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Judge rejects bid to block Md. bump-stock ban from taking effect

FILE - In this Feb. 1, 2013, file photo, an employee of North Raleigh Guns demonstrates how a "bump" stock works at the Raleigh, N.C., shop. The gunman who unleashed hundreds of rounds of gunfire on a crowd of concertgoers in Las Vegas on Monday, Oct. 2, 2017, attached what is called a "bump-stock" to two of his weapons, in effect converting semiautomatic firearms into fully automatic ones. (AP Photo/Allen Breed, File)

In this Feb. 1, 2013, file photo, an employee of North Raleigh Guns demonstrates how a “bump” stock works at the Raleigh, N.C., shop. (AP Photo/Allen Breed, File)

Maryland’s recently enacted ban on attachments that enable guns to fire more rapidly will go into effect as scheduled Oct. 1 after a federal judge Friday rejected a bid from gun-rights advocates to block enforcement of the law while its constitutionality remains in litigation.

Chief U.S. District Judge James K. Bredar said the law’s taking effect will not “irreparably harm” those possessing what are popularly called bump stocks because the statute grants them a one-year waiver from the ban by simply applying for permission from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

“What can possibly happen to your clients on the first of October that would be harmful to them in an irreparable way?” Bredar asked Cary J. Hansel, attorney for the group Maryland Shall Issue Inc. “The statute is very simple. You have to apply.”

Hansel, of Hansel Law PC in Baltimore, argued in vain the application process is essentially meaningless because the ATF has said it has no process for reviewing applications to keep the rapid-fire attachments, including bump stocks.

But Bredar said the existence of ATF review is irrelevant; all that is required to get the waiver – and prevent the alleged irreparable harm – is that the owners apply to the bureau. Bredar likened the distinction to a person applying for a job at 7-Eleven, even though the store is not currently accepting employment applications.

“The word ‘apply’ is a very general term,” Bredar said. “It doesn’t take much to ‘apply.’”

The application is the statute’s “escape hatch” that “eliminates the potential for irreparable harm” to attachment owners, added the judge.

Bredar said his decision Friday was limited only to Maryland Shall Issue’s request for an order temporarily restraining the law from going into effect during the litigation.

The ruling does not end Hansel’s federal-court challenge to the law as violating the owners’ constitutional rights to due process and as an unconstitutional governmental taking of property without just compensation.

In particular, Bredar said he remains somewhat receptive to Hansel’s argument that the statute’s definition of “rapid fire trigger activators” is unconstitutionally vague, making it unclear to gun owners whether routine steps they might take to make their weapons easier to shoot violate the law.

“We have a long road ahead of us in this case, I suspect,” Bredar said.

Hansel said in an email Friday afternoon his client looks forward to “resolving the matter on the merits.”

“In the meantime, we are considering all options to protect the constitutional rights of Marylanders,” he said.

Maryland Shall Issue filed its lawsuit shortly after Gov. Larry Hogan signed Senate Bill 707 into law on April 24. The statute will prohibit individuals from manufacturing, possessing, selling, offering to sell, transferring, purchasing or receiving a “rapid fire trigger activator.”

The bill’s passage by a Democrat-led General Assembly and approval by a Republican governor followed the mass slaying last October at a Las Vegas country music concert where police said they found the rapid-fire accessory on firearms used to kill 58 people.

Maryland Attorney General Brian E. Frosh’s office, which successfully challenged Maryland Shall Issue’s bid for a temporary restraining order, stated in written testimony to legislators last winter that “outlawing devices that allow a mass shooter to fire at a rate simulating automatic fire is an important addition to Maryland’s comprehensive firearm safety laws that protect the public and law enforcement from firearms violence.”

In its lawsuit, Maryland Shall Issue calls the law unconstitutionally vague because several terms are undefined, including “’any device’ that increases ‘the rate of fire’ by any amount,” “’installed in or attached to a firearm’” and “’binary trigger system or burst trigger system or a copy or a similar device.’”

The statute is “so vague that it does not provide fair notice of the conduct it proscribes,” according to the complaint. “These terms fail to provide standards to govern the actions of police officers, prosecutors, juries, and judges and thus will impermissibly lead to the risk of arbitrary and capricious law enforcement in violation of the Due Process Clause of the (federal Constitution’s) Fourteenth Amendment.”

In addition, owners stripped of their rapid-fire accessories by the law are owed just compensation, or fair market value, for the loss of their property under the Takings Clause of the federal and Maryland constitutions, the complaint states.

The case is Maryland Shall Issue Inc. et al. v. Lawrence Hogan, No. 1:18-cv-01700-JKB.


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