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353 F. Supp. 3d 400
D. Md.
2018
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Background

  • 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)
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Case Details

Case Name: Md. Shall Issue v. Hogan
Court Name: District Court, D. Maryland
Date Published: Nov 15, 2018
Citations: 353 F. Supp. 3d 400; CIVIL NO. JKB-18-1700
Docket Number: CIVIL NO. JKB-18-1700
Court Abbreviation: D. Md.
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