As originally introduced, Bill 2022-14 would have amended Chapter 51 of the County Code to provide that “no person, to include holders of any state issued permit to carry a concealed firearm, may at any time be in the possession of a weapon or firearm within 100 yards of a building owned or operated by Charles County government or the Board of Charles County Commissioners. This includes, but is not limited to, a building or portion of a building leased by Charles County government or the Board of Charles County Commissioners where Charles County government employees are regularly present for the purpose of performing their official employment duties.” The Bill specifically exempts law enforcement personnel, special police officers, active-duty military personnel and members of the Board of Commissioners from this prohibition. The Bill imposes criminal punishment, providing for imprisonment for up to one year or a $1,000 fine or both for any violation.
However, we are advised that the Bill has been amended to remove the 100-yard exclusion zone coverage of the Bill and to remove any coverage of “grounds and parks.” While the changes made in the revised Bill are a substantial and welcome improvement, the continued exclusion of permit holders from County “owned or operated” buildings retained in the revised Bill remains ill-advised and is likely unconstitutional. Specifically, the revised Bill continues coverage of “a building owned or operated by Charles County government or the board of Charles County Commissioners” without regard to whether such building housed government employees. This testimony is intended to inform the County of underlying legal and policy considerations that the County appears to have overlooked in both the original Bill and the revised Bill. In the abundance of caution, this testimony addresses both versions of the Bill.
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 of subsection (b)(1)(iii) 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.” That holding is in accord with the general rule that exception provisions to an otherwise broad provision are to be narrowly construed. See, e.g., Blue v. Prince George's County, 434 Md. 681 76 A.3d 1129 (2013) (“Under the canons of statutory construction, ‘[w]hen a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions.’”). Of course, the scope of authority conferred by subsection 4-209(b)(1) is irrelevant to the constitutionality of County laws as the Constitution is controlling over local law and State law.
The extent of a county’s power under subsection 4-209(b)(1) is currently in litigation in federal district court. See MSI v. Montgomery County, Case No. 8:21-cv-01736-TDC (D. Md). That case challenges Montgomery County’s law, Chapter 57 of the County Code, under the Second Amendment and under the Due Process Clause of the Fourteenth Amendment, as well as under State law. The undersigned is counsel for plaintiffs in that case. MSI and other plaintiffs have specifically challenged that part of the Montgomery County ordinance that banned firearms at and within a 100-yards of a “government building” which is defined to include any property “under the control” of the County. Plaintiffs recently filed a motion for a Temporary Restraining Order and a Preliminary Injunction on the Second Amendment claim in which plaintiffs seek an injunction against enforcement of the Montgomery County ordinance, including specifically the 100-yard exclusion zones imposed by the ordinance. Briefing is complete on that motion and the parties are awaiting a decision by the federal court.
Stated succinctly, the Bill 2022-14, as originally drafted, included a 100-yard exclusion zone and regulation of parks and grounds. That Bill, if enacted, would have been plainly 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.” 142 S.Ct. at 2135 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 Bruen 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.” 142 S.Ct. at 2127. Any such historical analogue would have to date from 1791, when the Bill of Rights was adopted.142 S.Ct. at 2135. That is because “‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’” Id., quoting District of Columbia v. Heller, 554 U.S. 570, 634–635 (2008). Under that standard, “the government may not simply posit that the regulation promotes an important interest.” 142 S.Ct. at 2126.
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 ban firearms within 100-yards of these (or any) locations. And, as discussed below, nothing in Bruen supports a broad interpretation of “government buildings.”
In a courtroom, the County will bear the burden of proof to show the historical presence of 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.”). 142 S.Ct. at 2150. 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.” 142 S.Ct. at 2129-30. Here, the text of the Second Amendment indisputably covers the “possession” of firearms both in the home and outside the home, as Bruen and Heller make clear. 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.” 142 S.Ct. at 2126. In short, under Bruen, “the Second Amendment guarantees a general right to public carry.” 142 S.Ct. at 2135.
Bruen squarely holds that Second Amendment protects the right to carry in public while also making clear that a State may condition that right on obtaining a wear and carry permit from the State, as long as the permit is issued on an otherwise reasonable and objective “shall issue” basis. 142 S.Ct. at 2138 & n.9. As this holding recognizes, permit holders are treated as a separate class as they have been thoroughly vetted through a permit process. Firearms bans, including the ban retained in the revised Bill are unnecessary and unwise for persons who have obtained a wear and carry permit from the Maryland State Police. All permit holders are screened and thoroughly investigated by the State Police, including being fingerprinted. All permit holders are thus identifiable by the FBI’s RAP BACK system, under which a mere arrest of any permit holder anywhere will be immediately reported to the Maryland State Police. https://bit.ly/3B8l142. All permit holders have received the 16 hours of training required by MD Code, Public Safety, § 5-306(a)(5), or are otherwise exempted by State law from such training by MD Code, Public Safety, § 5-306(a)(6), such as law enforcement officers and certified firearms instructors. The State Police likewise will deny a permit to any person who has “exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another.” MD Code, Public Safety, § 5-306(a)(6)(i). The State Police will continue to enforce all these requirements, even after Bruen. See Maryland State Police Advisory, LD-HPU-22-002 (July 5, 2022).
Permit holders are also the most law-abiding individuals in America. That has been true in all 43 States and the District of Columbia that issued, prior to Bruen, permits on a “shall issue” basis. See Lott, J., Concealed Carry Permit Holders Across the United States: 2021 (2021) (attached hereto as Exh. 1). Possession and transport of firearms by non-permit holders continue to be much more strictly regulated by State criminal law. For example, MD Code, Criminal Law, § 4-203(a), bans any “wear, carry or transport” of a handgun, subject to limited exceptions, like transport of an unloaded handgun to a dealer or to a range for target shooting or by an owner of a business. These State law provisions obviously apply throughout the State, including within 100 yards of or “in” a County owned or operated building. See also MD Code, Natural Resources, § 10-410(c)(1) (providing that a person may not “possess in or on an automobile or other vehicle a loaded handgun or shotgun, or a rifle containing any ammunition in the magazine or chamber,” but excepting permit holders). Imposing a ban on possession of all firearms, loaded or unloaded, in and within 100 yards of all County owned or operated buildings, as the original Bill provided, or even “in” such County owned or operated buildings as the revised Bill states, simply will ensnare the innocent by imposing criminal liability on permit holders and non-permit holders alike for otherwise perfectly legal and appropriate possession. Exempting members of the Board of Commissioners, as provided in both the original Bill and the revised Bill, is particularly inappropriate, as it smacks of an attitude that the constitutional right of self-defense protected by the Second Amendment only extends to the privileged few, such as County politicians. Bruen expressly rejected any such rule.
Nor is the original Bill or the revised Bill remotely analogous to federal law. Federal law bans firearms in federal facilities only where such possession is done “knowingly.” 18 U.S.C. § 930(a),(b). See Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (discussing the meaning of a “knowing” violation). This federal ban also applies only to possession “in” a federal facility and thus does not impose any “exclusion zone.” In addition, federal law also specifically provides that “[n]otice of the provisions of subsections (a) and (b) shall be posted conspicuously at each public entrance to each Federal facility,” and that “no person shall be convicted … if such notice is not so posted at such facility, unless such person had actual notice” of this law. 18 U.S.C. § 930(h) (emphasis added). Finally, federal law defines “federal facility” to mean “a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.” 18 U.S.C. § 930(g)(1) (emphasis added). In other words, a federal facility is not covered by this provision unless federal employees are “regularly” present in that building for work.
In contrast, both the original Bill and the revised Bill cover all County owned or operated buildings regardless of whether County employees work in the building. Both the original Bill and the revised Bill also omit the rest of the provisions found in federal law, such as the mens rea and the signage requirements, all which are designed to protect persons from arbitrary arrest and prosecution for otherwise innocent conduct. Indeed, the number of County facilities covered by this Bill is immense, as demonstrated in the accompanying list produced by the County. See Exhibit 2, attached hereto. The 100-yard radius around any County building, as the Bill originally provided, would have banned possession at numerous private businesses located on adjoining private property. For example, the Bill covers the County building at 3033 Waldorf Market Pl., which is the Capital Clubhouse, a year-round multi-sports center operated by Black Bear Sports Group, Inc. A ban in a 100-yard radius around 3033 Waldorf Market Pl. would have also included, for example, a Safeway grocery store, a Starbucks and a nail salon. The original Bill would have thus ensnared otherwise innocent possession of firearms by permit holders who simply happened to be otherwise peacefully going about their business in shopping area. The County was thus correct to revise the Bill to delete any reference to the 100-yard exclusion zone.
Egregiously, however, both the original version and the revised Bill lack any such mens rea element and thus impose strict criminal liability. Such strict liability is highly disfavored in the law and can raise profound Due Process issues, particularly where a law is vague. See, e.g., Lawrence v. State, 475 Md. 384, 257 A.3d 588, 602 (2021) (discussing the Supreme Court’s longstanding presumption that criminal statutes should generally include a mens rea requirement and noting Due Process issues). The Bill, as revised, should thus be further amended to punish only a “knowing” violation, just as federal law and State law currently provide. See, e.g., Chow v. State, 393 Md. 431, 903 A.2d 388 (2006) (holding that a knowing 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).
The County has no legitimate interest in punishing the otherwise innocent exercise of the Second Amendment right to carry. It no answer to these concerns to say that such enforcement of the Bill would be unlikely because the police will be “reasonable.” It is well-established the courts may “not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” United States v. Stevens, 559 U.S. 460, 480 (2010). See also McDonnell v. United States, 579 U.S. 550, 576 (2106) (same); Legend Night Club v. Miller, 637 F.3d 291, 301 (4th Cir. 2011) (same). Imposing gun-free zones certainly will not stop the criminal element from continuing to carry illegally, just as criminals do currently. Existing laws already prohibit and severely punish such illegal carry. See, e.g., MD Code, Public Safety, § 5-133(b) (regulated firearms); MD Code, Public Safety, § 5-205 (long guns). Such gun-free zone laws simply disarm the law-abiding. That disarmament imposes a corresponding obligation on the government to adequately secure that location, just as the federal government does for federal buildings.
In the absence of adequate security, a gun-free zone becomes a free-fire zone for violent assault. By banning virtually all otherwise lawful possession of firearms and failing to mandate armed security for such sites, both the original Bill and the revised Bill would actually make these locations more likely to be attacked by a mass shooter, a criminal or deranged individual, rather than less likely. Everyone at the site is less safe. The Rand Corporation confirms that there is no evidence that a gun-free zone makes people safer. See https://www.rand.org/research/gun-policy/analysis/gunfree-zones.html. A potential shooter, willing to commit murder, will simply not care that a County law makes his possession of a firearm more illegal. The numbers are chilling: between 1950 and 2018, 94% of all mass shootings (as properly defined by the FBI) have taken place in gun free zones. https://crimeresearch.org/2014/09/more-misleadinginformation-from-bloombergs-everytown-for-gun-safety-on-guns-analysis-ofrecent-mass-shootings/. Between 1998 and December 2015, the percentage is 96.2%. https://www.nationalreview.com/2014/01/cruelty-gun-free-zones-john-r-lott-jr/. Mass shooters are drawn to gun-free zones as they know that they will be unopposed for extended periods while they commit their horrific rampages. See Report from the Crime Prevention Research Center (Oct. 2014), at 10 (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629704) (“mass public shooters pay attention to whether people with guns will be present to defend themselves.”). No sane person would post a gun-free zone sign outside their own home. In short, gun-free zones are a bad idea that will have no impact on illegal carry by criminals. The County could still ask persons to leave any County property for any good reason and any refusal to do so could still be regarded as a “trespass” and punished for that reason.
The County is, of course, bound by the decisions of the Supreme Court, including decisions involving the Second Amendment. Any enactment of a 100-yard exclusion zone certainly would not survive judicial review. There is simply no “well-established and representative historical analogue” for such 100-yard exclusion zones. Bruen. 142 S.Ct. at 2133. Again, the County acted wisely in deleting that provision. But the ban on firearms “in” all County “owned or operated” buildings is far too broad. While Bruen suggests that the County may ban guns “in” a “government building,” the Court did not thereby bless gun bans in any building that a government might merely “own or operate.” See Koons v. Reynolds, --- F.Supp.3d ----2023 WL 128882 at *12 (D.N.J. Jan. 9, 2023) (holding that “‘sensitive place’ is a term within the Second Amendment context that should not be defined expansively”). The term “government building” implies that “government” functions are performed in the building and thus that the building is secured accordingly. Bruen made clear that a government may not ban guns in any place where people may “congregate” or assemble, and that rule applies regardless of ownership. 142 S.Ct. at 2133-34 (holding that such a ban on places where people typically congregate “defines the category of ‘sensitive places’ far too broadly”). That holding fully applies to locations such as the Capital Clubhouse, discussed above. And, as noted, federal law adopts a much more limited definition of a “government building” to include only a building in which federal employees regularly perform their duties. Neither the original Bill nor the revised Bill is similarly limited. We know of no historical analogue for a ban at all government “owned or operated” buildings.
At a minimum, the County would be well-advised to await a final decision in the Montgomery County case before enacting Bill 2022-14. A decision on MSI’s motion for a temporary restraining order and for a preliminary injunction is likely soon and may provide additional guidance on the scope of government regulation after Buren. Thus far, State “sensitive area” restrictions on the exercise of Second Amendment rights have not fared well in the federal courts after Bruen. See Koons v. Reynolds, --- F.Supp.3d ----2023 WL 128882 (D.N.J. Jan. 9, 2023); Antonyuk v. Hochul, --- F.Supp.3d ---, 2022 WL 16744700 (N.D.N.Y. 2022); Christian v. Nigrelli, --- F.Supp.3d ---, 2022 WL 17100631 (W.D.N.Y. Nov. 22, 2022); Spencer v. Nigreilli, 2022 WL 17985966 (W.D.N.Y. Dec. 29, 2022); Hardaway v. Nigrelli, --- F.Supp.3d ---, 2022 WL 11669872 (W.D.N.Y. Oct. 20, 2022). We do not believe that the ban on possession by permit holders in any County “owned or operated” building, regardless of the presence of County employees, will survive judicial review. Such buildings are simply not “government buildings” as that term is used in Bruen and there is no historical analogue for any such restriction.
County taxpayer dollars have better uses than costly litigation. When plaintiffs prevail in such federal court litigation, 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 should stop and think carefully before it goes down that road. Legally responsible, adult stewardship of the County requires nothing less. When that suit is brought, the County will not be able to say it was not put on notice or acted in ignorance of the Second Amendment.
