A state law due to take effect June 1 gives the Maryland attorney general and lawyers representing counties and Baltimore City the ability to sue firearm industry members if they knowingly harm the public by selling, manufacturing, distributing, importing, or marketing a firearm-related product in an “unlawful” or “unreasonable” manner.
Eight other states have already enacted similar laws. Among them, New Jersey’s bears the greatest similarity to Maryland’s new law, according to David Pucino, legal director at the Giffords Law Center to Prevent Gun Violence.
Pucino highlighted two cases in New Jersey as examples of how Maryland’s law will likely play out. In one, the defendant is a company that sells products related to ghost guns, which lack serial numbers and are illegal in New Jersey, as well as in Maryland.
“There was a company that was selling ghost guns, not in New Jersey, but in Pennsylvania, knowing very well that those guns were going to be immediately trafficked across the border into New Jersey and then used in crime in New Jersey,” Pucino said.
In the other case, a store was not locking up its guns at night, but rather leaving them on display in the store window. Then the store was vandalized and the guns stolen.
“Those guns are still popping up on the streets in connection with crime in New Jersey,” Pucino said.
The firearm industry is protected from most lawsuits thanks to a federal law called the Protection of Lawful Commerce in Arms Act, often referred to as PLCAA. Advocates like Pucino say PLCAA doesn’t prevent states from passing laws outlining rules gun makers and sellers need to follow and filing lawsuits when they break those rules.
Mark Pennak, president of the gun-rights group Maryland Shall Issue, disagreed. He said not only does Maryland’s law violate PLCAA and the Second Amendment of the Constitution, but it also fails to specify what sorts of behavior could trigger a lawsuit, making the law unconstitutionally vague.
“You see some cases being brought where the allegation is that the retailer should have known and should have trained his employees to recognize that this particular purchase, although passing a background check and otherwise was a legal purchase, we should have known that this person was going to use the firearm for illegal purpose,” Pennak said. “That's insane. No one can possibly abide by that.”
At Worth-A-Shot, a gun retailer in Anne Arundel County, owner Donna Worthy said she does more than federal, state and local laws require to protect public safety. For example, she requires her staff to run through a safety checklist with anyone taking home a gun, even regular customers.
“If I do something wrong, I can be put in jail immediately,” Worthy said. “There's already [laws] in place to get rid of the bad actors. This bill simply goes after everybody, the good and the bad.”
Worthy heads the Maryland Licensed Firearms Dealers Association, which she said is considering challenging the new law in court.
In fact, supporters and opponents of the law both say they expect to see the law challenged.
The outcome of a challenge will likely hinge on the political leanings of the judges, said Mark Graber, a constitutional law professor at the University of Maryland Francis King Carey School of Law. He said it’s unclear whether conservative judges would uphold the law.
“The court could say there were too many interpretations of this law that run afoul of [the 2022 ruling in New York State Rifle & Pistol Association v. Bruen] — that you need to be specific as to the weapons you say pose an unreasonable risk of danger, the sales you think pose an unreasonable risk of danger,” he said. “Otherwise, you're chilling Second Amendment rights.”
In a letter to Gov. Wes Moore dated earlier this month, Maryland Attorney General Anthony Brown said the law is not unconstitutional, nor does it violate federal laws like PLCAA.
State Sen. Will Smith, chair of the Senate Judicial Proceedings Committee and a co-sponsor of his chamber’s version of the new law, acknowledged that the new law is controversial, but he offered assurances to the state’s retailers, manufacturers and other firearm-related businesses.
“There are bad actors out there, and there are people that are looking to exploit and to market in a way and in a fashion that is detrimental to public safety,” Smith said. But, for the majority who are following the law, “you have nothing to fear.”
