Open carry in my yard

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  • K-Romulus

    Suburban Commando
    Mar 15, 2007
    2,427
    NE MoCO
    K-Rom, MD has state preemption of all firearms laws. Not to say that MoCo wouldn't charge someone anyway, but it's good to know nonetheless.

    That preemption statement is true "generally," but the preemption statute gives localities control over the "safety zone" and as regards to "minors." Everyone here should be aware of how that raises the potential for bad stuff . . . :sad20:

    http://michie.lexisnexis.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp=
    § 4-209. Regulation of weapons and ammunition.

    (a) State preemption.- 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.

    (b) Exceptions.-

    (1) 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:

    (i) with respect to minors;

    (ii) with respect to law enforcement officials of the subdivision; and

    (iii) except as provided in paragraph (2) of this subsection, within 100 yards of or in a park, church, school, public building, and other place of public assembly.

    (2) A county, municipal corporation, or special taxing district may not prohibit the teaching of or training in firearms safety, or other educational or sporting use of the items listed in subsection (a) of this section.

    (c) Preexisting local laws.- To the extent that a local law does not create an inconsistency with this section or expand existing regulatory control, a county, municipal corporation, or special taxing district may exercise its existing authority to amend any local law that existed on or before December 31, 1984.

    (d) Discharge of firearms.-

    (1) Except as provided in paragraph (2) of this subsection, in accordance with law, a county, municipal corporation, or special taxing district may regulate the discharge of handguns, rifles, and shotguns.

    (2) A county, municipal corporation, or special taxing district may not prohibit the discharge of firearms at established ranges.
     

    ThatIsAFact

    Active Member
    Mar 5, 2007
    339
    Regrettably, Maryland does NOT have "state preemption of all firearms laws." There are a couple of preemption laws, but they leave substantial loopholes for local regulation. This subject has been discussed in detail in some past threads on this forum.
     

    antiqueOC

    Member
    May 24, 2010
    5
    MaoCo, MD
    Handguns are regulated firearms, aren't they? There is a separate preemption statute for regulated firearms. Which one applies, since the regular preemption statute cited by K-Romulus also covers handguns? The regulated firearms preemption is more robust.
     

    K-Romulus

    Suburban Commando
    Mar 15, 2007
    2,427
    NE MoCO
    Generally, the specific statute will trump a "general" statute.

    The "regulated firearm" preemption is within the statute concerning disqualifications:

    http://michie.lexisnexis.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp=
    § 5-133. Restrictions on possession of regulated firearms.

    (a) Preemption by State.- This section supersedes any restriction that a local jurisdiction in the State imposes on the possession by a private party of a regulated firearm, and the State preempts the right of any local jurisdiction to regulate the possession of a regulated firearm.

    (b) Possession of regulated firearm prohibited.- A person may not possess a regulated firearm if the person:

    (1) has been convicted of a disqualifying crime; (etc., etc.) . . .

    I read that statute as only preempting local restrictions regarding qualifications for possession (i.e., coming up with a local handgun license), and NOT preempting ANY laws about "mere possession" in your yard. But I'm not a MD lawyer . . .until a MD court or the MD Court of Appeals gives its opinion on this, we can only speculate.

    As an aside, the NY appeals court ruled that possessing your legal handgun in your own yard is a crime under NY law because it is not "in" the home. I will have to get the link later.

    ETA: link to story, sorry I got it wrong- it was an "unlicensed" gun
    http://www.law.com/jsp/article.jsp?id=1202458703013&rss=newswire

    Black Homeowner's Claim of Self-Defense Rejected in Fatal Shooting
    Appeals court upholds jury's rejection of homeowner's 'lynch mob' defense claim

    Daniel Wise
    New York Law Journal
    May 25, 2010
    . .. .

    The 2nd Department also upheld White's conviction for possession of a weapon outside his home. White had argued that his possession of a loaded .32 caliber Beretta pistol in his driveway constituted possession within his home.

    Possession of an unlicensed loaded firearm outside of the home was at the time of the sentencing a Class D felony punishable by a maximum term of 2 1/3 to seven years in prison. Possession of a loaded gun inside one's home is a misdemeanor, carrying a top punishment of one year in jail.

    The sentences all ran concurrently. White could have been sentenced to up to 15 years in prison for second-degree manslaughter.

    Eng found unavailing White's argument that possession of the gun in his driveway was tantamount to possessing it in his home. The court's precedents have narrowly construed the word "home" in Penal Law §70.02(1)(b), the justice wrote, as reflecting a legislative judgment that possession of a gun in one's home is "less reprehensible that possession for other purposes" (quoting from People v. Powell, 54 NY2d 524).

    White's possession of a gun at the "edge of his driveway, inches away from the public street," Eng concluded, does not warrant the same concerns for privacy as would possession in his home. . . .
     

    ToneGrail

    MSI, NRA, & SAF Member
    Dec 18, 2008
    1,397
    Towson, People's Republik of MD
    Generally, the specific statute will trump a "general" statute.

    The "regulated firearm" preemption is within the statute concerning disqualifications:

    http://michie.lexisnexis.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp=


    I read that statute as only preempting local restrictions regarding qualifications for possession (i.e., coming up with a local handgun license), and NOT preempting ANY laws about "mere possession" in your yard. But I'm not a MD lawyer . . .until a MD court or the MD Court of Appeals gives its opinion on this, we can only speculate.

    As an aside, the NY appeals court ruled that possessing your legal handgun in your own yard is a crime under NY law because it is not "in" the home. I will have to get the link later.

    ETA: link to story, sorry I got it wrong- it was an "unlicensed" gun
    http://www.law.com/jsp/article.jsp?id=1202458703013&rss=newswire

    NY sucks too. :mad54:
     

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