Non-Resident Full Time Student and Handgun

KTwo said:

Lots of good discussion.

She's 22, no criminal offenses and will be living off campus in a privately rented apartment while going to Hopkins. I have no knowledge if the apartment complex/management has rules against it but I didn't sign the lease so I don't know.

I like the katana comment!

Thanks for all the input,
-K2

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forgot the link:

http://www.nj.com/news/index.ssf/2010/01/johns_hopkins_student_from_nj_1.html

KTwo said:

Lots of good discussion.

She's 22, no criminal offenses and will be living off campus in a privately rented apartment while going to Hopkins. I have no knowledge if the apartment complex/management has rules against it but I didn't sign the lease so I don't know.

I like the katana comment!

Thanks for all the input,
-K2

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She should (must) become familiar with MD law on the transport and possession of regulated guns (handguns) in Crim. Law Art. 4-203. She can probably transport it directly to her new residence from out of state under FOPA, 18 usc 926A, and keep it there, but carrying outside her residence is not allowed unless it is to one of the very few permitted places or activities specified in 4-203 (attached). If she is going to become a "resident" in MD she has to register the handgun under Public Safety Art. 5-143 (attached). Not clear that an out of state student residing in MD is a "resident" for these purposes, as the law merely provides that "A person who moves into the State with the intent of becoming a resident shall register all regulated firearms with the Secretary within 90 days after establishing residency." The term is not defined by the statute, but the courts have suggested in other contexts that the ordinary meaning is a place where one has an “abode of some permanency,” rather than as a synonym for domicile. If it were me, I would register, as she would certainly be residing here while at school. The intent to live in MD permanently is not necessary to become a resident -- that concept is relevant for a person to become domiciled here, not merely to be a resident here. See, generally, Mundey v. Erie Ins. Group, 396 Md. 656, 914 A.2d 1167 Md.,2007. The penalties for failure to register are severe. She should consult legal counsel.

Setting aside the whole is a college or university a school debate...

Wouldn't a public college or university dorm be treated the same as a residence, or an apartment in a public housing complex?

CypherPunk said:

Setting aside the whole is a college or university a school debate...

Wouldn't a public college or university dorm be treated the same as a residence, or an apartment in a public housing complex?

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There is indeed caselaw to that effect out West. And we have a holding from the Delaware SCT applying that principle to public housing under the State 2A provision. So, in theory yes.

esqappellate said:

Not clear that an out of state student residing in MD is a "resident" for these purposes

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They are not.

Law allows full time students to reside in a state for school, without becoming a resident.

However, the BATFE allows them to buy in the state they attend college as a resident.

Sort of like how active duty military are treated.

The below ONLY applies to BATFE use of resident for purchasing, NOT the State's definition for other purposes.

27 CFR 178.11: MEANING OF TERMS

An out-of-State college student may establish residence in a State by residing and maintaining a home in a college dormitory or in a location off-campus during the school term.

ATF Rul. 80-21

"State of residence" is defined by regulation in 27 CFR 178.11 as the State in which an individual regularly resides or maintains a home. The regulation also provides an example
of an individual who maintains a home in State X and a home in State Y. The individual regularly resides in State X except for the summer months and in State Y for the summer
months of the year. The regulation states that during the time the individual actually resides in State X he is a resident of State X, and during the time he actually resides in State Y he is a resident of State Y.

Applying the above example to out-of-State college students it is held, that during the time the students actually reside in a college dormitory or at an off-campus location they are considered residents of the State where the dormitory or off-campus home is located. During the time out-of-State college students actually reside in their home State they are considered residents of their home State.

[ATFB 1980-4 25]

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Pinecone said:

They are not.

Law allows full time students to reside in a state for school, without becoming a resident.

However, the BATFE allows them to buy in the state they attend college as a resident.

Sort of like how active duty military are treated.

The below ONLY applies to BATFE use of resident for purchasing, NOT the State's definition for other purposes.

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Apples and oranges. First, federal law, particularly ATF regs, do not control the meaning of the same term in a state statute. The meaning of a state statute is controlled solely by state law, as interpreted by the state courts. The State highest court has the final word on the meaning of state law.

Second, the controlling principle in Maryland (like other states) is that the term "resident" can mean different things in different statutes and in different contexts. Forbes v. Harleysville Mut. Ins. Co., 322 Md. 689, 589 A.2d 944 (1991) (holding that the meaning of "resident" is determined by the "totality of the circumstances."). See also Attorney Grievance Com'n of Maryland v. Josep, 422 Md. 670, 31 A.3d 137 Md.,2011. ("it is clear, pursuant to California case law, that the statute uses the term “resident” in the ordinary, common sense fashion, meaning a place where one has an “abode of some permanency,” rather than as a synonym for domicile.") Here is the principle: "If the language of the statute is ambiguous, . . . then ‘courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of [the] enactment [under consideration].’" Mundey, 396 MD at 665-66, quoting Fraternal Order of Police v. Mehrling, 343 Md. 155, 174, 680 A.2d 1052, 1062 (1996) (quoting Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986)). ‘[T]he meaning of the plainest language is controlled by the context in which it appears.’ State v. Pagano, 341 Md. 129, 133, 669 A.2d 1339, 1341 (1996)

Under these interpretative canons, the purpose matters. The ATF reg, for example, is intended to make clear that students can purchase in the state in which they are a student, an expansion of the right otherwise foreclosed by federal law, 18 U.S.C. 922(b)(3) (barring interstate purchase of handguns). The MD registration requirement, on the other hand, is restrictive and punitive, in that it requires registration on pain of criminal penalty by persons who become "residents" (not domiciles but residents). Since the purpose was to require people who are actually physically present in the state as "residents" to register their firearms, a state court could well find that that purpose is furthered by requiring a student to do so because the student is, in fact, living here in an “abode of some permanency.” Indeed, such a student would undoubtedly have to comply with the rest of MD law with respect to firearms, including possession in MD and purchase. The ATF reg would thus actually cut against the student.

And here is the rub. If you *do not* register, some ambitious prosecutor in Baltimore (and there are a bunch of those), could well decide to make an example of you. The de facto policy of Baltimore is anti gun. The student could put his parents into bankruptcy just on attorneys' fees alone. Even if you ultimately win, you lose. Don't forget that Chow (meaning of "transfer) lost in the trial court and state intermediate court of appeals until finally winning in the MD's highest court. The prosecutor's purpose is to obtain convictions, not do justice or be fair.

Which statute or decision makes a full time student a resident of a state, where they only attend school?

If so, a full time student who had a car and does not register it and get a local driver's license would be in violation of those laws.

And I DID say that the quote I posted applied to BATFE use ONLY. That it did not apply to state laws.

Pinecone said:

Which statute or decision makes a full time student a resident of a state, where they only attend school?

If so, a full time student who had a car and does not register it and get a local driver's license would be in violation of those laws.

And I DID say that the quote I posted applied to BATFE use ONLY. That it did not apply to state laws.

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The registration statute does not address students expressly, one way or the other. So the statutory question is whether students can be "residents" within the meaning of the registration statute. Such coverage does not have to be express. There are no court decisions applying 5-143, as it was only enacted in 2013. For example, in Maryland, an out of state student is NOT a resident for purposes of in state tuition. Frey v. Comptroller of Treasury, 422 Md. 111, 29 A.3d 475 Md.,2011. My point is that statutes are different and that it is risky to assume that a student is NOT covered for purposes of 5-143. As to the driver's license, that example actually makes my point. An out of state student doesn't need a MD driver's license UNLESS and until you become domiciled in Maryland. MD Code, Transportation, § 16-102(a)(5). See also Jones v. Anne Arundel County, 432 Md. 386, 69 A.3d 426 Md.,2013:

Our decision of the present case depends upon whether “residence,” in a provision of the Anne Arundel County Charter, means a place of abode or domicile. A place of abode includes any dwelling or place where one sleeps, Boer v. University Specialty Hospital, 421 Md. 529, 538, 27 A.3d 175, 180 (2011), and merely requires “actual physical presence,” Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 395 (1974), while domicile is the particular permanent home of an individual, “to which place he has, whenever he is absent, the intention of returning.” Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940). A domicile serves as an individual's residence for “voting, income tax returns, driver's license, motor vehicle registration, school attendance, receipt of mail, banking, contracts and legal documents, the keeping of personal belongings, [and] membership in organizations[.]” Blount v. Boston, 351 Md. 360, 367–68, 718 A.2d 1111, 1115 (1998). An individual may have several abodes, but he or she may have but one domicile. Shenton, 178 Md. at 530, 15 A.2d at 908.

Quite right about the ATF regs, you did say that. My point was that federal law is irrelevant to the meaning of 5-143 and indeed, may actually cut against the student in this context.

Ahhh the typical MDS thread where after reading you think the police are coming for you, you have cancer, you hate bicyclist, and you're more confused then when you posted your question.

Thanks guys

word

mpdc4511 said:

Ahhh the typical MDS thread where after reading you think the police are coming for you, you have cancer, you hate bicyclist, and you're more confused then when you posted your question.

Thanks guys

word

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If all LEOs had your sense of humor, the world would be a better place indeed!

esqappellate said:

If all LEOs had your sense of humor, the world would be a better place indeed!

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I'll second that.

Yesterday I was being video taped on a traffic stop by some random guy. Everything I had to do was taken care of so he wasn't taking my attention away from my job (he was to close for comfort but since everything I needed done was done I didn't care) and he 100% caught the dumbest criminal comment ever.

Me- "Sir are their any drugs in your car I already found the crack pipe"

Immediatly the passenger of the car chimes in, "Which crack pipe did you find?"

Me and the guy taping chuckled together and I asked him if he got that dummy comment on tape.

mpdc4511 said:

I'll second that.

Yesterday I was being video taped on a traffic stop by some random guy. Everything I had to do was taken care of so he wasn't taking my attention away from my job (he was to close for comfort but since everything I needed done was done I didn't care) and he 100% caught the dumbest criminal comment ever.

Me- "Sir are their any drugs in your car I already found the crack pipe"

Immediatly the passenger of the car chimes in, "Which crack pipe did you find?"

Me and the guy taping chuckled together and I asked him if he got that dummy comment on tape.

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LOL! Doesn't take any brains to do drugs. I trust you tossed the car. That comment, plus the crack pipe, is probable cause for sure.

esqappellate said:

The registration statute does not address students expressly, one way or the other. So the statutory question is whether students can be "residents" within the meaning of the registration statute. Such coverage does not have to be express. There are no court decisions applying 5-143, as it was only enacted in 2013. For example, in Maryland, an out of state student is NOT a resident for purposes of in state tuition. Frey v. Comptroller of Treasury, 422 Md. 111, 29 A.3d 475 Md.,2011. My point is that statutes are different and that it is risky to assume that a student is NOT covered for purposes of 5-143. As to the driver's license, that example actually makes my point. An out of state student doesn't need a MD driver's license UNLESS and until you become domiciled in Maryland. MD Code, Transportation, § 16-102(a)(5). See also Jones v. Anne Arundel County, 432 Md. 386, 69 A.3d 426 Md.,2013:

Our decision of the present case depends upon whether “residence,” in a provision of the Anne Arundel County Charter, means a place of abode or domicile. A place of abode includes any dwelling or place where one sleeps, Boer v. University Specialty Hospital, 421 Md. 529, 538, 27 A.3d 175, 180 (2011), and merely requires “actual physical presence,” Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 395 (1974), while domicile is the particular permanent home of an individual, “to which place he has, whenever he is absent, the intention of returning.” Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940). A domicile serves as an individual's residence for “voting, income tax returns, driver's license, motor vehicle registration, school attendance, receipt of mail, banking, contracts and legal documents, the keeping of personal belongings, [and] membership in organizations[.]” Blount v. Boston, 351 Md. 360, 367–68, 718 A.2d 1111, 1115 (1998). An individual may have several abodes, but he or she may have but one domicile. Shenton, 178 Md. at 530, 15 A.2d at 908.

Quite right about the ATF regs, you did say that. My point was that federal law is irrelevant to the meaning of 5-143 and indeed, may actually cut against the student in this context.

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So I would say, virtually every out of state student may be in violation of the DL laws WRT residency.

I have never heard of full time students being considers residents of the state where they go to school.

Pinecone said:

So I would say, virtually every out of state student may be in violation of the DL laws WRT residency.

I have never heard of full time students being considers residents of the state where they go to school.

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Driver's license laws are different, as explained above. The meaning of resident differs from statute to statute. An out-of-state student can keep his out of state DL license in MD as a matter of express statutory permission. MD Code, Transportation, § 16-102(a)(5). Gun registration requirement in 5-143 does not have any such exception. I don't know of case law addressing residency in the context of these sorts of handgun registration requirements. I will say this: Under amendments made by SB 281, mere possession of an unregistered handgun that was required to be registered could be construed to be a very serious crime -- 5 years in jail, $10,000 fine. See Public Safety Art. 5-144 (a dealer or "person may not: (1) knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle"). See Jones v. State, 420 Md. 437, 23 A.3d 880 Md.,2011 ("This catch-all penalty provision specifically included reference to possessory offenses, among others, which did not have their own internal penalty provision"). A conviction means a life-time ban on possessing modern firearms under federal law. This penalty is far worse than DC, where the ban on mere possession of an unregistered firearm by anyone is strictly enforced.

I can't and won't tell folks what to do on these fora -- if people want legal advice they need to retain their own counsel. Given the possible consequences and the location of the school (Baltimore!), if it were me, I would register the gun. It can be done on-line for $15. https://www.mdsp.org/Organization/S...ge/LicensingandRegistration/Registration.aspx That way, if she ever needs to use the gun for her self defense (presumably the reason she wants to bring it with her), she won't face illegal possession charges. Think of Bernhard Getz. who was acquitted of attempted murder and assault charges when he used the gun on the thugs in the subway car. Instead, he was indicted and convicted and sentenced on illegal possession charges and served 8 months in jail.

The handgun registry it based on intending to establish residency.

As long as the student can keep out of state DL, vote in their home state, and other such tenets of residency, I don't see how they would have to register handguns.

Again, what state statute or court decision makes a full time student legally the reside of the state they are attending school in?

Another thing, if the student is a residence by virtue of attending full time school, subsequent years tuition, would be IN STATE tuition.

Pinecone said:

The handgun registry it based on intending to establish residency.

As long as the student can keep out of state DL, vote in their home state, and other such tenets of residency, I don't see how they would have to register handguns.

Again, what state statute or court decision makes a full time student legally the reside of the state they are attending school in?

Another thing, if the student is a residence by virtue of attending full time school, subsequent years tuition, would be IN STATE tuition.

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Pine: I can't add anything to what I have said above. Frankly, I hope you are correct that the State never prosecutes or a LEO would never arrest a student in the position of the OP. I am just unwilling to beg my freedom, my bank account and my 2A rights on it.

I agree with not betting your 2A and other things on it.

But does the statute on what constitutes a resident include full time students?

It seems that this could be a huge hole in the law if they are not addressed anywhere.

Pinecone said:

I agree with not betting your 2A and other things on it.

But does the statute on what constitutes a resident include full time students?

It seems that this could be a huge hole in the law if they are not addressed anywhere.

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As explained above, 5-143 does not say, either way. And that just leaves it ambiguous. There is no statute that defines the meaning of resident for all purposes for the entire MD code. As detailed above, the courts in MD have held that it all depends on the legislative intent/purposes in a given statute. With respect to 5-143, there are arguments that go either way. That is not unusual with new laws.

To be safe she should leave her .380 in her home state...

and build her own .45 once she gets here!

http://stealtharms.net/

https://youtu.be/eA4EgT2ldnA

I find it interesting how basically we deny "students" their constitutional rights on many levels.

They will run this country soon enough, what choices will they make then based upon the "conditional use" of their rights now?

The likely outcome terrifies me...