Testimony in Opposition to HB 580 "Election Law – Polling Sites – Firearms Prohibitions"
HB 590 Election Law – Polling Sites – Firearms Prohibitions
Sponsored by Delegate Shaneka Henson
Being heard February 21st at 1pm before the House Ways and Means Committee
The Bill: The bill, as originally submitted, was a carbon copy of HB 30 submitted last Session, which in turn was a copy of SB 10 from the 2021 General Assembly Session. HB 30 never emerged from the House Ways and Means Committee last year after a hearing and SB 10 never passed the House in 2021. HB 580 warrants the same desk drawer fate this year as it is a solution in search of a problem, poorly drafted and, in part at least, unconstitutional.
HB 580 would amend MD Code, Election Law, §16-904, to provide that a person may not “CARRY OR POSSESS A FIREARM WITHIN 100 FEET OF A POLLING SITE DURING AN ELECTION.” Second, the bill provides that a person may not “CARRY OR DISPLAY A FIREARM ON THE PREMISES OF A PRIVATELY OR PUBLICLY OWNED BUILDING BEING USED AS A POLLING SITE DURING AN ELECTION, INCLUDING IN A PARKING LOT.” A violation of the Bill is punished as a civil infraction under which a $5,000 fine may be assessed against the violator under MD Code, Election Law, § 13-604. That fine may be imposed even though the person commits a violation “without knowing that the act is illegal.” MD Code, Election Law, § 13-604(a). The bill thus imposes strict liability for otherwise innocent conduct without regard to the person’s knowledge of the law or the person’s intent.
HB provides an exemption where (I) THE INDIVIDUAL IS LEGALLY IN POSSESSION OF A FIREARM; (II) THE RESIDENCE OF THE INDIVIDUAL IS WITHIN 100 FEET OF A PRIVATELY OR PUBLICLY OWNED BUILDING BEING USED AS A POLLING SITE DURING AN ELECTION; AND (III) THE INDIVIDUAL IS TRANSFERRING THE FIREARM TO THE INDIVIDUAL’S RESIDENCE OR VEHICLE WITHIN 100 FEET OF A POLLING PLACE. All three of these conditions must obtain for the exemption to obtain. The bill would also permit an off-duty police officer to carry a concealed weapon if that officer is displaying his badge. Oddly enough, HB 580 omits the sponsor’s amendments made to last year’s bill. Those amendments retained the exemption and further amended the original version of HB 30 to provide that an individual in a residence within 100 feet of a polling place is not in violation of the ban if “THE INDIVIDUAL IS LOCATED AT THE RESIDENCE” and further provides that the an individual is not in violation of the ban if “THE INDIVIDUAL IS LAWFULLY TRANSPORTING THE FIREARM IN A VEHICLE ON A PUBLIC ROADWAY THAT IS WITHIN 100 FEET OF A POLLING PLACE.” HB 580, in contrast, contains no provision permitting otherwise transport within 100 feet of the polling station. Indeed, HB 580 does not even define “polling place” and thus is silent as to whether such a place includes a ballot drop box, which are more numerous than manned polling places.
The Bill Is Extreme: The Bill is extreme as it would make Maryland the most restrictive state, by far, of any of the fourteen states that purport to limit possession at a polling site. See https://www.ncsl.org/research/elections-and-campaigns/polling-places.aspx. For example, California, with the most restrictive gun control laws in the country, only bans a person from being “stationed in the immediate vicinity of, or posted at, a polling place without written authorization of the appropriate city or county elections official….” California Election Code § 18544(a) (emphasis added). And Texas bans carry in a polling place only “if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon on the premises of a polling place on the day of an election or while early voting is in progress.” Texas Penal Code § 46.03(a)(2) (emphasis added). No such scienter requirements are imposed by this bill.
The Bill Overreaches: The bill does not define “polling station” but it might be construed to reach ballot drop boxes, which are far more numerous than staffed polling stations. That vagueness is just a trap for the unwary and should be clarified. If the bill includes drop box locations, then the scope of the bill is tremendous, as drop box locations are quite numerous. https://bit.ly/3RV8isE. We also can see no justification for extending the scope of the ban to 100 feet of a polling station, much less within 100 feet of ballot drop box. Of the few states (again only fourteen states regulate any possession at a polling site) that have enacted similar laws, most limit the restriction on the possession of firearms to the polling station itself. See, e.g., DC ST § 7-2509.07(a)(5) (District of Columbia). Ohio limits its restriction to observers only. ORC § 3505.21(B). Missouri extends its ban outside the polling station, but it limits the distance to 25 feet, and further provides that “[p]ossession of a firearm in a vehicle on the premises of the polling place shall not be a criminal offense so long as the firearm is not removed from the vehicle or brandished while the vehicle is on the premises.” Missouri, MRS § 571.107.1(2). Only one State (Georgia) imposes a ban like that imposed by this bill and even Georgia permits carry by security guards, whereas this bill allows only police to carry. Ga. Code Ann. § 16-11-127(b)(7). This bill stands alone. The bill should be amended to remove the language that extends the prohibition to 100 feet beyond the polling place and to allow private security to carry.
We can readily understand the desire to regulate the open display of firearms at a polling place as such possession can be viewed as intimidating. However, voter intimidation is rare and we are unaware of any such open display of firearms has ever even happened in Maryland. See https://www.baltimoresun.com/politics/bs-md-pol-few-incidents-of-voter-intimidation-20201211-62xuahitendlbdz7nu2svcqscy-story.html. Voter intimidation, of any kind, is already a crime under both federal law, 18 U.S.C. § 594, and state law, MD Code, Elec. Law § 16-201(a), and that includes brandishing of firearms at a polling station. See Maryland Attorney General Guidance on Voter Intimidation. https://archive.mymcmedia.org/maryland-attorney-general-voter-intimidation-voter-harassment-is-a-crime/. The Bill is thus a solution in search of a problem.
In any event, that concern over potential intimidation would not apply to concealed possession otherwise permitted by law. This Bill should be amended to exempt from its coverage concealed carry not only by off-duty police officers (as permitted by the bill), but also by security guards and permit holders who are otherwise legally permitted to carry concealed firearms in public and who have been already thoroughly investigated and vetted by the Maryland State Police pursuant to MD Code, Public Safety, § 5-306. Under HB 580, in order to vote, such a permitted person would have to park her vehicle more than 100 feet from the polling place, leave her firearm in the vehicle (where it is open to theft) and walk to the polling place (or drop box), vote, and walk back to the vehicle. Such an individual should not have to choose between exercising her right to vote and her right to self-defense. Private property owners should likewise be permitted to continue to store firearms on their own property when it is used as a polling place.
School property, if it happened to be used as a polling place, would, of course, remain a prohibited area under existing law, MD Code, Criminal Law, §4-102, even with a carry permit, as every permit issued by the Maryland State Police states on its face that the permit is not valid “where firearms are prohibited by law.” Such a restriction is permitted by MD Code, Public Safety, § 5-307. Similarly, under federal law, 18 U.S.C. §922(q)(2), the knowing possession of a firearm in a federally defined school zone is banned. Tellingly, however, federal law exempts from that prohibition “private property” not part of school grounds as well as exempting a permit holder “if the individual possessing the firearm is licensed to do so by the State in which the school zone is located.” 18 U.S.C. §922(q)(2)(B)(i),(ii). If those exemptions are appropriate for school zones, they are likewise appropriate for polling places.
More fundamentally, the Bill creates new gun-free zones, including new zones on private property that is not used as a residence. In particular, the Bill would ban a private property owner from merely storing firearms (any firearm) on his or her private property if that non-residential private property were to be used as a polling place. A mere innocent failure to remove existing firearms from that private property could result in a $5,000 penalty. Ironically, that reality may well discourage individual private property owners from consenting to the use of their private property as a polling place.
The Bill Is Unconstitutional Under Heller and Bruen: As noted, this bill does not exempt mere possession of a firearm in a home that happens to fall within 100 feet of a polling station and thus the ban extends to private homes within that 100-foot zone. No state purports to ban otherwise lawful possession of a firearm in the home. Specifically, subsection (C)(2) of the bill allows possession only if 1. the person is lawfully possessing the firearm, 2, the residence of the person is within 100 feet of the polling station, AND 3. the person is transferring the firearm to or from the person’s residence or vehicle within 100 feet of the polling site. This provision is poorly drafted. By using the word “AND” subsection (C)(2) requires all three elements of subsection (C)(2) to be present. And, by using the operative verb “transferring,” the bill’s exemption only applies to transfers that take place to and from the residence and a vehicle – not mere possession in the residence (or in the vehicle). The language of the exemption in subsection (C)(2) thus does not purport to address or exempt a person who is merely possessing the firearm inside the home, in the vehicle or on private property that happens to be located within 100 feet of a polling site.
The bill thus bans mere possession of an unloaded firearm by persons who are simply on the way to the range or otherwise permitted location or activity, as specified in Md. Code, Criminal Law, §4-203(b), and who just happens to drive by within 100 feet of a polling place. We respectfully suggest that the bill be amended to exempt from the bill’s coverage these types of possessions, all of which are non-threatening and innocent. Such an amendment would be consistent with the intent in allowing transfers to a vehicle from the residence. If one may legally transfer the firearm to the vehicle within 100 feet of the polling site, one should likewise be permitted to drive the vehicle within 100 feet of the polling site on the way to or from the range or dealer or other lawful location without being hit with a $5,000 fine.
These overbroad provisions are constitutionally fatal to the bill. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that citizens have the right to possess operative handguns for self-defense in the home. Heller also made clear that the right belongs to every “law-abiding, responsible citizen”). Heller, 554 U.S. at 635. The Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635. The rights guaranteed by the Second Amendment are fundamental and are, therefore, applicable to the States by incorporation under the Due Process Clause of the 14th Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 768 (2010) (“[c]itizens must be permitted to use handguns for the core lawful purpose of self-defense”). In banning home possession, the bill is plainly unconstitutional and thus must be amended to expressly exempt possession of firearms within homes located within 100 feet of a polling place. Poor draftsmanship is intolerable, particularly where it affects the exercise of fundamental constitutional rights. See, e.g, Briggs v. State, 413 Md. 265, 992 A.2d 433 (2010). The bill, as written, will not survive constitutional challenge under Heller.
The bill also runs afoul of the June 2022 decision of the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022), where the Court struck down as unconstitutional New York’s “proper cause” requirement for issuance of a permit to carry a handgun in public. In so holding, the Court ruled that “the Second Amendment guarantees a general right to public carry.” 142 S.Ct. at 2135. See also Bruen, 142 S.Ct. at 2156 (“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.”). 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.
The relevant time period for that historical analogue inquiry is 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 Heller, 554 U.S. at 634–635. Under that standard articulated in Bruen, “the government may not simply posit that the regulation promotes an important interest.” 142 S.Ct. at 2126. Bruen expressly abrogates the two-step, “means-end,” “interest balancing” test that the courts had previously used to sustain gun bans. Id. Those prior decisions are no longer good law. So, the constitutionality of this bill will turn on an historical analysis, as there is no doubt that term “keep and bear arms” in the text of the Second Amendment necessarily includes the right to possess (“keep”) and the right to carry (“bear”). Heller and Bruen so hold.
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, 142 S.Ct. at 2133, citing Heller, 554 U.S. at 599. So if this bill were to be limited to possession “in” actual polling places rather than all places within 100 feet of a polling place, it would likely pass muster under Bruen and Heller. But nothing in Bruen can be read to allow a State to establish any “buffer zone” around such places, such as the 100-foot zone created around polling places. Such a ban on carry would cover sidewalks and extend into the street and thus effectively ban public carry in such zones. Such a ban would plainly violate the holding in Bruen that protects a broad right to carry. Again, regulation beyond these five locations must be justified by a “well-established, representative historical analogue” dating back to 1791. Id. at 2133. For example, Bruen rejected New York’s attempt to justify its “good cause” requirement as a “sensitive place” regulation, holding that a government may not ban guns where people may “congregate” or assemble. 142 S.Ct. at 2133-34. The Court held that such a ban on places where people typically congregate “defines the category of ‘sensitive places’ far too broadly.” There is no historical analogue that would permit the imposition of 100-foot exclusion zones around any of these five locations.
Public Safety: This bill bans all possession of any firearm by any person within 100 feet of a polling statute. As explained, that ban is extreme. But it is even more extreme as such a ban extends to wear and carry permit holders. Permit holders are the most law-abiding individuals in America. 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, if 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 such individuals have been thoroughly vetted through a permit process. Through their fingerprints, all permit holders are identifiable by the FBI’s RAP BACK system, under which a mere arrest of any permit holder anywhere in United States will be immediately reported to the Maryland State Police. https://bit.ly/3B8l142.
People with carry permits have been thoroughly investigated and have at least 16 hours of training, as required by MD Code, Public Safety, § 5-306(a)(5),(6). As part of the training requirement, permit holders must pass a live-fire qualification course and achieve a minimum score. COMAR 29.03.02.05 C.(4). The State Police 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 have continued to enforce all these requirements, even after Bruen. See Maryland State Police Advisory, LD-HPU-22-002 (July 5, 2022) (available at https://bit.ly/3Xz9MKa. Of the 43 “shall issue” States identified in Bruen, 142 U.S. at 2123 n.1, only Illinois requires as many hours of training as Maryland.
Prior to Bruen, 43 States and the District of Columbia issued permits on a “shall issue” basis. Bruen, 142 S.Ct. at 2123 & n.1 (listing these States). The crime rate of the permit holders in these States is but a small fraction of that of commissioned police officers. See Lott, J., Concealed Carry Permit Holders Across the United States: 2022 at 42-43 (2022) (available at https://bit.ly/3xca7bb). Permit holders are simply not the problem. Possession and transport of firearms by non-permit holders continues to be 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 in the home or transport of an unloaded handgun to a dealer or to a range for target shooting or by an owner of a business. Illegal carry by non-permit holders is already punished by up to 3 years in prison. MD Code, Criminal Law, § 4-203(c)(4)(ii). In short, there is no reason to ban permit holders at all, much less from carrying within 100 feet of a polling place. This bill should exempt permit holders. The State is free to require concealment and MSI would have no objection to any such limitation in this bill.
The Gun Free Zone Created By The Bill Invites Attacks: By banning virtually all otherwise lawful possession of firearms and failing to mandate armed security for such sites, this bill would make polling sites 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. Certainly, there is no evidence that a gun-free zone actually makes people safer. See https://www.rand.org/research/gun-policy/analysis/gun-free-zones.html.
A potential shooter, willing to commit murder, will simply not care that this bill would make his possession of a firearm 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://bit.ly/3YsXF2x. 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. Gun free zones are “magnets” for mass shooters. This point was stressed by Dr. Lott in his oral testimony on SB 1 before JPR on February 7, 2023. See https://bit.ly/3RV8isE. Dr. Lott’s written testimony is attached. His testimony is compelling, and we urge the Committee to read and listen to it. No sane person would post a gun-free zone sign outside their own home. The statutory equivalent of such a sign is likewise not suitable outside polling places, particularly where the polling places are located on private property.