MDGA 2021 - MSI Testimony in Opposition to SB624/HB638 - Untraceable and Undetectable Firearms



The Bills

Covert guns: The bill would ban “COVERT FIREARMS,” which are defined as A FIREARM THAT IS CONSTRUCTED IN A SHAPE OR CONFIGURATION THAT A REASONABLE PERSON WOULD NOT IMMEDIATELY RECOGNIZE TO BE A FIREARM.” The bill would also ban “UNDETECTABLE FIREARMS,” which is defined by reference to an undefined “security exemplar,” or by reference to those firearms which cannot be detected by an x-ray machine “COMMONLY USED AT AIRPORTS.”

Serial numbers: Next, the bill would enact a whole regulatory system for regulating a “unfinished frame or receiver” which the bill defines as “A PRODUCT THAT IS INTENDED OR DESIGNED TO SERVE AS THE FRAME OR RECEIVER, INCLUDING THE LOWER RECEIVER, OF A FIREARM, BUT IS IN AN UNFINISHED STATE OF MANUFACTURE,” including a “BLANK CASTING, OR MACHINED BODY THAT REQUIRES MODIFICATION, SUCH AS MACHINING, DRILLING, FILING, OR MOLDING, TO BE USED AS PART OF A FUNCTIONAL FIREARM.” The bill provides that after January 1, 2022, a person “MAY NOT POSSESS A FIREARM OR AN UNFINISHED FRAME OR RECEIVER THAT HAS NOT BEEN MARKED” in accordance with the standards specified in the bill. The bill would further provide that, on or after January 1, 2022:





A. Homemade Guns Are Rarely Used In Crime And Existing Owners Are Law-Abiding Hobbyists, Not Criminals

These new provisions, if enacted, would burden and penalize a harmless activity that has been perfectly legal under federal and state law for the entire history of the United States, viz., the manufacture of homemade guns for personal use. Under Federal law, a person may legally manufacture a firearm for his own personal use. See 18 U.S.C. § 922(a). However, “it is illegal to transfer such weapons in any way.” Defense Distributed v. United States, 838 F.3d 451, 454 (5th Cir. 2016). This manufacture “involves starting with an ‘80% lower receiver,’ which is simply an unfinished piece of metal that looks quite a bit like a lower receiver but is not legally considered one and may therefore be bought and sold freely. It requires additional milling and other work to turn into a functional lower receiver.” (Id).

Manufacturing an “80% lower” into a “functional lower receiver” is not a trivial process. It takes machine tools, expertise and hours of time. Miscues are common and, when made, essentially convert the “80% lower” into scrap. Individuals who undertake this process are hobbyists. Even after the receiver is successfully made, the owner would still have to purchase the additional parts, such as a barrel, the trigger, slide and all the internal parts to complete the assembly. All these additional parts are expensive. With the cost of the tools to mill the receiver, plus the cost of the parts, a final assembled homemade gun costs more to make than it would to actually buy an identical gun from a dealer. And there is no assurance that the homemade gun will work nearly as well as the factory-produced firearm.

The complexity of this process has been pointed out in court filings by the ATF and the U.S. Department of Justice. For example, in State of California v. BATF, No. 20-cv-0761 (N.D. Cal.), the Department of Justice and the ATF explained:

An unfinished receiver that has not yet had “machining of any kind performed in the area of the trigger/hammer (fire-control) recess (or cavity),” see ATF Firearms Technology Branch Technical Bulletin 14-01 (“Bulletin 14-01”), filed in Calif. Rifle and Pistol Ass’n v. ATF, Case No. 1:14-cv-01211, ECF No. 24 at 285 (E.D. Cal. Jan. 9, 2015),requires that numerous steps be performed simply to yield a receiver, that then in turn must be assembled with other parts into a device that can expel a projectile by the action of an explosive. These milling and metalworking steps—each of which require skills, tools, and time—include: 1) “milling out of fire-control cavity”; 2) “drilling of selector-lever hole”; 3) “cutting of trigger slot”; 4) “drilling of trigger pin hole; and 5) “drilling of hammer pin hole.” Compl. Ex. 9. Importantly, ATF will treat any “indexing”—the inclusion, in the receiver blank, of visual or physical indicators regarding the two-dimensional or three-dimensional parameters of the machining that must be conducted—as rendering the receiver blank a firearm. See Compl. Ex. 12; Ex. 13; Shawn J. Nelson, Unfinished Lower Receivers, 63 U.S. Attorney’s Bulletin No. 6 at 44-49 (Nov. 2015) (“Nelson, Unfinished Receivers”), available at: This prevents the makers of receiver blanks from annotating the blank to instruct the purchaser as to the precise measurements needed, in three dimensions, to “excavate the fire control cavity and drill the holes for the selector pin, the trigger pin, and the hammer pin.” Nelson, Unfinished Receivers, at 47. The need to conduct these machining steps from scratch, without indexing, and “carefully” means a working gun cannot be produced “without difficulty.” Id. And the work to excavate the cavities and drill holes in a solid, unmachined substrate requires care rather than speed to avoid doing so raggedly or in the wrong area. See id. Therefore, the receiver cannot be completed “without delay,” even leaving aside the further assembly with many other parts needed to have a weapon that can expel a bullet by explosive action. A receiver blank therefore may not “readily be converted” into a firearm.

Federal Defendants’ Notice Of Motion And Motion To Dismiss Plaintiffs’ Complaint For Declaratory And Injunctive Relief, at 16-17 (filed Nov. 30, 2020).

B. These Bills Would Do Nothing To Prevent Or Deter Criminals From Acquiring Guns While Penalizing Existing, Law-Abiding Owners

  1. The Bills would not stop criminals.

The bans imposed by the bill would also not stop any person from actually acquiring “80% lowers” or the other parts necessary to manufacture firearms. Such items are not “firearms” under Federal law and thus are not regulated by Federal law. These “80% lowers” and other parts are thus available all over the United States, including over-the-counter, on-line and by mail order. Unfinished frames or receivers would remain available in other states, even if the bill should become law and was perfectly enforced 100% of the time.

Accordingly, nothing in all the bans imposed by this bill would or could actually stop any criminal or disqualified person from acquiring all the hardware necessary to make his own gun, including the 80% lower, simply by driving to another state. A disqualified person or criminal would not be deterred by the bill because such a disqualified person is already precluded by Federal law from possessing any modern firearm or modern ammunition of any type. 18 U.S.C. § 922(g). Actual or constructive possession of a modern firearm or ammunition by a person subject to this firearms disability is a felony, punishable by up to 10 years imprisonment under Federal law. See 18 U.S.C. § 924(a)(2). The same disqualification and similar punishments are also already imposed under existing Maryland law. See MD Code, Public Safety, § 5-101(g)(3), § 5-133(b)(1), § 5-144, § 5-205(b)(1). Simple actual or constructive possession of a receiver alone (an “81% receiver”) would be sufficient to constitute a violation of these existing laws, as a receiver alone is considered a “firearm” under both Maryland and Federal law. See 18 U.S.C. § 921(a)(3); MD Code, Public Safety, § 5-101(h)(1)(ii). Making possession “more illegal” does not deter an already prohibited person, but it does penalize innocent, law-abiding hobbyists and gun enthusiasts who have done nothing wrong.

In contrast, if this bill became law, few existing, otherwise law-abiding owners of these homemade guns will know or realize that possession of their existing firearms or unfinished frames has been banned. Actual compliance by existing owners will thus likely be virtually non-existent. In short, the bill is utterly pointless as a public safety measure. It would succeed only in penalizing otherwise law-abiding hobbyists. That result is not sound public policy.

  1. The ban on undetectable firearms is redundant of Federal law and unnecessary

Similarly, current Federal law also makes it unlawful to “manufacture, import, sell, ship, deliver, possess, transfer, or receive” any firearm that is not “detectable” by a “Security Exemplar” or any “major component” of which does not show up accurately on airport x-ray machines. See 18 U.S.C. § 922(p). A knowing violation of that prohibition is a federal felony, punishable by five years of imprisonment and a fine. See 18 U.S.C. § 924(f). As a practical matter, in order to function as such, a firearm must have a metal barrel and a metal firing pin, at the very least. Both of these items would easily satisfy the requirement of being detectable by a Security Exemplar as firearm component. See Section 922(p)(2). The ammunition for any such firearm would likewise be detectable.

More fundamentally, the idea that a person could produce a usable, undetectable firearm is far-fetched. Indeed, actually firing such a firearm could be extremely dangerous to the user. For example, a standard 9mm handgun round generates around 34,080 pounds per square inch of pressure in the chamber upon firing. No undetectable plastic barrel can safely and reliably stand up to those kinds of pressures. In short, firing an undetectable gun with a plastic barrel is akin to playing Russian roulette by the user. See (an ATF video showing 3-D printed guns exploding when fired). The ban imposed by these bans on undetectable firearms is simply a solution in search of a problem that does not exist in the real world, much less on the streets of Maryland. Groundless fears should not be the basis of public policy, especially where Federal law already imposes a nationwide ban on any such devices.

  1. The ban on covert firearms penalizes possession permitted by Federal law

Finally, the bill’s ban on covert firearms illegalizes weapons that have long been tightly regulated under Federal law. Specifically, as codified in 26 U.S.C. § 5845(e), the National Firearms Act of 1934, “covert” weapons are classified as “any other weapon,” a concealable weapon from which a shot can be discharged through the energy of an explosive, other than a pistol or a long gun with a rifled bore. See Davis v. Erdmann, 607 F.2d 917, 919 (10th Cir.1979) (implicitly assuming that a combination knife/pistol that could fire a .22 short cartridge was within the definition of any other weapon); United States v. Ordner, 554 F.2d 24, 26 & n. 3 (2d Cir.) (a “pen gun,” which it described as a device made from the triggering mechanism of a flare gun attached to a machined barrel, was “any other weapon”), cert. denied, 434 U.S. 824 (1977); United States v. Cheramie, 520 F.2d 325, 333 (5th Cir.1975) (affirming a conviction based on possession of an unregistered pen gun); Moore v. United States, 512 F.2d 1255, 1256 (4th Cir.1975) (sawed off shotgun could be any other weapon); United States v. Coston, 469 F.2d 1153, 1153 (4th Cir.1972) (a flare gun capable of firing shotgun shells was any other weapon). Any person must, prior to taking receipt or possession of such a weapon, register the weapon with the ATF, pay a tax and submit to an in depth background conducted by the ATF. See 26 U.S.C. § 5841, 26 U.S.C. § 5811(a), and 27 C.F.R. § 479.101. All responsible persons seeking to possess one of these times must complete the ATF Form 5320.23 with photo attached and provide two FD-258 fingerprint cards in order to initiate the required background check. See ATF Final Rule 41F (Jan. 4, 2016), available at The mere receipt or possession of an unregistered “any other weapon” is a federal felony. See 26 U.S.C. § 5861(d). That felony is punished with up to ten years in prison and a $10,000 fine. See 26 U.S.C.  5871. Any such unregistered firearms are subject to forfeiture under 26 U.S.C. § 7302. Again, any such conviction disqualifies that person from ever possessing any modern firearm or modern ammunition for life.

As is apparent, the bans imposed by the bill on “covert firearms” is utterly unnecessary as they are already effectively banned by Federal law. Persons willing to commit a federal felony will not be deterred by the bill. Even worse, the bill inflict harm on the law-abiding as the bill would penalize persons, such as collectors, who have jumped through all the hoops imposed by the ATF and the National Firearms Act of 1934 in order to possess these items. Under the bill, mere possession of a covert firearm is punished without regard to the legality of that possession under Federal law. We can think of no valid public safety rationale that would support that result. At a minimum, the bill should be amended to exempt such persons from the requirements imposed by the bill. See MD Code, Public Safety, § 5-203(a)(2) (banning the possession of short-barreled rifles or shotguns, unless “the short-barreled shotgun or short-barreled rifle has been registered with the federal government in accordance with federal law”).

C. The Bills Impose Impracticable Requirements

The bill requires that existing owners of perfectly legal lower receivers or frames mark these with markings that includes that model, caliber, the “full legal name” of the owner, his
city” and that these markings be conspicuously and permanently etched or engraved or cast. The bill specifically requires that these markings meet the requirements of 18 U.S.C. § 923(i). Those requirements are both expensive and quite difficult to meet for a large number of frames. First, federal regulations concerning Section 923(i) (incorporated by the bill) require that the markings required by Section 923(i) must be to a minimum death of .003 inches and in a print size no smaller than 1/16 inches and “must be placed in a manner not susceptible of being readily obliterated, altered, or removed.” 27 C.F.R. §478.92(a)(1).

Existing manufacturers of polymer frames, such as Glock and Sig Sauer, use a metal plate inserted into the frame or use the internal metal assembly to mark the serial number. Many unfinished polymer receivers that existing owners may possess simply lack such a plate or internal assembly. For those owners, it is nearly impossible to perform all the engraving required by the bill on the frame or receiver. For example, using an ordinary engraving tool could melt the polymer and destroy the frame. The average owner also has no way to be sure that the requirements of Section 923 and Section 478.92(a)(1) are satisfied. For example, if the required information is etched to the depth of .002 inches or if engraved slightly smaller than 1/16 of an inch, the owner would be in be in violation of the bill. Yet, equipment to perform this sort of extremely precise engraving costs thousands of dollars to acquire. Those costs are out of reach of the ordinary person. And without reasonable access to such equipment no person can reasonably comply with these requirements.

The requirements of the full legal name and city of the owner are likewise unreasonable. These requirements actually go beyond that specified by federal regulations that implement Section 923. Specifically, federal ATF regulations, 27 C.F.R. 497.92(a)(1)(ii)(C) require, for a domestically made firearm, “your name (or recognized abbreviation”). In contrast, the bill requires the “full legal name” and that term is normally defined as the first name, middle name and last name. See People with long names simply are not allowed to abbreviate their names under the bill. The bill also requires, along with the full legal name, the name of the owner’s city, which likewise may be quite long, such as Chesapeake Beach, Chevy Chase Section 3, and Fairmount Heights. All of these names must be placed on the frame or receiver under the bill. In contrast, federal regulations allow the manufacturer to use a “recognized abbreviation” for a city and allows information to be “engraved, casted, stamped (impressed) or placed on the frame, receiver or barrel. See Section 497.92(a)(1)(ii). For example, the Sig Sauer newest Model M-17 pistol engraves the model and serial number on the metal trigger assembly inserted into the polymer frame, but engraves the caliber on the barrel. Such placement, abbreviations and use of the barrel are not allowed under the bill.

Under the bill, all of this information must be “engraved, cast, or stamped on the firearm frame or receiver or unfinished frame or receiver” along with the model of firearm as well as the caliber or gauge. There may simply be not enough room on the metal plates supplied with some receivers, such as the Polymer 80, a Glock SS80 and the GST-9. Indeed, if the unfinished receiver is first engraved in the manner required by the bill and is later finished into a completed firearm, the bill would arguably require the owner to go back and add the caliber and model if these items were not previously designated for the unfinished receiver. That could likewise prove quite impracticable if not impossible. Fitting the required information onto the plate becomes especially impossible on receivers that are brought into the State from elsewhere after January 1, 2022, as the bill require roughly double the amount of information be engraved on those receivers. See attached illustrated testimony of Andrew Starr Raymond, Co-Owner – Engage Armament LLC, of Rockville, MD.

These extremely technical requirements are both traps for the unwary as well as unnecessary. The apparent purpose of requiring this information is to identify the owner of the homemade firearm, should the firearm be recovered at a scene of a crime. Law enforcement agencies do not need anything other than the owner’s name in order to do that. The caliber and model of the gun is simply certainly not necessary for that purpose. If law enforcement has the name of the owner, it will not be a difficult task to track down that person without having the full city name. Certainly, the police will not need the “full legal name,” including the full middle name of the owner. In the rare case in which tracing is conducted, such tracing can be accomplished with just the first and last name.

D. The Bills Are Overbroad

The bills define an “unfinished frame or receiver” to mean “a product that is intended or designed to serve as the frame or receiver, including the lower receiver, of a firearm, but is in an unfinished state of manufacture.” The bill also define “unfinished frame or receiver” as including (but is not limited to) “a blank, casting, or machined body that requires modification, such as machining, drilling, filing, or molding, to be used as part of a functional firearm.” These definitions are overbroad and ambiguous.

First, the definitions leave unanswered the question of “intended” by whom: Is it the manufacturer or the end user? An example illustrates the point. Under these definitions, the bill could require engraving and impose a ban on possession of a “zero percent receiver” (a solid block of aluminum) sold as such. See e.g.: And that would be true even though the person in mere possession of this block of solid aluminum intended to use it as a paper weight or a book end or simply as a means to illustrate the absurdities of Maryland gun laws. The bill would likewise penalize a person who was utterly unaware that the block was originally sold as a “zero percent receiver” to someone, including perhaps someone far up the chain of possession for that particular block of aluminum. In short, the reach of the bill is overbroad. At a minimum, the bill should be amended to clarify the ambiguity. As the Maryland Court of Appeals has stressed, the General Assembly has an “obligation to establish adequate guidelines for enforcement of the law.” Ashton v. Brown, 339 Md. 70, 88, 660 A.2d 447, 456 (1995).

Stated differently, these bill contains no mens rea requirement and thus impose strict liability for simple possession (or constructive possession) without regard to the owner’s actual intent. In contrast, Federal law requires that the person knowingly possess an undetectable firearm of the type covered by 18 U.S.C. § 922(p). See 18 U.S.C. § 924(f) (imposing punishment for “a person who knowingly violates section 922(p)”). Yet, the bill contains no such mens rea requirement. That intent requirement is part and parcel of federal gun control law. See, e.g., Rehaif v. United States, 139 S.Ct. 2191 (2019) (holding that the “knowingly” requirement on the federal ban on possession of a firearm by an illegal alien required proof that the alien actually knew that he was illegally in the United States). This sort of mens rea requirement is also part of Maryland law. See, e.g., Chow v. State, 393 Md. 431 (2006) (holding that a violation of a Maryland statute making it unlawful for a person who is not a regulated gun owner to sell, rent, transfer, or purchase any regulated firearm without complying with application process and seven-day waiting period requires that a defendant knows that the activity they are engaging in is illegal).

It is no answer to these concerns that the bill imposes a civil penalty for the first offense, as the fine for the first offense is severe, viz.,not less than $1,000 but not exceeding $2,500.” Subsequent possession of a block of aluminum would be a second offense and that could result in two years of imprisonment and a $5,000 fine. Yet, such punishments for otherwise innocent possession is completely senseless. These penalties could be imposed even though it would take substantial expertise and a very sophisticated milling machine costing in the neighborhood of $30,000 to convert that block of aluminum into an 80% receiver, not to mention the additional milling that would be required to convert it into an actual finished receiver. Additional assembly of more parts (a barrel, a trigger, a slide and associated springs and parts) would then be necessary to covert that finished receiver into something that could actually fire a round of ammunition. As the Supreme Court stated in Rehaif, it is a “basic principle that underlies the criminal law, namely, the importance of showing what Blackstone called ‘a vicious will.’” Rehaif, 139 S.Ct. at 2196, quoting 4 W. Blackstone, Commentaries on the Laws of England 21 (1769).

Moreover, the bill would require a serial number on this solid block of aluminum marketed as a “zero percent receiver.” That serial number would then be obliterated should that block ever be actually milled into a real lower receiver. Yet, any such removal or alteration of the serial number would be a federal felony under 18 U.S.C. § 922(k), which makes it a crime to “possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered.” A knowing violation of Section 922(k) is punished by up to 5 years in a federal prison. See 18 U.S.C. § 924(a)(1)(B). This reality simply illustrates the legal absurdity of incorporating federal law to criminalize the possession of objects that are not regulated by federal law. Federal law cannot be used in this manner. In short, in its attempt to be all-encompassing, the bill creates multiple traps for the unwary, all without regard to the mens rea of the possessor. The bill thus invites arbitrary and discriminatory enforcement.

  1. The Bill Imposes Heavy Costs On The Maryland State Police To Conduct Truncated Background Checks And Issue HQLs

This bill amends MD Code Public Safety, § 5-101(r) to specifically designate a “receiver” as defined in the bill, to be a “regulated” firearm under Maryland law. Such a designation will have a huge impact on the Maryland State Police. Under existing Maryland law, MD Code, Public Safety § 5-117,”[a] person must submit a firearm application in accordance with this subtitle before the person purchases, rents, or transfers a regulated firearm.” Under MD Code, Public Safety, § 5-118, as implemented by the State Police, such an applicant must fill out a State Police form, called a Form 77R, in order to purchase a regulated firearm and pay a $20 processing fee. The State Police use the information on that form to conduct a background check on the sale of the regulated firearm using the Federal NICS database and various state databases. See MD Code, Public Safety, § 5-124; COMAR See also Maryland State Police Advisory LD-FRU-19-002 (Dec. 18, 2019). Under this statutory scheme, State and Federal Firearms Licensees (“FFLs”) are not allowed to conduct any background checks for any regulated firearm sold in Maryland, but instead are required to rely solely on the State Police to do the background checks and approve the purchase.

This background check system breaks down for receivers that do not meet current ATF standards for being a “receiver” under Federal law, such as 80% lowers, that the bill would newly designate as “regulated” firearms. Stated simply, the State Police are legally prohibited from conducting federal NICS checks on the sale of items that are not firearms under Federal law. 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). The Maryland State Police is a FBI-approved, Point of Contact agency for NICS checks for handgun sales in Maryland. Handguns are, of course, also “regulated” firearms under Section 5-101(r). Thus, for handgun sales by a dealer, the Maryland State Police serve as the sole Point of Contact for purposes of contacting the FBI for a NICS check on a dealer sale of a regulated firearm.

The federal NICS system may be used to institute a background check only on actual transfers of firearms that are regulated by the Brady Act. 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 an FFL is never authorized to utilize the NICS for employment or other type of non-Brady Act-mandated background checks. 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.”).

The same rule applies to a State which serves as a Point of Contact for purposes of accessing the NICS system. 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. Termination of such NICS access would, of course, gut the ability of the Maryland State Police to conduct full background checks on sales of any regulated firearm (including handguns). Termination of access would also bar the State Police from doing NICS background checks for the Handgun Qualification License under MD Code, Public Safety § 5-117.1, and issuing a wear and carry permit under MD Code, Public Safety, § 5-306, as otherwise permitted by Federal law. See 28 C.F.R. § 25.6(j).

In short, the FBI and Federal law will not permit FBI resources and the NICS system to be commandeered to do a background check that is not authorized by Federal law. Eighty percent lowers and other unfinished receivers, as defined by the bill, are simply not “receivers” under Federal law and are thus not firearms under Federal law. That means that the State Police may NOT, under any circumstances, conduct a NICS check on the sale of “receivers,” as defined by the bill. Thus, by deeming these receivers to be “regulated” firearms under Section 5-101(r), the bill essentially is commanding the State Police to expend considerable resources to conduct a background check that is limited to State databases only. The burden on the State Police is made even greater because the bill also amends MD Code, Public Safety, § 5-117.1, to require a person to have Handgun Qualification License, issued by the State Police, to purchase or receive an unfinished receiver. The fiscal impact on the State Police by the bill will be substantial to little point.


Given all the problems, detailed above, the bill has obviously not been fully thought out. For all these reasons, we strongly urge an unfavorable report.



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

Contact Info

Mailing Address:

Maryland Shall Issue®, Inc.
9613 Harford Rd
Ste C #1015
Baltimore, MD 21234-2150

Phone:  410-849-9197