Maryland – -(AmmoLand.com)- 1. Litigation Updates: The HQL Suit Update
That suit was filed to challenge the Handgun Qualification License requirement and State Police regulations that ban Maryland residents from purchasing a handgun unless they jump through all the training, fingerprinting and application hoops imposed by the so-called Firearms Safety Act of 2013. We challenged these requirements on multiple grounds, including the Second Amendment, Due Process (vagueness) and ultra vires grounds. On August 17, 2018, Maryland moved for summary judgment on all of the plaintiffs’ claims. On October 5, 2018, we filed our opposition to the State’s motion and our own cross-motion for summary judgment. The memorandum in support of that opposition and cross-motion can be found HERE. The state may file an opposition to our motion by November 9, 2018, and we are entitled to file a supporting reply on November 30, 2018. At some point, as yet unscheduled, the district court will likely hold an argument on these motions.
The Bump Stock Litigation Update
As previously reported, MSI and several individual plaintiffs have challenged Senate Bill 707, the so-called “Bumpstock” law. The law takes effect on October 1, 2018. That law bans the mere possession of not only listed “devices” such as a bump stock, but also purports to ban the possession of any “device” (not defined) that may increase the “rate of fire” (not defined) of any firearm (not limited to semi-autos) by any amount. The suit alleges that the ban on possession constitutes an illegal taking without just compensation under both the Federal and State Constitutions. The ban on any device that increases the rate of rate is also challenged as vague under the Due Process Clause. Plaintiffs moved for a preliminary injunction in September, but the judge ruled that we had not shown “irreparable injury” because, under one part of SB 707, persons subject to these bans could retain possession if they applied to the ATF by October 1, 2018 and received authorization by October 1, 2019. ATF has, of course, publically announced that it would not receive or process any such applications, but the judge didn’t care because, under his reading of SB 707, only an application was necessary by October 1, 2018. So we did. Our best guess is that the ATF has received literally thousands of these applications, all of which the ATF has returned or will be returning to the “applicant” (thereby affording “proof of application” for that person that they “applied” to the ATF under SB 707). The State has also filed a motion to dismiss and we have filed an Opposition (HERE). The State then filed a Reply. The State’s motion is still pending before the court.
The First Amendment Litigation
The First Amendment protects the right to advocate on behalf of the Second Amendment. So when two MSI members were arrested on the sidewalks of Annapolis for holding edgy signs that criticized the powers that be in the General Assembly, MSI and those two individuals filed suit in federal court for a violation of their First Amendment rights and for false arrest. True to form, the State filed a motion to dismiss, we filed an opposition (HERE) and the State filed a Reply. That case is still pending in federal court. We are likely to receive a decision on the motion to dismiss relatively soon.
Challenges to “Good Cause” Requirements for Carry Permits.
There are four cases presently pending in the federal courts challenging state “good cause” requirements for the issuance of a carry permit. Those cases were brought in Maryland, New York and New Jersey. In each one of those cases, the complaints acknowledged that binding circuit precedent would bar the relief there sought and averred that the suits were brought for the purpose of overturning that precedent (presumably, either en banc or in the Supreme Court). These cases seek to take advantage of the circuit split created by the D.C. Circuit's decision in Wrenn v. DC. There is also pending in the First Circuit a challenge to the Massachusetts good cause requirement in its carry permit statute. That case, Gould v. Morgan, No. 17-2202 (1st Cir.), was argued on July 25, 2018 and is currently pending in that court.
In the Maryland litigation, Malpasso v. Pallozzi, No. 18-1064 (D. MD), the district court recently granted the State's motion to dismiss, holding that the case was controlled by the Fourth Circuit's decision in Woollard v. Gallagher, in which the court sustained the facial validity of the “good and substantial reason” requirement. That dismissal was entered on October 15, 2018, and the case now goes on appeal the Fourth Circuit.
The New Jersey case, Rogers v. Attorney General of NJ, is furthest along. Applying binding precedent (Drake v. Filko), Third Circuit summarily affirmed dismissal of that case in a one line order entered on September 21, 2018. The 90 days for filing a petition for certiorari to the Supreme Court started on that date. The New York case, NYSRPA v. Beach, No. 18-134 (N.D.N.Y.), is still pending in district court on the defendents' motion to dismiss which urges dismissal on basis of the Second Circuit's prior decision in Kachalsky v. City of Westchester. We hope that one of these cases will make it to the Supreme Court and definitively resolve the standard for assessing the constitutionality of these “good cause” requirements under the Second Amendment. Stay tuned for further developments.
2. Medical Marijuana
MSI President, Mark W. Pennak, recently appeared on Fox News WBFF45 to discuss federal and state law on medical marijuana and the risk that poses to possession of firearms under federal law.
Additionally, we testified before the General Assembly on this issue and we have an article on this subject. If you are wondering how this affects you, please email us!
3. Attorney General Frosh and the Maryland Defense Act
Attorney General Frosh is in a tightening race with challenger Craig Wolf for Maryland Attorney General. One of the issues in that contest is Craig Wolf’s contention that that AG Frosh is busy filing suits focused on the federal government rather than tending to the needs of Maryland. The two candidates had an interesting debate on that and other topics recently. Under our by-laws, MSI is non-partisan and does not endorse or oppose any candidate. But part of our mission is to provide information to our members. So here is some background on this dispute between AG Frosh and Craig Wolf. Bear with us, as this gets a little complicated.
On February 15, 2017, the Maryland General Assembly passed a Joint Resolution, known as the “Maryland Defense Act of 2017.” That broad joint resolution gave the Maryland Attorney General the authority to bring any suit “based on the federal government’s action or inaction that threatens the public interest and welfare of the residents of the State.” Since then, Attorney General Frosh has stated that he has brought more the 20 lawsuits against the federal government. Indeed, the Attorney touts these lawsuits in a publication. The Attorney General says that these cases were not political. So let’s look at a few of those cases, bearing in mind the truism that the AG’s Office, like all government offices, has scarce resources and that money spent on Activity X is money that cannot be spent on Activity Y. It is a zero-sum game.
- Number one on the Attorney General’s list is Washington v. Trump, a case in which the President issued an executive order requiring special vetting on travelers from Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, countries which are either hostile to the United States or in which civil government simply has broken down. That case was one of several cases that challenged the President's order. The plaintiffs (including Maryland) lost these challenges in the Supreme Court in Trump v. Hawaii, 138 S.Ct. 2392 (2018). It is not immediately clear how the Administration’s travel restrictions on travelers from these countries “threaten” the “residents” of Maryland. But the AG apparently thought so. In any event, he assures us that the case was not “political.” Right.
- Second on the AG’s list is Alliance of Automobile Manufacturers v. EPA, No. 17-1086 (D.C. Cir.), challenging an EPA vehicle emissions rule. Yet, a look at the actual court docket in that very case shows that the case cited by the AG was brought by other petitioners (not the AG) on March 13, 2017, and voluntarily dismissed by petitioners two weeks later, on March 29, 2017. Only California actually intervened in the case, not Maryland. It’s not clear why the AG is claiming participation in that case. Maybe he is thinking of another case.
- Another case touted by the AG is a suit against the President that purports to enforce the Emolument Clauses of the Constitution that is supposedly based on “President Trump’s myriad international and domestic business entanglements.” This case was brought by the AG and by the District of Columbia. Yet, the federal district court limited that case, in an order entered on March 28, 2108, to issues allegedly arising from the President’s ownership of Trump Hotel in DC. It is hard see how the residents of Maryland are “threatened” by that hotel or why the AG felt the need to insert himself into the litigation. Indeed, until the AG’s case was brought, the Emolument Clauses had never been litigated in modern times. We cannot help but wonder how this case is this anything other than “political?” And again, why does this suit warrant resources over the needs of, for example, Baltimore? Maybe the AG can explain better.
- The AG also states that his office challenged the President’s executive order revoking President Obama’s executive order over Deferred Action for Childhood Arrivals (“DACA”). The AG does not give a citation and perhaps there is a reason. There is a Maryland case, but all the plaintiffs are private organizations, like CASA De Maryland, or private individuals. CASA De Maryland v. DHS, No. 17-2942 (D. MD.). The federal district court held that a program instituted by executive order could be rescinded by executive order (and thus President Trump was free to rescind DACA). That order is on appeal in the Fourth Circuit (Nos. 18-1521, 18-1522) but Maryland is not a party in district court and Maryland is not a party or amicus on that appeal. So, what case is the AG talking about? We wish we knew.
- The AG says he has moved to intervene in administrative proceedings in the Federal Energy Regulatory Commission (FERC) in Washington DC to challenge a filing made by the US Dept. of Energy asking FERC to propose a new rule designed to promote electric grid reliability and resilience pricing for the benefit of coal and nuclear power plants. FERC eventually ruled that further investigation of grid resilience issues is warranted. This subject is beyond arcane, but more on point, how is this issue more pressing than Baltimore? And since when has the AG become a FERC lawyer? AG Frosh’s private law firm, Karp, Frosh, Lapidus, Wigodsky, & Norwood, P.A , specialized in business litigation, commercial litigation, and real estate law. Not exactly preparation for extremely complex administrative rulemaking proceedings under the Federal Power Act in front of FERC.
These are just a few examples. Take your pick from the AG’s published list and decide for yourself whether the AG Office's resources are best used for that purpose. But be sure to investigate the matter because, as the examples listed above suggest, the AG’s assertions don’t always match up with the facts.
4. Southern Maryland Wear and Carry Permit Seminar Friday!
MSI will be hosting a southern Maryland meetup on Friday, October 26 from 5:30-8:30. The meet-up will be held at:
J2 Defense, LLC
97 Skipjack Road, Suite 1
Prince Frederick, MD 20678
For more information, see our flyer!
5. Lots of Gun Shows in November!
MSI will be attending three gun shows in November: Jarrettsville VFW, Frederick County Fairgrounds, and another Chantilly gun show. We really appreciate those who come out and volunteer, and we will need a LOT of volunteers this coming month. If you are able, please volunteer! Those who do get free admission to the show! Send an email to [email protected] with your contact information. Thanks!
6. December Membership Meeting
MSI will be holding a quarterly membership meeting on December 1, 2018, at the Annapolis Elk's lodge. The membership meeting will start at 1:30 pm. More details to come!
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About Maryland Shall Issue:
Maryland Shall Issue is an all volunteer, non-partisan effort dedicated to the preservation and advancement of all gunowners’ rights in Maryland, with a primary goal of CCW reform to allow all law-abiding citizens the right to carry a concealed weapon; and to the education of the community to the awareness that ‘shall issue’ laws have, in all cases, resulted in decreased rates of violent crime.