Letting my son or daughter shoot my Guns?

[fivepointstar]

if your kids are 2 or 3 years old I wouldn't recommend it. if they are in their 20's why sure!!

 

[esqappellate]

Q: Do I need an HQL to fire at a gun range?

A: No. An HQL is the only required to purchase, rent or transfer a firearm.
https://www.mdsp.org/Organization/S...irearms/HandgunQualificationLicense/FAQs.aspx

Actually the language is that a HQL is necessary to"purchase, rent, or receive a handgun." See 5-101 and 5-117.1. [/

 

[ddeanjohnson]

The answer is "no", you cannot. Allowing them to shoot/use a regulated firearm consititutes a "transfer", and since it was conducted in a manner not compliant with SB281 and other MD laws concerning regulated ifrearms, it is in violation. The law is VERY clear on this. The people saying "yes" are wrong. There is NO provision in the law that says "it's ok for you to let your kids shoot your regulated firearms at a range".

With respect to handguns, at least, what you have written is inaccurate.

First off, a loan is not a "transfer." There is clear Maryland case law on this point. Moreover, Lt. John Cook, who heads the Licensing Section of the Maryland State Police, has stated in writing that a Handgun Qualification License is not required for "temporary receipt for purposes of informal instruction or sporting purposes" or for "bona fide loans."

As others have already pointed out, even if the "kids" are under age 21, there are explicit provisions in the Public Safety Article, Section 5-133(d), for use while under supervision by someone over age 21. Such use has never fallen within the definition of "transfer," and SB 281 did not alter those provisions.

 

[mudskipper]

.... Lt. John Cook, who heads the Licensing Division of the Maryland State Police, has stated in writing that a Handgun Qualification License is not required for "temporary receipt for purposes of informal instruction or sporting purposes" or for "bona fide loans."

.

And show me in the law where it states that Lt. Cook shall be the arbiter of what constitutes a transfer. Because I've read the whole law, and there's nothing in there about that.

And it does NOT define "transfer". It is left intentionally vague to allow people to be arrested for making an "illegal" transfer.


You guys are playing with fire and offering legal "advice" based on your own interpretations and opinions, construed with stuff that was written by people who are NOT mentioned in the law, that could cause someone their 2A rights. You are responsible for complying with the law. Not what you think the law means.


You are NOT allowed to let other people shoot your regulated firearm in the state of Maryland without first transfering it legally. Period.

It never ceases to amaze me that the same people who will argue that a Barrett M82 is banned, despite the fact that the law specifically bans a Barrett Light Fifty and NOT a Barrett M82, will then argue what the definition of "transfer" means, and how giving someone else a firearm isn't a transfer in their eyes.

Amazing....

 

[rseymorejr]

And show me in the law where it states that Lt. Cook shall be the arbiter of what constitutes a transfer. Because I've read the whole law, and there's nothing in there about that.

And it does NOT define "transfer". It is left intentionally vague to allow people to be arrested for making an "illegal" transfer.


You guys are playing with fire and offering legal "advice" based on your own interpretations and opinions, construed with stuff that was written by people who are NOT mentioned in the law, that could cause someone their 2A rights. You are responsible for complying with the law. Not what you think the law means.


You are NOT allowed to let other people shoot your regulated firearm in the state of Maryland without first transfering it legally. Period.

It never ceases to amaze me that the same people who will argue that a Barrett M82 is banned, despite the fact that the law specifically bans a Barrett Light Fifty and NOT a Barrett M82, will then argue what the definition of "transfer" means, and how giving someone else a firearm isn't a transfer in their eyes.

Amazing....

Playing it safe can be a good option.
As for me I'll my 18 year old daughter, and any other person, shoot any of my guns at the range. I'll take a walk on the wild side!

 

[ddeanjohnson]

And show me in the law where it states that Lt. Cook shall be the arbiter of what constitutes a transfer. Because I've read the whole law, and there's nothing in there about that. And it does NOT define "transfer". It is left intentionally vague to allow people to be arrested for making an "illegal" transfer. You guys are playing with fire and offering legal "advice" based on your own interpretations and opinions, construed with stuff that was written by people who are NOT mentioned in the law, that could cause someone their 2A rights. You are responsible for complying with the law. Not what you think the law means. You are NOT allowed to let other people shoot your regulated firearm in the state of Maryland without first transfering it legally. Period.

It seems that you are also offering "your own interpretations and opinions," but apparently not based on much research, other than reading the latest bill. You may want to expand your research a bit before you get all worked up.

The ultimate arbiters of what terms in the law mean are the courts. With respect to the meaning of "transfer" in the firearms context, this has already occurred. In the case of Todd Lin Chow v. State of Maryland (2006)(linked below), the Maryland Court of Appeals (which, as you may be aware, is the supreme court in Maryland) reviewed and overturned a conviction of a man, Chow, who had lent a handgun to a friend, who was caught with the handgun in his car three days later. The prosecutor in that case advanced a theory of "transfer" that was not very different from what you are advancing in your posts above. As the Court of Appeals summarized the issue:

Petitioner [Chow] contends that the legislative intent of using the term “transfer,” as found in § 442(d), was to mean a permanent exchange of title or possession of a regulated firearm, as in a gift or bequeathment, rather than a mere loan or temporary exchange of such firearm. The State, in opposition, argues that § 442(d) prohibits all exchanges of regulated firearms, temporary or permanent, whether by sale, rental, gift, loan, exchange or otherwise and no matter how temporary.​

The Court ruled for Chow, and definitively rejected the theory that a loan is a "transfer" in Maryland law:

We find that the temporary gratuitous exchange or loan of a regulated handgun between two adult individuals, who are otherwise permitted to own and obtain a regulated handgun, does not constitute an illegal “transfer” of a firearm in violation of Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442, in particular, subsection (d). The plain language of § 442(d), when construed in harmony with the rest of the subheading, reveals that “transfer” can only refer to a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans. Legislative history further supports our interpretation. We also conclude that the inclusion of the term “knowingly” in § 449(f) creates a specific intent mens rea for violations of that subsection. Thus, in order to be in violation of § 449(f), a person must know that the activity they are engaging in is illegal. This ruling does not place any undue burden on the State. “Rather, as in any other criminal prosecution requiring mens rea, the [State] may prove by reference to facts and circumstances surrounding the case that [the defendant] knew that his conduct was unauthorized or illegal.” Liparota, 471 U.S. at 434, 105 S. Ct. at 2092-93, 85 L. Ed. 2d 434 (footnote omitted).
​

While subsequent recodifications have changed the citation numbers for the laws that the Court was interpreting here, there has been no pertinent change in the substance of those laws with respect to what constitutes a "transfer," whether in SB 281 or otherwise.

With respect to the statement of Lt. Cook, it is certainly relevant. It is true that a law enforcement officer, even a senior officer, is not the ultimate interpreter of what the law means. However, there are many court cases that affirm the principal that if a citizen makes a good-faith attempt to ascertain whether a given action is legal under a pertinent law by asking a government official charged with enforcing that law, and is told that the action is legal, the citizen is not then subject to conviction if he acts in good faith on the guidance he was given by the law enforcement official. For example, let's say that you are hunting and see a fox, and you ask a nearby game warden if it is legal to shoot the fox. The game warden says yes, it is legal, so you shoot the fox. But another game warden sees you and arrests you, because the fox season actually ended the day before -- the first game warden was mistaken, or perhaps he lied. There could not be a successful prosecution under these circumstances. This is an important principle in criminal law. Among other things, it is a protection against entrapment.

Therefore, when the head of the Licensing Section of the Maryland State Police, which is the law enforcement agency in charge of overseeing firearms transfers, says in writing that temporary receipt for sporting or instructional purposes, or receipt by bona fide loan, by a recipient who does not possess a Handgun Qualification License, is lawful, that statement itself is of legal significance. While I am not a lawyer and this is not legal advice, I have no reservation about personally relying on that guidance, and I would certainly reject the suggestion that it is "playing with fire."

However, I would always take pains to ascertain that anybody who was going to temporarily use one of my regulated firearms, whether at a range or otherwise, would be legally qualified to possess a firearm (by which I mean, not disqualified by criminal history, mental health history, or for other reasons, under state or federal law).

 

[fabsroman]

It seems that you are also offering "your own interpretations and opinions," but apparently not based on much research, other than reading the latest bill. You may want to expand your research a bit before you get all worked up.

The ultimate arbiters of what terms in the law mean are the courts. With respect to the meaning of "transfer" in the firearms context, this has already occurred. In the case of Todd Lin Chow v. State of Maryland (2006), the Maryland Court of Appeals (which, as you may be aware, is the supreme court in Maryland) reviewed and overturned a conviction of a man, Chow, who had lent a handgun to a friend, who was caught with it in his car three days later. The prosecutor in that case advanced a theory of "transfer" that was not very different from what you are advancing in your posts above. As the Court of Appeals summarized the issue:

Petitioner [Chow] contends that the legislative intent of using the term “transfer,” as found in § 442(d), was to mean a permanent exchange of title or possession of a regulated firearm, as in a gift or bequeathment, rather than a mere loan or temporary exchange of such firearm. The State, in opposition, argues that § 442(d) prohibits all exchanges of regulated firearms, temporary or permanent, whether by sale, rental, gift, loan, exchange or otherwise and no matter how temporary.​

The Court ruled for Chow, and definitively rejected your theory:

We find that the temporary gratuitous exchange or loan of a regulated handgun between two adult individuals, who are otherwise permitted to own and obtain a regulated handgun, does not constitute an illegal “transfer” of a firearm in violation of Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442, in particular, subsection (d). The plain language of § 442(d), when construed in harmony with the rest of the subheading, reveals that “transfer” can only refer to a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans. Legislative history further supports our interpretation. We also conclude that the inclusion of the term “knowingly” in § 449(f) creates a specific intent mens rea for violation s of that subsection. Thus, in order to be in violation of § 449(f), a person must know that the activity they are engaging in is illegal. This ruling does not place any undue burden on the State. “Rather, as in any other criminal prosecution requiring mens rea, the [State] may prove by reference to facts and circumstances surrounding the case that [the defendant] knew that his conduct was unauthorized or illegal.” Liparota, 471 U.S. at 434, 105 S. Ct. at 2092-93, 85 L. Ed. 2d 434 (footnote omitted).
​

While subsequent recodifications have changed the citation numbers for the laws that the Court was interpreting here, there has been no pertinent change in the substance of those laws with respect to what constitutes a "transfer," whether in SB 281 or otherwise.

With respect to the statement of Lt. Cook, it is certainly relevant. It is true that a law enforcement officer, even a senior officer, is not the ultimate interpreter of what the law means. However, there are many court cases that affirm the principal that if a citizen makes a good-faith attempt to ascertain whether a given action is legal under a pertinent law by asking a government official charged with enforcing that law, and is told that the action is legal, the citizen is not then subject to conviction if he acts in good faith on the guidance he was given by the law enforcement official. For example, let's say that you are hunting and see a fox, and you ask a nearby game warden if it is legal to shoot the fox. The game warden says yes, it is legal, so you shoot the fox. But another game warden sees you and arrests you, because the fox season actually ended the day before -- the first game warden was mistaken, or perhaps he lied. There could not be a successful prosecution under these circumstances. This is an important principle in criminal law. Among other things, it is a protection against entrapment.

Therefore, when the head of the Licensing Section of the Maryland State Police, which is the law enforcement agency in charge of overseeing firearms transfers, says in writing that temporary receipt for sporting or instructional purposes, or receipt by bona fide loan, by a recipient who does not possess a Handgun Qualification License, is lawful, that statement itself is of legal significance. While I am not a lawyer and this is not legal advice, I have no reservation about relying on that guidance.

However, I would always take pains to ascertain that anybody who was going to temporarily use one of my regulated firearms, whether at a range or otherwise, would be legally qualified to possess a firearm.

Yeah, that was the interpretation of transfer back then. Now, look at the part I put in bold above that you quoted from the case. A person must be able to own AND obtain a regulated firearm for the gratuitous exchange to not be an issue. Now, can a person without a HQL own AND obtain a regulated firearm?

Next, the new law uses "receive" in it. So, while the loaner might not be in any trouble because he is not "transferring" the handgun, which I think it open for debate, the borrower might surely be in some trouble since the borrower is receiving the handgun without having the HQL.

Until the Maryland Court of Special Appeals or the Maryland Court of Appeals takes a case regarding this matter, this is open for debate amongst all of us. Thing is, if nobody ever gets arrested over this issue, there will never be a case to make it to an appellate court and we can continue to debate this forever.

 

[Benanov]

Stupid question...

Let's assume that the people saying "no" are correct.

If you need live fire of a handgun to get an HQL, HOW CAN YOU FIRE A HANDGUN WITHOUT FALLING AFOUL OF SB281?

Either the law is a ban for anyone that doesn't own a regulated firearm, or you're wrong. QED.

 

[ddeanjohnson]

Yeah, that was the interpretation of transfer back then. Now, look at the part I put in bold above that you quoted from the case. A person must be able to own AND obtain a regulated firearm for the gratuitous exchange to not be an issue. Now, can a person without a HQL own AND obtain a regulated firearm?

Next, the new law uses "receive" in it. So, while the loaner might not be in any trouble because he is not "transferring" the handgun, which I think it open for debate, the borrower might surely be in some trouble since the borrower is receiving the handgun without having the HQL.

Until the Maryland Court of Special Appeals or the Maryland Court of Appeals takes a case regarding this matter, this is open for debate amongst all of us. Thing is, if nobody ever gets arrested over this issue, there will never be a case to make it to an appellate court and we can continue to debate this forever.

Yes. I was one of the people who posted on this forum (and elsewhere), while SB 281 was still under consideration in the General Assembly, about how the term "receive," unless defined, could be subject to broader interpretation. The legislators received assurances from the attorney general's office and elsewhere that this was not the intent. I still think it would have been better to explicitly define "receive" in the bill or in regulation. But in view of the subsequent guidance that has come from the Maryland State Police, including the "live fire" requirement in the new regulations, I think that there is now little if any basis for concern that lending a gun in an instructional or sporting context is going to fall under "receive." As to bona fide loans of longer duration, if the Court of Appeals subjects the term "receive" to the same sort of thoughtful analysis that they applied to the term "transfer" in the Chow case, they are going to come up with the same kind of answer.

To put it another way, I think that any prosecutor who attempted to proceed on the theory that "receive" bars lending a gun at the range, in view of the MSP interpretation and the legislative history, would suffer the same fate as the prosecutor in Chow.

 

[fabsroman]

Stupid question...

Let's assume that the people saying "no" are correct.

If you need live fire of a handgun to get an HQL, HOW CAN YOU FIRE A HANDGUN WITHOUT FALLING AFOUL OF SB281?

Either the law is a ban for anyone that doesn't own a regulated firearm, or you're wrong. QED.

It is a very good question. Thing is, if law enforcement never enforces the law, all of this is moot. Thing is, it sucks to be the first person that some law enforcement agency decides to take the "no" position on.

 

[fabsroman]

Yes. I was one of the people who posted on this forum (and elsewhere), while SB 281 was still under consideration in the General Assembly, about how the term "receive," unless defined, could be subject to broader interpretation. The legislators received assurances from the attorney general's office and elsewhere that this was not the intent. I still think it would have been better to explicitly define "receive" in the bill or in regulation. But in view of the subsequent guidance that has come from the Maryland State Police, including the "live fire" requirement in the new regulations, I think that there is now little if any basis for concern that lending a gun in an instructional or sporting context is going to fall under "receive." As to bona fide loans of longer duration, if the Court of Appeals subjects the term "receive" to the same sort of thoughtful analysis that they applied to the term "transfer" in the Chow case, they are going to come up with the same kind of answer.

To put it another way, I think that any prosecutor who attempted to proceed on the theory that "receive" bars lending a gun at the range, in view of the MSP interpretation and the legislative history, would suffer the same fate as the prosecutor in Chow.

lol - I think the Court of Appeals would decide this however they feel like deciding it based upon what they think the public policy flavor of the day should be.

Just like how the Obamacare fine isn't a fine, but a tax. Just like the Commerce Clause has been stretched to encompass things it was never meant to encompass.

The Courts will find however they want to, and then find the legal reasoning to get them there.

You and I can sit here and say what we think they will do, but without any precedent in place I doubt you or I would be willing to place a lot of money on the outcome one way or another.

 

[jonnyl]

sadly, I suspect that asking the GA to clarify would result in shocked disbelief that any sane person would want to let a child shoot a gun of any sort.

Therefore expanding the definition of mentally unstable....

 

[esqappellate]

lol - I think the Court of Appeals would decide this however they feel like deciding it based upon what they think the public policy flavor of the day should be.

Just like how the Obamacare fine isn't a fine, but a tax. Just like the Commerce Clause has been stretched to encompass things it was never meant to encompass.

The Courts will find however they want to, and then find the legal reasoning to get them there.

You and I can sit here and say what we think they will do, but without any precedent in place I doubt you or I would be willing to place a lot of money on the outcome one way or another.

I haven't yet quite got that cynical, but fabsroman has a point. A bigger point here is that legal matters and points of construction of statutes and case law are very much things that should be left to lawyers who are trained in such matters. Non-lawyers get it wrong all the time. Not because they are unintelligent (they may be brilliant), but because non lawyers don't have either the experience or the training to come to informed decisions. I would never attempt to tell a computer professional how to write code (or argue about code with him), even though I did some coding way back in college.

Take Chow for example. Chow merely construed "transfer;" it did not address "receive." Section 5-144 of the PS Art. makes it a crime to "knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle" You will note that the terms "transfer" and "purchase" and "receive" are used in the disjunctive, thereby suggesting, as a matter of textual analysis, that the terms have different meanings. A well-established rule of construction is that the courts will not construe a statute to render some word superfluous. That was not the case in Chow, where the defendant was charged with a violation of 5-124, a provision that did NOT (and does not currently) address or include the term "receive" or "receipt." Chow was also charged with violating Section 5-143 (currently codified as 5-144, but a violation of 5-143 in that case depended on a showing that 5-124 had been violated).

In short, the State's lawyers could easily write a brief distinguishing Chow as limited to "transfers" and not receipt, especially since Chow involved parties who could, as fabsroman points out, otherwise legally "own and obtain" a regulated firearm. Right now, no one who didn't buy an AW before 10/1 may legally own or obtain an AW. No one may "obtain" in MD a large capacity mag. With a few exceptions for military and LEOs, under 5-117.1, no one may "purchase, rent, or receive a handgun" without an HQL.

I am willing to agree that, as a practical matter, that LEOs and prosecutors will probably not arrest or prosecute instructors (like me) who teach the HQL classes for teaching the HQL class, especially since the MSP regs now require live fire to obtain the HQL. I am less sure about handgun receipt by persons under 21 as these persons cannot obtain a HQL and cannot otherwise legally own and obtain a handgun, but at least that shooting falls within an express statutory provision, Section 5-133(d), if properly supervised. A case for the application for the rule of lenity can be made in these circumstances in a criminal prosecution. If anyone has money to burn, you are welcome to bring a suit for a declaratory judgment on these points. I am hoping that MSI's comments will prompt the State Police to address this in the final regs. I am not holding my breath.

The problem is bigger than HQL classes and youth shooting falling within 5-133(d), as the issue arises for shooting involving AWs, large mags, and handgun "receipt" that does not fall within any statutorily permitted category. In that circumstance, you are left with the common sense argument accepted in Chow and the analogy of "receipt" or "receive" to "transfer." There are several problems with that. First, as noted above, "transfer" (the term construed in Chow) means something different than "receipt."

Second, in Chow the STATE of MD pursued that case all the way to the top of the court system (MD court of appeals) before it was forced to accept common sense. Hence my reluctance to rely on the prosecutor's sense of fairness or common sense. Retaining counsel for such a trip through the legal system could easily cost $100,000 or more, not to mention a lot of mental anguish for the defendant and his family. I have better uses for my money. Like fabsroman, I wouldn't relish the prospect of being the test case.

Finally, I don't know Lt. Cook and he did not make any representations to me personally. But even if he did, Lt. Cook cannot estop the State and its political subdivisions from arrests or prosecutions. Heck, even formal opinions of the State Attorney General are not binding on the courts, but warrant mere "careful consideration" in the courts of this state. Dodds v. Shamer, 339 Md. 540, 556, 663 A.2d 1318 (1995); Montgomery County v. Atlantic Guns, Inc., 302 Md. 540, 548, 489 A.2d 1114 (1985); Board of Examiners in Optometry v. Spitz, 300 Md. 466, 476, 479 A.2d 363 (1984). Lt. Cook may well be a sincere, standup guy, but in the pecking order, his views don't mean squat in a court of law.

Moreover, even assuming arguendo that Lt. Cook controls the arrest discretion for the MSP (he doesn't, but assume it), the MSP Licensing Division does not control the discretion of the Montgomery Co. and PG County police departments (just to name two rabidly anti-gun law enforcement organizations) much less the prosecutorial decisions of the State's Attorney offices in those jurisdictions (or elsewhere). As for entrapment based on Lt. Cook's statement, any lawyer (or 2nd year law student) will tell you that entrapment is a really difficult defense for the criminal defendant. It requires "a case wherein the ‘criminal design originates with the officials of the government, and they implant in the minds of an innocent person the disposition to commit the alleged offense and *** induce its commission in order that they may prosecute.’" Perkins v. State, 26 Md.App. 526, 339 A.2d 360 (Md.App. 1975). quoting Sherman v. United States, 356 U.S. 369, 372. It is a jury question. (Id.). The defense almost *always* fails. Do you trust your fate to a jury? Honestly, this is not a law school exam question; you got to think of the practical aspects.

 

[Hit and Run]

Long guns that are not AWs, not a problem. There is an issue for so called large capacity mags (over 10 rounds), AWs and handguns. For these items, it depends on what "receive" means. See http://www.mdshooters.com/showpost.php?p=2583572&postcount=7

Underage possession of a handgun is expressly permitted by Section 5-133(d) if supervised by an adult over 21, but 5-117.1 bans the receipt of a handgun by someone without a HQL. It gets more complicated for the receipt of an AW or a mag over 10 rounds, the receipt of which is flatly banned. Under federal law, "receive" means temporary possession. But receive is not defined for purposes of SB 281, so the question is open. My guess is that LEOs will not arrest for it, but I never trust the discretion of LEOs. MSI has filed comments with the MSP asking for regulatory definition and there is some informal indication from the State's AG's office that receive means permanent receipt, not temporary possession, but there is nothing formal or binding yet.

I have kids under 21, but until this is straightened out, I won't instruct anyone with handguns under the age of 21 (I am a certified pistol instructor). But then, I have a lot to lose by an arrest so I am ultra cautious. In short, if you permit it, you take your chances.

Good advice, but for me family safety trumps everything else. I taught my child to shoot a 22 pistol around 12 to ensure how he new all about handgun safety. I was not as concerned about my weapons that were locked up, but weapons of others who did not follow good protocol in the home where he might be with a friend.

 

[IMBLITZVT]

I haven't yet quite got that cynical, but fabsroman has a point. A bigger point here is that legal matters and points of construction of statutes and case law is very much something that should be left to lawyers who are trained in such matters. Non-lawyers get it wrong all the time. Not because they are unintelligent (they may be brilliant), but because non lawyers don't have either the experience or the training to come to informed decisions...

Haha, I agree with Fabsroman completely there! The mistake you guys are making is to think they did not write the law in a way they could do this on purpose. Just like the IRS, now the ATF and MSP can not throw you in jail and make up a reason later (Assuming you are a gun owner).

I would argue that in the age of lawyers, the laws have gotten worse, not better. Lets face it, the reason there are so many issues with this law is not that it was not written by lawyers but because of its very nature. This Malum prohibitum type of law builds and builds until it collapses under its own weight. Its the nature of criminalizing something not natural wrong. At some point you lose direction because there is no natural bearing, only the written word, which even when written perfectly by lawyers will still create internal discrepancies. Gun law being the worst of it because this Malum prohibitum actually conflicts with natural law which was even recognized in our Constitution. Lawyers not extremely familiar with firearms I fear would not do much better. Yes we might have a few less confusing words inserted in the text but overall, its still an extremely hard subject to create law on. Just defining Full Auto has proven extremely hard. The Akins stock is a perfect example of Man's ability to work around even the most basic idea of one shot per trigger pull.

The problem with this law is simply that it should never have been written.

 

[ddeanjohnson]

I haven't yet quite got that cynical, but fabsroman has a point. A bigger point here is that legal matters and points of construction of statutes and case law are very much things that should be left to lawyers who are trained in such matters. Non-lawyers get it wrong all the time. Not because they are unintelligent (they may be brilliant), but because non lawyers don't have either the experience or the training to come to informed decisions.

Lawyers get it "wrong" all the time, too. In fact, on virtually any legal question, one will find lawyers on both sides, and those on one side -- sometimes, the lawyers on both sides -- turn out to be "wrong." Or maybe its the judges who get it "wrong" -- but hey, they are lawyers too, and they disagree with each other all the time, training notwithstanding, not just on details but on what the whole business of judging is about.

Moreover, a lot of provisions that become law were actually written by people who are not lawyers. Yes, it's true -- there are actually many people elected to state and federal legislative bodies who do not have law degrees, and sometimes (this may come as a shock) they actually write legislative language themselves! You may say, "It shows," but actually, sometimes what non-lawyer legislators write achieves their desired purposes in a clearer and more effective fashion than some of the language produced by staff members who have law degrees. Indeed, some of the sloppiest, most ambiguous language is written by some (not all) of the professional staff lawyers who work for legislative bodies. One finds the same range of competence among lawyers as in any other field of endeavor, pretty much.

I understand very well that "transfer" and "receive" cannot mean exactly the same thing, and that there is ambiguity regarding what the parameters of "receive" may be. Much ink (or bandwidth) has been expended on this question for most of the past year, and I've expended a good deal of it myself. But for my own part, I think there is now sufficient data for a well-informed layman, even though not an initiate into the Sacred Mysteries of the bar, to conclude that he is no legal jeopardy in sharing his handguns with his children at the range, even though they do not possess Handgun Qualification licenses.

The point about Lt. Cook's written explanation of the Maryland State Police position on temporary use and bona fide loans was not that any particular police official is the final arbiter of what the law means, but that when a citizen seeks and receives such an assurance from an appropriate government official, it does indeed bear substantially on the culpability of the citizen who engages in the activity that the enforcer has assured him is lawful. There are various federal cases on this, which I have read in the past, but don't have time to look up again now. The underlying constitutional principle is that when the government places your liberty in jeopardy by enacting a criminal law, it must draw a clear line between lawful and unlawful conduct.

 

[FlatsFlite]

What's right is one thing; what's wrong is another.

The question you should ask yourselves before doing anything, "what cost am I willing to pay?" Right or wrong, it could cost you a lot, maybe your rights.

 

[esqappellate]

Lawyers get it "wrong" all the time, too. In fact, on virtually any legal question, one will find lawyers on both sides, and those on one side -- sometimes, the lawyers on both sides -- turn out to be "wrong." Or maybe its the judges who get it "wrong" -- but hey, they are lawyers too, and they disagree with each other all the time, training notwithstanding, not just on details but on what the whole business of judging is about.

Moreover, a lot of provisions that become law were actually written by people who are not lawyers. Yes, it's true -- there are actually many people elected to state and federal legislative bodies who do not have law degrees, and sometimes (this may come as a shock) they actually write legislative language themselves! You may say, "It shows," but actually, sometimes what non-lawyer legislators write achieves their desired purposes in a clearer and more effective fashion than some of the language produced by staff members who have law degrees. Indeed, some of the sloppiest, most ambiguous language is written by some (not all) of the professional staff lawyers who work for legislative bodies. One finds the same range of competence among lawyers as in any other field of endeavor, pretty much.

I understand very well that "transfer" and "receive" cannot mean exactly the same thing, and that there is ambiguity regarding what the parameters of "receive" may be. Much ink (or bandwidth) has been expended on this question for most of the past year, and I've expended a good deal of it myself. But for my own part, I think there is now sufficient data for a well-informed layman, even though not an initiate into the Sacred Mysteries of the bar, to conclude that he is no legal jeopardy in sharing his handguns with his children at the range, even though they do not possess Handgun Qualification licenses.

The point about Lt. Cook's written explanation of the Maryland State Police position on temporary use and bona fide loans was not that any particular police official is the final arbiter of what the law means, but that when a citizen seeks and receives such an assurance from an appropriate government official, it does indeed bear substantially on the culpability of the citizen who engages in the activity that the enforcer has assured him is lawful. There are various federal cases on this, which I have read in the past, but don't have time to look up again now. The underlying constitutional principle is that when the government places your liberty in jeopardy by enacting a criminal law, it must draw a clear line between lawful and unlawful conduct.

ddeanjohnson, you have done everyone a great service with your posts. I thank you and everyone else should thank you as well. As to lawyers, I take your point that lawyers disagree about everything (almost). Even with all that supposed "training," there is a winner and a loser, as one lawyer or another gets it "wrong." Yet, that point applies a fortiori to non-lawyers giving legal advice. Lawyers are at least subject to an ethical duty to investigate and to possess minimal levels of competence. You might say, with some justification, that those rules are observed in the breach, but that point applies in spades to non-lawyers who have no training, or have any ethical duty or experience. Their advice can get people in a lot of trouble. Everyone is entitled to their opinion, but I would hate to see that opinion get people into trouble. A little knowledge is more dangerous than none.

For example, your estoppel argument, based on Lt. Cook's statement, might have some force if Lt. Cook could officially speak for the MSP. He cannot and does not as that function is entrusted by law to the head of the MSP, who is empowered to issue regulations. Public Safety Article, §5-105; Criminal Law Article, Title 4, Subtitle 3; Annotated Code of Maryland. That the estoppel argument is thus restricted is well established. See United States v. Spires, 79 F.3d 464, 466 (5th Cir.1996) (holding that a defendant must show “reliance either on a federal government official empowered to render the claimed erroneous advice, or on an authorized agent of the federal government who has been granted the authority from the federal government to render such advice”); United States v. Austin, 915 F.2d 363, 366-67 (8th Cir.1990) (holding that a license to sell firearms does not “transform [pawn shop owners] into government officials, at least for purposes of the entrapment by estoppel defense”); United States v. Etheridge, 932 F.2d 318, 321 (4th Cir.1991) (holding that advice from a state court judge to a felon, that he could hunt with a gun, was not a defense to felony possession charges because “the government that advises and the government that prosecutes is not the same”); Model Penal Code § 3(b)(iv) (requiring an “official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the defense”); Lafave & Scott, Substantive Criminal Law § 5.1(3) (1984) (same). This is why MSI requested regs on this subject from the MSP officially.

You are certainly correct that the government owes its citizens discernible lines. Such uncertainty and lack of notice creates problems under the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution. See FCC v. Fox Television Stations, Inc. 132 S.Ct. 2307, 2317 (2012) (“the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. “); Fox Television, 132 S.Ct. at 2317 (“A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.’”) quoting United States v. Williams, 553 U.S. 285, 304 (2008). See also 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). Again, I invite folks to retain counsel and pursue these arguments in a suit. I would not recommend that people pursue the matter pro se.

 

[IMBLITZVT]

The question you should ask yourselves before doing anything, "what cost am I willing to pay?" Right or wrong, it could cost you a lot, maybe your rights.

Better ask yourself that question before you buy any gun. There are legal opinions out there that any thing that could be made to shoot more than 1 round at a time after 8 hours in a machine shop could be an unregistered MG with a 10 years in jail sentence. I submit to you that any gun... ANY and even most groups of gun parts could fit this definition. So are you willing to risk 10 years in jail to own a gun, any gun? This idea that one should be ultra conservative is non-sense. Follow the law as best you can, nothing more. All that extra people put into it has never saved anyone. ATF and MSP go after, those doing stupid stuff, this doing things obviously illegal, those that they want for other reasons and those unlucky enough to somehow find themselves in their cross hairs. The last one you can't help, so just worry about the first three.

 

[esqappellate]

Haha, I agree with Fabsroman completely there! The mistake you guys are making is to think they did not write the law in a way they could do this on purpose. Just like the IRS, now the ATF and MSP can not throw you in jail and make up a reason later (Assuming you are a gun owner).

I would argue that in the age of lawyers, the laws have gotten worse, not better. Lets face it, the reason there are so many issues with this law is not that it was not written by lawyers but because of its very nature. This Malum prohibitum type of law builds and builds until it collapses under its own weight. Its the nature of criminalizing something not natural wrong. At some point you lose direction because there is no natural bearing, only the written word, which even when written perfectly by lawyers will still create internal discrepancies. Gun law being the worst of it because this Malum prohibitum actually conflicts with natural law which was even recognized in our Constitution. Lawyers not extremely familiar with firearms I fear would not do much better. Yes we might have a few less confusing words inserted in the text but overall, its still an extremely hard subject to create law on. Just defining Full Auto has proven extremely hard. The Akins stock is a perfect example of Man's ability to work around even the most basic idea of one shot per trigger pull.

The problem with this law is simply that it should never have been written.

With this, I completely agree! It was said in the old USSR, it was necessary to be a "criminal" just to survive. We are not there, yet. But I fear that we are getting closer and closer. See, e.g., http://online.wsj.com/news/articles/SB10001424052748704471504574438900830760842