Maryland Illustrates Problem with Requiring Permission to Exercise Constitutional Rights

2020 continues to serve up examples of why Americans should not tolerate gun control schemes that require citizens to obtain government permission before exercising their Second Amendment rights. This week, the Maryland State Police experienced what they termed a “catastrophic hardware failure” that interrupted that state’s ability to process regulated firearm purchase applications. The failure complicated Marylanders’ ability to access handguns at a time when many residents are seeking to protect themselves.

In order to purchase a handgun in Maryland, a prospective gun owner must first obtain a Handgun Qualification License. Applicants must complete a firearms safety training course and undergo a fingerprint-based background check. The application process costs $50, not including fingerprinting fees.

On top of this rigorous requirement, a Maryland resident must fill out a 77R Application and Affidavit to Purchase a Regulated Firearm. The applicant is then subjected to a redundant background, a $10 fee, and a 7-day waiting period. The private transfer of handguns is prohibited in Maryland, so all handgun transactions must be conducted pursuant to this procedure.

In a June 22 advisory memo sent to firearm dealers, the Maryland State Police explained that the hardware failure “has caused an interruption in the Maryland State Police Licensing Division’s (MDSPLD) ability to complete background investigations, specifically, for regulated firearm purchase applications (77Rs), handgun qualification license applications (HQLs) and MD wear and carry permit applications (handgun permits).” The document noted that it was the regulated firearm purchase applications that were most effected.

Fortunately, Maryland law contains a safety-valve provision for just such circumstances. MD Code, Public Safety, § 5-123 provides, “(a) A licensee may not sell, rent, or transfer a regulated firearm until after 7 days following the time a firearm application is executed by the firearm applicant, in triplicate, and the original is forwarded by the prospective seller or transferor to the Secretary.” This means that a firearm dealer may proceed with a handgun transfer on the eighth day after the dealer submitted a customer’s regulated firearm purchase application, even if the state police have not affirmatively approved the transfer.

However, in their advisory memo, the state police encouraged firearms dealers to forego the right to complete a handgun transfer - even after seven days have passed. The memo noted, “The MDSPLD [Maryland State Police Licensing Division] encourages RFDs [Regulated Firearm Dealers] not to transfer these firearms until backgrounds checks have been completed.” This “encourage[ment]” takes on a more mandatory character when one considers that Maryland gun dealers are subject to both federal and state licensing requirements. The same Maryland State Police Licensing Division that made the request for dealers halt lawful handgun transfers controls dealer licensing.

On June 24, the state police announced that they were “able to their database system to a fully operational status.” However, they also acknowledged a “backlog of of regulated firearm purchase applications” and that “the process to complete all applications on file is expected to take several days.”

If the Maryland government holding up lawful gun transfers due to their own inability to process background checks sounds familiar, that’s because it is.

Back in 2013, at a time when both President Barack Obama and Maryland Gov. Martin O’Malley were pursuing gun control, Maryland’s background check system experienced a months-long backlog. NRA filed suit against then-Secretary of the Department of State Police Col. Marcus L. Brown. The complaint sought to have the court force the state into meeting the requirement that applications be processed within seven days, and to make immediate determinations on all applications that had already been in the backlog more than seven days. Further, the suit argued for the state to recognize that gun dealers be allowed to transfer firearms to purchasers whose application had been pending more than seven days but had yet to be processed.

As part of avoiding the suit, the state made clear that gun dealers are allowed to transfer regulated firearms to customers following the seven day waiting period, but prior to receiving a determination on the purchaser’s application from the state police. A June 7, 2013 advisory memo from the state police noted, “a regulated firearm may be lawfully sold, leased or transferred by a licensed firearms dealer or other person after the seven-day waiting period, provided that the dealer or person has not received notice that the application has been placed on hold or disapproved by Maryland State Police (Public Safety Article Sec. 5-125(b)) and the dealer or person does not have actual knowledge or reasonable cause to believe that the recipient is disqualified from possessing a regulated firearm under Maryland or federal law.”

At bottom, the problem is not that Maryland continues to “encourage” the gun dealers that they regulate to disavow their customers’ Second Amendment rights. The problem is a regime that requires permission to exercise a constitutional right. The record is clear, governments like Maryland have repeatedly shown that at times they are unwilling or incapable of granting that permission.

Consider what gun owners in other parts of the country have experienced this year. In several jurisdictions, governors and local officials ordered gun stores closed during the onset of the COVID-19 outbreak. In states that have criminalized the private transfer of firearms, this effectively cut off law-abiding citizens’ ability to exercise their Second Amendment rights. In other jurisdictions, officials curtailed or cut-off access to licenses needed to acquire firearms or exercise the Right-to-Carry. All of this occurred at a time when Americans most-needed their Second Amendment rights, as evidenced by the record-breaking number of background checks conducted through the FBI’s National Instant Criminal Check System (NICS).

The way to avoid these unacceptable scenarios is to reject firearm owner licensing and so-called “universal background check” schemes that create a prior restraint on the exercise of constitutional rights. Once such a system is in place, citizens must count on their government to act in an honest and competent manner in administering their rights. As history has made clear, this is nothing anyone should be forced to rely upon.

© 2020 National Rifle Association of America, Institute for Legislative Action. This may be reproduced. This may not be reproduced for commercial purposes.