The state of Maryland owes gun owners financial compensation for having required them to surrender their bump stocks and similar devices they can place on their firearms to make them fire faster, a gun rights group stated in papers filed last week with a federal appeals court.
Maryland Shall Issue said the state’s 2018 ban on “rapid fire trigger activators” amounted to a governmental “taking” of personal property for which the owners are owed “just compensation” under the federal and state constitutions.
A divided three-judge panel of the 4th U.S. Circuit Court of Appeals rejected that argument last month, saying the government owes compensation only when it or a designated third party puts that property to public use, such as the construction of a school, hospital or road. With its ban, Maryland sought to destroy the activators — not put them to use — the panel stated in its 2-1 decision.
In its recent filing, Maryland Shall Issue – and individual gun owners – are urging the full 4th Circuit to review the panel’s decision and hold that the takings clause of the U.S and Maryland constitutions apply more broadly and include a governmental ban on property that the government simply wants to take from the owner and discard.
“It matters not a whit that the government did not put the property into its own pocket or that of a third party,” stated Maryland Shall Issue President Mark W. Pennak and attorney Cary J. Hansel, of Hansel Law PC in Baltimore.
“When plaintiffs lawfully purchased these items, they acquired the exclusive right to possess, use, and transfer, just like any other item of lawful personal property” protected by the takings clause, Pennak and Hansel added. “Indeed, to conclude otherwise would mean that personal property is never protected by the Takings Clause…as no purchaser could acquire any protected right in the item purchased. The state would be free to ban, without compensation, any and all personal property at its whim and caprice.”
The 4th Circuit has not stated when it will rule on Maryland Shall Issue’s request for full-court review. The case is docketed at the 4th Circuit as Maryland Shall Issue Inc. et al. v. Lawrence Hogan et al., No. 18-2474.
Pennak, the group’s president, said Monday that he would appeal the case to the U.S. Supreme Court if he loses in the 4th Circuit.
The appeal would present “a pretty big, important issue” that would warrant review by the justices: “If they (the government) can take your bump stocks, they can take your car,” Pennak said, noting that automobiles are more heavily state regulated than firearm accessories.
Maryland’s Democratic-led legislature passed the bump stocks ban just months after police found the rapid-fire accessory was used in the mass slaying of 58 people at an outdoor country music concert in Las Vegas in October 2017. Republican Gov. Larry Hogan signed the ban, Senate Bill 707, into law in April 2018, prompting Maryland Shall Issue’s constitutional challenge in Baltimore federal court.
U.S. District Judge James K. Bredar ruled in November 2018 that the ban fell within the state’s police powers and did not constitute a taking of property.
“The Maryland legislature considered the ability of bump stocks and similar devices to inflict mass injury and mass casualties with great speed, as well as their use to horrific effect in Las Vegas,” Bredar wrote in a memorandum opinion. “It then concluded that these devices pose such an unreasonable risk to public safety that they should be banned from Maryland.”
If just compensation were required for such prohibitions, “public safety regulations would be permanently frozen in the past, and states would be inhibited from addressing new threats to the public, no matter how grave,” Bredar added. “The Constitution does not tie the hands of state governments to such crippling effect.”
The divided 4th Circuit panel, in affirming Bredar’s decision, said the state did not take the rapid fire activators but rendered them valueless through its “traditional high degree” of regulatory control to protect public safety.
“We can think of few types of personal property that are more heavily regulated than the types of devices that are prohibited” by the ban, wrote Judge Stephanie D. Thacker, joined by Judge Henry F. Floyd.
In dissent, Judge Julius N. Richardson called Maryland’s ban a “classic taking of private property” by the government.
“I do not doubt the sincerity of the Maryland legislature passing this ban,” Richardson wrote. “But in my view it requires paying just compensation. By banning ‘rapid fire trigger activators’ without exception, Maryland law destroys the panoply of property rights that private owners previously enjoyed – including possession, use, and devise.”
Maryland Attorney General Brian E. Frosh’s office, which has repelled Maryland Shall Issue’s legal challenge, pressed for the ban in written testimony to legislators after the mass slaying in Las Vegas. The office stated 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.”