Why does Maryland have no RKBA in the state contitution?

ELEMENT94 · Jul 15, 2018

Any know the history of this? Did it ever? Was it considered unnecessary? Did people fear it due to the end of Slavery?

I know there are a few others but for one of original 13 states not to have one seems odd to me.

iH8DemLibz · Jul 15, 2018

Muskets are bad.

teratos · Jul 15, 2018

I don't think a lot of people ever envisioned a time when people would call for the banning of guns.

Allen65 · Jul 15, 2018

The MD Constitution incorporates the entire Federal Bill of Rights by reference in Article 2 of the Maryland Declaration of Rights. I guess the framers of the MD Constitution couldn't foresee a state government that came up with an interpretation for the 2nd Amendment as warped as calling it a "collective" right, when everything else in the BoR specifically limits government authority against people.

Even if RKBA had been explicitly included in the MD document, it could still be interpreted away to meaninglessness. Like how the concept of civil seizures has somehow been found to be compatible with the 4th Amendment.

jcutonilli · Jul 15, 2018

While it does not explicitly state a RKBA, I believe it is implicit in what a militia is. This involvement in the militia is consistent with the Supreme Court opinion in Miller (307 US 174, 1939) “The Militia which the States were expected to maintain” id 178 “comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” id 179.This is reiterated in Heller.

iH8DemLibz · Jul 15, 2018

The internet says: The Declaration Of Rights For The Free State Of Maryland covers the right to keep and bear arms.

fidelity · Jul 15, 2018

teratos said:
I don't think a lot of people ever envisioned a time when people would call for the banning of guns.

It's likely this in part. The states controlled by Federalists viewed some rights to be self evident. That's why the amendments were add ons and not in the original writing of the Constitution. States with strong anti Federalist factions said that they would not sign to accept the Constitution without the protections being spelled out, even if no one questioned some of these rights.

People had guns in their homes. They took them between homes. They used them for defense, for food, and for fun. The states had fought a war against the British who were trying to disarm them before the fight began. They won a war with guns, a number which were privately held.

Of course many likely felt that it was self evident that the former colonists should and would retain their guns in perpetuity and no state or federal power would feel emboldened to take them from them. The Federal government was a much weaker entity at that time.

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J1911 · Jul 15, 2018

iH8DemLibz said:
The internet says: The Declaration Of Rights For The Free State Of Maryland covers the right to keep and bear arms.

I don't think Annapolis reads it that way.

Mr H · Jul 15, 2018

iH8DemLibz said:
The internet says: The Declaration Of Rights For The Free State Of Maryland covers the right to keep and bear arms.

Then we need to beat Maryland over the head with the internet.

Biggfoot44 · Jul 15, 2018

Post #4 has the answer .

jcutonilli · Jul 15, 2018

Allen65 said:
The MD Constitution incorporates the entire Federal Bill of Rights by reference in Article 2 of the Maryland Declaration of Rights. I guess the framers of the MD Constitution couldn't foresee a state government that came up with an interpretation for the 2nd Amendment as warped as calling it a "collective" right, when everything else in the BoR specifically limits government authority against people.

Even if RKBA had been explicitly included in the MD document, it could still be interpreted away to meaninglessness. Like how the concept of civil seizures has somehow been found to be compatible with the 4th Amendment.

Biggfoot44 said:
Post #4 has the answer .

According to Kolbe "Unlike most other States, Maryland has never recognized the right to keep and bear arms in its constitution." This statement indicates that Kolbe does not share your interpretation.

I have never understood the hostility of the collective right. I am a member of the public (collective) so I have that right.

The problem with the individual right is that they give way when public safety is involved.

I don't understand why there is any real difference between self defense and public safety. They are two sides of the same issue.

Adolph Oliver Bush · Jul 15, 2018

jcutonilli said:
I don't understand why there is any real difference between self defense and public safety. They are two sides of the same issue.

At least one state gets it. Utah CC permits are issued by the Department of Public Safety. From that, i infer self defense promotes public safety.

Docster · Jul 15, 2018

Does the "why" matter at all? We have to deal with the present reality.

kenpo333 · Jul 15, 2018

Only 40 states have the right to bear arms in their constitiution. It's interesting to me that New Your, New Jersey, and Maryland *three of the original) have gone the way of socialism on this matter. Delwares seem to be slipping to the left as well and they didn't really want any federal government in 1776.

jcutonilli · Jul 15, 2018

Docster said:
Does the "why" matter at all? We have to deal with the present reality.

We do need to deal with the present reality. The question is how to deal with it. Understanding why the MD Constitution is written the way it is allows one to address the lack of any explicit right.

If you look at how it is negatively construed, you may be able to offer counter arguments.

Here is a typical negatively construed argument (from Giffords Law Center).

The Maryland Constitution contains no explicit provision conferring a “right to bear arms.” Article 28 of the Maryland Declaration of Rights provides “[t]hat a well regulated Militia is the proper and natural defence [sic] of a free Government.”

In Scherr v. Handgun Permit Review Board, an appellate court held that article 28 creates no individual right to bear arms.1 The court stated: “[t]he Maryland Declaration of Rights is silent as to the right to bear arms. [There is no case that] supports the proposition that the mere fact that a constitution provides for the establishment of a militia means that the citizens have a right to bear arms.”2

The Maryland Attorney General also has discussed the scope of article 28.3 The Attorney General was asked to opine whether a certain bill would violate Article 28. That bill would have required the licensing of handgun purchasers and placed restrictions on the purchase of handguns and ammunition and on the manufacture or transfer of assault weapons. The Attorney General concluded that the proposed bill was not inconsistent with article 28, stating that “[g]iven the omission of any language referring to a right to bear arms,” a court would likely construe Article 28 “as nothing more than a directive to the General Assembly to provide for a militia.”4

Given the historical link between the militia and arms, I don't understand how one can argue that there is no link.

If you look at how public safety was achieved, you will find that the people provided it. From the MSP website

Under English common law, every person had an active responsibility for keeping the peace. This was a vital principle in colonial Maryland, a fledgling society with no police or peace officers. The responsibility included crime prevention through vigilance and the apprehension of suspected lawbreakers by groups of persons raising the "hue and cry" or the more official "posse comitatus." Persons whose previous behavior indicated that they were at risk of breaking the peace could be taken before a local court or magistrate and bound over to keep the peace, thereby, in theory, preventing crime.

If you don't offer compelling arguments you are going to loose your rights.

Mark75H · Jul 16, 2018

ELEMENT94 said:
Any know the history of this? Did it ever? Was it considered unnecessary? Did people fear it due to the end of Slavery?

I know there are a few others but for one of original 13 states not to have one seems odd to me.

MD's Consitution was 100% rewritten in modern times, its nowhere near that old. This was done post 1968 by Uncle Louie & company.

TexDefender · Jul 16, 2018

I would argue that though the Maryland State Constitution does not specifically state an individual has a right to keep and bear Arms, it certainly does not exclude it. I would say that almost all individuals at that time owned at least one fire arm, they have forgotten that during that time period it was still a relatively hostile frontier. The vast majority of the People still hunted, and the threat of attack by hostile Indians was a possibility. People's view of firearms at that time was like having a plow, a hammer, or ax. It was a necessary tool. This is not to mention the populous had just fought and won a war with the UK. This was no doubt fresh in their minds as well. Addtionally, it seems that Maryland Consitution was re-written a few times. The last time in the middle of the Civil War, and it barely was adopted. The argument presented by the Giffords Law Center, is quite frankly, a teenagers approach. It's not written down so I can do it. Well it doesn't say you can either. Not everything can be written down in print. We all have to remember that the Constitution is the "Supreme" law of the land, therefore one cannot detract from it, but may add to it. So you can't limit the right. Maryland does have an Militia, that is ran by the state, sponsored by the state. However, I haven't seen where they bear or train with a Firearm. It seems to be limited to a few support role that have little or no chance of being in a situation where a firearm would be needed. Additionally, this state organization is fairly well hidden. No doubt to keep it's role limited (my belief), due to lack of interest, or simply not aware of it's lack of presence.

Mike · Jul 16, 2018

Much discussion and many historical references are contained in these other threads. I think it basically results from MD voters not caring enough to be informed about what goes on in the MGA. I think we have a lot of transient gov employees who come to the area to get their HQ time in and just don't care about the politics around here as long as the lights and their HBO stay on.

Why is Maryland so anti-gun?
https://www.mdshooters.com/showthread.php?t=142427

history: "Reasonable precaution against apprehended danger"
https://www.mdshooters.com/showthread.php?t=180629

teratos · Jul 16, 2018

Shouldn't McDonald negate this discussion, since it incorporated the 2A against the States?

Allen65 · Jul 16, 2018

teratos said:
Shouldn't McDonald negate this discussion, since it incorporated the 2A against the States?

It should. But the antis have a supermajority in the MGA, and they'll interpret that, and any other court decision or statute, in a way that leads to their desired endstate. And that's an end to private ownership of firearms and a UK-like legal view of any attempt at self defense.

Why does Maryland have no RKBA in the state contitution?

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