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Frosh moves to dismiss bump-stock challenge, cites Las Vegas massacre

Gun-rights advocates claim due process, Takings Clause violations

Maryland Attorney General Brian Frosh. (File)

Maryland Attorney General Brian E. Frosh. (File)

Maryland’s ban on bump stocks went into effect Monday as the legal battle over the gun law’s constitutionality has shown no sign of slowing down in U.S. District Court in Baltimore.

In dueling filings in recent weeks, gun-rights advocates have contended the new prohibition on “rapid fire trigger activators” violates individuals’ constitutional rights to due process and to be justly compensated when the government takes their property, while the state has countered the law is necessary to protect public safety.

A federal judge last month rejected a bid from gun-rights advocates to prevent the law from taking effect while its constitutionality remains in litigation.

Monday also marked the first anniversary of the mass slaying at a Las Vegas country music concert where police said they found a rapid-fire accessory – popularly known as a bump stock – on firearms used to kill 58 people. The killings led Maryland’s Democratic-led General Assembly to pass the ban, the state’s Republican governor, Larry Hogan, to sign it into law and Democratic attorney general, Brian Frosh, to defend it.

“Here, in the wake of the nation’s deadliest mass shooting, Maryland exercised its police power to ban devices like those used in the Las Vegas shooting that enabled the shooter to fire off hundreds of rounds in mere minutes and that pose significant public safety risks,” Frosh wrote in papers filed Friday in the district court and signed by Assistant Maryland Attorney General Jennifer L. Katz. “Given the nation’s long history of regulating machine guns and the undisputed character of the banned devices as modifying firearms to allow them to mimic the rate of automatic weapons, the state’s exercise of its police power does not constitute a taking.”

The attorney general’s filing, a request the court dismiss the gun-rights advocates’ challenge, came in response to the advocates’ argument that constitutional rights survive even last year’s profound horror.

Frosh’s motion to dismiss “seeks to draw attention away from the state’s violation of the state and federal constitutions with allusions to a tragic event which happened thousands of miles away,” wrote the advocates’ attorney, Cary J. Hansel. “That event, while horrific, does not and cannot trump the constitutional rights at issue here. The defendant’s reliance on this tactic is a tacit admission of the weakness of the defendant’s position on the actual merits of the case.”

In addition to their takings claim, the advocates contend the law violates due process because the definition of “rapid fire trigger activators” is so vague and overbroad it is difficult for individuals and law enforcement to know what is outlawed and encourages “serious discriminatory enforcement.”

The definition includes “any device (that) increases the rate of fire” and thus could be applied to “virtually any after-market accessory that might marginally increase the rate of fire by any small amount” depending on the person firing, wrote Hansel, of Hansel Law PC in Baltimore.

“Unlike actual machine guns which do have a mechanically determinable ‘rate of fire’ … the ‘rate of fire’ for a semi-auto firearm is as fast as the trigger can be pulled for each shot and that potential ‘rate of fire’ obviously may vary substantially from person to person,” Hansel added. “That reality necessarily means that the application of (the law) varies from person to person, as a device that helps one person fire faster than normal for that person may not make a bit of difference for another person.”

Frosh, in the responsive papers filed Friday, stated the definition cannot be “read in isolation from the remainder of the statutory scheme and with no eye to the statute’s clear purpose” of preventing mass casualties.

“Here, the statutory context, structure, history, and purpose together with common sense all demonstrate that the challenged provision of the definition of a ‘rapid fire trigger activator’ … is not susceptible to the broad definition proffered by the plaintiffs that they allege renders the provision vague,” Frosh wrote. “The generic definition of a ‘rapid fire trigger activator,’ when properly read in context and with a view to its place in the overall statutory scheme, obviously was intended to reach any device that, like the specifically enumerated devices (in the statute), is constructed to allow the firearm to achieve rapid fire that mimics automatic fire by modifying or activating the trigger function.”

James K. Bredar, chief judge of the U.S. District Court for Maryland, is presiding over the case. He has not stated when he will render a decision on the state’s motion to dismiss the gun-rights advocates’ constitutional challenge.

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

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