COMAR Comments

[dblas]

Alright folks, the deadline to send in comments on the COMAR regs is Oct 21 (They have to be received by Oct 21).

Thank you to all of those that helped provide issues in this thread: http://www.mdshooters.com/showthread.php?p=2716754#post2716754

So, below you will find individual segments broken out with suggested comments, feel free to adjust as you see fit for your use on the comments. Make sure send the COMAR section along with the comments.

Why should we care, didn't AELR already approve these?

The AELR hearing was for the Emergency COMAR regs that are good for 180 days, it was an up or down vote to approve the Emergency COMAR regs. The COMAR published on Sept 20 are the ones we are really concerned with and the ones we can make comments on.

If the state does not reply to or enact the comments, then we, as Maryland Citizens, have recourse by way of lawsuit to get them changed.

Now, where do you send these fine comments?

VIA USPS and EMAIL to
Thomas.Vondersmith@maryland.gov

Thomas L. Vondersmith, Jr.
Administrator
Department of State Police
1201 Reistertown Road
Pikesville, MD 21208

So, without any further issue, here are the COMAR and Comments.

 

[dblas]

THE REGULATIONS VIOLATE SECTION 7 OF THE PRIVACY ACT, 5 U.S.C. 552A NOTE. IN REQUIRING SOCIAL SECURITY NUMBERS.

The regulations repeatedly require an applicant for various permits and licenses to submit his federal Social Security Number (SSN). This submission is mandatory and any failure to include appears to be subject to punishment or denial of the application on that basis alone. These requirements to submit a Social Security number are flatly in violation of Section 7(a) and Section 7(b) the Privacy Act, 5 U.S.C. 552 Note, Public Law 93-579 (1974), and must be
eliminated.

Specifically, Section 7(a)(1) of the Privacy Act makes it unlawful for “[a]ny
Federal, State or local government agency” to “deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.” Section 7(b) of the Privacy Act provides that an agency that any agency that “requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority
such number is solicited, and what uses will be made of it.” Section 7(a) and Section 7(b) create individually enforceable rights that supercede and preempt any provision of state law in conflict with these requirements. See, e.g., Schwier v. Cox, 340 F. 3d 1284, 1288 (11th Cir. 2003) (holding that Section 7 of the Privacy Act “clearly confers a legal right on individuals: the right to refuse to disclose his or her [social security number] without suffering the loss ‘of any right, benefit, or privilege provided by law.’“); Ingerman v. Del. River Port Auth., 630 F.Supp.2d 426, 437–38 (D.N.J.2009) (same). These provisions may be enforced as federal rights under 42 U.S.C. 1983, and attorneys fees and costs may be awarded against the state and state officers in any such suit under 42 U.S.C. 1988. (Id.).

Numerous sections of the proposed regulations violate Section 7 of the Privacy Act. Specifically, the following subsections in the proposed regulations demand the applicant’s SocialSecurity Number (references are to COMAR 29.01.01.xx, as proposed):

1. A new resident of MD must register his regulated firearms and provide his SSN(Section .05);
2. The purchaser of a regulated firearm must include the applicant's SSN (Section .16);
3. A multiple purchase applicant must include the SSN (Section .24);
4. A designated collector applicant must provide his SSN (Section .25);
5. The applicant for a Handgun Qualification License must include the SSN, both
initially and upon renewal (Sections .28 and .34);
6. The SSN must be provided by applicants for instructor designation and
renewals of the designation (Sections .38 and .39);
7. An applicant for a dealer's license must include his SSN (Section .45 );
8. A dealer must provide the transferee’s SSN in complying with his duties to
provide shell casings (Section .58).

This demand for the social security number also appears in the proposed regulations for the hand gun carry permit, COMAR 29.03.02 et seq. Handgun Permit Unit. Specifically, an applicant for a carry permit provide his SSN both in the initial application (Section .04) and upon any application for a renewal (Section .12).

All these provisions are in violation of federal law. Specifically, these provisions violate Section 7(b) of the Privacy Act in that none of these sections “inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.”

The new proposed regulations also violate Section 7(a) of the Privacy Act in that the regulations expressly state that the State Police will deny the application or license if the SSN is omitted. Indeed, the proposed regulations even threaten criminal prosecution for any such omission, stating:

.06 False or Omitted Information.
A. An applicant shall not provide false information on an application for a permit, or omit significant information on the application, or cause false information to be given in connection with the verification investigation.
B. Any knowing material omission or false statement may be considered
grounds for denial of a permit or for criminal prosecution.

.17 Regulated Firearm Application—False or Omitted Information.
A. Any false information supplied or statement made in the application is a crime which may be punished by imprisonment for a period of not more than 3 years, or a fine of not more than $5,000, or both.
B. An applicant shall not provide false information on a regulated firearm application, or omit significant information on the application, or cause false information to be given in connection with the verification investigation.
C. Any knowing material omission or false statement may be considered grounds for disapproval of an application or for criminal prosecution.

.46 Dealer’s License—False or Omitted Information.
A. An applicant may not provide false information on an application for a dealer’s license, or omit significant information on the application, or cause false information to be given in connection with the verification investigation.
B. Any knowing material omission or false statement may be considered grounds for denial of a license or for criminal prosecution.

.30 Handgun Qualification License—False or Omitted Information.
A. An applicant shall not provide false information on the application for Handgun Qualification License, or omit significant information on the application, or cause false information to be given in connection with the verification investigation.

B. Any knowing material omission or false statement may be considered grounds for denial of a license or for criminal prosecution.

Plainly, the regulations threaten to do precisely what Section 7(a) bans, viz., “deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.” Indeed, the threat of criminal prosecution for any such omission is particularly egregious. These provisions are flatly illegal.

 

[dblas]

THE REGULATIONS UNLAWFULLY BAN AMMUNITION “SOLELY DESIGNED FOR A REGULATED FIREARM”

Section .03 of the new regulations purports to ban the possession of ammunition by persons under the age of 21 if the ammunition is “solely designed for a regulated firearm.” . Specifically Section .03(B) states:

B. A person under the age of 21 years may not possess a regulated firearm or
ammunition solely designed for a regulated firearm, unless the person is not
otherwise prohibited from possessing a regulated firearm and is:
(1) A member of the armed forces of the United States or the National Guard and is performing official duties;
(2) Required to possess a regulated firearm for employment purposes and holds a valid permit under Public Safety Article, Title 5, Subtitle 3, Annotated Code of Maryland;
(3) Temporarily transferring or possessing a regulated firearm or ammunition and is:
(a) Under the supervision of another who is at least 21 years old and who is not prohibited by federal or State law from possessing a firearm; and
(b) Acting with the permission of the parent or legal guardian of the person;
(4) Temporarily transferring or possessing a regulated firearm or ammunition and is:
(a) Participating in marksmanship training of a recognized organization; and
(b) Under the supervision of a qualified instructor; or
(5) Possessing the firearm for self-defense or the defense of others against a
trespasser into the person's residence or a residence in which the person is an
invited guest.

This provision, to the extent it addresses “ammunition solely designed for a regulated firearm,” is contrary to law and beyond the authority of the Maryland State Police.

The ammunition ban is simply not authorized, either by Senate Bill 281 or by any other provision of state law. SB 281 amends Section 5-133.1 of the Public Safety Article to state:

(B) a Person May Not Possess Ammunition If the Person Is Prohibited from
Possessing a Regulated Firearm under § 5–133 (B) or (C) of this Subtitle

These provisions of Section 5-133.1 as enacted by SB 281 are now reflected in the proposed regulations in new section.06 Ammunition. That section states:

A. A person may not possess ammunition if the person is prohibited from
possessing a regulated firearm under Regulation .03A of this chapter or Public
Safety Article, §5-133(b)-(c), Annotated Code of Maryland.

However, Section 5-333(b) and (c), as amended, do not purport to ban, or even address, possession of a regulated firearm by a person on account of their being under the age of 21. Section 5-133(d) does purport to ban possession of regulated firearms by persons under the age of 21, but as re-enacted by SB 281, nothing in Section 5-133(d) purports to address possession of ammunition, must less ammunition possession by persons under the age of 21, much less
ammunition “solely designed for a regulated firearm.” In short, nothing in any current Maryland statute purports to address, much less ban, possession of ammunition “solely designed for a regulated firearm” as Section .03 does.

The language in the proposed regulations banning possession of ammunition by persons under the age of 21 appears to have been taken from an earlier version of Section 5-133(d), which did specifically contain the language set forth in the proposed regulations. However, that language was deleted in legislation enacted by the General Assembly in 2011. Specifically, Acts 2011, c. 343, § 1, in subsecs. (d)(1), (d)(2)(i), and (d)(2)(iv), deleted “or ammunition solely designed for a regulated firearm” after “regulated firearm”; and in subsec. (d)(2)(vi), deleted “or ammunition” after “possession of a firearm.” A copy of that legislation is attached and is incorporated into these comments by reference.

The State Police lack the discretion to re-impose a ban on “ammunition solely designed for a regulated firearm" where precisely that ban was was repealed by the General Assembly in 2011. The law of Maryland clearly establishes that “[a]n agency's authority extends only as far as the General Assembly prescribes.” Thanner Enterprises, LLC v. Baltimore County. 414 Md. 265, 995 A.2d 257 (2010). See also Board of Liquor License Commissioners v. Hollywood
Productions, Inc., 344 Md. 2, 10, 684 A.2d 837, 841 (1996) (“[R]egardless of any rule making authority that the Liquor Board may enjoy, it may not impose a sanction that exceeds the confines of its expressly or impliedly delegated powers.”). Nothing in SB 281 authorizes the State Police to impose new restrictions not otherwise imposed by statute. The ban imposed by Section .03 cannot be justified as an interpretative matter, as there is no phrase or term that could possibly support this ban. The legislative intent was expressed in 2011 with the repeal of the very language that Section .03 re-imposes. The ban is lawless and thus must stricken.

The language “solely designed for regulated firearms” is objectionable for the additional reason that it is hopelessly vague and undefined. Nowhere in the regulations is there any definition for what constitutes ammunition “designed solely” for regulated firearms. If the language “solely designed” is meant to mean solely “used” in handguns, then the language is nonsensical. In fact, many, if not most, so-called handgun calibers are used in non-regulated
long guns. For example, the Henry Big Boy lever action rifle is chambered in .44 Magnum, .45 Colt & .357 Magnum, which are all considered to be handgun cartridges, but which are also perfectly well suited to use in non-regulated long guns. See http://henryrepeating.com/rifle-bigboy. cfm. Similarly, the Rossi Model M92 lever action rifle is chambered in the .38 Special, .357 Mag., .44 Mag., .45 Colt and .44-40 Win., cartridges that are all also used in handguns. See http://www.rossiusa.com/product-details.cfm?id=150. These rifles are available in the United States and Maryland.

If the phrase “designed solely” is intended to refer to the intent of the designer when the cartridge was originally created, then there is simply no way someone could possibly be on notice that a particular round of ammunition is banned. Many types of ammunition used in handguns have been in the marketplace for decades and there is no generally accepted or common understanding what the original design intent was at the time the cartridge was
produced. Such uncertainty and lack of notice creates massive problems under the Due Process Clause of the Constitution, as interpreted by the Supreme Court in Lambert v. California, 355 U.S. 225 (1957). See Conley v. United States, --- A.3d ----, 2013 WL 5355730 (D.C., September 26, 2013) (holding that a DC statute violated the Due Process Clause by criminalizing behavior
that the average citizen would not know to be wrongful). In short, there is no reason for the State Police to re-impose the ban on ammunition that the General Assembly wisely decided to leave free of regulation in 2011 with a repeal of this language.

 

[dblas]

THE REGULATIONS IMPROPERLY IMPOSE A “ONE ROUND” REQUIREMENT FOR THE HANDGUN QUALIFICATION LICENSE

As enacted, SB 281, in that part now codified in Section 5-117.1 of the Public Safety Article imposed a ban on the purchase, rental or receipt of any handgun unless that person possessed a State issued Handgun Qualification License. To acquire that HQL, the person, with specified exceptions, must take a training course, which is defined to be:

(i) a minimum of 4 hours of instruction by a qualified handgun instructor;
(ii) classroom instruction on:
1. State firearm law;
2. home firearm safety; and
3. handgun mechanisms and operation; and
(iii) a firearms orientation component that demonstrates the person's safe operation and handling of a firearm;

Public Safety Article §5-117.1(d)(3). Nothing in this language mentions “proficiency” or “live ammunition.”

Notwithstanding the lack of authorization, the proposed regulations concerning the Handgun Qualification License (HQL) adds an additional requirement of firing “one round of live ammunition,” providing:

(4) Operation and Handling Demonstration. Orientation that demonstrates the applicant’s safe operation and handling of a firearm, including a practice component in which the applicant safely fires at least one round of live ammunition

The bolded language is new and is not set forth in SB 281, as enacted. As set forth below, this requirement to file “at least one round of live ammunition” is both unauthorized by SB-281 and is unconstitutional under the Second Amendment to the Constitution.

First, the “live fire” requirement and the imposition of a “practice component” are not authorized by statute. The initial version of SB-281 submitted by the Governor in the Senate contained a requirement that the HQL training would contain “A FIREARMS QUALIFICATION COMPONENT THAT DEMONSTRATES THE PERSON’S PROFICIENCY AND USE OF A FIREARM.” That language was understood by all to encompass a “live fire” component, as proficiency can only be demonstrated through live fire. SB 281, for example, imposed such a proficiency requirement for carry permits as part of the 16 hours of training that is now required for such permits under Section 5-306 of the Public Safety Article.

The Governor’s proposal to require proficiency drew heavy opposition and was changed by an amendment proposed by Del. McDermott and adopted on April 2, 2013. See
http://mgaleg.maryland.gov/2013RS/am...1_48392701.pdf That amendnent was discussed on the floor. See
http://mgaleg.maryland.gov/webmga/frmAudioVideo.aspx?ys=2013RS&clip=HSE_04022013_2.mp4

This amendment was adopted because the live fire requirement necessary to demonstrate “proficiency” for the simple purchase of a handgun would require access to a firing range, which are relatively few in number in Maryland and mostly privately owned. During the hearings on the Governor’s proposal requiring “proficiency” for the HQL, it was repeatedly pointed out in both the House and the Senate hearings that any live fire requirement would effectively act on a de facto ban on the purchase of handguns because of the lack of publicly available gun ranges in Maryland. See, e.g., testimony beginning at 1:16 extending through 2:01.
http://mgahouse.maryland.gov/House/...?catalog=03e481c7-8a42-4438-a7da-93ff74bdaa4c The amendment by Del. McDermott was understood to remedy this problem by eliminating any live fire requirement. The enacted language also does not contain any requirement for any “practice component,” as the proposed regulations seek to impose. A “practice component” is necessary to achieve proficiency, it is not necessary to
“demonstrate operation and handling of a firearm.” The language requires that the trainee “demonstrate” safe handling; it does not require that the trainee “practice” safe handling, much less “practice” with an actual handgun, much less “practice” actually firing such a handgun. The regulations’ imposition of the live fire requirement and a practice component thus contravenes the legislative language and intent of the SB 281. These requirements are therefore invalid.

Second, a live fire requirement is unconstitutional. The imposition of a live fire
requirement creates an enormous obstacle to the purchase of a handgun, as it requires access to a firing range which are generally privately owned in Maryland and not available to non-members. The live fire requirement thus acts as a burdensome prior restriction on a law-abiding citizen’s now recognized, constitutional right to keep and bear arms under the Second Amendment, as
construed by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”). This right is so fundamental that it has been incorporated into the Due Process Clause of the 14th Amendment and thus made applicable to the States. See McDonald v. City of Chicago, 130 S.Ct. 3020 (2010)(“citizens must be
permitted to use handguns for the core lawful purpose of self defense”).

The burden is on the State to justify any burden on this core constitutional right. While the question has not yet been definitively settled by the Supreme Court as to whether the Second Amendment “core right” of self defense extends outside the home,1 there is no dispute among the federal courts of appeals that, at a minimum, the core right extends to the right to purchase and possess a handgun for self defense in the home by law-abiding citizens. Because these
licensing requirements are a pre-condition to the purchase of any handgun, they indisputably burden the right of citizens to be armed with a handgun in the home. These licensing provisions thus burden “the core right identified in Heller – the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense.” United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (emphasis omitted). the State would be required to show both a “compelling” state interest and that the measure was “narrowly tailored” to that interest, viz., was the least restrictive measure that addressed the compelling interest. See, e.g., Abrams v. Johnson, 521

1 The Seventh Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), recently held that the core right of self-defense does extend outside the home and struck down a statute that banned the possession of a handgun outside the home. The Supreme Court of Illinois agrees with this .holding. People v. Aguilar, 2013 IL 112116, --- N.E.2d ----, 2013 WL 5080118 (Sept.12, 2013).

U.S. 74, 91 (1997); Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 683 F.3d 539, 558 (4th Cir. 2012). Strict scrutiny almost always results in invalidation of a regulatory provision. See Laurence H. Tribe, American Constitutional Law § 16–30, at 1089 (1st ed.1978) (noting strict scrutiny is a “virtual death-blow”). Here, the licensing provisions would not survive strict scrutiny. .

In any event, even under the more relaxed standard of intermediate scrutiny, “the government bears the burden of demonstrating (1) that it has an important governmental ‘end’ or ‘interest’ and (2) that the end or interest is ‘substantially served by enforcement of the regulation.’” United States v. Carter, 669 F.2d 411, 417 (4th Cir. 2012) (citations omitted). “Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government.” Chester, 628 F.3d at 682. Any such showing will require real evidence, not mere conjecture or supposition. See Carter, 669 F.3d at 418 (noting that the State may not “‘rely upon mere ‘anecdote and supposition’” in attempting to meet its burden), quoting United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 822 (2000); Chester, 628 F.3d at 682 (requiring a “strong showing”). Indeed, this need for real evidence has been repeatedly stressed in the Second Amendment case law. See Heller v. District of Columbia, 670 F.3d 1244, 1248 (D.C. Cir. 2011) (Heller II) (vacating a district court decision sustaining the D.C. requirements and remanding for a factual determination on whether the District’s attempts at “licensing the owner of the firearm” were supported by actual evidence under intermediate scrutiny); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (holding that Illinois ban on public possession of handguns outside the home was not supported by sufficient legislative facts); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), cert. denied 131 S.Ct. 1674 (2011) (requiring a “form of strong showing”— a/k/a “intermediate scrutiny”—in a Second Amendment challenge
to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of a domestic-violence misdemeanor); Ezell, 651 F.3d at 708 (striking down City of Chicago ban on gun ranges and holding that “‘logic and data” must demonstrate “a substantial relation between [the regulation] and [an important governmental] objective.”) (quoting Skoien, 614 F.3d. at 642); Chester, 628 F.3d at 682 (remanding because the government
“has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal.”).

Here, the only conceivable legitimate state interest served by the training requirement is safety. Yet, there is no evidence that safety is substantially furthered by a live fire requirement. Nationwide, very few states impose any licensing requirement on the purchase of a handgun. None, to our knowledge, impose any requirement of live fire for the simple purchase of a handgun for self-defense in the home. For example, the District of Columbia has the strictest gun control laws in the country and D.C. formerly required a training class of four hours, but provided that class for free. D.C. Code §§ 7-2502.03(a)(13). D.C. did not require live fire training. More recently,, D.C. has repealed the provision requiring first time registrants to take a 4-hour firearm training course. Instead, D.C. Police are now offering an online Firearms Safety
Training Course. There is no cost for taking this course and it takes approximately 30 minutes to complete. See http://mpdc.dc.gov/node/177912. If D.C. does not require live fire with its extremely strict rules, what possible justification does Maryland State Police have for such imposition of live fire? We know of none.

Thus, with the promulgation of these regulations, Maryland would become the *only* state in the United States that not only imposes a licensing requirement, but also imposes a “live fire” requirement as an additional requirement for purchase of a handgun for self-defense in the home. This requirement for a simple purchase for home defense is utterly unnecessary to implement Section 5-117.1. Section 5-117.1 requires only “firearms orientation component that
demonstrates the person's safe operation and handling of a firearm.” Safe operation and handling of a handgun can easily be demonstrated by the actual handling of the firearm and the use of “snap caps” or dummy rounds that would allow the individual trainee to experience pulling the trigger without live ammunition. We are informed that the State Police have not conducted any studies or possess any evidence that would suggest that live fire is necessary to demonstrate safe handling. As explained above, real evidence is a constitutional requirement. In essence, the regulations create a massive constitutional issue concerning the necessity for live fire when the regulations could have much more easily construed the training requirements of Section 117.1 to avoid such constitutional issues. The State Police’s approach thus directly contravenes the usual rule that “a construction of a provision which casts doubt on its constitutionality should be avoided.” Washington Suburban Sanitary Com'n v. Phillips, 413 Md. 606, 620, 994 A.2d 411, 420 (2010). A live fire requirement will not survive challenge.

 

[dblas]

THE PROPOSED REGULATIONS IMPROPERLY PURPORT TO BAN POSSESSION OF A REGULATED FIREARM BY PERSONS WHOSE DISQUALIFYING CONVICTION HAS BEEN EXPUNGED

Section .03, COMAR 29.03.01.03, sets forth what purports to be a list of persons who may not possess any firearm whatsoever. Most of these provisions largely copy the underlying statute and are not objectionable. For example, subparts (5) and (6) of Section .03 provide that such persons prohibited from such possession includes a person who has been convicted of a “disqualifying crime,” including a person who:

(5) Has received probation before judgment for a crime of violence, except for
assault in the second degree;
(6) Has received probation before judgment for a domestically related crime, as defined in Criminal Procedure Article, §6-233, Annotated Code of Maryland;

This ban corresponds to the language set for in SB 281 in amendments to Section 5-101 of the Public Safety Article.

However, SB 281 amends Section 5-101 to include a further qualification of the term ‘disqualifying crime” to exclude any crime “THAT WAS EXPUNGED UNDER TITLE 10, SUBTITLE 1 OF 26 THE CRIMINAL PROCEDURE ARTICLE.” See SB 281, amending Section 5-101(b)(2). Nowhere in the proposed regulations is this provision reflected. No where in the proposed regulations are persons advised that such expungement relieves the person of the qualification. Since the regulations purport to be comprehensive, the regulations should amended to add this additional qualification.

 

[csanc123]

Some of this was discussed during the AERL hearing...what impact will the comments make given that the legislature already approved the COMAR?

 

[dblas]

THE REGULATIONS FAIL TO ADDRESS THE USE OF “RECEIVE” OR “RECEIPT” AS USED IN THE REGULATIONS AND SB 281.

The regulations, as proposed fail to define the use of receive or receipt as used in various places throughout SB 281. This failure may well lead to arbitrary enforcement and prosecution and should be clarified by the regulations. We therefore respectfully request that the regulations be revised and amended to define “receive” and “receipt” in such a way as to make clear that these terms apply only to the permanent transfer of ownership of article in question. The
regulations should also make clear that the temporary “receipt” of these articles is not prohibited as between law-abiding persons who are otherwise qualified to possess these items under other provisions of state and federal law.

Assault Weapons and Magazines

SB-281 amends various sections of the Criminal Article to regulate receive or receipt of the newly defined provisions concerning “assault weapons,” providing:

4–303.
(a) Except as provided in subsection (b) of this section, a person may not:
(1) transport an assault weapon into the State; or
(2) possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.

Similarly, SB-281 amends Section 4-304 and Section 4-305 to provide:

4–304
A law enforcement unit may seize as contraband and dispose of according to
regulation an assault weapon transported, sold, transferred, purchased, received, or possessed in violation of this subtitle.

4-305
(b) A person may not manufacture, sell, offer for sale, purchase, receive, or
transfer a detachable magazine that has a capacity of more than 10 rounds of
ammunition for a firearm.

Violations of these provisions would arguably subject the violator to the risk of a conviction under Section 4-306 of a misdemeanor and thus become “subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000.”

Handguns

In addition SB-281 creates a whole new set of provisions regulating the “receipt” of handguns in particular. Section 5-501 of the Public Safety Article has added a new provision for the newly created “Handgun Qualification License.”

(O) “Handgun Qualification License” means a license issued by the Secretary that authorizes a person to purchase, rent, or receive a handgun.

SB-281 then relies on this definition of the “Handgun Qualification License” in creating Section 117.1 to the Public Safety Article. Subsections (b) and (c) of newly enacted Section 117.1 broadly mandate that a person have such a “Handgun Qualification License” as a condition to acquiring such a handgun, providing:

(B) a dealer or any other person may not sell, rent, or transfer a regulated firearm handgun to a purchaser, lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer or other person a valid regulated firearm handgun qualification license issued to the purchaser, lessee, or transferee by the Secretary under this section.

(c) a person may purchase, rent, or receive a handgun only if the person:
(1) (i) possesses a valid handgun qualification license issued to the person by the Secretary in accordance with this section; * * * *

Section 5-143 of the Public Safety Article (which was recodified without change by SB-281 to become Section 5-144), can be read to apply to transactions governed by new Section 5-117.1 so as to impose severe criminal penalties. Section 5-143 provides:

(a) Except as otherwise provided in this subtitle, a dealer or other 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;
* * * *
Penalty
(b) A person who violates this section is guilty of a misdemeanor and on
conviction is subject to imprisonment not exceeding 5 years or a fine not
exceeding $10,000 or both.

The regulations do not purport or define “receive” or “receipt” in these provisions.

Interpretation Issues Associated with SB 281's Regulation of “Receipt” or “Receive”:

The terms “receipt” or “receive” in these provisions of SB-281 are not defined, either in the existing code or in SB-281 and there is, of course, no Maryland case law on these newly enacted provisions. Regulation of the “receipt” of firearms is addressed under federal law, 18 U.S.C. 922(h), which provides:

(h) It shall be unlawful for any individual, who to that individual's knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment--
(1) to receive, possess, or transport any firearm or ammunition in or affecting
interstate or foreign commerce; or
(2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, there are significant differences between “receive” as used in SB-281 and “received” as used in federal law. Subsection (g), referenced in Section 922(h), refers to persons who are disqualified from possessing any firearms because of prior criminal convictions or other disqualification. In this context, the term “receive” as used in subsection (h) “means to take possession of or to knowingly accept the same.” See, e.g., United States v. Turnmire, 574 F.2d
1156, 1157 (4th Cir. 1978). Other federal courts of appeals are in accord. (Id). Turnmire explains that, under federal law, “receipt “ may be inferred by mere possession, on the assumption that one cannot “possess” without having had first “received.” See Turnmire, 574 F.2d at 1157 (approving the instruction that “since one cannot possess something without having received it, (then) receipt of a firearm may be shown circumstantially by proving possession.”).

Stated simply and as detailed more specifically below, if the federal interpretation of “receive” were to be used under SB-281, it would shut down instructional shooting, family shooting activities, youth shooting and the mere temporary transfer of firearms at the range to friends and other persons who wish to learn about shooting activities or try out a particular handgun or assault weapon. Assault weapons, magazines and handguns may also be the lawful property of sanctioned competitive teams or incorporated shooting clubs. These organizations may temporarily loan these items to team or club members for use at the range. A literal reading of "receive" or "receipt" would ban such loans and thus effectively impair the legitimate functioning of such organizations. A literal definition of “receive” or “receipt” also could be applied to bar a gunsmith from taking temporary possession of an assault weapon, a magazine or handgun for purposes of repair. A gunsmith presumably would be able to take temporary possession of a handgun if he or she had a Handgun Qualification License, but the ban on “receipt” with respect to assault weapons and magazines do not contain any such exception for the temporary “receipt” of an assault weapon by a gunsmith for purposes of repair.

As is apparent, a literal definition of “receive” or “receipt” under SB-281 would be little short of absurd. Few persons will temporarily loan an assault weapon, a magazine or handgun for temporary use at the range under these provisions. Otherwise innocent, law-abiding persons could risk arrest, criminal prosecution and imprisonment by overzealous or literal minded law enforcement officials. SB 281 would become a legal trap for the unwary. With the enactment of SB 281, the General Assembly did not intend to create a whole new class of criminals arising from the temporary loan of these regulated articles as between otherwise law-abiding citizens.

Such a strict construction of “receive” for purposes of the above provisions in State law, as amended by SB-281, would also expose innocent, law-abiding persons to the loss of all their firearms for life. Under federal law, 18 U.S.C. 921(a)(20) and 18 U.S.C. 922(g), a person convicted of a state misdemeanor, which is “punishable” by a sentence of greater than two years in prison, becomes a disqualified “felon in possession” and loses the right to possess any modern firearms for the rest of his or her life. Any possession of such firearms after such a conviction for such state misdemeanor may also result in federal imprisonment of up to 10 years under 18 U.S.C. 924(a)(2). Violations of any of the SB-281 provisions noted above or a conviction under Section 5-143 (now Section 5-144) easily satisfies these conditions for a permanent federal firearms possession disability.

There are other reasons that the federal definition of “receive” for purposes of 18 U.S.C. 922(g) should not be applied or extended to the terms “receive” or “receipt” as used in SB-281 or for prosecution under Section 5-143. Unlike the disqualified persons addressed in 18 U.S.C. 922(h), these persons affected by SB-281 are not already criminals or otherwise disqualified from owning or possessing firearms. For example, unlike Section 922(h), which bans “receive,
possess, or transport” by prohibited persons, nothing in SB-281 purports to ban the mere possession of a handgun by a person without a handgun license; it focuses on the transaction or the transfer of the handgun. Under SB-281, a person who lawfully owns and possesses an “assault weapon” prior to October 1, 2013, may continue to own, possess, transport and lawfully use that weapon. Similarly, the ban on sales and transfers and on the receipt of magazines with a capacity of greater than 10 rounds does not ban the continued possession or use of such magazines or even the receipt of such magazines in transactions taking place out-of-state. Persons who already own handguns are not required to obtain a Handgun Qualification License to keep and lawfully use his or her already-owned handguns.

Yet, if the existing lawful owner of such an assault weapon, or magazine or handgun were temporarily to loan his assault weapon, magazine or handgun to another law-abiding person, such as a spouse, other family members, a friend or even a student at a sanctioned training course, then the recipient of that assault weapon, magazine or handgun could be seen as “taking possession” and thus “receiving” these articles simply by that fact alone. That result does not obtain under Section 922(h), which bars receipt only by a person who is already banned from possessing firearms. Section 922(h) states that a prohibited person may not “receive, possess, or transport” a firearm in order to keep guns out of the hands of criminals and the definition of “receipt” in Section 922(h) should be read in light of that purpose. No such legitimate purpose is served by applying that definition to the temporary “receipt,” as used in SB-281 and Section 5-144, to otherwise law-abiding citizens. In short, the provisions of SB-281 and Section 5-143 contemplate an ownership transaction in which there is a permanent transfer or receipt of ownership, not a mere temporary receipt of a regulated firearm or magazine on a shooting outing.

Incorporating the strict interpretation of “receipt”or “receive” applicable to Section 922(h) to the use of those terms in SB 281 would also make it needlessly difficult, if not impossible, to provide and receive the training now required by SB-281 for the Handgun Qualification License. Specifically, SB-281 enacts Section 5-117.1 of the Public Safety Article, which imposes a training requirement for the Handgun Qualification License and the State Police now propose live fire, as discussed above. Satisfying these requirements necessarily
require the trainee to take temporary possession (and hence “receipt”) of various types of handguns in order to be properly and fully instructed on “Handgun mechanisms and operation” and to satisfy the “orientation component” for the “safe operation and handling” of that firearm. Such receipt and possession, for example, is also mandatory in the eight-hour NRA Basic Pistol course and in other, more advanced NRA courses. If receipt means temporary possession for purposes of the mandated HQL course and the State Police require handling of a firearm and the actual firing of “one round of live ammunition,” then the statute would require the legally impossible, thereby creating an effective and unconstitutional ban on the purchase of handgun.
As Jackson v. United States, --- A.3d ----, 2013 WL 5458946 (D.C. 2013), recently explained, "we have concluded that Heller means it would be ‘impermissible under the Second Amendment to convict a defendant for possessing an unregistered handgun in the home when the District's
unconstitutional ban made registration of a handgun impossible, unless the defendant was disqualified from registering the handgun for constitutionally permissible reasons.’” quoting Magnus v. United States, 11 A.3d 237, 242–43 (D.C.2011) (citing Plummer v. United States, 983 A.2d 323 (D.C.2009)); see also Herrington v. United States, 6 A.3d 1237 (D.C.2010) (extending this holding to a conviction for unlawful possession of handgun ammunition). More generally, the State has no legitimate interest in banning the receipt of handguns in NRA courses, particularly in introductory courses, which focus on safe handling and storage.

Such practical absurdities are also present for persons under the age of 21, who are expressly permitted to take temporary possession of a regulated handgun under Section 5-133(d) of the Public Safety Article if they are being supervised by a person over 21 or if that person under 21 is “1. participating in marksmanship training of a recognized organization; and 2. under the supervision of a qualified instructor.” SB-281 re-enacted these provisions without change. Persons under the age of 21 are barred from obtaining a HQL by Section 5-117(d)(1). Yet, obviously, a person under 21 must also “receive” the regulated firearm in order to perform this shooting permitted by Section 5-133(d) and the supervising person over 21 or the instructor must “participate” in such receipt (within the arguable meaning of Section 5-144) if such shooting is to take place. SB-281 re-enacted these provisions of Section 5-133(d); it did not intend to implicitly repeal these provisions by banning the “receipt” of regulated firearms used for these legitimate purposes. See State v. Johnson, 415 Md. 413, 422, 2 A.3d 368, 373 (2010) (noting that the courts must give the statute “a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.”). Construing “receipt” to mean “possession” would render the shooting permitted by Section 5-133(d) legally impossible, thereby rendering that provision a dead letter as a practical matter.

In enacting SB-281, the General Assembly did not enact a “Catch 22" law by mandating that such training that could not be reasonably accomplished without violating other provisions in the same statute. Cf UMG Recordings, Inc. v. Shelter Capital Partners LLC, --- F.3d ----, 2013 WL 1092793 (9th Cir. 2013) (refusing to construe a statute to create a Catch 22 situation). The General Assembly did not intend any construction of SB 281 that would lead to absurd
results, such as banning all NRA training unless each participant possessed a HQL. See, e.g., Blue v. Prince George's County, --- A.3d ----, 2013 WL 5382188 (Md.,2013) (“An examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court's interpretation in reality.”), quoting Town of Oxford v. Koste, 204 Md.App. 578, 585–86, 42 A.3d 637 (2012), aff'd, 431 Md. 14, 63 A.3d 582 (2013) (citations omitted). This is particularly so as these provisions of SB-281 regulate the exercise of the fundamental Second Amendment constitutional rights to own and possess a handgun for self-defense in the home and thus should be strictly and narrowly construed to minimize constitutional issues. See, e.g., VNA Hospice of Maryland v. Department of Health and Mental Hygiene, 406 Md. 584, 961 A.2d 557, 569 (2008) (“we have ‘consistently adhered to the principle that “an interpretation which raises doubts as to a legislative enactment's constitutionality should be avoided if the language of the act permits.”’”) (citations omitted). As explained above, the State cannot, consist with Heller,
mandate training for the purchase of a handgun and then make that training impossible.

Accordingly, the regulations should define the terms “receipt” or “receive” in the above provisions of law to limit the terms “receipt” and “receive” to a permanent ownership context and to exclude the temporary receipt of a regulated firearm or magazine for otherwise legal purposes, such as the temporary receipt of a regulated firearm or magazine incident to otherwise
legal possession of a regulated firearm. Such a gloss was applied to the temporary “transfer” of a regulated firearm in Chow v. State, 393 Md. 431, 903 A.2d 388 (2006). The Court in Chow interpreted former section 442(d)(1), which is currently codified (without substantial change) as § 5–124 of the Public Safety Article. Section 442(d)(1) provided (and Section 5-124 currently
provides) that “‘[a] person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm.’” (903 A.2d at 390-91) (quoting Section 442(d)). The Court held that “the plain language and legislative history of the ‘Regulated Firearms’ subheading indicates that the word ‘transfer,’ as used in § 442(d), is used in an ownership context and does not apply to the situation extant in the case sub judice — that of a gratuitous temporary
exchange or loan between two adults who are otherwise permitted to own and obtain regulated firearms.” (Id. at 391) (emphasis added). The Chow Court’s interpretation of “transfer” in former Section 442(d)(1) should also be applied to the terms “receive” and “receipt” as used in SB-281 and for prosecutions under Section 5-143 (now Section 5-144 as amended) so to limit the terms “receipt” and “receive” to an “ownership context.”

 

[dblas]

Some of this was discussed during the AERL hearing...what impact will the comments make given that the legislature already approved the COMAR?

The AERL hearing was for the Emergency COMAR, it was an UP or DOWN vote to approve them or not. The Emergency COMAR are good for 180 days and are not permanent, the regular COAMR are permanent and we can comment on those. If the state does not reply to or enact the comments, then we, as Maryland Citizens, have recourse by way of lawsuit to get them changed.

 

[csanc123]

The AERL hearing was for the Emergency COMAR, it was an UP or DOWN vote to approve them or not. The Emergency COMAR are good for 180 days and are not permanent, the regular COAMR are permanent and we can comment on those. If the state does not reply to or enact the comments, then we, as Maryland Citizens, have recourse by way of lawsuit to get them changed.

Ahh. Good to know. thx!

 

[rwbow1969]

If everyone reads over these, it will help. All eyes on deck...

 

[Brooklyn]

Even if receive is clarified is there not still the issue of 'receive' post 1 Oct 2013 pursuant to the PO exemption for awb purposes and or paper work submitted before 1 Oct 2013 ?

Or has this been resolved?

 

[dblas]

Even if receive is clarified is there not still the issue of 'receive' post 1 Oct 2013 pursuant to the PO exemption for awb purposes and or paper work submitted before 1 Oct 2013 ?

Or has this been resolved?

Can somebody, anybody, start a thread strictly on the receive issue instead of it being brought up in every thread it gets touched on as an aside?

I don't mean to sound short, but this thread is to guide people on the COMAR and comments, not discussion on receive, AWs, magazine size, etc.

Copy the information and either e-mail or snail mail it to the MSP at the address in the OP, if you have questions with regards to that, then post them, otherwise, start a new thread and, everyone, try to keep this one on topic.

 

[dblas]

If everyone reads over these, it will help. All eyes on deck...

The above is what MSI is submitting as an organization, anyone, everyone feel free to either use them as they are or modify them for your own use. While having additional eyes "look" at these may be a good idea, I think it could get into debate about "what about this over that," which we are already starting to see questions about.

 

[dblas]

9 days left to send any or all of these.

 

[dblas]

5 days left to send in comments.

 

[capman98]

DONE. Is there anyone else who we would benefit sending these to for their reading pleasure???

 

[dblas]

DONE. Is there anyone else who we would benefit sending these to for their reading pleasure???

Perhaps your local elected officials, so perhaps they might think about legislation to fix the issue formally.

 

[dblas]

4 days left folks.

 

[Benanov]

Sent.

 

[dblas]

At this point folks, today is the last day to send comments in and they have to be in by midnight tonight. So e-mail is the only form of communication at this point that will get there by then.