MDGA 2021: MSI Testimony in Opposition to HB175 - Ammunition - Sales and Transfers

bullet cartridge ammunition crime 53224

HB175

The Bill

For the first time in the history of Maryland, this bill attempts to impose a vast regulatory regime on the sale of ordinary ammunition in Maryland. First in a newly minted Section 5-703 of the Public Safety Article of the Maryland Code, the bill would require every ammunition vendor to confirm the identity of every would-be purchaser by demand government issued identification. Next, the bill would command the vendor to “CONDUCT A BACKGROUND CHECK ON THE PURCHASER OR TRANSFEREE THROUGH THE NICS INDEX.” In a newly minted Section 5-704, the bill would impose electronic record-keeping requirements on the vendor and on the Maryland State Police by requiring the vendor to report to the State Police the date of the or transfer, the purchaser’s identification number, the “brand, type and amount” of ammunition purchased, the purchaser’s full name and signature, and the purchaser’s full address, date of birth and telephone number and finally, the name of the salesperson who made the sale. Any violation of these and other provisions of the bill would be a civil offense subject to a fine of “not less than $1,000 for each violation.” The bill would also exempt from its requirements sales to persons holding a Handgun Qualification License and sales to active Maryland and federal law enforcement officers.

A. The Bill Requires A Patently Illegal NICS Background Check On Ammunition Sales

As noted, this bill requires a vendor to conduct a NICS check for each and every sale of ordinary ammunition. That requirement is flatly illegal under controlling federal law. The NICS system is run by the FBI, as required by the Brady Handgun Violence Prevention Act of 1993, Public Law 103-159, 107 Stat. 1536 (1993), codified at 18 U.S.C. § 922(t). https://www.fbi.gov/services/cjis/nics. The Maryland State Police is a FBI-approved, Point of Contact agency for NICS checks for handgun sales in Maryland. https://www.fbi.gov/file-repository/nics-participation-map.pdf/view. Under federal law, 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. Furthermore, under federal law, only federally licensed firearm licensees (FFLs) and designated Point of Contract State agencies are permitted access to the NICS system. No other vendor, or person or agency may have access to the NICS system under federal law. See 28 C.F.R. §25.1, et seq. While a federal license is required to engage in the business of importing or manufacturing ammunition, 18 U.S.C. § 922(a)(1)(B), no federal license is required simply to sell ordinary small arms ammunition. 28 C.F.R. § 478.41. See https://www.atf.gov/firearms/qa/license-required-engage-business-selling-small-arms-ammunition (“A license is not required for a dealer in ammunition only.”). Such non-licensed vendors of ammunition typically include hardware stores and small businesses, especially in rural areas. Because these vendors are not FFLs they do not have any access to the NICS system.

Stated simply, ammunition sales are not governed by any provision in the Brady Act. Federal regulation of ammunition sales was largely repealed by Congress in 1986 with enactment of the Firearm Owners Protection Act of 1986, Public Law 99-308, 100 Stat. 449 (May 19, 1986). That repeal was based on realization that regulating ammunition sales was “just a waste of time” and had “no substantial law enforcement value.” See Federal Firearms Reform Act of 1986, House Report 99-495, 99th Cong., 2nd Sess., 17 (1986) (emphasis added). See Congressional Record—House, Apr. 9, 1986, at 6850 (“Fourth, it repeals ammunition recordkeeping requirements (except armor-piercing bullets) which BATF and Treasury says have no substantial law enforcement value.”); 6861 (same); 6864 (same); 6869 (“[W]e also limit the licensing of ammunition dealers because ammunition and recordkeeping for ammunition, BATF and most everybody agrees, there is just a waste of time because you cannot trace ammunition.”).

That ammunition sales are not subject to the Brady Act (passed in 1993) is widely understood and acknowledged, even by pro-gun-control advocacy groups. See, e.g., https://giffords.org/lawcenter/gun-laws/policy-areas/hardware-ammunition/ammunition-regulation/. Federal law does provide that a licensed dealer may not sell shotgun or rifle ammunition to a person younger than 18 years of age and may not sell handgun ammunition to a person younger than 21 years of age. 18 U.S.C. § 922(b)(1). And, of course, neither modern ammunition nor modern firearms may be possessed by prohibited persons. 18 U.S.C. §922(g). Similarly, it is a federal felony “to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person” is a prohibited person. 18 U.S.C. § 922(d). Maryland likewise criminalizes such sales for regulated firearms under State law, and imposes a total ban on the transfer of any ammunition to minors. MD Code, Public Safety, § 5-134. Maryland formerly regulated the mere possession of ammunition designed solely for regulated firearms, but the General Assembly repealed that Maryland law in 2011, no doubt realizing that such regulation was unnecessary and impossible to enforce.  See Acts 2011, c. 343, § 1.

However, because federal law does not regulate ammunition sales, federal law does not permit any NICS background check for ammunition sales. Indeed, federal regulations are quite explicit that a FFL may not access the NICS system for any purpose other than those sales of firearms subject to the Brady Act. 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).

As Nevada learned to its chagrin when it tried to force dealers to do NICS checks not authorized by federal law, the FBI will not permit FBI resources and the NICS system to be commandeered by States. See Zusi v. Sandoval, No. A-17-762975-W, slip op. at 4 (Nev. Dist. Ct. August 20, 2018) (holding unenforceable a Nevada law that “sought to require the FBI through NICS to perform background checks”), available at http://www.clarkcountycourts.us/judge-issues-order-in-background-check-case-zusi-vs-sandoval/. The FBI is not bound by Maryland law. That means that neither a FFL nor the State Police may, under any circumstances, conduct a NICS check on the sale of ammunition. Period. Full Stop. Requiring a vendor to conduct a NICS check is thus flatly illegal under federal law. Any dealer conducting such a NICS check on an ammunition sale would risk losing his or her FFL license without further ado. 28 C.F.R. § 25.11. The dealers, of course, all know this and thus will refuse to comply with the requirements that would be imposed by this bill. If forced to comply, dealers will simply stop selling ammunition altogether thereby making it that much more difficult to stay in business. An honest title for this bill would thus be:  “Elimination of Maryland Dealers Act of 2021.” And, as explained above, non-FFL vendors cannot access the NICS system at all. Thus, these ammunition vendors would also have to stop selling ammunition under this bill.

In short, by requiring the legally impossible (a NICS check on ammunition sales), the bill would effectively ban the sale of ammunition in Maryland. The bill would thus fail a federal court challenge under the Second Amendment as law-abiding citizens have a constitutional right to acquire ammunition for their lawfully owned firearms.  See, e.g., Jackson v. San Francisco, 746 F.3d 953, 967 (9th Cir. 2014), cert. denied. 576 U.S. 1013 (2015) (“without bullets, the right to bear arms would be meaningless. See also District of Columbia v. Heller, 554 U.S. 570 (2008). A regulation eliminating a person's ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose.”). A federal court challenge would lie under 42 U.S.C. §1983, to seek equitable relief, plus attorneys’ fees under 42 U.S.C. § 1988. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (“[F]ederal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law.”) (citing Ex Parte Young, 209 U.S. 123, 150-51 (1908)).

B. The Bill’s Recording-Keeping Requirements Will Be Costly For Vendors And For The Maryland State Police While Being Easily Avoided By Purchasers.

The bill would impose extremely burdensome record keeping requirements on the vendor and the Maryland State Police alike. The end result would be to create a vast new database of all ammunition sales that will be expensive to establish and expensive to maintain. Such costs are fair from trivial. Roughly 8 billion rounds of ammunition are produced every year and many millions are sold in Maryland, every year. Maintaining a database of that size would a monumental task. And all this to little or no point.  Any purchaser could easily sidestep these requirements simply by driving to a neighboring state and making ammunition purchases in those states. Federal and state law in neighboring states do not regulate these sales to Maryland residents who are free to purchase ammunition in any amount as often as they like without enduring any of the burdensome requirements imposed by this bill. No neighboring state imposes any background checks for the sale of ammunition. Indeed, only one State (California) has even attempted to do so by requiring a background check of State databases (not a NICS check) and a federal district court has already preliminarily enjoined that California statute as violative of the Second Amendment.  See Rhode v. Becerra, 445 F.Supp.3d 902 (S.D. Calif. 2020), appeal pending, No. 20-55437 (9th Cir.).

Indeed, if only as a matter of principle, law-abiding gun owners in Maryland will massively resist these requirements by flocking to out-of-state retail stores for their ammunition needs. The losers here would be Maryland retailers and, of course, the Maryland State Police, which would be required to create a massive new State database for ammunition sales. That database would be no more useful for solving crimes than the spent shell casing storage requirement previously imposed on the State Police by Maryland law. That casing requirement was repealed by the General Assembly in 2015. See former MD Code, Public Safety, § 5-131, repealed by Acts 2015, c. 379, §§ 1, 2, 3 (effective Oct. 1, 2015). That repeal will save the State Police millions of dollars over time.  In contrast, this bill would impose millions of dollars in new expenses over time. Indeed, this bill would impose these record keeping requirements for every sale of single box of .22 rimfire cartridges that cost approximately $3 to purchase. See, e.g., Remington Target 22 Long Rifle, Target Sports USA, https://tinyurl.com/y439gx6u  (last visited February 20, 2021) (<$3 for a box of 50 .22LR cartridges). By any measure, the bill imposes a massive misallocation of resources.

C. The Bill Misuses the Handgun Qualification License

The bill exempts from its coverage sales of ammunition to persons who have a Handgun Qualification License, issued pursuant to MD Code, Public Safety, § 5-117.1. That incorporation of the HQL statute is a patent misuse of the HQL statute. The HQL statute was never intended to serve as some sort of uber alles stamp of approval for all gun owners. By its terms, possession of an HQL is required for sales, rentals or transfers of handguns only. Handguns are regulated firearms under Maryland law. MD Code, Public Safety, 5-101(r). Ordinary rifles and shotguns are not regulated firearms. Obtaining an HQL so as to purchase a handgun takes four hours of training, live fire and costs more than $200 in expenses for training, fingerprinting and application fees. It imposes costs on the State Police which must process an HQL application within 30 days. It would be grossly excessive to impose those requirements on a law-abiding citizen simply in order to purchase a box of ammunition for lawfully owned firearms, including hunting rifles and shotguns.

Persons are not required to have an HQL in order to continue to lawfully possess and use previously owned handguns and are free to purchase ordinary long guns, subject to background checks imposed by the Brady Act, all without possessing an HQL. This bill would thus regulate ammunition sales of ordinary hunting ammunition and for firearms not even subject to the HQL requirements. The bill would, for example, impose its requirements on sales of ordinary .22 rimfire ammunition used in basic rifle instruction for the Boy Scouts and other youth groups, including instruction for the Firearm and Hunter Safety Certificate issued by the Maryland Department of Natural Resources under MD Code, Natural Resources, § 10-301.1. Yet, Maryland does not regulate the sale of .22 rimfire rifles (other than to minors). See, e.g., MD Code, Criminal Law, § 4-301(e)(1) (defining a copycat weapon to include only semiautomatic centerfire rifles);  Indeed, under Maryland law, it is perfectly legal to purchase and possess .22 rimfire rifles with tubular magazines in excess of 10 rounds of capacity. MD Code, Criminal Law, § 4-305 (exempting .22 caliber rifles “with a tubular magazine” from the 10 round limit). Non-regulated firearms and ammunition may be possessed by minors in Maryland; it would be quite impossible to conduct youth hunting without such possession. Compare MD Code, Public Safety, § 5-133(d) (restricting possession of regulated firearms by minors).  Regulating the sale of ordinary ammunition used in non-regulated firearms is at odds with this complex statutory maze of regulation.

Moreover, under Section 5-117.1(a), the HQL requirements do not even apply to active or retired federal or Maryland law enforcement officers or to active or retired members of the armed forces or the National Guard of the United States. All these individuals may purchase handguns in Maryland without an HQL. Yet, except for an exemption for active duty Maryland and federal officers, this bill imposes the record keeping requirements on sales to these categories of persons who are totally exempt from the HQL requirements. Indeed, the bill would even apply to ammunition purchases by active law enforcement officers who live or shop in Maryland, but work for a police agency located outside of Maryland, such as the Virginia State Police or the Pennsylvania State Police. It would likewise impose these requirements on sales to retired State and federal officers who are entitled, under the federal Law Enforcement Officers Safety Act, 18 U.S.C. § 926C (LEOSA), to carry a concealed firearm in public without obtaining a State carry permit.

In sum, the HQL requirements were designed to apply only to handgun transfers and should not be applied outside of that context. Even in that limited sphere, those requirements will fail should MSI prevail in its ongoing suit challenging the constitutionality of the HQL statute under the Second Amendment. See MSI v. Hogan, 971 F.3d 199 (4th Cir. 2020) (reversing the district court’s standing dismissal and remanding for further proceedings on the merits). Incorporating the HQL statute into other legislation places such other legislation at risk as well.

CONCLUSION

Given all the problems, detailed above, the bill has obviously not been fully thought out and should be withdrawn. It is overbroad, illegally requires NICS background checks flatly prohibited by federal law and imposes huge costs on retailers and the Maryland State Police without any point. For all these reasons, if the bill is not withdrawn, the Committee should issue an unfavorable report.

Sincerely,

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


Latest News

March Litigation Update and Other News



1. The Rapid Fire Trigger Activator case:  The Supreme Court case is MSI v. Hogan, No. 20-855 (US).  There, MSI and the individual plaintiffs have challenged as a Taking Maryland's ban on possession of previously lawfully owned and acquired "rapid fire trigger activators."  We lost that challenge in the Fourth Circuit in a split 2-1 decision, with a compelling and lengthy dissent by Judge Richardson. MSI v. Hogan, 963 F.3d 356 (4th 2020). We have thus filed a petition for certiorari with Supreme Court, asking the Court to review the Fourth Circuit's ruling.  MSI also filed an amicus brief with the Court of Appeals for the Federal Circuit in The Modern Sportsman, LLC v. United States, No. 20-1077 (Fed. Cir.), where a similar Takings issue is pending arising from the ATF's regulatory ban on bump stocks. That case was heard by the Federal Circuit at oral argument on December 8 and a decision is pending. The theory is simple:  If the government is going to ban the possession of lawfully acquired private property and thereby destroy all property rights in that property, then the State should pay for it. The State's Opposition to our petition for certiorari is due on March 29, after which we will file a reply brief. We may have a decision by the Court on whether to hear the case in late April or May. If the petition is granted, the case will be fully briefed over the summer with oral argument likely in the Fall. 

2. The HQL litigation:  MSI, along with individual plaintiffs and Atlantic Guns in Rockville, have challenged the constitutionality of the Handgun Qualification License requirement that was enacted as part of the so-called Firearms Safety Act of 2013. The district court initially dismissed the case on grounds that none of the plaintiffs had standing to sue and thus refused to reach the merits.  We appealed and, this last summer, that standing ruling was reversed by the Court of Appeals for the Fourth Circuit. MSI v. Hogan, 971 F.3d 199 (4th Cir. 2020). On remand, the parties have filed cross-motions for summary judgment and motions to strike. Those proceedings and briefings are still in progress. After full briefing, the district court may hold a hearing and will render a decision in due course.  

3. The First Amendment suit:  MSI, along with the Hulbert brothers, filed suit in federal court challenging the arrests that took place in Annapolis in 2018 of the Hulberts, who were peacefully and lawfully demonstrating on a public sidewalk (a.k.a, a "public forum"). After all, the First Amendment protects the right to advocate in support of the Second Amendment. The arrests at issue in this case thus chill advocacy by MSI and by every MSI member. The federal district court has already denied the defendants' earlier attempt to dismiss the case. Hulbert v. Pope, 2019 WL 1409707 (D. Md. 2019). Although the case was delayed by the COVID 19 pandemic, the parties have completed extensive pre-trial discovery and, as expected, the defendants have recently moved for summary judgment. That motion has been fully briefed and is awaiting a decision by the federal judge.  When that motion fails (as it should), we intend to take this case to a jury and recover substantial damages and equitable relief. 
 
4. The Challenge to the "Good and Substantial Reason" case:  Last, but hardly least, MSI has joined with the Firearms Policy Coalition, the Citizens Committee for the Right to Keep and Bear Arms, the Second Amendment Foundation, and a number of individuals to challenge the constitutionality of Maryland's "good and substantial reason" requirement for the issuance of a wear and carry permit. The case name is Call v. Jones, No. 20-3304 (D. Maryland). The point of that suit is to challenge the Fourth Circuit's prior decision in Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (in which the court sustained the requirement) by bringing this issue to the Supreme Court.  As expected, on March 19, the district court dismissed the complaint on the basis that Woollard was controllingThe plaintiffs will be filing a notice of appeal with the Fourth Circuit, which will likely summarily affirm on the basis of Woollard, just as it did in Malpasso v. Pallozzi, 767 Fed. Appx. 525 (4th Cir. 2019), where the same issue was raised by different parties. Once the Fourth Circuit acts on this appeal, a petition for certiorari with the Supreme Court will be appropriate. Stated simply, the Woollard decision is in direct conflict with the D.C. Circuit's later decision in Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017), where the court held that the Second Amendment protected “the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs.” As a result of Wrenn, the District of Columbia is now a "shall issue" jurisdiction, just like 42 states. Sooner or later, that will likewise be the law in Maryland. Indeed, this very issue is presently before the Supreme Court on a petition for certiorari filed in NYSRPA v. Corlett, No. 20-843, docketed Dec. 23. 2020) (U.S.).  That petition will likely be considered by the Court at a Friday conference in April.  So stay tuned. If certiorari is denied in Corlett, we will be presenting the same issue in this case. The Second Amendment cannot mean one thing in 42 states (and in D.C.) and something else in Maryland!
 
License, Registration, and Permit Renewals
Recently, Governor Hogan issued new executive orders related to COVID-19 that undo the suspension of expiration dates for all licenses issued by the State. If your carry permit would have expired over the last year, you must now submit a renewal application for their permit by June 30th, 2021. To learn more, see the notice from the Maryland State Police HERE.
April MSI Membership Meeting
MSI will hold its next membership meeting online via Zoom on April 10th, 2021 at 1:30 pm. Links to join the meeting will be distributed to all active paid members only via email, so be sure that your current profile information on the MSI website is up to date. We will be giving updates on where the gun bills stand in the legislature, litigation updates, plans MSI has moving ahead, and much more.

 

Upcoming Events
If interested in volunteering, reach out to . Booth volunteers who do four shifts in a year get their MSI membership comped! They also may get into the show for free.

Baltimore County Game & Fish Gun Show
Saturday, 3 April - 8 AM to 5 PM

Baltimore County Game & Fish
3400 Northwind Rd.
Baltimore, MD 21234

MSI Membership Meeting
Saturday, April 10th at 1:30 pm

Online via Zoom

Frederick Gun Show
April 10th and 11th
Saturday - 9:00 AM to 4:00 PM
Sunday - 9:00 AM to 3:00 PM

Frederick County Fairgrounds
797 E Patrick St
Frederick, MD 21701

AGC Range Day

AGC Range Day is Sunday, April 11 from 8 am - 12 pm, please come out to help get the range ready for the upcoming year. Volunteers are welcomed to stick around to enjoy shooting on the 100yd range with us from 1 pm - 4 pm and those who help do earn credit toward their badge fees with the AGC.

If you would like to volunteer, please contact Michael Burke at  for more details and let him know what time you will be able to stop by so he can provide our club volunteer info to AGC.

 

Timonium Gun Show
April 17 and 18th
Saturday - 9:00 AM to 5:00 PM
Sunday - 9:00 AM to 3:00 PM

Timonium Fairgrounds
2200 York Rd
Timonium, MD 21093

Chantilly Gun Show
April 23rd, 24th, and 25th
Friday: 1:00 PM - 8:00 PM
Saturday: 9:00 AM - 6:00 PM
Sunday: 9:00 AM - 5:00 PM

Dulles Expo Center
4320 Chantilly Shopping Center
Chantilly, VA 20153

MSI Goes to the Supreme Court

    On December 21st, 2020, Maryland Shall Issue, Inc., filed a Petition for Writ of Certiorari before the Supreme Court of United States in Maryland Shall Issue, Inc et al. v Hogan. Read the petition HERE.

Update 12/29/2020: The Supreme Court has docketed the case. https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public/20-855.html

Read more ...

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