICS checks on sales of long guns, using Federal form 4473. Similarly, Maryland regulates private sales of handguns by requiring an application, using State form 77R, to be submitted to the State Police for such sales. See MD Code, Public Safety, § 5-124. Because such private sales of handguns (and long guns) is not regulated by federal law, the State Police likewise may not conduct a NICS check on such private handgun sales. It may conduct only a background check using state databases. The State Police does not perform either a NICS check or a state database check on for private sales of long guns.
In addition to sales regulated by federal law, Maryland may also access NICS “in connection with the issuance of a firearm-related or explosives-related permit or license….” 28 C.F.R. 25.6(j). Access to NICS for other reasons, including background checks for private sales, is strictly prohibited. “State or local agencies, FFLs, or individuals” who misuse their NICS access privileges are “subject to a fine not to exceed $10,000 and subject to cancellation of NICS inquiry privileges.” 28 C.F.R. 25.11(a). The bill does not disturb this basic allocation of responsibility. The State Police would remain the Point of Contact for contacting the FBI for a NICS check for dealer handgun sales and the dealer would continue to be responsible for obtaining the NICS background check for all dealer long gun sales. With respect to private long gun sales, the only change is that the bill would now ban private long gun sales and temporary possessions unless the transaction is “facilitated” by a dealer who would conduct a NICS background check “as though” the sale was from the dealer’s inventory. But, as discussed below, the dealer simply may not legally conduct such NICS checks in this manner for private long gun loans or temporary possessions.
3. The NICS Check Required By The Bill Is Contrary To Federal Law
The foregoing federal regulatory system is fatal to the bill, as Nevada discovered recently when it tried to implement a similar requirement in that state. Stated simply, a dealer is allowed under federal law to request a NICS check only when the dealer is actually making the sale or transfer from his/her own inventory. NICS checks are not permitted for private sales because NICS is a federal database and bona fide private sales are not regulated by federal law. See United States v. Hosford, 843 F.3d 161 (4th Cir. 2016). That means that no dealer may legally comply with the requirements for private transfers that would be imposed by the bill because the dealer is not actually making the transfer and thus may not access NICS to institute a background check. Federal regulations are quite explicit on that point. 28 C.F.R. 25.6(a) provides that “FFLs may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose.” (Emphasis added). Similarly, the Federal Firearms Licensee Manual issued by the FBI states that “[a]n FFL is never authorized to utilize the NICS for employment or other type of non-Brady Act-mandated background checks.” (Emphasis added).
There is a limited, quite complex, Guidance approved for dealers by the ATF for “the procedures to follow when facilitating private sales.” Guidance at 1. A copy of that Guidance is attached. This method is available only for “private party sales of firearms.” (Id). Under that procedure, “[t]he prospective transferee (buyer) must complete Section A of the ATF Form 4473” and the dealer is likewise required to fill out the dealer portions of Form 4473. The dealer must then follow federal regulations for the entry of the firearm in his or her records for each completed sale. This procedure is limited to actual sales. Under the Brady Act, as codified in 18 U.S.C. 922(t), expressly is limited to “transfers,” providing that the dealer may not “transfer” a firearm to a person without conducting a NICS check. The Guidance thus permits dealers to conduct such “facilitation” only for private sales or transfers and for no other types of conveyance, such as longs or gifts.
The structure of other provisions Section 922 confirms that the term “transfer” means a “sale” or permanent transfer. For example, in 1986, Congress amended Section 922(d) to include to provide that a person may not “sell or otherwise dispose of” firearms to prohibited persons, as set forth in Section 922(d). See, e.g.,United States v. Jefferson, 334 F.3d 670, 675 (7th Cir. 2003) (noting that when Congress amended Section 922(d) in 1986 to include the term “dispose of,” Congress intended to broaden the law to ban dealers and all other persons from engaging in temporary transfers to prohibited persons under Section 922(d)). See also 18 U.S.C. 922(j) (regulating the disposal of stolen firearms). Other portions of Section 922 are directed to legal possession without addressing the meaning of “transfer.” See Section 922(a)(3), (g), (h), (k). Nothing in these provisions purport to address, much less prohibit, temporary transfers to law-abiding persons. The term “transfer” is nowhere defined in the Brady Act, 18 U.S.C. § 922(t), to include a mere loan or gift or temporary possession to an otherwise law-abiding person. Nor would such coverage make sense as the NICS system instituted by the Brady Act was intended to regulate sales by dealers, not private sales (which are unregulated). Dealers sell firearms; they do not normally engage in the temporary loans or gifts of firearms and certainly do not do so “without consideration.”
The Maryland Court of Appeals is in accord with this limited meaning of transfer. In Chow v. State, 393 Md. 431, 903 A.2d 388 (2006), the Court of Appeals held that “the word ‘transfer,’ as used in [MD Code Public Safety § 5-124], is used in an ownership context and does not apply to the situation extant in the case sub judice — that of a gratuitous temporary exchange or loan between two adults who are otherwise permitted to own and obtain regulated firearms.” Again, nothing in Maryland law purports to ban the loan of a handgun or a long gun to an otherwise law-abiding person.
These bills would change that result only for long guns by defining “transfer” to include loans or gifts or any “delivery” of any kind. That definition of “transfer” is fundamentally incompatible with this limited definition of the term as used in the Brady Act. Specifically, the bill defines transfer to mean “A SALE, A RENTAL, A FURNISHING, A GIFT, A LOAN, OR ANY OTHER DELIVERY, WITH OR WITHOUT CONSIDERATION.” Such a temporary “transfer” under the bill is not a “transfer” under federal law for purposes of the Guidance issued by ATF for “facilitating” a private sale. That is fatal to the bill. As noted, the bill requires that “A LICENSEE WHO AGREES TO FACILITATE A TRANSFER UNDER THIS SECTION SHALL PROCESS THE TRANSFER AS THOUGH TRANSFERRING THE RIFLE OR SHOTGUN FROM THE LICENSEE’S OWN INVENTORY TO THE TRANSFEREE.” Yet, as explained above, the dealer is not authorized by federal law to request such a NICS check for “a rental, a furnishing, a gift, a loan or any other “delivery” as defined in these bills. Under ATF Guidance, a dealer may only “facilitate” a private “sale” – the Guidance does not address such temporary possessions. See Guidance at 1. Such activities are not, in fact and law, regulated by federal law. The FBI will thus refuse to conduct such a NICS check for such temporary transfers. In short, the NICS check required by the billsrequires the dealer to commit a violation of federal law and inappropriately seeks to enlist the dealer in an effort to commandeer the FBI into providing a NICS check system in a manner contrary to federal law.
That result cannot be evaded by adopting a legal fiction requiring a dealer to treat the private “transfer” (as defined) “as though” it came out the dealer’s “own inventory.” Treating a private temporary exchange of possession “as though” it came out of inventory simply is not the same as an actual “transfer” actually coming from the dealer’s inventory under the Brady Act. As explained above, the Brady Act and the NICS system covers dealer sales and permanent transfers – not loans. These bills cannot change federal law; they cannot broaden the federal definition of a “transfer” to include a mere loan. Any dealer who attempted to make that false certification to the FBI in requesting a NICS check would be subject to prosecution and imprisonment for making a false “representation.” See 27 C.F.R. 478.128(c) (“Any * * * licensed dealer * * * who knowingly makes any false statement or representation with respect to any information required by the provisions of the Act * * * under the Act or this part shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.”). Similarly, a State or a FFL that requests a NICS check not authorized by federal law is subject to a $10,000 fine and a termination of access to the NICS system. 28 C.F.R. § 25.11(a).
The FBI and federal law will not permit FBI resources to be commandeered in the manner required by these bills. For example, in Nevada, an initiative was adopted on November 8, 2016, that expressly required dealers to perform NICS checks for all private sales. Indeed, the Nevada statute used much of the same language in these bills, instructing the dealers to treat the transfer “as though” it took place from the dealer’s own inventory. As shown by the attached letter, the FBI refused to perform such NICS checks because federal law does not regulate private transactions and thus did not permit the FFLs to access the NICS system for purposes of the checks newly required by the Nevada statute. As the FBI informed Nevada, state “legislation regarding background checks for private sales cannot dictate how federal resources are applied.” FBI Letter, Dec. 14, 2016 at 2 (attached). Because of this reality, the Nevada Attorney General refused to enforce the Nevada statue and a Nevada state court sustained that refusal, holding that the entire Nevada statute was unenforceable and thus invalid. See Zusi v. Sandoval, No. A-17-762975-W (Nev. Dist. Ct. August 20, 2018). See http://www.lccentral.com/2018/09/05/judge-confirms-gun-background-check-law-unenforceable/ The bill thus requires the legally impossible, viz., a NICS background check for a temporary change of possession that a dealer is federally prohibited from requesting and that the FBI will not perform.
The legal impossibility of conducting a NICS check required by the bill means that the requirement is contrary to the Due Process Clause of the Fourteenth Amendment and thus unenforceable. 1 W. Lafave & A. Scott, Jr., Substantive Criminal Law § 3.3(c) at 291 (1986) (“[O]ne cannot be criminally liable for failing to do an act which he is physically incapable of performing.”). See also Broderick v. Rosner, 294 U.S. 629, 639 (1935) (Brandeis, J.) (invalidating a statute, in part, because it “imposes a condition which, as here applied, is legally impossible of fulfillment”); Ezell v. City of Chicago, 651 F.3d 684, 710-11 (7th Cir. 2011) (invalidating a requirement that that Chicago had made legally impossible to satisfy within the city); Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1530 (11th Cir. 1996) (‘The law does not compel the doing of impossibilities.”). These bills should be withdrawn for this reason alone.
4. Long Guns Are Very Seldom Used In Crime
Apart from the illegality of the requirements imposed by the bill, the bill inappropriately criminalizes private “transfers” and temporary possessions of long guns even though such long guns are very seldom used in crime. This is confirmed by the Maryland 2015 UNIFORM CRIME REPORT issued annually by the State Police. For example, in 2014, a rifle (of any type) was used in one (1) murder in Maryland and a shotgun was used in seven (7). In 2015, a rifle was used in five (5) murders and a shotgun used in six (6). By way of comparison and perspective, a knife was used in 79 murders in 2014 and 65 murders in 2015. A “blunt object” was used in 12 murders in 2014 and 17 murders in 2015. “Personal weapons” (hands and feet) were used in 13 murders in 2014 and 19 murders in 2015. The same pattern is presented by the most recent data published by the State Police for 2017. Specifically, in 2017, a rifle was used in 5 murders and a shotgun used in 7. A knife was used in 63 murders while blunt objects were used in 13 murders and hands and feet were used in 18 murders.
FBI statistics show similar results nationwide. https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/expanded-homicide-data/expanded_homicide_data_table_8_murder_victims_by_weapon_2010-2014.xls. According to the latest data from the FBI (attached), in Maryland, there were 470 murders in 2018. Of those 470 murders, 1 (less than 1%) was committed with a rifle and 10 (2%) were committed with shotguns. In contrast, knives were used in 39 murders and hands and feet were used in 13 murders. Thirty (30) murders were committed in Maryland in 2018 using “other weapons.” In short, murders using long guns are not only exceedingly rare, they are the least used weapon for such crimes. Yet, nothing in the bill would address murders using knives or murders by using hands and feet or by “other weapons.”
As is apparent from these numbers, there is simply no serious public safety justification for the restrictions imposed by the bill. As discussed below, the State may not constitutionally ban firearms or their acquisition. Nor may the General Assembly enact legislation just because a majority of legislators hate guns or want to discourage the ownership of all firearms. As explained below, those purposes are constitutionally illegitimate and any legislation based on those reasons is likewise illegitimate. There are somewhere between 300 million upwards to 600 million firearms in the United States, maybe more. There are literally “more guns than people.” https://www.washingtonpost.com/news/wonk/wp/2018/06/19/there-are-more-guns-than-people-in-the-united-states-according-to-a-new-study-of-global-firearm-ownership/?utm_term=.38aed4ccac25. The State may not confiscate firearms under the Second Amendment, as construed the Supreme Court. So firearms are here to stay.
And so are knives. But would the General Assembly seriously consider requiring background checks for loans of knives? After all, in 2014, a knife was used in a murder 79 times in Maryland while a rifle was used only once. Surely if a rifle transfer warrants a background check then a knife transfer should be also subjected to a background check. Is it “common sense” to impose background checks for private “transfers” of rifles, but not for knives? Similarly, in 2018 “other weapons” were used as murder weapons in Maryland, 3 times more often than long guns (11 for long guns, 30 for other weapons). Will the State enact a regulatory regime for paper weights, baseball bats, hammers and all other blunt objects because they can be misused? Every year, personal weapons, such as feet and hands, kill more people than long guns. Will the State now require all persons with hands and feet to submit to background checks? Legally, these bills are “wildly underinclusive” and thus insufficiently tailored to the asserted government interest. In sort, the bill would not even survive intermediate scrutiny under the test set out by the Supreme Court in Coakley. See, e.g., National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361, 2375 (2018). A fortiori, the bill will not survive any application of the “text, history and tradition” test actually used by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 767-68 (2010).
5. The Bill Criminalizes Innocent Conduct.
There are other practical problems. A widow who wishes to sell off her deceased husband’s long gun firearms collection will now be forced to do so through a dealer who is free to charge a fee, the amount of which need only be “reasonable” (whatever that means). That fee effectively decreases the amount of money she will receive for each such sale. Will the State supervise the “reasonableness” of the fees charged? Highly doubtful. There is no mechanism for doing so in these bills. Participation by a dealer in these private sales is entirely voluntary. If she cannot find a willing dealer, she is effectively foreclosed from liquidating a firearms collection, thereby depriving her of what may be a desperately needed source of funds.
Worse, if the widow fails to understand that these sales, which have been taking place in Maryland for centuries, are now criminalized, each such sale would be punishable by placing her (as well as each transferee) in prison for 5 years. Even if a dealer can be found, the dealer is free to charge a substantial fee for any such services. Because a dealer cannot access the NICS system without complying with ATF Guidance and taking the firearm into his inventory, the dealer will have substantial record keeping and federal and state compliance risks and costs associated with every such transfer. Dealers are tightly regulated by Maryland law. See, e.g., MD Code Public Safety §§ 5-106-5-111, 11-106. Any dealer transfer fees will thus likely be substantial for every single firearm. Most dealers will simply not want to be bothered. In short, the likely effect of the bill will be to ban private long gun sales and thereby effectively destroying the value of long gun collections.
The bill also directly impacts hunters. As noted, the bill comprehensively defines a “transfer” to include “SALE, A RENTAL, A FURNISHING, A GIFT, A LOAN, OR ANY OTHER DELIVERY, WITH OR WITHOUT CONSIDERATION.” For hunters, the bill carves out a narrow exception for transfers taking place “WHILE THE TRANSFEREE IS HUNTING OR TRAPPING” and only in so far as the hunting “IS LEGAL IN ALL PLACES AND AT ALL TIMES WHEN THE HUNTING OR TRAPPING IS CONDUCTED.” Presumably, that limited exception would mean that a “transfer” taking place between neighbors or friends the night before a hunt would be subject to the requirements imposed by these bills. Any hiatus in the hunting (a break for lunch?) would likely re-impose the ban on possession. In every case, the hunter and his friend would be required to find a dealer for that loan for the next day’s hunt and then find the dealer again to transfer the gun back to the original owner after the hunt is over and pay the dealer’s transfer fees associated with each such transfer. The same would be true if the loan was for a longer period, such as a week-long trip to Wyoming to hunt elk. The transferor would become a criminal if the transferee hunter took “delivery” of the long gun before he left to hunt in Wyoming and would become a criminal again the moment the transferee stopped “hunting” and returned to Maryland with the long gun still in his possession. The transferee would become a criminal at the same time for the same reasons.
In 2013, when Governor O’Malley pushed hard for enactment of the Firearms Safety Act of 2013 (SB 281), he wrote an email to hunters in Maryland stating that “Let me be clear: We are committed to protecting hunters and their traditions. That’s why we specifically carved out shotguns and rifles from the licensing requirements of our bill.” https://www.washingtontimes.com/blog/guns/2013/feb/12/miller-omalley-emails-licensed-hunters-push-gun-co/ (Emphasis added). Now, a mere six years later, “hunters and their traditions” are under direct assault by these bills. That promise has been broken. That breach applies to all aspects of the bill.
The bill makes an exception for a transfer “THAT IS TEMPORARY AND NECESSARY TO PREVENT IMMINENT DEATH OR SERIOUS BODILY HARM,” but only “IF THE TRANSFER LASTS ONLY AS LONG AS NECESSARY TO PREVENT IMMINENT DEATH OR SERIOUS BODILY HARM.” That would mean that a person becomes a criminal if they hang onto the long gun for too long (a minute?) after the use that was “necessary” to save a person’s life or the life of another person. Such a provision would mean that an abused spouse or intimate partner could not obtain a loan of a gun from a friend for her own self-protection or for the protection of her children because a loan would be banned. The provisions would also create extremely difficult questions of fact for individuals, law enforcement, judges and juries as to whether the harm was “imminent,” whether the loan was “necessary” to prevent the threatened harm, or whether harm was truly one of “death or serious bodily injury,” or whether possession of the long gun was immediately relinquished once possession was no longer “necessary.” Respectfully, the bill creates massive uncertainty to the point of nonsense. The bill ignores the benefits of defensive use of firearms. “[D]efensive use of guns by crime victims is a common occurrence . . . with estimates of annual uses ranging from about 500,000 to more than 3 million per year.” Priorities for Research to Reduce the Threat of Firearm-Related Violence, Washington, DC: The National Academies Press, 15 (2013).
Because a violation of these provisions is punishable with five years of imprisonment, person convicted (regardless of sentence) would be subject to a permanent, lifetime firearms disability under federal law. See 18 U.S.C. § 922(g), and 18 U.S.C. § 921(a)(20). Subsequent possession (or constructive possession) of any modern firearm or ammunition (no matter how temporary or fleeting) by a person subject to this firearms disability is a violation of federal law, 18 U.S.C. § 922(g), which is punishable by up to 10 years imprisonment. See 18 U.S.C. § 924(a)(2). A similar disability and similar punishments are imposed under Maryland law. See MD Code, Public Safety, § 5-101(g)(3), § 5-133(b)(1), § 5-205(b)(1), § 5-144. Does Maryland really want to wage legal war on its otherwise law-abiding hunters and other citizens? Because that is what these bills do.
6. The Bill Criminalizes Loans Of Long Guns Between Law-Abiding Citizens While Loans Of Handguns Among The Law-Abiding Are Perfectly Legal.
Indeed, the definition of “transfer” in these bills would actually criminalize more conduct for long gun “transfers” than Maryland law imposes on the transfer of handguns. For example, as amended just last Session, Maryland law, MD Code, Public Safety, § 5-134, provides that “[a] dealer or other person may not sell, rent, loan, or transfer a regulated firearm to a purchaser, lessee, borrower, or transferee who the dealer or other person knows or has reasonable cause to believe” is a prohibited person. A loan of a handgun to a non-prohibited person is not criminal under Section 5-134.
Indeed, under the State Police’s official public policy, a temporary receipt of a handgun in a loan is not covered by the requirement to obtain a Handgun Qualification License under MD Code Public Safety 5-117.1. Maryland State Police Advisory LD-HQL-17-003 (Nov. 17, 2017) (“The MSP views ‘transfer’ and “receive” as equivalent for purposes of Maryland’s firearms laws and interprets ‘receive’ as including the gratuitous permanent exchange of title or possession, but excluding temporary gratuitous exchanges or loans of handguns.”). Loans of handguns among law-abiding persons are thus not criminalized.
These bills, in contrast, would severely criminalize any such “loan” of a long gun between law-abiding persons. That special discriminatory treatment of long guns is irrational. Non-compliance will be exceedingly common and thus the new criminals created by these bills would most likely most include law-abiding hunters in this State. Stated simply, hunters and other law-abiding citizens have been buying and selling and loaning long guns in Maryland since long before Maryland became a State and these sorts of transfers historically have been and are part of rural life in America. These bills won’t stop such transfers; it will just criminalize the participants.
7. The Bill Criminalizes Long Gun Loans Between Law-Abiding Citizens Much More Severely Than Maryland Law Treats Actual Thefts Of Firearms And More Severely Than Similar Laws In Other States.
Similarly, these bills would punish the otherwise innocent loan of a long gun between law-abiding persons much more severely than the actual theft of a long gun. Specifically, under current Maryland law, a firearm theft is treated like any other theft of personal property. Under current law, theft of property valued less than $1,500 but more than $100 is a punishable by a fine of $500 and a maximum six months imprisonment on first offense. MD Code Criminal Law § 7-104(g)(4). A conviction for this offense would not even be sufficient to make the firearm thief a prohibited person. See MD Code Public Safety § 5-101(g)(3) (defining “disqualifying crime”).
A bill (HB 722) to address specifically thefts of firearms was offered in this Committee last Session and yet that bill received an unfavorable report. http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0722/?ys=2019rs. If these bills receive a favorable report, the General Assembly would thus be on record as favoring thieves over law-abiding citizens. If this Body was serious about addressing illegal acquisitions of firearms, it would endorse a bill like HB 722 instead of criminalizing law-abiding persons for innocent loans. Alternatively, the Committee could endorse a long gun counterpart to MD Code Public Safety § 5-134, as amended last year, and thus criminalize knowing loans of long guns to prohibited persons. Yet, these bills do neither of these things. The unthinking animus toward law-abiding gun owners is apparent.
These bills would also criminalize more conduct and criminalize that conduct much more severely, than similar laws in other states, including the states neighboring Maryland. For example, Pennsylvania law, Section 6111(f) - Title 18 - Crimes And Offenses, requires background check for private transfers only for handguns and short barrel rifles and shotguns – not ordinary rifles and shotguns. Current Maryland law likewise applies only to private sales of handguns. See MD Code Public Safety 5-124. The penalty for a violation of the Pennsylvania law is classified as a misdemeanor in the second degree, which involves 1-2 years imprisonment and a fine of $5,000 – not 5 years imprisonment and $10,000 fine imposed by these bills. Current Virginia law does not criminalize private sales at all.
Most recently in Virginia, a bill (SB70) creating a background check requirement similar to these bills was amended in Committee (and passed the Senate) to eliminate a background check requirement for private loans of any firearm (amending Va Code § 18.2-308.2:5). That bill would classify a violation as a Class One misdemeanor, punishable by not more than 12 months in jail and a fine of $2,500. In Delaware, Section 904A of Title 24 of the Delaware code requires a dealer, as a condition to its state license, to facilitate private transfers with a fee not to exceed $30. Section 1448B of the Delaware Criminal Code covers private transfers, but specifically exempts any “loan of a firearm for any lawful purpose, for a period of 14 days or less, by the owner of said firearm to a person known personally to him or her.” A violation of the Delaware law is punished by at most one year in jail and a $2,300 fine.
Even California law is more lenient. For example, it specifies that the dealer may charge only one fee regardless of the number of firearms. Cal. Penal Code §28240. An unlicensed private sale or transfer is a misdemeanor punishable by six months in jail and a $1,000 fine. Id. at §26500. Similarly, a Nevada law that just went to effect, NV SB143 | 2019 | 80th Legislature (which these bills appear to be modeled after) expressly covers only sales and transfers and, unlike these bills, does not define a transfer to include a simple loan, “with or without consideration.” A violation of that law is a gross misdemeanor which is punishable in Nevada only by one year in jail and a fine of up to $2,000. Unlike the severe punishments allowed by HB4 and SB 208, none of these punishments in these other states is a disqualifying offense under federal law. This states recognize that there is no earthly reason to inflict such a severe punishment of 5 years in prison and a fine of $10,000, especially for a strict liability crime that includes no requirement of culpable mens rea. That mens rea point is discussed below in greater detail.
Finally, it bear emphasis that many of the states that impose these sorts of regulations on private sales are full Point of Contact states for NICS purposes and thus have a state agency that serves as a central control point for conducting background checks, much as the Maryland State Police is a partial Point of Contact agency for conducting NICS checks for the sales of handguns. Virginia and Pennsylvania, for example, are full POC states, as is Nevada and California. Like the Maryland State Police for handgun private sales, these full POC agencies can simply conduct a background check of state databases for a private sale, rather than do a federal NICS checks, which is generally barred by federal law, as explained above. In a full POC state, the dealer need only contact the state agency to do the check. Indeed, that was the only way that Nevada was able to pass a private sale background check law as the prior law was declared unenforceable by the Nevada courts, as discussed above. These bills do not make the Maryland State Police a full POC agency. If this bill was serious about minimizing the criminalization of innocent conduct while avoiding conflicts with the NICS system and the FBI (such as occurred in Nevada), it would mandate that the State Police become a full POC agency, thereby enabling it to conduct private sales background checks on State databases, precisely in the same way it does now for private handgun sales.
8. The Bill Is Unconstitutional In Its Coverage
In vastly restricting temporary possessions among otherwise law-abiding persons, the bill trivializes the right of self-defense recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008)) (self-defense is “the central component of the right itself”) (emphasis the Court’s), as applied to the States in McDonald v. City of Chicago, 561 U.S. 742, 767-68 (2010) (same). Under Heller, law-abiding persons have a constitutional right to arm themselves for self-defense, including most acutely in the home. As a matter of common sense, a person must arm themselves before the threat is “imminent” as there is simply no time to so once such threat has manifested and is thrust upon the person. There is no text, history of tradition -- the test employed in Heller and McDonald -- that would support such limitations on temporary possessions. We believe that it is highly likely that the Supreme Court will again make use of this “text, history and tradition” test in reaching of the merits of NYSPRA v. NYC, No. 18-280, cert granted 139 S.Ct. 939 (2019). NYSPRA was argued on December 2, 2019, and numerous petitions for certiorari in Second Amendment cases are now being held by the Supreme Court pending a decision in NYSPRA. These bills fail under the text, history and tradition test.
Even under intermediate scrutiny, such restrictions on temporary possession by a law-abiding person are not narrowly tailored to any legitimate state interest. See McCullen v. Coakley, 573 U.S. 464, 496 (2014) (“To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier.”). See also Culp v. Madigan, 840 F.3d 400, 407 (7th Cir. 2016) (decision on preliminary injunction appeal) (Manion, J., dissenting on other grounds) (“a law that curtails the fundamental right of law-abiding citizens to carry a weapon for self-defense must pass even more exacting (although not quite strict) scrutiny. Defenders of such a law must show a ‘close fit’ between the law and a strong public interest. As in First Amendment cases, the tailoring requirement prevents government from striking the wrong balance between efficiency and the exercise of an enumerated constitutional right.”); Culp v. Raoul, 921 F.3d 646 (7th Cir. 2019) (decision on appeal from final judgment), petition for cert. pending No. 19-487 (U.S., filed Oct. 15, 2019). These bills fail under all these principles. While the State has an undoubted legitimate interest in preventing the sale of arms to prohibited persons, these bills sweep far beyond the line drawn in MD Code Public Safety § 5-134 (banning loans of handguns to prohibited persons) to a ban on temporary possessions of long guns by the law abiding. Under the Second Amendment, the State has no legitimate interest in criminalizing temporary possessions of long guns in the home by the law-abiding citizens.
These bills also fails to grasp that Maryland law has long held that the actual use of lethal force (including using a firearm) is permissible where a threat to life or severe bodily harm is “imminent or immediate.” See State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984). The Maryland Court of Appeals has also made clear that such a threat need not be “immediate” in order to be “imminent,” particularly in cases involving a battered spouse. See, e.g., Porter v. State, 455 Md. 220, 166 A.3d 1044 (2017). Yet, these bills would effectively criminalize (or, at a minimum, create a jury question concerning) such a loan. In the real world, these bills would prevent a friend from loaning a long gun to a battered spouse or intimate partner who may be at imminent risk. Few if any potential “transferors” will risk arrest and prosecution by loaning a long gun to such a person where the “transfer” and possession is legal “ONLY AS LONG AS NECESSARY TO PREVENT IMMINENT DEATH OR SERIOUS BODILY HARM.” These bills thus undermines this right of self-defense recognized by Maryland law.
These bills’ exemption for transfers that occur “at an established sport shooting range or gun club,” is hopelessly vague as well as unduly restrictive. Established clubs loan out precision, highly expensive firearms to the parents of young people who compete nationally and internationally so as to permit daily practice of that sport. This sort of practice is constitutionally protected by the Second Amendment. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (“[T]he core right wouldn’t mean much without the training and practice that make it effective.”). Such temporary loans extend overnight beyond the borders of any range or gun club, as such loans allow the parent to facilitate practice time. Such expensive long guns cannot kept at a range, as that would expose them to a high risk of theft and such storage is thus typically prohibited by insurance policies. The text of these bills would appear to criminalize such loans. At a minimum, it is unclear whether such loans are covered by these bills and such vagueness is, in itself, unconstitutional under the Due Process Clause of the Fourteenth Amendment. See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (“Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide.”). Again, there is no legitimate purpose served by this criminalization of these parents and young competitors.
Finally, by its terms, these bills would also impose strict criminal liability on the defendant without regard to the mens rea of the defendant. The defendant need not know that the transfer was illegal to be a criminal under these bills. See Chow v. State, 393 Md. 431, 471 (2006) (construing a “knowingly participate” requirement in MD Code Public Safety § 5-144(a), to mean that “a person must know that the activity they are engaging in is illegal.”). Imposing strict criminal liability for innocent conduct would be unjust by any measure. Where such liability is imposed on conduct arguably protected by the Constitution, it is particularly pernicious. See, e.g. City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (due process); Okpalobi v. Foster, 244 F.3d 405, 438 (5th Cir. 2001) (en banc) (Benavides, J., concurring in part, dissenting in part) (right to an abortion).
To avoid precisely these kinds of injustices, strict liability statutes are heavily disfavored in the law. See Staples v. United States, 511 U.S. 600, 605 (1994) (noting that “the requirement of some mens rea for a crime is firmly embedded” in common law). Thus, when construing federal statutes, the federal courts will require specific mens rea to the extent “necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Carter v. United States, 530 U.S. 255, 269 (2000) (citation omitted). The guiding principle is that “wrongdoing must be conscious to be criminal.” Morissette v. United States, 342 U.S. 246, 252 (1952). Implementation of that requirement varies with the context, but it is undeniable that in some instances “requiring only that the defendant act knowingly ‘would fail to protect the innocent actor.’” Elonis v. United States, 135 S.Ct. 2001, 2010 (2015) (citation omitted) (emphasis added). State law also strongly favors an appropriate mens rea requirement. See, e.g., Garnett v. State, 332 Md. 571, 577-78, 632 A.2d 797, 800 (1993) (“The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence.”); Lowery v. State, 430 Md. 477, 498, 61 A.3d 794, 807 (2013) (same). These bills ignore all these principles. At the very least, these bills should be amended to include a “knowingly” requirement such as examined in Chow and present in MD Code Public Safety §§ 5-134, 5-144.
If these bills are enacted into law, the State will be prosecuting inevitable violations of these bills by otherwise law-abiding citizens, thereby destroying reputations and inflicting legal and perhaps economic ruin on these individuals. Enormous discretion will be bestowed on law enforcement and prosecutors, thereby ensuring arbitrary and racially discriminatory enforcement. Jobs will be lost, security clearances revoked and families traumatized. The public safety rationale is transparently hollow, as it is beyond dispute that long guns are used in far less violent crime than ordinary knives and feet and fists. This is over-criminalization at its worse. We urge an unfavorable report.
Mark W. Pennak
President, Maryland Shall Issue, Inc.