2020 MDGA - Testimony in Opposition to SB968 and HB1160

These bills would create a new section 4-111 in the Criminal Law Article of the Maryland Code to provide that A PERSON MAY NOT SELL, OFFER TO SELL, OR DISPLAY AN IMITATION FIREARM, which the bills define to mean “A TOY, A DEVICE, OR AN OBJECT THAT SUBSTANTIALLY DUPLICATES OR CAN REASONABLY BE  PERCEIVED TO  BE  A FIREARM.”  The bills apply only to the City of Baltimore. 

The Bills Are Preempted By Federal Law:

The bills effectively ban the sale of imitation guns the sale of which are expressly protected by federal law (15 U.S.C. § 5001), and federal regulations (15 C.F.R. § 272.2, et seq.).  That federal law establishes a system by which imitation firearms are marked and preempts any State regulation of sales, providing in 15 U.S.C. § 5001(g):

The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall

(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.

See also 15 C.F.R. § 272.5.   

These bills obviously violate this preemption provision by banning the sale of  “an imitation firearm,” including replicas of antique firearms as well as B-B guns, paint ball and pellet guns, to the extent that these toys “substantially duplicates or can reasonably be perceived to be a firearm.”  This test is so broad and sweeping that it includes the very imitation guns that federal law preempts from State regulation.  Stated simply, the State may not ban the sale of non-firing replicas of antique firearms or ban the sale of “B-B, paint ball, or pellet-firing air guns” regardless of how closely these toys “duplicate” or “imitate” a real firearm. Tellingly, these bills contain no exemption for these federally protected “B-B, paint ball, or pellet-firing air guns” or “replicas of antique firearms.”  See Coalition of New Jersey Sportsmen v. Florio, 744 F. Supp. 602, 608 (D. N.J. 1990) ("the public interest is served in ensuring that congressional regulation of interstate commerce supercedes conflicting and contradictory state regulations”). 

It is also well established that a state law is preempted where the 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, as here, Congress has expressly protected the “sale” of these toys from State regulation, the State may not seek to avoid or override that prohibition.  See also Arizona v. United States, -- U.S. --, 132 S.Ct. 2492, 2500-01 (2012) (noting that a State-law provision will be preempted if it conflicts with federal law, either because (1) “compliance with both federal and state regulations is a physical impossibility” or because the provision (2) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of” federal law). In banning the sale of these imitation guns, these bills are just asking for an expensive federal lawsuit in which the State and local law enforcement in Baltimore will end up paying substantial attorneys’ fees and costs, not only in the defense of these bills, but also to plaintiffs under 42 U.S.C. §1988. 

The bills are vague:

These bills are also hopelessly vague and subjective and thus a violation of the Due Process Clause of the Fourteenth Amendment.  Citizens simply have no way of knowing if the toy can be “reasonably be perceived to be a real firearm.”  The same is true of the bills’ coverage of any toy that “substantially duplicates” a real firearm.  There are no definitions for these phrases and no safe harbor provisions.  The bills will be enforced in an ad hoc, arbitrary manner and thus would effectively sanction discriminatory seizures by law enforcement personnel. Such bills are flatly unconstitutional.  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.”); Grayned v. City of Rockford, 408 U.S. 104, 108-109, (1972) (“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis”). We urge an unfavorable report.

Sincerely,

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

PDF Available Here


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