SB387 Has Passed the Senate. What Happens Next?

Last night (3/16/22) in a late session, the Senate passed the ban on the possession of unserialized firearms, SB387, by a margin of 35-11. The yeas and nays do not tell the whole tale, however, as the Senate's version of this bill differs substantially from the House's passed-as-introduced HB425. The Judicial Proceedings Committee amended SB387 over the course of the last week and Senators HoughBaileyWest, and Cassilly pushed hard for the changes that were made to the bill in order to lessen the harm to the countless Marylanders who will be affected by its enactment. As passed by the Senate, SB387 can be summed up this way:
  • The bill extends the period to get any currently possessed unserialized guns into compliance to 3/1/23. Any unserialized gun manufactured after Oct. 22, 1968, must be inscribed by an FFL and registered by then in order to be possessed. Otherwise, they must be dispossessed or removed from the state by this date;
  • SB387's definition of an unfinished frame or receiver is entirely reliant on the pending rule published by the ATF in regards to the definition of a firearm;
  • Any affected gun must be inscribed by an FFL with either the system of marking imposed by the ATF in its rule OR by the system of marking otherwise imposed by this bill;
  • The bill, as amended, does not require the FFL to keep records concerning the serialization. In contrast, the ATF proposed Rule does impose that recordkeeping requirement;
  • Prospective gun-making can happen, but only for unfinished frames or receivers "made" by the owner. Such an item must be inscribed in accordance with bill and be registered with Maryland State Police;
  • The amended bill adds a mens rea requirement, but it is highly limited.  If the person knew or should have known that the gun (or unfinished frame or receiver) was unserialized, then a person may be convicted of the possession offense after March 1, 2023. The original version of the bill lacked any mens rea requirement entirely;
  • The amended bill no longer includes within its definition of an unfinished frame or receiver items that are merely "sold or marketed" as being a receiver. This change allows possession of an item, like a block of aluminum, that has not yet achieved a state of manufacture that it could be considered to be "readily" convertible into a frame or receiver. Again, the bill relies on the ATF rule to define what is "readily" convertible. That definition in the ATF proposed rule relies on an ad hoc application of multiple factors and thus is quite vague.
  • Persons convicted of illegal possession under the bill face 2-years imprisonment rather than three. Such a conviction would not render a person "probibited" under state and federal law, thereby allowing such a person to legally retain possession of existing firearms;
  • Sellers or distributors of unfinished frames or receivers or unserialized firearms face up to 5 years imprisonment (a prohibitive offense);
  • Any gun serialized under this bill must be registered with the Maryland State Police via the existing voluntary registration system already in place. Such registration will allow the State Police to conduct a background check on the owner;
So what happens now?
Nothing has been sent to the Governor's desk yet, so there's still work for the chambers to do if they want the bills passed. SB387 will be sent over to the House Judiciary Committee which must decide how to proceed. They (and the House) passed HB425 without any amendments whatsoever. Likewise, HB425 will be sent to the Senate Judicial Proceedings Committee where it is likely to be amended to reflect the changes made to SB387. Either the House or the Senate can accede to the bill passed by the other body. If neither accedes, then the Senate and the House will have to hold a conference to iron out the differences. If those differences cannot be reconciled and neither body accedes to the other, then the legislation dies. To be sent to Governor Hogan, any bill must pass both the House and Senate with identical language.

MSI remains strongly opposed to SB387/HB425, as the bills still impose stringent requirements upon gun owners at their expense, leave innocent people at risk for arrest and prosecution, and criminalizes conduct that's always been lawful in Maryland and the United States. Those who've made firearms—whether from kits or fabricated entirely on their own—should not be paying for the bad acts of those who have no respect for the law or lives of others. The criminals in the State will not comply with this law any more than they comply with existing laws.

Nonetheless, the reality is that the General Assembly could have passed these bills as introduced, but the Senate decided to at least try to mitigate the harms. SB387, as passed by the Senate, is confusing and difficult to navigate. That confusion is compounded by the uncertainty associated with the ATF rule, as it has yet to be issued in final form (June is the expected date for issuance, but it could be at any time between now and then). We expect that there will be dealers who do not offer engraving services for one reason or another. There will be people who move from this State because of this bill. There will be those who manage to get their homemade guns engraved and those who fail to do so simply because they never learned about the new law. MSI shares the passion for homemade firearms and believes that such firearms are central to protecting the right to keep and bear arms. We will strive to assist our members with understanding any bill that is enacted into law.

We'll have more as the General Assembly enters its final three weeks of the Session. Sine Die is April 11, 2022. Don't forget that you can use to reach out to your state representatives about these bills and all the others affecting Maryland gun owners.

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