963 F.3d 356
4th Cir.2020Background
- In 2018 Maryland enacted SB-707 banning “rapid fire trigger activators” (e.g., bump stocks, trigger cranks, binary/burst triggers) and criminalizing manufacture, possession, sale, transfer, receipt, or transport.
- SB-707 defines the prohibited devices as those that, when attached to a firearm, increase the rate of trigger activation or rate of fire; it exempts certain performance-improving replacement triggers.
- The statute included a purported grandfather/registration exception tied to ATF authorization, but the ATF announced it could not accept or process such applications, making the exception effectively unavailable.
- Maryland Shall Issue, Inc. (MSI) and four members sued in federal court asserting: (1) a per se Fifth Amendment taking (and parallel Maryland takings claim), (2) a state takings/retrospective-abrogation claim under Maryland law, (3) a vagueness challenge to “rate of fire” pre-enforcement, and (4) a due-process/condition-precedent claim based on ATF’s refusal to process registrations.
- The district court dismissed all counts (12(b)(6) and 12(b)(1) for standing/vagueness issues); the Fourth Circuit affirmed, concluding MSI lacked organizational standing and the Complaint otherwise failed to state viable claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Organizational standing (MSI suing on its own behalf) | MSI: SB-707 undermines its mission and obstructs its activities (injury to organization). | Maryland: allegations are abstract setbacks to mission; no concrete resource drain or perceptible impairment. | MSI lacks organizational Article III standing; allegations are only abstract grievances. |
| Pre-enforcement vagueness / standing | Plaintiffs: “rate of fire” is vague and could sweep in many accessories (bipods, slings, muzzle devices); they fear prosecution. | Maryland: plaintiffs do not allege intent to engage in conduct arguably proscribed; no credible threat of enforcement against the items they identify. | Plaintiffs lack standing for the vagueness claim—no plausible intent to engage in proscribed conduct and no credible threat. |
| Federal Takings Clause (per se taking) | Plaintiffs: ban (with ineffective ATF exception) effectuates a per se taking of personal property by depriving possession/use/transfer without compensation. | Maryland: law is a regulation, not a physical appropriation; personal property is traditionally more regulable; Lucas/Andrus foreclose per se relief here. | Complaint fails to state a Fifth Amendment takings claim; no per se taking shown. |
| Maryland constitutional takings / retrospectivity (Article 24) | Plaintiffs: SB-707 retroactively abrogates vested property rights in violation of state constitution. | Maryland: statute is not retrospective; it was enacted before it took effect, so fair notice and settled expectations weigh against retrospectivity. | Plaintiffs waived some arguments and, in any event, SB-707 is not retrospective; state takings claim fails. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized injury)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (organizational standing where defendant’s conduct perceptibly impaired organization’s activities and caused resource drain)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (per se taking for permanent physical occupation)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (total regulatory taking where all economically beneficial use is eliminated)
- Horne v. Department of Agriculture, 135 S. Ct. 2419 (physical appropriation/classic taking principles apply to personal property)
- Andrus v. Allard, 444 U.S. 51 (ban on one means of disposition—sale—did not constitute a taking where owner retained possession and other rights)
- Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (ad hoc regulatory-taking factors)
- Murr v. Wisconsin, 137 S. Ct. 1933 (property-rights/parcel-as-a-whole analysis in regulatory-takings cases)
- Holliday Amusement Co. v. South Carolina, 493 F.3d 404 (4th Cir.) (personal-property ban on gambling machines not a taking under regulatory-takings analysis)
- Kenny v. Wilson, 885 F.3d 280 (4th Cir.) (pre-enforcement standing requires intent to engage in arguably proscribed conduct and a credible threat of enforcement)