Written Testimony Of Mark W. Pennak, President, MSI, in Opposition To Bill 21-22
Read more about Montgomery County Bill 21-22 HERE.
I am the President of Maryland Shall Issue (“MSI”). Maryland Shall Issue is a Section 501(c)(4), all-volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners’ rights in Maryland. It seeks to educate the community about the right of self-protection, the safe handling of firearms, and the responsibility that goes with carrying a firearm in public. I am also an attorney and an active member of the Bar of the District of Columbia and the Bar of Maryland. I recently retired from the United States Department of Justice, where I practiced law for 33 years in the Courts of Appeals of the United States and in the Supreme Court of the United States. I am an expert in Maryland Firearms Law, federal firearms law and the law of self-defense. I am also a Maryland State Police certified handgun instructor for the Maryland Wear and Carry Permit and the Maryland Handgun Qualification License and a certified NRA instructor in rifle, pistol, personal protection in the home, personal protection outside the home, muzzle loading, as well as a range safety officer. This letter is submitted in opposition to Bill 21-22.
In Bill 21-22, the County would amend Section 57.11(b) of the County Code to eliminate the existing exemption for carry permit holders from the prohibitions found in Section 57.11(a). Section 57.11(a) provides: “In or within 100 yards of a place of public assembly, a person must not: (1) sell, transfer, possess, or transport a ghost gun, undetectable gun, handgun, rifle, or shotgun, or ammunition or major component for these firearms; or (2) sell, transfer, possess, or transport a firearm created through a 3D printing process.” The County code defines the term "place of public assembly" extremely broadly to mean: “a place where the public may assemble, whether the place is publicly or privately owned.” This definition goes on to include, but is not limited to, any “park; place of worship; school; library; recreational facility; hospital; community health center; long-term facility; or multipurpose exhibition facility, such as fairgrounds or a conference center.” See County Code Section 57.1 (definitions).
The County invokes as its authority for this bill, an exception provision to a State preemption statute, MD Code, Criminal Law, § 4-209(a). That statute provides: “(a) Except as otherwise provided in this section, the State preempts the right of a county, municipal corporation, or special taxing district to regulate the purchase, sale, taxation, transfer, manufacture, repair, ownership, possession, and transportation of: (1) a handgun, rifle, or shotgun; and (2) ammunition for and components of a handgun, rifle, or shotgun.” Section 4-209(b) contains exceptions to this general preemption, one of which is that a “county, municipal corporation, or special taxing district may regulate the purchase, sale, transfer, ownership, possession, and transportation of the items listed in subsection (a) of this section: *** (iii) * * * within 100 yards of or in a park, church, school, public building, and other place of public assembly.” MD Code, Criminal Law, 4-209(b)(1)(iii).
That exception provision is narrow and strictly construed. In Mora v. City of Gaithersburg, 462 F.Supp.2d 675, 689 (D.Md. 2006), modified on other grounds, 519 F.3d 216 (4th Cir. 2008), a federal district court here in Maryland held that “the Legislature” has “occup[ied] virtually the entire field of weapons and ammunition regulation,” holding further there can be no doubt that “the exceptions [in Section 4-209(b)] to otherwise blanket preemption [in Section 4-209(a)] are narrow and strictly construable.” As thus construed, Section 4-209(b)(1)(iii) does not authorize this legislation. Indeed, the extent of the County’s power under this provision is currently in litigation in MSI v. Montgomery County, Case No.: 485899V (Mont. Co. Cir. Ct), where MSI and other plaintiffs have challenged the County’s enactment of Bill 4-21 last year. Cross-motions for summary judgment in that case were filed and oral argument conducted on July 19, 2022. Bill 21-22 builds on the framework established by Bill 4-21 and effectively negates carry permits issued by the State Police throughout the County. If the County loses the Bill 4-21 suit, such a decision would necessarily mean that the County likewise lacks the authority to enact Bill 21-22, as currently drafted. The County would be well-advised to await a decision before doubling down on its misguided reliance on Section 4-209(b)(1)(iii).
But even assuming arguendo that the County has the power it claims under Section 4-209(b)(1)(iii), Bill 21-22 still fails as it is blatantly unconstitutional under the Second Amendment, as construed by the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022). In Bruen, the Supreme Court held that the Second Amendment right to bear arms means “a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense.” Slip op. at 24-25 n.8. Specifically, the Court struck down as unconstitutional New York’s “proper cause” requirement for issuance of a permit to carry a handgun in public. The Court went on to reject the “means-end,” two step, intermediate scrutiny analysis used by the lower courts to sustain gun regulations, holding that “[d]espite the popularity of this two-step approach, it is one step too many.” The Court ruled that “the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Any such historical analogue would have to date from 1791 or, at the latest, 1868, when the 14th Amendment was adopted. See Bruen, slip op. at 25-26. That is because “‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’” Bruen, slip op. at 25, quoting District of Columbia v. Heller, 554 U.S. 570, 634–635 (2008).
Bruen also holds that governments may regulate the public possession of firearms at “legislative assemblies, polling places, and courthouses” and notes that governments may also regulate firearms “in” schools and government buildings. Bruen, slip op. at 21, citing Heller, 554 U.S. at 599. Bruen states that “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” (Id.). But nothing in Bruen can be read to allow a State (or a municipality) to regulate or ban firearms at every location where the “public may assemble” regardless of whether the place is “publicly or privately owned.” Indeed, the Court rejected New York’s “attempt to characterize New York’s proper-cause requirement as “a ‘sensitive-place’ law,” ruling that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.” Slip op. at 22. As the Court explained, “[p]ut simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” (Id.).
In a courtroom, the County will bear the burden of proof to show the historical presence of such analogous regulations. See Bruen. at 52 (“we are not obliged to sift the historical materials for evidence to sustain New York’s statute. That is respondents’ burden.”). Ipse dixit declarations or avowed public safety concerns will not do. Under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Slip op. at 8. Here, the text of the Second Amendment indisputably covers the “possession, sale, transport, and transfer” of firearms and ammunition, as regulated by Section 57.11(a) of the County Code. In such cases, “the government may not simply posit that the regulation promotes an important interest,” but rather “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. In short, under Bruen, “the Second Amendment guarantees a general right to public carry.” Bruen, slip op. at 24.
The County has not and cannot make any such showing that eliminating the right to carry under a permit issued by the State Police “is consistent with this Nation’s historical tradition of firearm regulation.” Indeed, the very suggestion is nonsensical. There is no historical analogue that would permit the County to ban all possession of firearms in a church or a park, much less in any “other place of public assembly” as vastly defined by the County to include any place where the public “may assemble” regardless of whether such place is on public or private land. Montgomery County is no more a “sensitive place” than is Manhattan. Under the Second Amendment, the County may presumptively enact otherwise reasonable firearms regulations for these five, specific locations identified in Bruen and Heller, viz, in schools, public buildings, polling places, courthouses and legislative assemblies, to the extent such regulation is otherwise authorized by State law. As noted, the State has generally barred local regulation of firearms under Section 4-209(a). For example, the County has no authority to enact its own, “shall issue” licensing system that would supersede or conflict with that established by State law. Nor would it make any practical sense for the County to attempt to duplicate State law on such matters.
The State Police may continue to regulate public possession of handguns under its existing permit system as long as it issues permits on an objective, “shall issue” basis and the permitting system does not operate in such a way as to “deny ordinary citizens their right to public carry.” See Bruen, slip op. at 30 n.9. But, there is no historical analogue that could justify regulating within 100 yards of those locations or beyond those places. Bruen holds that the “Second Amendment guarantees a general right to public carry,” and thus the County may not purport to ban the “possession, sale, transport, and transfer of firearms” within 100 yards of any location. Again, the burden is on the County to prove an historical analogue to the contrary.
Such bans are particularly nonsensical for persons who have obtained a wear and carry permit from the Maryland State Police. Under State law, MD Code, Public Safety, § 5-306(b), such individuals are subject to highly intrusive background investigations (including fingerprinting) conducted by the State Police and must undergo extensive training by State certified instructors, including passing a scored live-fire proficiency test. The undersigned is such a State Police-certified instructor. The State Police will continue to enforce those requirements even after Bruen. See Maryland State Police Advisory, LD-HPU-22-002 (July 5, 2022). Permit holders are among the most law-abiding individuals there are. They are not the problem. That has been true in all of the 43 States and the District of Columbia that issue permits on a “shall issue” basis. https://www.dailywire.com/news/report-concealed-carry-permit-holders-are-most-law-aaron-bandler/. Eliminating the exception for permit holders currently found in Section 57.11(b) of the County Code is utterly senseless from any calm, rational perspective.
Stated simply, regardless of the personal views of members of the County Council, this County is bound by the decisions of the Supreme Court, including decisions involving the Second Amendment. The County needs to rethink this Bill. If the County persists with the enactment of Bill 21-22, it will not survive judicial review. Defying the Supreme Court did not work for the racist proponents of segregation who refused to accept Brown v. Board in the 1950s and 1960s, and it will not work for any County attempt to defy Bruen. The Second Amendment is not a “second class right” that the County is free to ignore. Bruen, slip op. at 62. The sooner that members of the Council are able to put aside their personal opinions and accept that reality, the better. As stated in Heller, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. County taxpayer dollars have better uses than litigation that will most certainly ensue from any enactment of Bill 21-22. When plaintiffs prevail in such litigation (and they will), the County will also be on the hook for plaintiffs’ attorneys’ fees and costs under federal law, 42 U.S.C. § 1988, and those sums could well be substantial. The County Council should stop and think carefully before it goes down that road. Legally responsible, adult stewardship of the County requires nothing less. The County cannot say it was not put on notice or acted in ignorance of State law or the Second Amendment.
Download a copy of this testimony HERE.