A gun-rights group will urge the U.S. Supreme Court to rule that Maryland owes gun owners money for having required them to surrender their bump stocks and similar devices they can place on their firearms to make them fire faster, the organization’s president said Monday.
Maryland Shall Issue will argue to the justices that 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 U.S. Constitution, Mark W. Pennak said.
The group will press its case in asking the high court to review and overturn a federal appeals court’s ruling that Maryland owes no compensation because neither the state nor a designated third party put the “taken” property – activators – toward a 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 4th U.S. Circuit Court of Appeals stated in its 2-1 decision in June.
Maryland Shall Issue’s move to seek Supreme Court review followed the 4th Circuit’s denial without comment last week of the group’s request that the court’s full complement review and reverse the three-judge panel’s decision. Barring the justices’ grant of a request for more time, Maryland Shall Issue must file its petition for Supreme Court review by Nov. 2, 90 days after Aug. 4 – the date the 4th Circuit issued its mandate on the 2-1 decision.
If left unchecked by the Supreme Court, the 4th Circuit’s decision would permit the government to enact laws enabling it to take other personal property – such as cars – in the name of protecting public or environmental safety and not provide financial compensation, Pennak said.
“That’s a rather remarkable ruling,” he added in explaining Maryland Shall Issue’s coming bid for Supreme Court review.
In its rejected bid for full 4th Circuit review, Maryland Shall Issue argued in court papers that “it matters not a whit that the government did not put the property into its own pocket or that of a third party.”
In purchasing bump stocks or similar activators, the owners “acquired the exclusive right to possess, use, and transfer, just like any other item of lawful personal property,” Pennak wrote with his co-counsel, Cary J. Hansel of Hansel Law PC in Baltimore.
“Indeed, to conclude otherwise would mean that personal property is never protected by the (Constitution’s) Takings Clause…as no purchaser could acquire any protected right in the item purchased,” the attorneys told the 4th Circuit in vain. “The state would be free to ban, without compensation, any and all personal property at its whim and caprice.”
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 4th Circuit agreed in Maryland Shall Issue Inc. et al. v. Lawrence Hogan et al., No. 18-2474.
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.”