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Gun group seeks restraining order against Montgomery County ban

A gun rights group has urged a federal judge to block enforcement of Montgomery County’s new law prohibiting gun possession within 100 yards of a park, religious institution, hospital or other enumerated “place of public assembly” until a final judicial decision on the measure’s constitutionality is reached.

Maryland Shall Issue stated in court papers last week that a temporary restraining order, or TRO, is appropriate because the law will likely be found unconstitutional in light of a recent Supreme Court decision. The law, Bill 21-22E, would also do “irreparable harm” to gun owners with carry permits, particularly those who have shown a need to be armed due to a documented threat on their lives, MSI stated in its motion for a TRO.

“The certain loss of Second Amendment rights … is irreparable in every sense of the word,” MSI President Mark W. Pennak, a lawyer, wrote to the U.S. District Court in Greenbelt. “Every permit holder who carries in the county is at profound risk of violating (the law) and is thus continually subject to arrest and imprisonment as well as the consequent permanent loss of all Second Amendment rights.”

The county, which has until Dec. 30 to respond to MSI’s motion, has defended the law as necessary to protect the public against gun violence and valid under the high court’s June decision in New York State Rifle & Pistol Association Inc. v. Bruen.

The justices held in Bruen that any gun restriction, to be constitutional, must be analogous to a regulation in effect when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.

In its decision, the high court struck down a New York regulation – similar to one in Maryland – that required gun owners to show a good and substantial reason for carrying their weapon outside, such as protecting themselves against a credible threat to their lives.

MSI, in its motion for a TRO, stated that the county law so restricts the Second Amendment that it makes no exception for Marylanders who received their gun carry permits from the Maryland State Police because their lives were in danger.

“(T)hose prior permits were issued to people who had documented a special need for self-defense, such as people with protective orders and church or synagogue members who were tasked with protecting these places,” Pennak wrote.

“Permits were likewise granted to people falling within ‘presumed risk’ occupations, such as judges, prosecutors, government officials and persons holding a very high government security clearance,” Pennak added. “The irreparable harm to these people is obvious.”

MSI said the Supreme Court has definitively held that gun possession can be restricted only in courthouses, polling places, schools, government buildings and legislative assemblies based on this history of the Second and 14th Amendments.

But no such historical analog exists for the places expressly listed as gun-free in the county law, including fairgrounds, recreational facilities, conference centers, libraries and childcare centers, MSI added.

The law also violates the Second Amendment by essentially creating an unconstitutional countywide ban on gun possession, as very few locations in Montgomery County are not within 100 yards of the enumerated gun-free zones, MSI stated.

Thus, at the very least, the court should issue a TRO blocking the county from enforcing the distance prohibition if it concludes the ban on gun possession in the enumerated places should not be enjoined, MSI added.

“That alternative relief would at least allow permit holders to possess and transport a firearm within the county, just as they have prior to enactment of Bill 21-22E, as long as they did not actually intrude on the actual, additional locations at which possession and transport are banned by Bill 21-22E,” Pennak wrote.

“Such limited relief would leave to a later time the constitutionality of the county’s bans on permitted carry in or at the specific locations identified in Bill 21-22E,” Pennak added. “The constitutionality of these additional locations may then (be) litigated in due course.”

Montgomery County Executive Marc Elrich signed the bill into law Nov. 28.

The county council passed the measure Nov. 15 on a vote of 8-0.

“I continue to believe that guns create immeasurably more problems, often with tragic consequences, than they attempt to solve,” then-Council President Gabe Albornoz, the bill’s chief sponsor, said in a statement after the vote. “This legislation will help to ensure that we do everything possible to minimize the number of guns in our public space.”

The law does not apply to law enforcement personnel and licensed security guards.

The case, pending before U.S. District Judge Theodore D. Chuang, is docketed as Maryland Shall Issue Inc. et al. v. Montgomery County, Md., No. 8:21-cv-01736-TDC.