In 2023 session, Md. lawmakers will test limits of gun rights-friendly Bruen decision

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Ten years after enacting a far-reaching gun control law, the Maryland General Assembly will consider legislation this coming session aimed again at protecting Marylanders from firearm violence but in a more challenging legal environment.

Chief among the proposals will be a bill prohibiting gun possession in “sensitive locations,” such as schools, places of worship, parks, libraries and hospitals, said Sen. William C. “Will” Smith Jr., D-Montgomery and chair of the Senate Judicial Proceedings Committee.

Sen. Jeff Waldstreicher said he wants to go even further and introduce a measure to ban gun possession within 100 feet not only of those locations but places of “public accommodation,” such as restaurants.

But Mark W. Pennak, president of the gun rights group Maryland Shall Issue, said these proposals violate the Constitution’s Second Amendment right to keep and bear arms as interpreted by the U.S. Supreme Court in the same decision last June that has sparked the coming legislation.

Pennak said his group would challenge the measures in court if they are enacted.

In its decision, the Supreme Court said gun restrictions are valid only if in keeping with the constitutional text, history and tradition of state firearm regulations when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to the states in 1868.

In New York State Rifle & Pistol Association Inc. v. Bruen, the justices struck down a state regulation – similar to one in Maryland – that required gun owners to show a good and substantial reason for carrying their weapon outside. The high court said New York could not show a history or tradition of requiring gun permits for law-abiding citizens, a decision likely to spur an increase in outdoor gun possession in Maryland.

Smith said the Bruen decision, while limiting gun-control options, did not erase all available restrictions.

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He and other gun-control advocates are clinging to language in Bruen that gun possession in the 18^th and 19^th centuries was prohibited in “sensitive places” – specifically legislative assemblies, polling places, courthouses, schools and government buildings – and may perhaps be banned in similar locations without violating the Second Amendment.

The high court said judges “can use analogies to those historical regulations of sensitive places to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.”

Smith said the challenge will be to find 18^th and 19^th century analogies for 21^st century gun restrictions.

“We really don’t have that much guidance” from the high court, Smith said. “(But) whatever we do, we are going to ensure there are significant historical analogs for our course of action, which I think is a clear message from the Supreme Court.”

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Smith said he is consulting with gun control groups and university researchers on the history of weapons restrictions to draw analogies to current efforts.

He noted as an example retiring Maryland Attorney General Brian E. Frosh’s analogy to early 19^th century limits on bowie knives in his defense of the state’s ban on semiautomatic assault-style weapons. Frosh has also drawn analogies to early America’s militia laws in defending Maryland’s handgun licensing requirements for would-be handgun purchasers.

The ban and licensing requirements are being challenged in the 4^th U.S. Circuit Court of Appeals. Both gun control measures are in the 2013 Firearm Safety Act, which Frosh introduced and championed as the then-chair of the Senate Judicial Proceedings Committee.

Smith and Waldstreicher will have the support of the Maryland State’s Attorneys’ Association, which will seek to stretch the definition of “sensitive places” as far as constitutionally permissible, said Montgomery County State’s Attorney John McCarthy.

The question to be considered will be “how expansive can we make that list to promote public safety and satisfy constitutional review,” McCarthy said, noting recent mass shootings not just in schools and parks but in supermarkets and other stores.

“Based on recent memories of our American experience, we have seen gun violence,” McCarthy said. “It is a very serious public safety issue.”

But Pennak said there are no historical analogs for restricting gun restriction beyond legislative assemblies, polling places, courthouses, schools and government buildings.

“People commonly brought their guns to church” in the 1700s and 1800s, Pennak said.

“All they (legislators) are going to do is buy themselves more litigation” if the bills become law, Pennak added. “All it will do is enrich Maryland Shall Issue with attorney’s fees.”

He noted that Maryland Shall Issue recently filed suit in U.S. District Court in Greenbelt, challenging the constitutionality of a Montgomery County law banning gun possession within 100 yards of an enumerated “place of public assembly.”

But Waldstreicher said litigation over gun control is to be expected and should not discourage lawmakers from testing the limits of court rulings.

“The legislature should just pass the best bill to promote public safety in our community,” said Waldstreicher, D-Montgomery and vice chair of the Senate Judicial Proceedings Committee.

The senator added he will also introduce a bill to permit Maryland gun violence victims and their survivors to sue the firearm’s manufacturer, a cause of action unavailable under but not preempted by the federal Protection of Lawful Commerce in Arms Act.

“Gun manufacturers make a product that is inherently dangerous” and foreseeably misused, Waldstreicher said. “Gun manufacturers have an obligation to prevent that misuse.”

Waldstreicher said he will also sponsor legislation barring people from possessing guns on private property without the owner’s permission.

“People have property rights,” Waldstreicher added. “The determination of whether firearms are allowed on private property is up to the property owner.”

In addition, Waldstreicher said he will also sponsor legislation to raise the minimum age to legally possess a rifle or shotgun, from 18 to 21 – the current age to lawfully possess a handgun.

Sen. Chris West said he will propose legislation to ensure that a law-abiding citizen’s use of medical cannabis does not prevent him or her from getting a handgun permit.

West said he will also introduce a bill that would require handgun purchasers to receive training after – rather than before – they have otherwise qualified for a license. The Baltimore County Republican called it unfair to require people to assume the cost of training for a license they do not subsequently receive.