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Hogan urges Supreme Court denial of bump stock ban appeal

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)

An employee of North Raleigh Guns demonstrates how a bump stock works at the Raleigh, North Carolina, shop. The Maryland General Assembly banned the use of the devices in 2018, months after a gunman killed dozens of concertgoers in Las Vegas by using bump stocks to convert semiautomatic firearms into fully automatic ones. (AP File Photo/Allen Breed)

Maryland Gov. Larry Hogan on Monday urged the U.S. Supreme Court to let stand a decision that the state owes gun owners no money for having required them to surrender their bump stocks and similar devices that can be placed on firearms to make them fire faster.

Hogan, represented by the Maryland attorney general’s office, pressed the justices not to hear a gun rights group’s argument 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.

Maryland Shall Issue has petitioned the high court to review and overturn a 4th U.S. Circuit Court of Appeals 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 Circuit stated in its 2-1 decision in June.

In papers filed with the justices, Assistant Maryland Attorney General Adam D. Snyder said the 4th Circuit correctly held that the Constitution’s requirement that government compensate owners of property seized for public use does not apply when a state bans the possession of dangerous items to protect public safety.

“(F)ederal court decisions are not divided on the principal issue presented by this case: Whether compensation is due to owners of property that the state has deemed so injurious to public health or safety to merit its ban,” Snyder wrote.

“The principle makes textual sense because the Fifth Amendment prohibits the government from taking private property ‘for public use,’” Snyder added. “Here, no ‘public use’ is even potentially implicated because no one uses the banned bump stocks; they are simply prohibited, the objective being to prevent their use.”

The legal principle also “makes practical sense because the potentially prohibitive costs of paying compensation claims should not be permitted to deter a state from taking steps to address new threats to public safety.” Snyder wrote.

In its bid for Supreme Court review, Maryland Shall Issue said compensation is constitutionally due as a result of Maryland’s statutory ban on the previously lawful property of rapid-fire activators, regardless of whether the state sought to discard them rather than put them to public use under Senate Bill 707.

“(T)here is no ‘fairness and justice’ in making these lawful property owners bear all the burdens created by SB 707,” attorney Mark W. Pennak, Maryland Shall Issue’s president, wrote in the group’s petition for review filed in December. “If a ban of these lawfully acquired items is in the public interest, then the costs of the relief afforded in the public interest should be borne by the public, not imposed exclusively on innocent owners.”

Cary J. Hansel, of Hansel Law PC in Baltimore, served as Pennak’s co-counsel on the high court filing.

The justices have not stated when they will vote on Maryland Shall Issue’s request for their review. The case is docketed at the Supreme Court as Maryland Shall Issue Inc. et al v. Lawrence J. Hogan Jr., Governor of Maryland, No. 20-855.

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. Hogan, a Republican, signed the ban, SB 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.

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