- Nov 11, 2009
- 31,018
The good, the bad, the ugly, from today's MSI email:
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END OF SESSION REPORT 2024 | |
| As usual the General Assembly Session was horrid. The major anti-gun bill that passed this year was House Bill 947, which attempts to do an end-run around immunity from suit accorded to the firearms industry by federal law, the Protection of Lawful Commerce in Arms Act (“PLCAA”). It does so by providing that a firearm industry member (defined to include manufacturers, distributors, marketers and dealers) may not “knowingly create, maintain, or contribute to harm to the public through the sale, manufacture, distribution, importation or marketing of a firearm, ammunition, or a firearms accessory “by engaging in conduct that is (1) unlawful, or (2) unreasonable under the totality of the circumstances.” In short, under this Bill, completely lawful conduct may still be deemed by the State to be “unreasonable” and thus illegal under this Bill. What is “unreasonable” or “harm to the public” is left completely undefined so it is an open invitation for the State to make it up as it goes along in litigation. Industry members are made subject to injunctive relief, compensatory damages and punitive damages under the Bill. The law would go into effect on June 1, 2024. The Bill also requires industry members to have “reasonable controls” with respect to “the sale, manufacture, distribution, importation, marketing, possession, and use of the firearm industry member’s firearm–related products.” The “reasonable controls” are defined by the Bill to mean “policies that are designed to prevent” illegal sales, such a straw purchases or other types of illegal purchases. These “policies” must also “ensure” that each industry member “complies with all provisions of state and federal law and does not otherwise promote the unlawful sale, manufacture, alteration, importation, marketing, possession, or use of a firearm–related product.” Thus, under this Bill, merely complying with the law is insufficient. Rather, additional, undefined “policies” are now required of all industry members. Again, the sufficiency and content of these “policies” is left to the tender mercies of the State. The Bill imposes no guidelines or standards. The Bill allows enforcement by the Attorney General of Maryland and by each of the Counties and the City of Baltimore. You can be sure that this law will be put to abusive ends, just as such suits were being abused prior to the enactment of PLCAA by Congress in 2005. The inference is clear that the State will seek to make industry members liable for “harm to the public” resulting from the criminal misuse of firearms, precisely the kind of suit expressly forbidden by PLCAA. That was made clear by the lead sponsor of the Senate cross-filed Bill (SB 488) who stressed that, in his view, Glock is a “bad actor” in the industry and would be targeted by this Bill because Glock pistols are being illegally converted by criminals into full auto handguns. The permissibility of such laws under PLCAA is being litigated in other States (like New York and Illinois) which have enacted similar laws and you can be sure that the PLCAA defense will be asserted in the first suit filed by the State (or Counties or Baltimore) under this Bill. MSI opposed this Bill with extensive written and oral testimony, pointing out all the flaws in 19 pages of single-spaced, written legal analysis. That testimony can be found in the MSI Bill Tracker on our website (see below). There is good news. Senate Bill 784 failed to become law. As amended and passed in the Senate, that Bill would have imposed an 11% sales tax on the purchase of firearms, ammunition and firearms accessories (like optics and body armor). Such sales are already subject to Maryland’s general 6% sales tax. An 11% sales tax would have effectively put most of the retail dealers in Maryland out of business, as it would make them completely uncompetitive without out-of-state dealers, such as in Delaware where the sales tax is zero. That Bill was passed by Senate over bipartisan opposition, but, fortunately, the Bill died in the House Ways and Means Committee. MSI filed extensive written testimony on this Bill and testified orally in opposition, pointing out that the State may not impose a special tax on the exercise of a person’s Second Amendment right to acquire a firearm and ammunition and that any such tax would be immediately be challenged in the courts. You can find that testimony in the MSI Bill Tracker. Other bad bills likewise failed to pass. One Bill (HB 430) would have would require a person who wears or carries a firearm (permit holders and everyone else, including hunters), to obtain $300,000 liability insurance for accidents arising from the person’s storage or use of a firearm. A failure to obtain and maintain such insurance would be punishable by eliminating the constitutional right to merely possess any firearm. That Bill died in Committee in the face of our testimony that made clear that such a requirement would not survive a court challenge. Two other Bills (HB 546 and SB 324) would have required a permit holder to take additional training if that person had an unintended discharge of a firearm, regardless of the reason (including a mechanical failure). That Bill likewise failed to emerge from Committee after we pointed out the unconstitutionality of that requirement. A proposed amendment to another Bill would have required dealers to turn over to the State Attorney General all trace requests made by the ATF. That language was dropped after we pointed out that such a requirement would be directly contrary to federal law (the 2012 “Tiahrt Rider” enacted by Congress) which bars the disclosure of such trace requests or any use by anyone other than the ATF in otherwise legitimate investigations by the ATF. As usual, none of the good Bills made it through the General Assembly. The General Assembly even failed, once again, to enact legislation that would have made the knowing possession of a stolen firearm a felony, even though versions of such legislation made it through both the House and the Senate in different forms (HB 346 and SB 1097). Under current law, theft of a firearm is treated like the theft of any other type of property. If the value of the firearm is less than $1,500, the theft is a minor misdemeanor which is typically punished by probation on the first and second offense. More likely, the thief is never prosecuted. The State professes to be worried about stolen firearms (a concern we share) but once again the General Assembly has failed to punish the thieves or to deter thefts of firearms. A House Bill (HB 1178) that would have allowed permit holders to carry in State forests and State Parks, just as permit holders may carry in the National Park System under federal law, failed to get out of Committee. Hundreds of thousands of acres of rural state forest and park lands thus remain off limits to permit holders because of State regulations. Two other House Bills (HB 268 and HB 269) would have clarified Maryland law of expungement to make clear that Maryland’s expungements would be given full force and effect for the HQL and carry permits and for the NICS check. Curlrently, the FBI is refusing to recognize or give effect to Maryland expungements when doing NICS checks. That injustice continues, but the General Assembly failed to enact a remedy with a simple and uncontroversial clarification of Maryland law that would have been sufficient to satisfy the FBI. Another House Bill, HB 684, would have rationalized Maryland ban on carry without a permit in such a way as to encourage otherwise law-abiding, non-disqualified individuals to obtain a permit instead of being thrown in jail for up to 5 years for carrying without a permit. None of these bills even received even so much as a Committee vote. Look to MSI’s Bill Tracker for infornation, including MSI testimony, on all of these and other bills. https://www.marylandshallissue.org/jmain/legislation-tracker/bill-tracker. The Tracker identifies the sponsors for each bill. You can use that information when you go to vote or when you speak or correspond with your representatives. Speak up, get involved in this process and make your voice heard! Sponsors of good bills deserve your support. Your representives who sponsor or vote for bad bills would plainly benefit from civil discourse. At a minimum, if you are not a member of MSI, join now and stop being a free rider. MSI needs your support. |
