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  • 2020 MDGA - Testimony in Opposition to SB968 and HB1160

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

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. 

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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