Montgomery County v. Atlantic Guns, Inc.

ELDRIDGE, Judge. The issue in this case is whether a Montgomery County ordinance, which prohibits the sale of ammunition unless certain requirements are met, is invalid on the ground that the area has been preempted by State law. On June 7, 1983, the County Council for Montgomery County enacted Bill No. 17-82, codified as Montgomery County Code § 57-12, providing, inter alia, that ammunition may not be sold to anyone unless (1) the sale is made in person, (2) the purchaser exhibits, at the time of sale, a valid registration certificate for the firearm in which the ammunition is to be used, or, if a non-resident, proof that the firearm is lawfully possessed, and (3) the ammunition is of the same calibre as the firearm that is registered or lawfully possessed. 1 The law became effective on September 20, 1983. On that date, Atlantic Guns, Inc., Stephen G. Schneider, Constantine P. Chaconas, and William H. Ran ⁵⁴² dolph filed a bill of complaint in the Circuit Court for Montgomery County, seeking a declaratory judgment and injunctive relief.

Named as defendants were Montgomery County, the Montgomery County Council, and Charles W. Gilchrist, County Executive. 2 The plaintiffs challenged the validity of Bill No. 17-82 on three separate grounds: (1) the County Council did not have the power to enact the bill; (2) State law preempted the subject matter of the bill; and (3) the bill was in conflict with State law. Both sides filed motions for summary judgment, and, after argument, the trial court granted the plaintiffs’ motion. The court issued an order declaring Bill No. 17-82 invalid and enjoining its enforcement, holding that the subject matter of the bill was expressly preempted by State law. The trial court did not reach the other issues raised in the bill of complaint.

The defendants appealed to the Court of Special Appeals, and, before any proceedings in the intermediate appellate court, they filed a petition for a writ of certiorari in this Court. We granted the petition and shall affirm on the same ground as the trial court. In 1972, the General Assembly of Maryland enacted extensive and comprehensive provisions governing all aspects of the wearing, carrying, and transporting of handguns, Ch. 13 of the Acts of 1972. The dominant purpose of the Act was “to stop the alarming rise in the use of handguns in the commission of crimes of violence,” Dillon v. State, 277 Md. 571, 584 , 357 A.2d 360 (1976) (quoting from Wright v. State, 24 Md.App. 309, 317 , 330 A.2d 482 , cert. denied, 274 Md. 733 (1975)).

The Act’s provisions include criminal penalties for various violations, along with seizure and forfeiture procedures. In addition to the criminal provisions, the Act sanctioned the use of handguns for such things as target shooting, home and business protection, and law enforcement purposes. The statute also provided detailed requirements for the issuance of permits to carry handguns. The ⁵⁴³ Act created a new subheading in the criminal code, entitled “Handguns,” and most of the Act’s provisions are codified in this subheading, Code (1957, 1982 Repl.

Vol., 1984 Cum. Supp.), Art. 27, §§ 36B-36F. But the preemption provision involved in this case, § 6 of Ch. 13, is not codified. That section expressly preempts all local law restrictions on the wearing, carrying, or transporting of handguns in the following language: “SEC. 6.

Be it further enacted, That all restrictions imposed by the law, ordinances, or regulations of the political subdivisions on the wearing, carrying, or transporting of handguns are superseded by this Act, and the State of Maryland hereby preempts the right of the political subdivisions to regulate said matters.” The County here argues that the preemptive language of the statute applies only to handguns without ammunition and “does not apply, by its terms, to the wearing, carrying, [or] transporting ... of ammunition of any nature whatsoever.” (Petitioners’ Brief, p. 8.) In our view, the provisions of the Act, beginning with the declaration of policy, demonstrate the lack of merit in the County’s interpretation of the scope of the express preemption clause. The General Assembly’s declaration of policy, codified in § 36B(a), is as follows: “The General Assembly of Maryland hereby finds and declares that: (i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns; (ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity; ⁵⁴⁴ (iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and (iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.” Handguns used to perpetrate violent crimes are generally loaded. An increase in the number of people killed or injured cannot be traceable to the use of unloaded handguns. Further regulations to preserve the peace and tranquility of the State were necessary because of the increasing criminal use of loaded handguns, not the wearing, carrying, or transporting of unloaded ones.

In light of these findings and declarations, it makes little sense to suggest that the General Assembly was not concerned with regulating guns loaded with ammunition. Section 36B(c)(l) recognizes certain exceptions to the prohibition against wearing, carrying, or transporting a handgun. These exceptions include law enforcement personnel, members of the armed forces while on duty or travelling to or from duty, jailers, prison guards, wardens, and sheriffs and sheriffs’ deputies who may wear, carry, or transport handguns when on active assignment engaged in law enforcement. Permission to wear, carry, or transport only unloaded handguns would be of little use to such persons.

Section 36B(c)(3) recognizes further exceptions: “(3) Nothing in this section shall prevent any person from carrying a handgun on his person or in any vehicle while transporting the same to or from the place of legal purchase or sale, or between bona fide residences of the individual, or between his bona fide residence and his place of business, if the business is operated and substantially owned by the individual, or to or from any bona fide repair shop. Nothing in this section shall prevent any person from wearing, carrying, or transporting a handgun used in connection with a target shoot, formal or ⁵⁴⁵ informal target practice, sport shooting event, hunting, trapping, dog obedience training class or show or any-organized military activity while engaged in, on the way to, or returning from any such activity. Nothing in this section shall prevent any bona fide gun collector from moving any part or all of his gun collection from place to place for public or private exhibition. However, while travelling to or from any such place or event referred to in this paragraph, a handgun shall be unloaded and carried in an enclosed case or enclosed holster.” (Emphasis added.) Obviously, the last sentence adds a requirement that, in the circumstances covered by this subsection, the handgun must be unloaded.

It is an unavoidable conclusion that, in other circumstances involving an exception to the prohibition against wearing, carrying or transporting a handgun, the gun may be loaded. Section 36B(c)(4) recognizes, inter alia, that a person may wear, carry, or transport a handgun “within the confines of real estate owned or leased by him or upon which he resides or within the confines of a business establishment owned or leased by him.” The purpose of this section is to permit those, who believe that a handgun is necessary to defend their lives or property at home or in their place of business, to carry one on such premises. Such authorization obviously contemplates a handgun with ammunition. Subsections (i) and (ii) of § 36C(a) list as subject to seizure and forfeiture “[a]ny handgun being worn, carried, or transported in