*1 118 (2009) 245,
976 A.2d
267
(disbarring
attorneys
two
involved in
“fraudulent,
Jordan,
transaction”);
equity-stripping
386 Md.
at
at
(disbarring
attorney
873 A.2d
an
who submit-
ted fraudulent documents to her homeowner’s insurance com-
pany
order to receive monetary benefits to which she was
entitled);
(disbar-
Spery,
Md.
Accordingly, we have disbarred the Aaron Respondent, G. Seltzer.
STATE of Term, Sept. No. 2010. Appeals Maryland. Court of
Dec. *3 (Paul DeWolfe, B. Public Defender Gillespie, Asst. Martha MD), brief, Defender, Baltimore, petitioner. on for Public Gansler, F. Williams, (Douglas Atty. Asst. Gen. E. James brief, Baltimore, MD), respon- for on Maryland, of Atty. Gen. dent. HARRELL, BATTAGLIA, BELL, C.J.,
Argued before BARBERA, ADKINS, JJ. *MURPHY, GREENE, BATTAGLIA, J. a prereq- operability to determine whether are asked
We “firearm,” as it is a to be considered handgun uisite for a Article, 101(h)1 Safety of the Public defined Section 5— * J., hearing an active member participated of this case as Murphy, in the Court, part in the retirement did not take but because of his this of opinion. adoption conference and 5-101(h) Safety provides: Article of the Public Section (1)
(h) "Firearm” means: Firearm. may readily expel, be (i) expels, a explosive; or by of an expel projectile the action converted weapon. (ii) of such frame or receiver (2) gun. includes a starter "Firearm” (2003), Maryland Code in order to sustain a conviction for possession of a regulated a disqualified person 5-133(c)2 under Section Article, of the Public Safety Maryland (2003). Code 5-101(h) throughout All Safety references to Section are to the Public
Article, (2003), Maryland Code unless otherwise noted. 5-133(c) Safety 2. Section provided: of the Public Article (c) Penalty possession by person (1) convicted crime violence. for of person may possess regulated A not person firearm if the was previously convicted of: (1) violence; a crime of (ii) 5-602, 5-603, 5-604, 5-605, 5-606, § § § violation of § § § 5- 607, 5-608, 5-609, 5-612, 5-613, § § § § §or 5-614 of the Criminal Law Article. (2) person A who violates this guilty felony subsection is of a and on subject imprisonment conviction is years, for not less than 5 no part may suspended. (3) person (1) A paragraph sentenced under of this subsection eligible parole. not be for (4) Each separate violation of this subsection is a crime. All references to Article, throughout Section 5-133 Safety are to the Public (2003), Maryland Code unless otherwise Since noted. amended, although Section 5-133 has been no amendments address the recodified, operability. issue of Section 5-133 was effective 1, 2010, October exception to include an for individuals under a civil protective requiring order regulated surrender of a firearm. 2010 Laws, (recodified Chap. (2003, Md. Supp.), Article). 5-133(c) amended, 5-133 of the Public was effective October as follows: (c) Penalty possession by person convicted crime violence.— (1) person may A possess regulated person firearm if the previously convicted of: violence; a crime of (ii) 5-602, 5-603, 5-604, 5-605, a violation § 5- §or 5-614 of the Criminal Law Article. *4 (2)(i) Subject (3) subsection, paragraph to person of this who violates this guilty felony subsection is of a and on conviction is subject imprisonment to years for not exceeding less than 5 and not years. (ii) may suspend The court any part mandatory of the minimum years. sentence of 5 (iii) Except provided as otherwise in 4-305 of the Correctional Article, person Services eligible the parole during is not for the mandatory minimum sentence. (3) offense, At the time of the period commission of the if a of more years than 5 elapsed person has completed since the serving the (l)(i) (ii) sentence for the most recent paragraph conviction under Moore, Petitioner, Rodney entering Taureen after into facts, illegal posses convicted of agreed statement was of a firearm in the Circuit Court for Baltimore regulated
sion
imprisonment
without
County
years’
sentenced
five
Special
Moore
to the Court of
possibility
parole.
appealed
in a reported opinion,
affirmed his conviction
Appeals, which
(2009),
Md.App.
2. in the If so, present was the evidence insufficient case? [3] prove operability question quali- could have Although certainly the for the of our we shall operable,4 purposes opinion, fied firearm, it assume not and shall hold that a as it is defined 101(h), does not to be order to Section have 5— 5-133(c), prohibits sustain conviction of a crime of violence or offenses related to person convicted dangerous the sale and distribution controlled substances subsection, including supervi- imprisonment, mandatory of this all sion, probation, parole: (i) mandatory is within imposition of the minimum sentence court; and discretion of the (ii) mandatory imposed unless minimum sentence not be writing days Attorney person State's notifies at least before mandatory trial of intention to seek the minimum sen- the State’s tence. Laws, Chaps. 2011 Md. 165. proof operability firearm is not a 3. Because we conclude firearm, prerequisite illegal possession regulated for a conviction of a question sufficiency we need not address the issue raised in the second presented. facts, agreed "[the In the statement of the State noted forensic indicate, handgun and expert] if he not have fixed the test would would it, gone off, exploded it could gun fired would have but have head, casing have come and hit him in the shell would back added). gun.” fixing (emphasis was reason *5 possessing Therefore, from a affirm regulated firearm. we judgment the of the Special Appeals. Court of
Background
In July place a took that ulti- robbery shooting mately in resulted the execution of a search warrant at residence, caliber, Rodney during Taureen Moore’s which a .32 Richardson, Harrington and Model II was recovered revolver from jury beneath his bed. was a in grand Moore indicted the Circuit Court for Baltimore wherein was al- County, it alia, own, leged, inter that he “did unlawfully possess, carry a regulated firearm transport having after been convicted offense,” conviction, of based upon a for possession of distribute, cocaine with intent to one of the enumerated 5-133(c)(l)(ii).5 offenses Section trial,
Moore a filed motion in limine prior which he whether, law, asked the court to determine aas matter of a 5-133(c) conviction under Section proof opera- of required the bility motion, In denying firearm. judge Moore’s ultimately relied on ordinary of “plain meaning 5-101(h) definition” of located Section and deter- mined a “conviction Section 5-133 of the Public Article, does not have to be operable.” Thereafter, after the agreed State nolle prosequi remaining counts in the Indictment upon finding guilt, of Moore entered not guilty plea agreed on an statement of Nine, facts directed Count in which a violation of 5- Section 133(c) alleged. was Attorney proffered agreed State’s statement of facts: 5-133(c)(l)(ii) prohibits person regulated Section possessing from person previously firearm if the convicted a "crime of violence” 5-602, 5-603, 5-604, 5-605, 5-606, § § § § “a violation 5- 5-612, 5-608, 5-609, §or 5-614 of the Criminal seq. Law Article.” Section 5-602 et of the Criminal Law Article pertains involving dangerous para- to crimes controlled substances and phernalia. May On Moore had convicted been in the Circuit City possession Court for Baltimore of cocaine with intent to distrib- ute, Article, violation 5-602 Law Criminal (2002). trial, the Honor, gone if the were to have
Your case [Sjtate That following evidence: presented would have *6 5th, 2007, the violent crimes July on detectives from called County Department the Baltimore Police were unit of robbery shooting and that occurred upon investigate County. here in Baltimore two witnesses investigation, the course
During time that implicated forward information came with Moore, well the co-defendants defendant, Rodney as as this came in this two witnesses case. Those charged later also after the actual to three approximately two weeks forward shooting. robbery and obtaining a led to the detectives provided
The information of this for the residence search and seizure warrant lawful defendant, infor- The detectives received Rodney Moore. Moore, defendant, Rodney at the lived mation that the location, girlfriend his and one of possibily as well as robbery. involved in the that was other co-defendants [*] [*] [*] entered, they found this defen- squad the tactical When Moore, master dant, and in bed Rodney girlfriend his bedroom, that was they handgun and also recovered described sleeping. They was where the defendant bed to this defendant. proximity as close gun revolver, Harrington caliber was a .32 gun The recovered Richardson, revolver. hinge II. It was frame Model and It serial number. proper did bear a shell underneath bed detectives also recovered
The items Both those casing projectile. a fired and casing, very bed. under the same wrapped paper in a towel were recovered, detectives Additionally, handgun was when safe, it they it did find that it to sure was make checked Those items were cylinder. round in the one loaded had to the lab packaged sent seized properly additionally. analysis the forensic examina- Attorney then described
The State’s gun: police recovered tion that ensued after had handgun been sent for more forensic examination Thomas, to the County Baltimore crime lab. Michael examiner, did analyze both the as well handgun, the fired and the casing projectile. fired
Mr. findings, specifically Thomas’s with to the regard handgun, defective, it Though was that was defective. it Thomas, found tested and to fire. Mr. for his own safety, replaced a latch on handgun that was cracked in so, order to gun. test fire the he did Once it did. It was found to properly function and fire.
If Mr. were testify, Thomas called he would offered as an expert in forensic or in firearm identification. He he, would defective, indicate that although he essentially did fix the indicate, for his own safety. He would if he *7 would it, not have fixed the handgun and test the gun fired off, would have but gone it could have exploded the shell casing him head, could have come hit back and in the and that was for fixing reason the and gun, that is for his own safety. that, Attorney State’s in described Moore had
been convicted aof offense disqualifying prohibited him from regulated a possessing firearm: honor, defendant, 5th,
Your May the on was convict- ed of a crime prohibits possessing him from regulat- a ed indicated, firearm. a As he was May convicted of possession with intent to distribute He cocaine. was convicted in Baltimore his City, and sentence years, was two suspend month, all a but a probably type time served sentence.
He is prohibited from possessing regulated firearm. then, The State’s Attorney, further described the found beneath Moore’s bed:
The .32 caliber revolver in this case regulated is a fire- arm. It is a with a barrel less than inches in length, and expels it to expel or may readily be —is converted to expel projectile by action of an explosive, aat minimum certainly also frame of such a weapon. the counsel offered proffer, the State’s Moore’s
Following agreed to the statement following and modifications additions of facts: modifications, Honor, ... of additions way
Your test firing the concerning have been testified to that would latch, itself, itself, actually repaired, the was gun, of the gun It taken from another gun. another was replaced from placed gun. onto a recoil cap, in is called gun Also defective the was what the the shell. engages the hammer back which where from the which would cause actually missing gun, That was and remove have to clear the chamber gun to fire the one there, in in order to that would residue or bullet material fire gun again. the get
Also, when would have been testified was what used in the being actual ammunition gun, firing test ammunition, the was automatic its current state .38 gun itself, So order revolver. being gun, problem fire, regular .38 expert actually took for it to test and re- casing made for revolver Smith Wesson bullet, bullet to making it a new with automatic placed fire, itself. safety further test ensure placed on record addition or modification only So gun, like that the on the record is placed or that I would found, test it was was never fired. the condition which *8 it that he would testimony expert The of the believes sideways, the bullet way. in some Whether went have fired conjecture. open is still to forward or backward additions, proffered the the recitation and Following State’s the regarding his the of operability motion Moore renewed 5-133(c) proof of firearm, required Section arguing again again firearm. The denied judge of the operability the in his motion, set adopting reasoning previ- the forth Moore’s judgment of acquittal, Moore then moved for ruling. ous Thereafter, Moore was found also denied. judge which five guilty years’ imprisonment.6 and sentenced to Moore Court timely appeal Appeals. noted a to the of Special Before Court Special Appeals, argued of Moore 5-133(c), the State of the prove operability Section must Special firearm in order to secure conviction. The Court of conviction, however, Appeals affirmed his determining that motion, because, Judge properly Circuit Court denied Moore’s plain 101(h), based on the language Section “firearm” 5— operable inoperable weapons. includes both v. Moore State, (2009). Md.App. A.2d appellate intermediate court further legis- determined that the 101(h) history lative Legisla- indicated that the 5— ture clearly intended the definition of “firearm” to be consis- “firearm,” tent with federal definition for which was 921(a)(3), located in Section Title 18 States United Code, require which also does operability. Id.
A.2d at 595.
Discussion
The State and
both agree
Moore
that the crux of this
case is whether a handgun
must be
to be considered
5-101(h)
a “firearm” under Section
of the Public
Arti
cle; they disagree as to
requires opera
whether that Section
bility. We are thus presented with an issue of statutory
interpretation,
the well-settled
of which
principles
recently
we
(2009):
in Ray
observed
410 Md.
Id. A.2d 747-48 citations omitted). quotation marks 5-101(h) “fire- Safety Article of the Public defines
Section arm” follows:
(h) (1) “Firearm” means: Firearm.
(i) expel, expels, that of an expel projectile by action readily be converted explosive; or
(ii)
weapon.
frame or
of such a
receiver
gun.
includes a starter
“Firearm”
(h)
incap-
argues
ambiguous
that Section 5-101
Moore
“on
jurisprudence
analysis,
able of
because our
plain meaning
firearm offenses
operability
requirement
[other]
from
‘firearm’ far
definition of
meaning
makes the
”
legislative history
that the
Moore further contends
‘plain.’
5-101(h)
Legislature
indication that
contains no
inoperable
include
for the definition of
intended
no
argues
that
there is
Conversely,
State
weapons.
firearm must be
regulated
operable,
requirement
clearly
borne out
conclusion,
to the
“is
according
*10
plain
both the
its
language,
legislative history,
statute’s
policy
history.”
behind this
case,
In the
present
Special Appeals
the Court
consulted
dictionary
plain
definitions to
its
meaning analysis
conduct
5-101(h),
Section
concluding that the definition of “firearm”
Moore,
110,
includes inoperable weapons.
189
983
Md.App.
A.2d
analysis by delving
at 595.
It bolstered that
into the
legislative history of the statute and the case
interpreting
law
102-05,
analogue.
its federal
Id. at
Initially, we would observe that there is language no 101(h) Section that requires operability. Although Moore 5— would have insert an operability requirement us in Section 5- 101(h), we have that frequently stated will not ... “[w]e judicially language insert to impose exceptions, [into statute] limitations, by legislature.” or restrictions not set forth 287, 299, 446, Henriquez Henriquez, v. 413 Md. 992 A.2d 454 (2010), Center, St. quoting Joseph Medical Inc. v. Cardiac Associates, P.A., Surgery 75, 95, 304, 392 Md. 896 316 A.2d (2006) (citations omitted) (altera- and internal quotation marks tions see v. original); also Nesbit Employees Government Co., 65, (2004) (“We Insurance Md. 382 854 A.2d 885 will not legislative divine a intention contrary plain to language judicially of a or insert statute language impose exceptions, by limitations restrictions not set forth (citations legislature.” quotation omitted)); and internal marks State, 471, 477, Melton v. 379 Md. A.2d (“[W]e statute.”). will not add or delete words from the conducting
When a plain meaning analysis, we have ob- served dictionary “provide that starting definitions a useful point discerning what the legislature could have meant using particular term.” Ishola 404 Md. (2008),
945 A.2d quoting Sysco Stachowski v. Food Inc., Baltimore, Services 402 Md. 937 A.2d (2007). 5-101(h)(l)(i) Section states that a “firearm” means “a that weapon expels, expel, may expel by the action of
readily projectile converted dis- contemplates three part This statute explosive.” fall: functionality which a firearm tinct levels of action projectile by that ... a weapon expels first is “a out,” The word means “to force explosive.” “expel” of an ed.2005) (11th Dictionary Collegiate Merriam-Webster’s (hereinafter “Webster’s”), if from a discharge from as “to (4th Dictionary 625 Heritage The American receptacle,” ed.2006) (hereinafter addition, this Heritage”). “American 5-101(h)(l)(i) in the uses the word “expel” portion tense, indicating a firearm includes present “discharge” projectile “force out” or presently can *11 that meaning weapon of an The “a explosive. plain action 5- to the determination that Section expels” thus leads 101(h)(l)(i) opera- includes that are clearly weapons presently ble, challenges. that neither party a conclusion a be a may also that firearm
Secondly, provides the Section ... projectile by a weapon expel that “is designed The is as “design” “[t]o of an word defined explosive.” action effect,” a or Ameri- particular purpose create or contrive for specific at “to a Heritage, can or devise for supra, words, Webster’s, a end,” or at 338. In other supra, function “created,” or may “contrived” weapon be a that is “particular purpose” or “specific “devised” for the function” of an “discharge” by a the action projectile “force out” or clearly in- portion not This explosive, although functional. operable, albeit to be firearms. inoperable, cludes 159, 165 Neal v. 991 A.2d Md.App. See (2010) (“[T]he a rather design weapon, construction crime, at the operability than the of its time of state a for the weapon a or is not ‘firearm’ determines whether Article.”). the Public Safety §of 5-101 and 5-133 of purposes 101(h)(l)(i),a also in- “firearm” Thirdly, under Section 5— “may expel be readily converted weapon cludes “readily” by action of an The word projectile explosive.” Webster’s, supra, much difficulty,” means “without manner,” or indicating a manner timely “[i]n a prompt, “[i]n supra, American at 1455. connoting Heritage, ease.” “convert,” turn, word means “to change from one form or another,” function to “to alter physical or chemical nature of,” Webster’s, (some- or properties supra, at change “[t]o form, substance, state, into thing) product,” another or “[t]o use, function, change (something) from one or purpose to “firearm,” another.” American A Heritage, supra, at 401. 5-101(h)(l)(i), it is contemplated portion this of Section thus includes a “in may “changed” be or “altered” manner,” prompt, timely “expel from one that cannot a projec- i.e., by tile the action of an explosive,” inoperable weapon, to one that can “expel projectile by action of an statute, explosive.” portion thereby, This also clearly that a firearm contemplates may inoperable, although readily converted. plain meaning
Our analysis further bolstered issue, portion terms of the second of the statute in Section 5- 101(h)(1)(ii),which states that “firearm” be “the frame weapon.” receiver of such a “frame or While receiver” is defined, Alcohol, Tobacco, Firearms, the Bureau of the federal agency law enforcement tasked with investigating, alia, use, manufacture, inter crimes involving the unlawful firearms, “[tjhat possession of defines a “frame or receiver” as part hammer, of a firearm which provides housing for the bolt breechblock, mechanism, and firing and which is usually *12 threaded at portion its forward to receive the barrel.” 27 A C.F.R. 478.11. frame or provides receiver that housing for the internal components of the weapon clearly not capable of “expel[ling] projectile by the action of an explosive,” absent the requisite Thus, internal components. Section 5- 101(h)(1)(H),which defines “firearm” as including “frame receiver,” or only component, clearly require opera does not of the bility for its application. See Hicks v. 189 112, (2009) (“The 136, 246, Md.App. 984 A.2d 260 ‘frame or not, receiver’ of a itself, firearm is in and of an operable it as is not capable expelling projectile by explosive. action of an This leads to the inference when the General Assembly enacted the statutory predecessor to
132 5-133, it not intend to restrict the definition Safety § did Pub. operable weapons.”). ‘firearm’ to of the term of the definition of interpretation plain meaning Our finds succor including inoperable weapons “firearm” as 5- appears 5-101. It that Section legislative history of Section 1941, Assembly when the General 101 was first enacted 27, (1939), Article Code Maryland added Section 531B to Laws, Chap. Md. 622 under the subtitle “Pistols.” 1941 (codified (1939,1947 531B of Maryland Supp.), at Code Section “firearm,” 27). time, did not define Article At the the statute as firearm with barrel only defining “pistol “any or revolver” in length.” than twelve inches Id. less Code, Maryland of the Section In the 1951 Codification 538, change, as without 531B was renumbered Section Code, Maryland again then the 1957 Codification In 441 change. without Section was again Section Laws, re-enacted, Md. with amendments. 1966 repealed (codified (1957, Maryland Supp.), Chap. 27). “pistol Article The definition for Section “any firearm with barrel expanded revolver” was include starter, length, including signal, less than twelve inches again, In amended Id. Section pistols.” blank pistol the term purpose defining ‘antique “[f]or manufactured before a pistol revolver’ to mean a revolver ” Laws, point 471. From this Chap. certain date.... 1979 Md. changes until there were no substantive or revolvers. pertained pistols Session, Assembly the General Legislative the 1996 Mary- Act Gun of 1996. passed Maryland Violence Bill, Laws, included House and 562. The land Chs. versions, respec- Bill Bill House 297 and Senate Senate was summarized as follows: tively, crime in reducing violent gun-related This bill is aimed at approach. with a two-fold First, involving new crimes the use the bill creates several firearms, for several penalties increases possession *13 firearms, relating possession current crimes to the use
133 the courts and law enforcement authorities and authorizes in domestic vio- regarding to take certain action firearms lence situations.
Second, substantive, makes several as well as non- bill substantive, sale, changes governing current law transfer, revolvers, pistols, and and assault possession (all in the term firearms” weapons “regulated included new bill). in the Bill for Senate Bill Judiciary Analysis
House Committee (1996). 441 of substantially at The Bill amended Section or revolver” and removing “pistol Article the definition of definitions, “firearm,” including “handgun” adding several new firearm,” which the Judicial Proceed- “regulated Senate ings Committee described as follows:
(viii) mean Firearm: This is a new term that is defined to may readily which will or to or any weapon the action of an expel projectile by explosive converted any weapon. or the frame or receiver or such (xiii) Handgun: This term is a substitute for the terms However, “pistol” and the definition of this “revolver.” term is broader than the current of the definition terms “pistol” and any “revolver” because it includes firearm with inches,” barrel less than rather than inches as specified current law.
(xv) includes; Regulated Firearm: This is a new term that (1) (3) handguns; assault weapons; any whose sale or subject provisions transfer is to the of the the sale governing repair regulated new subtitle firearms.
Senate
Bill
Proceedings
Analysis
Judicial
Committee
Sen-
(1996).
Bill
passage
Maryland
ate
With the
Act,
eventually
Gun
the definition of “firearm”
Violence
(i)
(1957,
codified
of Article
Vol.),
as:
Repl.
*14
Any weapon (including
gun)
starter
which will or is
may readily
expel
projec-
to or
be converted to
by
explosive;
tile
the action of an
or
(2) The
of any
weapon.
frame or receiver
such
2003,
441,
Finally, in
Assembly repealed
General
Section
newly-created
Safety
it in the
Public
Article at
recodifying
5-101,
substantive
it
change,
Section
without
where
is current-
(codified
Laws,
ly
Chap.
located. 2003 Md.
at
Article).7
(2003),
5-101 of the
Code
Section
Public
change
The basis for the
was to further prevent weap
being possessed by
ons from
individuals who should not hold
them,
pursuant
prohibits possession
Section
of
firearms
felons convicted
crimes of violence or enumerat
drug
doing,,
Legislature
ed
crimes.
so
chose to follow
According
the federal model.
to the
Floor Report
Senate
for
that,
"[i]t
7. Moore contends that
would be unreasonable to conclude
Legislature
explicit change
existing
when the
made an
to the
law of
statute,
operability
implicitly
requirement
in one
it also
eliminated
operability
respect
with
to other firearms
offenses well." This
1996,
argument apparently
the fact
focuses on
the General
36B(d)
27,
Assembly
provi-
also amended former Section
of Article
pertaining
antique
[a]
sion
to the "unlawful use of
crime,” adding
following language:
commission of
"wheth-
[the]
Laws,
operable
inoperable
er
at the time of
the offense.” 1996 Md.
561,
Moore,
According
expressio
Chs.
under the doctrine of
or,
alterius,
expression
thing
est
"the
Osborne,
unius
exclusio
of one
is the
another,”
exclusion of
427,
v.
395 Md.
911 A.2d
Walzer
(2006),
Legislature
language
the failure of the
to add the same
441(i)
operability
require
to Section
indicated the intent to
in that
iteration,
5-101(h).
apply
statute and in its current
Section
To
Moore’s
however,
reasoning,
Legislature’s
we
have
would
to assume that
441(i)
language,
operable
failure to include in Section
"whether
inoperable,”
inoperable
operable
indicated its intent
exclude
result,
weapons from the
This
leave
an
statute.
would
us with
absurd
inoperable
nullity.
as a
that is neither
is a
alterius, moreover,
expressio
The doctrine of
unius est exclusio
"merely
auxiliary
statutory
applied
rule
construction
to assist in
determining
Legislature
the intention of the
where such intention is not
Walzer,
language
manifest from the
436,
used.”
Section (15 the definition in the law U.S.C. present revision of 901(3)). any to include The definition has been extended will, be weapon (including gun) a starter to, readily expel projectile projectiles by converted action of an This makes it clear that explosive. provision come within the so-called unserviceable definition. firearms “firearm,” any part parts definition of present Under found that it is of such a are included. It has been of a part to have controls over each small impractical Thus, only definition substitutes firearm. the revised the new definition was not 8. To the extent that Moore contends that law, argument. we merit in his consistent with federal find no much, legislative history definition that indicates as addition to the Assembly chose for the definition of “firearm” that the General 921(a)(3) language virtually that was found in Section identical 18, States Code. Title United firearm; major is, parts of the frame or receiver for the words “any part parts.” (1968),
S.Rep. No. 90-1097 reprinted in 1968 U.S.C.C.A.N. added). 2112, result, 2200 (emphasis As a plain meaning analysis, legislative as well as history the State and for that of our analogue, federal leads us to conclude that a weapon operable does not have to be to come within definition of 5-101(h). “firearm” in Section See Nash v. 191 Md.App. 386, 405 n. (noting A.2d 842 n. 8 that “the State is not required demonstrate that a firearm operable 5-133(c)”). to obtain a conviction under [Section] if We would be remiss we did not note that federal courts overwhelmingly
have determined that operability is not a requirement statute, the similar federal 921(a)(3) See, of Title United States e.g., Code. United Williams, (8th Cir.2009) (“We States v. 577 F.3d have repeatedly rejected the contention that a firearm needs to be operable ”); order to support conviction.... United States (8th Abdul-Aziz, Cir.2007) (“[Section] 486 F.3d 921(a)(3) not necessarily require does that a rifle firearm.”); to be considered a United v. Gwyn, States (D.C.Cir.2007) (‘We F.3d too agree that 18 U.S.C. 921(a)(3) includes ‘inoperable weapons’ within the definition *16 ”); Williams, 724, of ‘firearm.’ v. 445 United States F.3d 732 (4th (“[Section] Cir.2006) 921(a)(3) n. 3 require does not the firearm operable it.”); be when the defendant possessed Adams, (11th Cir.1998) 1298, United States v. 137 F.3d 1300 921(a)(3) (“Nothing in either 922(g)(1) requires the government to show that the unlawfully possessed firearm is Hunter, (9th operable.”); 82, United States v. 101 F.3d 85 Cir.1996) (“[u]nder 921(a)(3), 18 U.S.C. the term ‘firearm’ includes mere of a parts gun incapable which alone are frame”); Maddix, firing, such as the United States v. 96 F.3d (8th Cir.1996) (fact 311, 316 that firearm “could not loaded be using without certain tools” a not bar to conviction for a being firearm); Yannott, felon in possession of a United v. 42 States (6th 999, Cir.1994) (“[T]he F.3d 1006 law is clear that a weapon firearm.”), does not need to be operable to be a cert.
137 (1995); 1125 1172, 130 1182, L.Ed.2d denied, 115 S.Ct. 513 U.S. Cir.1993) (4th 2 Willis, 489, n. F.2d 491 992 States v. United firearm be that a requirement no “that there is (noting that contained the definition satisfy order (8th York, 885, F.2d 891 v. 921(a)(3)”); Slates United re 921(a)(3) does not Cir.1987) (“Section [defining ‘firearm’] Harris, 792 v. United States operable.”); a firearm to be quire 921(a)(3) Cir.1986) (“Section ‘fire (9th defines 866, 868 F.2d to or which will or is ‘any weapon include arm’ to the action of a expel projectile readily be converted a receiver of such the frame or as well as explosive, United weapon operable.”); a be require It does not weapon.’ Cir.1982) (“The (9th Goodheim, 776, 686 F.2d v. States require ... does not defining ‘firearm’ statutory language the State also See operable.”). Office of Watch, Inc., 737 A.2d 356 Md. v. Judicial Prosecutor (1999) (after Maryland Public observing that the earlier enacted identical” to “virtually Information Act was Act, noting “[w]here Information federal Freedom Of substantially a statute are language federal purpose statute, interpretations later state same as that Faulk v. (quoting ordinarily persuasive” federal statute are 493, 506, 474 299 Md. Attorney County, State’s for Harford (1984))). A.2d nevertheless, meaning us, ignore plain urges
Moore
5-101(h) and, instead,
rely
on Howell
(1976),
different
interpreted
which
Md.
other rifle shotgun and a short-barreled including short-barreled below, not include except defined it does as these terms are *17 36F(b) repealed recodified in the Criminal Section In Laws, 4- Chap. 26. It is now located in Section Law Article. 2002 Md. Article, (2002). 201(c) Maryland of the Criminal Law rifle, shotgun, antique firearm as those terms are defined below.
This
pertained
definition
offenses for wearing
carrying
crimes,
handguns during the commission of certain
which were
enumerated in Section 36 of Article 27.
attempting
weapons
discern the class of
that qualified
handguns
as
Howell,
observed,
we
in a footnote:
Attorney
in 58 Op. Att’y
General
Gen.
that
opined
abundantly
clear that the term handgun
“[i]t
Maryland
defined
weap-
[in
statute] covers
same
contemplated
ons as
in the definition of firearm
contained
1968,’
the ‘Gun Control Act of
codified at 18. U.S.C.
921(3),” stating that the latter statute “defines a firearm as
‘... any weapon (including a starter gun) which will or is
may readily
to or
expel
converted to
a projec-
(B)
tile
an
by
explosive;
the action of
the frame or receiver
(C)
of any
weapon;
any
such
firearm muffler or firearm
silencer;
(D) any
destructive device.
term
Such
does not
”
antique
include an
firearm.’
It is to be
noted that
specifically
statute does
not define the term “firearm.”
Howell,
[F]or
or it
must be
readily
easily convertible into a firearm. We
conclude that
to be a firearm
propel
further
it must
missile
gunpowder
some such similar explosive and
gas
here involved is not a missile within the natural
ordinary signification
of the term.
Id. at
Our on the Court of Special Appeals have appar- on, ently relied prescribing operability Howell as require- ment, cases, only use of a handgun but also carrying of a context. In this regard, York v. (1983), A.2d 552 Md.App. involving use of handgun, clearly operability necessitated for a conviction after
139 State, Md.App. 182 in Brown v. To the extent Howell. dicta, in (2008), in 654, 16 670 n. 16, A.2d 138, 167 n. 957 require was a operability that footnote, noted colleagues our any opinion, offenses,10 express need not we carrying ment for in 4- different “handgun” definition statutory because “fire definition for Article than the Law the Criminal 201 of Article. of the Public in 5-101 arm” interpre- our and, specifically, that Howell contends Moore level of mandating some of “firearm” as meaning tation of a “firearm” under Section us to find that requires operability, Our 5-101(h) operability. that achieve level must also Howell, however, interpreta- not alter our in does discussion 5-101(h) requiring not of Section meaning plain tion of the give proper fails to reliance on Howell Moore’s operability. in two phrase that the same word to the axiom credence meanings: different can nonetheless contain different statutes the same requires no rule of construction There is word, used when given to be to the same meaning always inor different in the same statute different connections language flexibility such contrary, statutes. On expres- commonest fixity many of our and the want of very different sions, phrase a word or bear it is found. to the connection which according meanings to be always of a are the rule that the terms statute Hence subject-matter to the with references interpreted enactment. Black, Interpre- Handbook on Construction
Henry C. (2d ed.1911). Price v. See also of the Laws 171-72 tation (2003) (“We 388, 1221, do State, A.2d 1227 Md. 835 context, for divorced from its textual read the statute require permit does not meaning of words ‘adherence to ” v. Maguire (quoting from their context.’ isolation of words (1949))). Two State, 65 A.2d 192 Md. fire- handguns operability regarding differing levels thus, can, coexist. arms State, also, regard, Md.App. 780 A.2d Powell v.
10. See
in this
State,
(1987).
(2001), Wright
Md.App.
it enacted Art. 36B. After “in finding years recent been an [there has] alarming increase the number of *19 violent crimes in perpetrated Maryland, and a high percent- (Art. age of those crimes involve the use of handguns” 36B(a)(i)), § the [Legislature went explain: on to
(ii) The result has been a substantial increase in the number of persons killed or injured traceable, which is in large part, to the carrying handguns of on the streets and public ways by persons inclined to use them in criminal activity....
This language demonstrates that the paramount purpose of the General Assembly § enacting 36B was to reduce the especially high potential for death or serious injury that arises when a handgun, distinguished from some other weapon, is used a crime of violence. That potential for major harm only exists when weapon, at the time of the offense, is useable as a handgun. If it is not then so useable, its likelihood of inflicting injury is no greater than that produced by a knife or a club—bad enough, but differ- ent special from the hazard to the victim that legislature attached to the use of handguns. 228-29,
Id. at A.2d at 555-56. In Tisdale v. Md.App. (1976), hand, A.2d on the other our intermediate appellate court determined that the defini- tions contained in previous 5-101, iteration of Section did pertain not handgun offenses, Section 36 because involved,” offenses “[d]ifferent [we]re as Section 441 and its corresponding provisions to, alia, pertained inter possession firearms, of “thus possessing] an altogether differ- objective ent from the handgun law [housed Section 36].” need present case did not conclusion, the firearm in the issue; of the statute to constitute a violation operable to be therefore, is affirmed. Moore’s conviction APPEALS THE OF OF COURT SPECIAL
JUDGMENT AND THE IN COURT COURT AFFIRMED. COSTS THIS BE PAID BY PETITIONER. TO OF SPECIAL APPEALS BELL, GREENE, J., C.J., Dissent. GREENE,
BELL, joins. C.J., dissenting, in which J. of plain language Maryland on the majority, relying 5-133(c) § of Public Arti- (2008, Safety Supp.) issue, cle,1 possession regulated proscribing the statute at a handgun disqualified person, firearm concludes “firearm,” as defined need not be considered 5-133(c) provides: Public Article "(c) Penalty possession by person convicted crime violence.— "(1) regulated person possess if the person A previously convicted of: violence; "(i) a crime 5-605, 5-612, 5-603, 5-604, “(ii) *20 violation 5-613, § § 5-614 of Criminal Law Article. the subsection, "(2)(i) (3) person who Subject paragraph to of this guilty felony on conviction violates this subsection is exceeding subject years and not imprisonment for not less than 5 years. “(ii) any part mandatory may suspend the mini- court not years. of 5 mum sentence “(iii) § provided in of the Correctional Except as otherwise 4-305 Article, eligible person parole during the is not the Services mandatory minimum sentence. offense, "(3) period of the if a of more At time of the commission the completed serving elapsed person years since the the than has (l)(i) (ii) paragraph sentence for the most recent conviction subsection, mandatory supervi- including imprisonment, of this all sion, probation, parole: “(i) mandatory imposition minimum sentence is within the the court; the discretion "(ii) imposed mandatory unless sentence the minimum person writing days Attorney at least 30 the State’s notifies the mandatory minimum before trial of State’s intention seek sentence. "(4) separate crime.” Each violation this subsection 5-101(h)2 §in of that Article. The majority, in so concluding, assumes a fact simply exist, that does not that there is a firearm, uniform definition of applies to the construction 5-133(c). are, §of however, There conflicting definitions of term, “firearm,” one of which address, the majority fails to either it ignoring paying it sure, short shrift. To be 101(h) § “firearm” is defined in way supports 5— majority’s 5-133(c), § interpretation of and that would be dispositive, except prior enactment, to its this Court had defined firearm differently, albeit construing a different statute and in a different context. Notwithstanding that one of the definitions was developed by case law in connection with a different if statute and it were statute, confined only definition, the other the one reflected in the statutory lan- clear, guage, may be where there is more than one definition of a term and those definitions are conflicting, an ambiguity exists, as it calls into question the Legislature’s intention in statute; enacting given conflicting definition that the legislation contained, it is not at all clear that the General Assembly intended to overrule this Court’s earlier definition of Thus, 5-101(h) firearm. plain language of longer no governs its meaning. reason, For this I respectfully dissent.
The petitioner, Rodney Moore, Taureen charged with, alia, Baltimore County, inter two counts of the use of a violence, commission of a crime of Maryland Code 4-204(a),3 Criminal Law Article wearing, carry- ing transporting a handgun, Criminal Law 4- Article 5-101(n) Safety 2. Public Article also contains a definition of "hand- gun,” "a firearm with a length[, including] barrel less than 16 inches in starter, signal, pistols,” carry-over and blank Maryland from former (1957, 441(c). Repl.Vol.) Code Although Article not as forthright §§ as Public Article 5-301 and both of which handguns by defined (2002, reference to the definition in Article, 4-201, Supp.) Criminal Law this seems to be for purpose, a similar aspect to conform to that of the Criminal Law Article *21 concealability. definition that addresses 4-204(a) (2002) § provides: Criminal Law Article "(a) person may Prohibited.—A not use a firearm in the commission violence, § of a crime of Safety as defined in 5-101 of the Public 203(a),4 Safety Public Maryland as well as a violation, a Article, 5-133(c) by of a firearm possession trial, convict- petitioner a court the was felon. After convicted 5-133(c) to years five charge, the and sentenced ed of felon in charge, posses- That parole.5 imprisonment, without sion, of petitioner’s posses- the 2005 conviction stemmed from distribute, the one of enumerated of cocaine intent sion with 133(c)(l)(ii), the of a recovery offenses proscribed 5— during petitioner’s from beneath the bed .32 caliber revolver at his residence. the execution of the search warrant concluded, defec- firearms examiner was handgun, forensic he had to a safely gun, replace In order test-fire the tive. latch, cracked, gun. purposes For the of this that was on discovered, therefore, defec- handgun, when opinion, inoperable. tive gun statutory regarding scheme
Under wear, now, crimes, was, a carry it it crime as Article, operable inoperable or any felony, or whether the time at the of the crime.” 4-203(a) (2002) provides: 4. Criminal Article Law “(a) Prohibited.— section, "(1) (b) person Except provided of this a in subsection may not: wear, “(i) carry, transport handgun, whether or or concealed open, person; on or about the wear, "(ii) handgun, knowingly transport carry, whether con- or traveling open, parking a road or lot cealed or in a vehicle on waterway, public, highway, airway generally of the used State; “(iii) (i) (ii) public paragraph of while on school this violate item State; property in the "(iv) (i) (ii) paragraph with the violate item or this deliberate killing purpose injuring person. another "(2) person presumption There that a who trans- is a rebuttable (l)(ii) transports ports handgun paragraph under this subsection handgun knowingly.” charges prosequi’d judge, the trial 5. All other were nolle after limine, law, ruling on a found motion in as a matter 133(c). Thereafter, not be for a under need conviction 5— facts, guilty parties proceeded agreed on a not statement at which 5-133(c) charge pursued only the State Public Article. *22 transport (1957, a handgun, Maryland Code 1996 Repl.Vol.) 27, (b)6, § Article 36B now Maryland (2002, Code 2011 Supp.) Article, § Criminal Law to use a handgun violence, commission of a felony or crime of § Article 27 36B (d),7 § now Article, 4-204 of the Criminal Law and for certain persons possess “pistols and Maryland revolvers.” Code (1957, 27, 445,8 5-133(b) § 1971 Repl.Vol.) § Article now of the Public Article. Although Article 36F defined revolver, “handgun” “any as pistol, or other capable of firearm being added)9 concealed on the ...” person (emphasis and the (b) 6. provided: Article 36B "(b) wearing, carrying, transporting handguns; penal- or Unlawful of wear, Any person carry, who transport any handgun, shall or ties.— open, upon whether person, concealed or or any about his wear, person carry who knowingly transport any shall or handgun, open, any whether concealed or traveling upon public vehicle roads, highways, waterways, airways upon or or parking roads or lots generally meanor; by public used guilty in this State shall be of a misde- presumption and it shall be a rebuttable person that the knowingly transporting handgun.” Code,
All future references to Article 27 shall be to this volume of the unless otherwise indicated. (d) provided: 7. Article 36B “(d) handgun antique use in commission Unlawful of firearm
crime; penalties. Any person who shall use a antique anor — capable being person concealed on the in the commission any felony any crime of violence as defined in 441 of this guilty separate article shall be of a misdemeanor and on conviction shall, any thereof in addition to imposed by other sentence virtue of felony commission of said or misdemeanor.” (1957, relevant, Repl.Vol.) 8. Article as provided: sale, possession ''Restrictions on pistols and revolvers. transfer "(c) criminal, fugitive, Possession etc.—-It shall be unlawful for any violence, person who has been any convicted of a crime of or of provisions fugitive justice of this subtitle or who is a from aor drunkard, narcotics, habitual or addicted to or an habitual user of amphetamines, possess pistol barbiturates or or revolver.” entirety, In its the definition was: "(b) revolver, Handgun. 'Handgun' any pistol, means or other fire- — capable being person, arm including concealed on the a short- shotgun barreled and a short-barreled rifle as these terms are defined 441(c), or revolver” defined, “pistol Article Legislature in length, inches less than twelve firearm with barrel “any as were no starter, there pistols,” and blank signal, including “Firearms,”10 regulating 27 expressly in Article provisions was. a “firearm” defining what defines “firearm” now effect
The scheme “(i) expel, expels, *23 ... or expel projectile to readily be converted “(ii) weapon.” receiver of such the frame or Article, § 5- (2003, Safety Public Supp.) Maryland Code gun.” definition “a starter 101(h).11 includes That section This been the case. seen, always has not have As we formulation, of part became definition, in present its 1996, when, part as framework legislative Maryland 1996, 2, 561 and chs. of “Section Act Maryland Gun Violence § 441 former 1996, repealed 562, effective Oct. Acts § 441 That new in lieu thereof.” a new section and enacted (i), provided: contained new subsection means: “Firearm. —‘Firearm’ or
“(1) which will (including a starter Any gun) projec- to readily expel be converted to or explosive; the action of an by tile
“(1) weapon.” such any The frame or receiver of Act, Assembly made a the General In of that part another one, 27, § 36B to Article significant and a change, substantive (d). respect with to only attempt, be an what could below, shotgun, antique a " rifle or firearm except it does not include below.' as those terms are defined "Firearms,” 154, by repealed § Acts section under 10. The one Sess., 4, 1973, formerly § Sp. 2. It stated: 1st ch. drug. alcohol or narcotic "Carrying while under influence of firearm carry any purpose person firearm for the for a It shall be unlawful creature, hunting any game, bird or while intoxicated wild drug any ...” alcohol or narcotic under the influence of 27, (1957, § Repl.Vol.) Article Code 27, 2003, ch.5, Revision, § Article see laws 11. As a result of 5-101(h) 441(i) Article. § of the Public § was re-codified as statute, to rest put controversy caused certain factual obvious, scenarios involving but inoperable, handguns, the Legislature amended that section to provide:
“(d)
use
or antique
in com-
Unlawful
crime;
mission
penalties. Any person who shall use a
—
handgun or an antique firearm capable
being
concealed
on the
person
any
commission of
felony
any crime
of violence as
article,
defined in
441 of this
whether
inoperable
at the
offense,
time
shall be
”
guilty of a separate misdemeanor....
added).
(Emphasis
Significantly,
neither
predecessor
§to
5-133 of the Public Safety
(b),
Article nor
36B
prede-
cessor to
4-203 of the Criminal Law Article were amended
operability.
address
Before
Howell v.
(1976),
Md.
being concealed on the "(2) shotgun 'Handgun' and a short-bar- includes a short-barreled reled rifle. rifle, "(3) shotgun, antique 'Handgun' or firearm.” not include a does provided: section 13. That "(a) Prohibited.— section, (b) "(1) person provided of this Except as in subsection may not: wear, “(i) transport handgun, or carry, or whether concealed person; open, on or about wear, “(ii) transport handgun, carry, knowingly whether con- or traveling parking lot open, on a road or cealed or vehicle highway, waterway, airway of the generally public, used State; "(iii) (i) (ii) public paragraph while on school violate item or this State; property in the (i) (ii) "(iv) paragraph deliberate violate item or of this with the injuring killing person. purpose another "(2) presumption person transports is a rebuttable that a who There (l)(ii) transports paragraph of this subsection handgun knowingly.” provision replaced Comparison one it con- of the re-codified with the language Revisor’s conclusion that it "is new derived without
firms the change” substantive re-codified, 4-204(a) provided: 14. As "(a) antique capable person Prohibited.—A not use person any handgun being in the commission of concealed on *25 Code, violence, 27, § defined in Article 441 of the or a crime of any felony, antique operable or whether the firearm or is inoperable of the crime.” at the time 2003, 17, 27, replaced § By the reference to Article 441 was Laws ch. Safety During legisla-
by § the last one to 5-101 of the Public Article. session, § section 4-204 was amended to include its own definition tive 2011, That new See Laws ch. 164 and ch.165. define "firearm.” 101(h), (a), provides: § largely now subsection identical 5— later, year 2003, 5, 2,
About a 27, § see Laws ch. Article 445(d), § to which extensive revisions had been made over the 5-133(b) years, and, was re-codified as seen, as we have § 441 was re-codified as 5-101.
Nevertheless,
term,
“handgun,” which necessarily re-
term,
quired
“firearm,”
interpretation
was defined by
this Court in
Howell.
definition
upon
we settled
one
to,
based on language
to,
similar
if not identical
that of the
1968,
921(3)
federal
(1968).
Gun Control Act of
18 U.S.C.
Howell,
See
atMd.
391 n.
This Court had to decide whether a tear gas pistol was a handgun within the meaning (1957, of Maryland Code (1957, Repl.Vol.) Article 36F 1976 Repl.Vol.). Id. at 364 A.2d at 798. held that it We was not. Id. at 364 A.2d Instead, at 797. the Court concluded in order to be a handgun, the must weapon be “a firearm or it readily must be easily [F]urther[,] or into a convertible firearm ... ... to be a firearm it propel must a missile gunpowder or some such "(a) section,‘firearm’means: (1) In this ‘Firearm’defined. — "(i) expels, expel, may readily expel projectile by converted to explosive; the action of an "(ii) the weapon. frame or receiver of such a "(b) person may Prohibited. —A not use a firearm in the commission violence, crime of as defined 5-101 of the Public
Article, any felony, inoperable whether the at the time of the crime.”
149 The A.2d at 800-801. Id. explosive[.]” similar “fire- definition of of the federal clearly cognizant was Court indicate analysis and its arm,” opinion of its and the structure In a consistent. that this definition was ensuring purpose the Attor- statute and footnote, the federal acknowledged we arguments: ney General’s (1973) 572, 576 Op. Att’y in 58 Gen. Attorney General
“The handgun the term abundantly clear that is opined ‘[i]t weap- the same Maryland covers statute] as defined [in contained in the definition of firearm contemplated ons as 921(3),’ 1968,’codified at 18 U.S.C. Control Act of the ‘Gun any “... ‘defines firearm as that the latter statute stating or which will (including gun) a starter by the projectile readily expel be converted to may (B) any or receiver of such the frame explosive; action of (D) silencer; (C) firearm muffler or weapon; any not include an Such term does any destructive device. ’ says act ‘destructive firearm.” federal antique name known by ... whatever ‘any type weapon device’ is to, expel a will, readily converted or which propellant, or other explosive the action of an projectile more than one-half with a bore of any and which has barrel inch in diameter....’” Further, having n. 1.
Id. at n. 364 A.2d at relied on and consulted distinguished the cases the State reasoned, handguns, we various dictionaries for definitions here to define the intending “If the statute as regard we revolver, firearm’ or other handgun ‘any pistol, term as word, clause, added.) only that ‘no way then the (Emphasis sentence, surplusage, be rendered phrase [may not] conclude that nugatory,’ superfluous, meaningless, ‘firearm’ is an ‘other’ before of the word presence intended that to be Assembly that the indication General a fire- must be the device under consideration ‘handgun’ arm.” A.2d at
Id. at Howell, it well settled that a After our decision the same § 36F meaning “cover[ed] within the weapons as contemplated the definition of ‘firearm’ con (1968).” Act, tained in the Gun Control 18 U.S.C. 921 58 Op. (1973); Att’y Gen. (1957, See also 27, Article Repl.Vol.) 36F (citing Op. Att’y Gen. 567 State) (stating Howell term ‘handgun’ “[t]he *27 defined in this section covers the same weapons as contem ‘firearm,’ plated the definition of contained in the Gun 922”). Act, Moreover, seen, § Control 18 U.S.C. as we have 441, § Assembly General amended in effect codifying the “firearm,” Howell definition of law, borrowed from federal largely adopting language from the federal Gun Control Act that Howell construed and which formed the basis for that (n). definition and it in inserting subsection In doing, so aware, event, Legislature was and in any presumed is to have aware, been of this Court’s of “firearm” in interpretation light of that federal statute. Consol. Constr. Servs. v. Simpson, 372 (2002) (When 434, 461, 260, Md. 813 A.2d 276 interpreting statute, lien attorney’s we stated that “Legislature pre sumed to have been aware of our case law regarding i.e., liens, liens.”); and definition purpose of such charging Atl. Sea-Con, Co., 275, 292, Ltd. v. Robert Dann 321 Md. 582 A.2d (1990) (stating 990 “we that the presume Legislature was Act], when it cognizant, enacted and later revised the [Miller ”); Court’s Supreme interpretation of the Miller Act ... Drywall Berry, Best 672 Md.App. A.2d (1996) that (Holding intent in legislature’s using term “domicile,” “residence” was contrary equating it with after law, gleaning such a from principle case because a statute’s use.”). “meaning dependent on its contextual Despite the remaining issues associated with the implementation of the see, “firearm,” State, Howell definition of e.g., York v. (1983), Md.App. 467 A.2d that definition has remained constant and accepted. “(b)
Section 5-133
...
provides
person may [a]
possess
regulated
firearm if the person:
has been
5-133(c).
crime[,]”
disqualifying
§
convicted of a
as listed
5-101(h)
(a)
“firearm,”
defines
which subsection
indi-
to the
applies
Regulated
majori-
cates
Firearm Subtitle. The
ty interprets
being
this definition as
identical
to the federal
921(a)(3),
§
“firearm” definition located in
Title 18 of the
United States
Code. See Moore v.
135 n.
acknowledging the relationship
§§
between
445 and
36B and
and,
36F
in particular,
36F defined
objects
whose
possession, under
circumstances,
enumerated
445 pro-
fact,
scribed.
although,
decided,
when Howell was
all of
the statutes involved “Crimes and
appeared
Punishments” and
Article,
in the same
the majority simply
dismisses
36F as “a
*28
Moore,
different handgun
statute.”15
not harmonious
interpretation.
and its Howell-based
4-203(a)
4-204(a)
4-201(c),
part
are a
Sections
all a
statutory
they are
of Title because
single
part
scheme:
and,
is a crime that
involves
because the
weapon
each
they
in
handgun,
space
is a
also share
common
critical
prosecution
2. More
to a
specifically,
Subtitle
handgun,
question
§§ 4-203 and
the definition of a
4-204 is
answered,
demonstrates, by
that must be
as Howell
reference
4-201(c).
Title
part
§
not a
the same
Although
to
5-133(b)
Subtitle, and, indeed,
§
in another
entirely,
is
Article
and,
to,
submit,
I
a legislative
is nevertheless related
shares
offense,
It too
handgun
scheme with these
is a
provisions.
central.
proof
of which the definition
As
the
out,
wording
the
pointed
given
Howell
structure
“
in
definition
a ‘hand-
handgun,
reference to “firearm”
the
must be a firearm.” Id. at
Although,
majority emphasizes,
as the
concede,
(i),
predecessor
Howell
interpreted,
101(h),
36F,
“handgun,”
but
definition
5—
(d),
good
36B
set forth. There was a
reason
used
441(i):
not then
interpret
that the Court did not
it did
exist
*29
sure,
Maryland
defined “firearm.” To be
then
and no
statute
441(c)
term, “firearm,” in
§
its definition of
present
used
(b),
further defined
§
as
36B
but neither
“handgun,”
did
however,
point,
to the
as Howell
that term. More
explained
of,
indeed,
clear,
and,
in defining
was aware
makes
Court
term,
of “firearm” in the ‘Gun
that
considered the definition
921(3),
1968,’ codified at 18
which used
Control Act of
U.S.C.
virtually the same language as the
Assembly
General
did in
and, later,
4-201(a).
§
enacting
§
5-101
The majority, after an
plain meaning
extensive
analysis of
5-101(h),
§
states that
Act,
Gun Violence
441(i)
codified the definition
of “firearm” in
of Article
created a
law,
new definition consistent with federal
evidenced
by the nearly-identical
921(a)(3)
language
contained
Moore,
Title
133-34,
United States Code.
Id. at 135 n.
154 me. As we escapes majority’s construction logic on of the federal statute seen, took account this Court have (b), it, § 36B defined construing when 5-101 is based which it be a which is that component a critical “handgun,” “fire- necessarily defined the Court Consequently, “firearm.” decision, of this it has been law Following that arm.” firearm, be a object must that, handgun, a to be State State, v. 182 See Brown firearm. operable it be an that (2008) 654, (noting n. 16 16, A.2d 671 138, n. 957 168 Md.App. a to sustain operable must be an weapon that “[a] State, 140 Powell v. handgun”); a carrying for conviction (2001) 1219, (emphasizing 479, 486, 1223 780 A.2d Md.App. it State, ‘handgun,’ weapon “for a to be v. under Howell that firearm, it must firearm, to be and for must be a into a fire- ‘readily convertible or be function as a firearm A.2d State, 616, 522 ”); Md.App. 70 Wright v. arm’ (1987) conviction where handgun 401, (reversing 402-403 operabili- the requirement instructed on had not been jury (recognizing at 556 York, 467 A.2d at Md.App. 56 ty); use, a firearm its is not which, the time of gun that-“a readily convertible and not projectiles’) (‘explosive 36B(d)”); v. United States handgun not a purpose, (the (D.Md.2005) United Robson, 390 F.Supp.2d in a Court, Maryland prosecu- law in applying States District enclave, recog- onto a federal handguns transporting for tion proof of requires jurisdiction nized of- handgun conviction prerequisite as a operability fenses). involved, in the the cases the case whether
That was or “use transporting” cases, “wearing, carrying cited above exclusively or, cases crimes, following as the handgun aof’ 5-133(c).16 Parker See involve, proscribed the possession (2007) (where the A.2d State, 402 Md. handgun” magnum loaded .357 operable, “an noted that Court residence); McCain v. appellant’s from the was recovered candor, handgun the operability of the of these cases in none issue. (where 4 A.3d Md.App. trial, court during prosecutor noted represented “[t]he the court that ... tested recovered had been millimeter found to be an nine ‘high-power luger *31 addition, In handgun.’ prosecutor proffered appellant the that had been degree convicted assault in the second proffer Neither was by appellant.”); Thompson contested State, (2010) (where 653, 666, 1030, 192 A.2d Md.App. 995 1037 the court noted that “a report indicating that the aforemen- gun operable objection, tioned was was submitted without well as an indicating appellant prohibited, exhibit that was law, under Maryland from firearm possessing regulated State, prior ”); based on a ... disqualifying conviction Nash v. (Where 831, (2010) 191 Md.App. 991 A.2d 835 the that, trial, court noted at the moved appellant judgment acquittal on the that grounds the State failed to show that the weapon was fireable because there was no that evidence the had gun been tested. the response, argued State that their expert years firearm experience guns provid- had with ed testimony uncontroverted this weap- that was an operable motion).17 on. The court denied the defendant’s subsequent mere adoption of pre-existing well known federal simply not, cannot, statute language does negate or undermine any way Howell More ruling. is required to indicate a legislative intent to reverse deci- sion. There nothing is more in that regard case. The this more there augurs against is position majority espous- es. I out,
As
previously pointed
have
concurrently with the
“firearm,”
enactment of a definition of
which largely mirrored
pending appeal
17. Nash v. State was
when the decision in Hicks v.
112, 139,
Md.App.
the federal Gun (d) of that make clear that conviction amended 36B was handgun used depend offense did not on whether antique “whether the conviction could occur operable, the time of handgun inoperable at firearm or mind, clearly my quite To this indicates the crime.” at mere 372 Md. presumption, Simpson, rather than a see of, and very much aware Legislature 813 A.2d at operability requirement, Howell and its accepted, the decision that did not involve confine its effect crimes but wanted to ad- That would handgun. certainly use of the the offensive expressed operability the concerns about the dress some of York, 467 A.2d at e.g., Md.App. requirement. See (“We in its concern for legislature, do not think the crimes, handguns intend- against of citizens used protection category to be from the ed a excluded *32 percentages nice of or the relative because of calculations users.”). interesting It strengths explains also potential of admit- no similar amendment to the significant omission: statute, (b), 36B to tedly “wearing carrying” related 5-133(c)’s 445, § predecessor. the burden of that removing proving A for State’s rationale operable in of a crime was handgun used the commission a on Gun by stated the Governor’s Commission clearly was Violence: this is critical testimony
“The heard that issue Commission handgun the use involving in the of crimes of prosecution proof an extra element of operability] poses and [requiring Moreover, some Commissioners stated prosecutors. victim, to a crime who believed that that it was irrelevant fired, the being the was of whether handgun capable words, In other the intended impact was or not. operable irrespec- the is the same and felt victim by the criminal Accordingly, was the gun operable. tive whether handgun that the was proof Commission concluded act in irrelevant to the criminal essentially was operable ele- of this to recommend elimination question and voted ment proof.”
Report of on Governor’s Commission Gun Violence at 18. To mind, my Assembly’s action in amending General 36B (d) Commission’s with the Equally consistent sentiments. handgun statutes, B(b), none the other significant, wearing, prohibiting carrying, handgun; or transporting (b), § 281A prohibiting possession of a in firearm relation to a crime; 291(A)(b), drug trafficking prohibiting possession of offense; firearm drug after conviction of a prohib- alia, iting possession by, inter a person convicted crime, a disqualifying were amended to this exemp- include language. tion
It
proof
makes sense not to require
that a brandished
handgun
one,
where
charged
crime is an active
victim, who,
result,
involving
is,
and a
violence
as a
and is
be, intimidated;
circumstances,
intended to
in such
the hand-
gun’s operability simply may be deemed irrelevant. This
apply
rationale does not
of a
prohibits
case
statute that
merely
a certain class of
from
persons
possessing
handgun.18
Indeed,
cases,
is more
operability
relevant
such
where the
actively
intimidate,
is not
to
being used
harm or
but
is available
should
offender decide to revert to
engaging
activity
society
harmful
Indeed,
sometime
the future.
subsequent
Gun
Violence Act of
this Court and
the Court of Special Appeals have
apply
continued to
Howell “firearm” definition in
involving §§
cases
4-203 and 5-
133. See Pye
397 Md.
919 A.2d
(2007) (appellant
was convicted of both 5-133 and
the court
gun
Brown,
noted that the
proved
operable);
Md.App.
at 168 n.
158 referencing “firearm” the three statutes only be the one of simply This not sensible. More- require operability. still to result in all cases over, intended the same Legislature had the involved, to certainly it knew how handguns in which were 365 Ayd, it. Charters v. Md. provide for Balto. Harbor (holding long that have “[w]e A.2d construction, ‘expressio unis statutory applied principle the alterius,’ the one is the expression thing est exdusio omitted). another”) (internal It chose citations exclusion not to. had the years Maryland after codified thirteen law, from the issue of
definition of “firearm” borrowed federal requirement was a a convic- proof operability whether the to Court of squarely presented tion under 5-133 was A.2d Special Appeals Md.App. in Hicks Howell, (2009). § 5-133 discussing any Without herein, the focusing language, instead on cases referenced statute, receiver,” Op. the borrowed from federal “frame or 576, the court held: Att’y appellate intermediate Gen. directly Maryland speak no cases that have found “We however, are persuaded, issue before us. We precise firearm not be to sustain conviction that a need 5-133(b). noted, ‘firearm,’ As Safety Pub. here, ‘a expels, term is defined as operative may readily expel converted to expel, explosive; action of an frame projectile weapon.’ receiver of such a substantially of ‘firearm’ is
“Since the federal definition 5-101(h), and the corre- Safety, same as that in Pub. essentially regulate statutes sponding federal conduct, interpretation the federal courts’ same we view that, persuasive. hold order term ‘firearm’ We the State a conviction under Pub. obtain question prove operable.” need *34 Id. at A.2d at 262. I find this rationale to be product incomplete the and illogic analysis Maryland’s statutory history scheme and and the relevant law. case
To the majority, the Public
Article and the Criminal
mutually
Law Article contain
exclusive definitions of
word
the
Moore, 137-39,
“firearm.” See
But
a plain
even
5-101(h)
§of
language
reach:
strains to
majority
*35
subject
expel;
designed
expel;
be
to
weapon
that the
requires
by
a
the action of
expel projectile
to
may
readily
be
converted
of
that
weapon
frame or receiver
a
or to be the
explosive,
an
to
may readily
or
be converted
designed
expel,
to
expels, is
“that
being language
than
a
Rather
not
expel
projectile.
states, Moore, 127, 34
majority
as the
requires operability,”
clearly
the
language very
I
this
does
A.3d at
believe
designed
expel
to
a
weapon,
that
the
opposite,
requires
it
to
readily
converted
an
or be
projectile, operate
statute, moreover, takes account
reading
a
of the
state. Such
meaning.
gives
clause and
them
of all the words
the first
“the
Moreover,
statute
that a “firearm” includes
the
states
course, the frame
weapon.”
of
such
Of
any
frame
receiver
a component
more—is
weapon
nothing
or receiver of a
—with
of,
a,
provision
that
alone
Consequently,
but not
firearm.
must be resolved.19
ambiguity
introduces an
it
majority’s
approach:
This
in contradistinction
is
to,”
and concludes that
phrase,
designed
“is
focuses on
of
weapon
a “firearm”
purposes
mere
alone makes
design
5-101(h)
129-30,
at
ed expel.” “designed words intended that, Maryland because argues last majority Act of federal Gun Control Act after the own to model its require does not government the federal and because whole, either. Act, does not Maryland’s then operability, find this do not Moore, 133-36, simply 521-23. I 34 A.3d at See Howell, histo Maryland’s long light convincing argument decision, handguns by judicial albeit ry requiring, federal between number of differences and the operable, Further, the petitioner, I with agree act. act and our State’s Berg, 342 Md. Court, Safety v. Public Dept. although this § 5- (1996), applying held 674 A.2d may appropriately 133(c), official’s law enforcement laws, no basis for simply is there gun control consider federal inter laws be gun control Maryland’s own the assertion law. federal conformity with perfect preted I dissent. in the joins that he me to state authorizes GREENE
Judge dissent.