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Gun group makes last bid for justices’ review of Md. bump stock ban

The gun right group maintains that the state’s ban on bump stocks and other “rapid-fire trigger activators” devices amounts to a “taking” of private property for which “just compensation” is constitutionally owed. (AP Photo/Allen Breed, File)

The gun rights group maintains that the state’s ban on bump stocks and other “rapid-fire trigger activators” amounts to a “taking” of private property for which “just compensation” is constitutionally owed. (AP Photo/Allen Breed, File)

Maryland cannot avoid its constitutional obligation to financially compensate gun owners for having forced them to surrender what had been lawfully possessed devices to make their firearms fire faster just because they had become “politically unpopular property,” a gun rights group told the U.S. Supreme Court this week.

In papers filed with the justices, Maryland Shall Issue said the state’s ban on bump stocks and other “rapid-fire trigger activators” amounts to a “taking” of private property for which just compensation is constitutionally owed despite the state’s defense that the prohibition fell within its police power to protect public safety.

The authority to take formerly lawful property without paying compensation arises only when the owner intends to put the property to harmful use, which the government cannot show in its blanket ban on “mere possession by innocent owners” of the activators, wrote MSI President Mark W. Pennak, an attorney.

MSI’s filing marked its final arguments before the Supreme Court decides whether to hear the group’s appeal of 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.

The justices are scheduled to consider MSI’s request for their review at a private conference on April 30. 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.

Last month, Maryland urged the justices to let the 4th Circuit’s decision stand, stating that the appeals court 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.

“The principle makes textual sense because the Fifth Amendment prohibits the government from taking private property ‘for public use,’” Assistant Maryland Attorney General Adam D. Snyder wrote in the state’s filing. “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.”

Snyder noted that 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. Gov. Larry Hogan, a Republican, signed the ban, SB 707, into law in April 2018, prompting Maryland Shall Issue’s constitutional challenge.

Responding to the state’s filing, MSI told the justices that the Supreme Court has upheld the public safety defense against paying compensation when property was taken and destroyed to prevent a fire’s spread or to prevent the property from falling into enemy hands — not when the property was taken to prevent its potential harmful use by its owner.

“Allowing the 4th Circuit’s decision to stand would thus permit a state to mandate destruction of existing personal property rights without regard to these basic Takings Clause principles….,” MSI wrote. “No personal property, especially politically unpopular property, is protected from uncompensated destruction under the (4th Circuit) majority’s analysis.”

MSI’s argument, however, has failed so far.

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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