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Gun rights group says gun control advocates, Montgomery County colluded

New York City Police Department Public Affairs officers set up signs reading "Gun Free Zone" around Times Square on Aug. 31, 2022, in New York. (AP Photo/Yuki Iwamura, File)

New York City Police Department Public Affairs officers set up signs reading “Gun Free Zone” around Times Square on Aug. 31, 2022, in New York. (AP Photo/Yuki Iwamura, File)

A gun rights group has accused a gun control organization of having colluded with Montgomery County to unfairly weaken the group’s ability to make legal arguments challenging the constitutionality of a county law prohibiting gun possession within 100 yards of a “place of public assembly.”

In papers filed in U.S. District Court this month, Maryland Shall Issue objected to Everytown for Gun Safety’s motion to introduce its proposed “amicus” brief supporting the county’s defense of the law, a statute MSI says violates the Second Amendment right to keep and bear arms.

MSI told the court that Everytown’s proposed brief invalidly presents new arguments the county could not make in its own filing due to page constraints. In addition, Everytown deliberately made its motion just before deadline to give MSI insufficient time to rebut the group’s arguments, MSI stated.

“(A)n amicus cannot serve for arguments that a party has declined to advance,” MSI President Mark W. Pennak, an attorney, wrote in objecting to the motion.

“Any other rule would encourage a party and its amicus to collude and thus effectively ‘tag-team’ briefing by dividing up the arguments to be briefed,” Pennak added. “Here that tactic permitted the county to evade the already expanded page limit set by the court, while, in an ambush, leaving (MSI) with three calendar days, over a weekend, to respond to what is effectively a 60-page combined brief filed by the county and its amicus.”

Everytown denied the allegation, telling the court that the motion and brief was timely and not in partnership with the county. The group stated that an amicus brief’s primary purpose is to present arguments not made by the party it endorses.

“Everytown has made an independent determination that filing an amicus brief in this matter is consistent with Everytown’s mission and can be of assistance to the court,” wrote the group’s attorney, Barry J. Pollack. “The fact that the brief presents different arguments from those in Montgomery County’s brief does not make it objectionable. Indeed, no amicus brief would ever be helpful to a court if it were forbidden to do anything beyond repeating the arguments in the brief it supports.”

Montgomery County Attorney John P. Markovs declined to comment Friday on MSI’s accusation of collusion, citing the pending litigation.

U.S. District Judge Theodore D. Chuang, who is presiding over MSI’s constitutional challenge, had not ruled on Everytown’s motion as of early Friday afternoon.

MSI has contended the county law violates the Second Amendment as interpreted by the U.S. Supreme Court in its New York State Rifle & Pistol Association Inc. v. Bruen decision last June.

The county countered the law complies with the high court precedent.

The Supreme Court 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.

Maryland Shall Issue, in its pending bid for a temporary restraining order against the county law, 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 the history of the Second and 14th Amendments.

But no such historical analog exists for other places expressly listed as gun-free in the county law, including fairgrounds and recreational facilities, hospitals, conference centers and libraries, MSI added. The group has also objected to the within 100 yards prohibition, saying it essentially creates an unconstitutional countywide ban on gun possession as very few locations in Montgomery County are not within 300 feet of the enumerated gun-free zones.

In response, the county cited 19th century laws from other states and U.S. territories that prohibited gun possession in ballrooms and places designed for “scientific” or “literary” purposes. The county said these locations are analogous to modern fairgrounds, recreational facilities, hospitals and libraries.

The county added that the 100 yard “buffer zone” has many 19th century antecedents in Maryland, including an 1837 Somerset County ban on gun possession within 50 yards of any waterfowl on Smith Island and prohibitions on gun possession within one mile of polling places in Calvert, Kent, Montgomery and Queen Anne’s counties.

Everytown, in its proposed amicus brief, argues that the district court should focus on historical analogs exclusively from 1868 and not 1791, as MSI would prefer.

“To begin with, in a case involving a state or local law, focusing on 1868 is the only way to answer the originalist question: How did the people understand the right at the time of its adoption?” wrote Pollack, of Kramer Levin Naftalis & Frankel LLP in Washington.

“There was no right to keep and bear arms constraining the states or local governments under the U.S. Constitution until 1868; as Bruen observed, a state ‘is bound to respect the right to keep and bear arms because of the 14th Amendment, not the Second,’” Pollack added. “Thus, when the people chose to extend the Bill of Rights to the states in 1868, their understanding of the scope of each right should control the originalist analysis today.”

The constitutional challenge is docketed at the U.S. District Court in Greenbelt as Maryland Shall Issue Inc. et al. v. Montgomery County, Md., No. 8:21-cv-01736-TDC.