2020 MDGA - Testimony in Opposition of SB664

This bill proposes an amendment to the Maryland Constitution to create a new State constitutional right of privacy in a new Article 48.  The bill provides:

(A) THAT EACH INDIVIDUAL HAS A NATURAL, ESSENTIAL, AND INHERENT RIGHT TO PRIVACY THAT GUARANTEES FREEDOM FROM GOVERNMENT INTRUSION.

(B) THE RIGHT TO PRIVACY INCLUDES THE RIGHT OF AN INDIVIDUAL TO LIVE   FREE   FROM   INTRUSION   CAUSED   BY   OR   DIRECTLY TRACEABLE   TO THE UNAUTHORIZED COLLECTION OF DATA CONCERNING THE INDIVIDUAL BY ANOTHER.

(C) THE RIGHT TO PRIVACY DOES NOT PROHIBIT THE STATE FROM REGULATING THE SALE OR PURCHASE OF A FIREARM OR AMMUNITION.

(D) THE RIGHT TO PRIVACY MAY NOT BE INFRINGED WITHOUT A SHOWING OF A COMPELLING STATE INTEREST.

(E)(1) THE GENERAL ASSEMBLY MAY PROTECT THE RIGHT TO PRIVACY THROUGH APPROPRIATE LEGISLATION. (2)THE GOVERNOR MAY ENFORCE THE RIGHT TO PRIVACY THROUGH APPROPRIATE EXECUTIVE ACTION.

The Bill Is Unconstitutional In Its Carve-Out of Gun Owners From The Right of Privacy.

The “right to privacy” created by this bill would recognize the right of persons to a “right to privacy that guarantees freedom from government intrusion” and protect the right of individuals “to live free of intrusion” that would arise from the “unauthorized collection of data by another.”  The scope of this new right of privacy is, of course, quite unclear. But, no matter unclear in other respects, one thing is clear:  this right would not apply to gun owners as it provides that this right of privacy “does not prohibit the state from regulating the sale or purchase of a firearm or ammunition.”  Thus, as long as the State can justify its governmental “intrusion” and “data collection” as a regulation of “the sale or purchase of a firearm or ammunition” the right to privacy created by the bill would not exist.  Under this bill, gun owners, alone of all the citizens in Maryland, are carved out as a special class of citizens who are not protected by this new right of privacy.  This carve-out is nothing short of outrageous.  It is also blatantly unconstitutional under the 14th Amendment. 

The Equal Protection Clause of the 14th Amendment to the Constitution provides that “no State” may “deny to any person within its jurisdiction the equal protection of the laws.”  The Equal Protection Clause prohibits states from creating unreasonable, arbitrary, and invidious classifications.  In particular, the State violates this Clause if the law employs suspect classification or significantly burdens a fundamental right. See Pennell v. City of San Jose, 485 U.S. 1, 14 (1988).  The courts “apply strict scrutiny under the Equal Protection Clause where * * * the challenged action interferes with a fundamental right.”  Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, Maryland, 915 F.3d 256, 265 (4th Cir. 2019).  Under that test, the “government decision fails strict scrutiny if it is not narrowly tailored to advance a compelling state interest.”  Id., citing Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir. 2014) (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)). 

Here, the Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008), that all law-abiding, responsible citizens have a constitutional right protected by the Second Amendment to own and use firearms for self-defense. In McDonald v. City of Chicago, 561 U.S. 742, 767-68 (2010), the Supreme Court applied Heller to the States, holding that“[a] survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty.”  (Emphasis added). The right to own and acquire firearms is no less fundamental than the right to privacy, including the right to marry recognized in Obergefell v. Hodges, 135 S.Ct. 2584, 2604-05 (2015) (holding that state laws regulating marriage are “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples”), and the right to privacy addressed by the Supreme Court in other contexts.  See, e.g., Griswold v. Connecticut, 381 U.S. 478 (1965) (birth control law); Eisenstadt v. Baird, 405 U.S. 438 (1972) (contraceptives). 

Certainly gun owners have an abiding interest in their personal information and their privacy. See Ferguson v. City of Charleston, 186 F.3d 469, 482 (4th Cir. 1999), rev’d on other grounds 532 U.S. 67 (2001) (recognizing that an individual’s constitutional right to privacy may be implicated when a public official discloses “information that touch[es] on rights that are fundamental or implicit in the concept of ordered liberty.”  Gun owners, no less than any other law-abiding persons are entitled to protection from “the unauthorized collection of data concerning the individual by another.”  Gun owners, no less than anyone else, are entitled to the “natural, essential, and inherent right to privacy that guarantees freedom from government intrusion.”  See Whalen v. Roe, 429 U.S. 589, 599 & n.25 (1977) (recognizing that individuals possess a constitutional “interest in avoiding disclosure of personal matters”). That is especially true where the disclosures of information touch on rights that “are fundamental or implicit in the concept of ordered liberty.” Paul v. Davis, 424 U.S. 693, 713 (1976). As McDonald holds, the fundamental right to keep and bear arms protected by the Second Amendment is “implicit in the concept of ordered liberty.”   

In short, excluding gun owners from this newly minted State right of privacy is a violation of the Equal Protection Clause because it facially accords persons who have purchased “a firearm or ammunition” disfavored treatment. Such a “purchase” is part and parcel of the Second Amendment right.  See Dearth v. Holder, 641 F.3d 499, 502 (D.C. Cir. 2011); Teixeira v. City of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (en banc).  See also Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928, 930 (N.D. Ill. 2014) (“[T]he right to keep and bear arms for self-defense under the Second Amendment . . . must also include the right to acquire a firearm.”) (emphasis in original).  Cf. United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010) (“If there were somehow a categorical exception for [commercial] restrictions, it would follow that there would be no constitutional defect in prohibiting the commercial sale of firearms. Such a result would be untenable under Heller.”).  The State has no “compelling interest” in facially excluding all gun owners from the right of privacy.  Certainly there is nothing “narrowly tailored” associated with such a facial exclusion. The bill would thus fail strict scrutiny. 

Stated differently, the State is not empowered to pick and choose fundamental constitutional rights that it will respect and those to which the State will ignore or accord second-class treatment. As the Supreme Court stated in McDonald, the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.” McDonald, 561 U.S. at 799.  See also Caplin & Drysdale v. United States, 491 U.S. 617, 628 (2012) (“there is no such distinction between, or hierarchy among, constitutional rights”).  The bill, as written, will not survive judicial review should it become part of the Maryland Constitution.  We urge an unfavorable report.

Sincerely,

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

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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