353 F. Supp. 3d 400
D. Md.2018Background
- Maryland enacted SB-707 (Apr. 2018) banning manufacture, sale, transport, possession, purchase, or receipt of “rapid fire trigger activators” (including bump stocks) with criminal penalties; limited grandfather/exception tied to ATF authorization.
- Plaintiffs (Maryland Shall Issue and four members) challenge SB-707 seeking damages, declaratory and injunctive relief, alleging federal and state takings, due process (impossibility and vagueness), and abrogation of vested rights.
- ATF issued a Special Advisory saying it lacked legal authority to process Maryland’s exception-authorizations (returned any such applications).
- Defendant moved to dismiss under Fed. R. Civ. P. 12(b)(6); court also addressed Article III standing issues.
- Court dismissed all counts: organizational plaintiff lacked individual standing; remaining member-based claims dismissed for failure to state a claim (or for lack of jurisdiction on pre-enforcement vagueness).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB-707 effects a per se taking under the Fifth Amendment (and analogous Maryland Takings) by banning possession of personal property | A ban on possession of lawfully owned rapid-fire devices is a per se taking requiring compensation | State may ban hazardous contraband under police power; per se takings rules are limited and do not extend to possession bans on personal property | Dismissed — no per se taking: per se tests (physical appropriation, total denial of use, permanent physical occupation) do not apply; possession ban fits police-power regulation of hazardous contraband |
| Whether SB-707 retroactively abrogates vested property rights under Md. Const. Art. 24 (and thus Article III § 40) | SB-707 abrogates a vested right to possess devices, violating Article 24 and constituting a taking under state law | Maryland vested-rights doctrine protects primarily real property and contract rights; statute is prospective and does not retroactively impair past transactions | Dismissed — plaintiffs failed to show Maryland recognizes perpetual vested right to possess tangible personal property; statute is prospective |
| Whether SB-707 is unconstitutionally vague on its definition of "rapid fire trigger activator" (pre-enforcement facial challenge) | Definition could sweep in many innocuous accessories (muzzle weights, grips, reloading aids), failing to give fair notice and permitting arbitrary enforcement | Statute’s text and context show targeted devices; plaintiffs lack a credible threat of enforcement on the overbroad readings | Dismissed for lack of standing (no credible threat of prosecution); court declined to reach vagueness merits |
| Whether the ATF’s refusal to process exception applications makes compliance impossible and renders the exception (and statute) invalid/severable | ATF’s position makes it legally impossible to obtain the statute’s authorization; the infirm exception requires invalidation of the whole statute | Even if ATF won’t process applications, owners can comply by removing, selling out-of-state, or destroying devices; the exception’s unavailability does not render compliance impossible | Dismissed — no impossibility: alternative means of compliance exist; exception clause not invalid on those grounds |
Key Cases Cited
- Horne v. Department of Agriculture, 135 S. Ct. 2419 (2015) (per se rule applies where government physically appropriates or acquires personal property)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (categorical taking when regulation deprives land of all economically beneficial use; discusses police power limits)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation of real property is a per se taking)
- Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (ad hoc balancing test for regulatory takings)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment does not protect weapons not typically possessed by law-abiding citizens; historical tradition of banning dangerous weapons)
- Andrus v. Allard, 444 U.S. 51 (1979) (ban on sale of personal property not necessarily a taking where possession and many rights remain)
- Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (upholding assault-weapon restrictions; recognition of state police power to regulate dangerous arms)