Hamline Journal of Public Law and Policy
13 (1992): 37.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
a back issue.
MISSING THE MARK IN MARYLAND: HOW POOR DRAFTING AND IMPLEMENTATION VITIATED A MODEL STATE GUN CONTROL LAW
Monica Fennell *Copyright © 1992 by the Hamline Journal of Public Law & Policy & Monica Fennell
I. Introduction
In 1988 Maryland was the first state to establish a comprehensive system for designating and then banning dangerous handguns, the notorious Saturday Night Specials. Its statute was hailed as "the ultimate in gun-control legislation" [1] and as "an inspiration for people in other states." [2] But despite its promise the statute has, in the three years since its passage, proven to be an immense disappointment. Maryland has approved over 1,000 models of handguns for sale -- and banned only nineteen. [3] Far less ambitious statutes, such as the federal Gun Control Act of 1968 or the South Carolina melting-point law, have resulted in bans on hundreds of models of handguns. [4] An analysis of the few successes and many failures of the Maryland statute and Handgun Roster Board will prove instructive for any state that wants to combat handgun violence.
Federal statutes on handguns have been nothing if not unambitious. The provisions of the Gun Control Act of 1968 control imports of Saturday Night Specials and thus have a limited effect on the domestic availability of [Page 38] dangerous handguns. [5] Other provisions of the Act and other federal firearms statutes offer only the most minimal handgun regulation and lack means of rigorous enforcement. The Act contains prohibitions on interstate handgun sales and handgun sales to minors, felons, the mentally ill and drug addicts, [6] and it regulates dealer licensing. [7] The Arms Export Control Act of 1976 [8] and the firearms provisions of postal service [9] and Internal Revenue Service laws do not put any more significant restrictions on the availability of handguns. [10] No federal agency governs handgun safety. [11] Even if the Brady Bill is enacted, its five- working-day waiting period is a minimal restriction that only limits access and does not regulate the handguns themselves, [12] and the political climate for a statute which goes beyond the Brady Bill does not seem promising.
Therefore, if serious action is to be taken against handguns, the responsibility -- and the opportunity -- rest with the states. So far, rather than being the laboratories of democracy they were intended to be in our federal system, [13] most states have been content to simply mirror federal laws on peripheral issues. The few states that have attempted real handgun control have done so through waiting periods or melting-point requirements. Melting point laws ban some Saturday Night Specials by banning guns of low-quality materials, guns that are made of certain materials and that melt at less than a certain temperature (usually 800 degrees Fahrenheit). [14] No state has accepted the challenge of actually examining the handguns sold within its borders and determining which ones are too dangerous to be sold -- no state, that is, until Maryland in 1988.
This article, by examining how Maryland's law established and then activated a Handgun Roster Board (Board), will show how National Rifle Association (NRA) pressure, although thwarted at the polls, still influenced the implementation of what could have been a significant new approach to the point of making the law almost useless in terms of its original purposes. An analysis of how the statute was drafted and then implemented will demonstrate the danger of vaguely defining Saturday Night Specials and of placing too much reliance on an eager but uninformed and overhasty [Page 39] Board. An examination of transcripts of Board meetings and comments made by Board members outside the meetings, together with an analysis of the statute's language and its regulations, will reveal why the purpose of the law came to be frustrated. Furthermore, a comparison with more modest but ultimately more effective handgun laws in other states and also with the federal import control system administered by the Bureau of Alcohol, Tobacco and Firearms (BATF) will show how the Maryland law could be amended. This comparison will clarify certain principles which gun control advocates should bear in mind as they try to build a new cross-cultural consensus for effective gun regulation in other states.
II. Handguns: Dangers and Attempts to Control
Approximately 22,000 deaths each year are due to handguns; [15] these deaths are murders, suicides and accidents. [16] Thus, handgun control is not only a crime issue but also a public health and safety issue. Between forty-six and sixty million handguns are in circulation in the United States. [17] An exact count of all handguns in the United States is not possible because manufacturers are not required to report production figures and there is no nationwide registration system. [18] Handguns should be the first firearm to be tackled because they are one of the most dangerous and yet the least clearly defined. [19] Proponents of more radical gun control do not even advocate restrictions on hunting rifles or shotguns, so the legitimacy of these firearms is not a matter of great debate. Machine guns are already unavailable to the general public. [20] "Cop killer bullets," or armor- piercing ammunition, are also heavily regulated. [21] Assault weapons are a new and growing problem that has begun to be handled on the federal level by the same import control used for handguns and shotguns. [22] Domestically produced assault weapons can be dealt with in the same manner I will propose for handguns.
There is a preponderance of small, concealable handguns involved in violent crime, according to an analysis of two BATF studies of confiscated guns. [23] There were approximately 983 child victims of handgun homicide [Page 40] and 277 child victims of other firearm homicides in 1986, [24] and more and more children are carrying handguns. [25] According to a Centers for Disease Control publication, homicide is the fourth leading cause of death for African Americans -- a homicide rate higher than that of whites [26] -- and more than fifty percent of the African-American victims and forty percent of the white victims were killed with handguns. [27]
Gun control advocates often choose to focus on the fear of criminals. However, arguments for gun control based on fear of crime are susceptible to many NRA critiques, such as the alleged lack of correlation between gun control and crime reduction, and charges of class and racial bias. [28] Instead of just blaming the perpetrators -- as in the NRA's famous slogan "Guns don't kill people, people kill people" -- there should also be an emphasis on prevention. [29]
The problem of handgun violence goes beyond murder and robbery. It contributes to accidental death and injury and to the suicide rate. The smaller the gun and the poorer the quality of workmanship and materials, the more likely the gun will be inaccurate and unsafe. Handguns are more likely than other guns to be small and cheap (the Saturday Night Special that shot James Brady cost twenty-nine dollars). [30] Children often have a hard time distinguishing real guns from toy guns, and firearms are the fourth leading cause of death for children ages five to fourteen. [31] There are approximately 2,900 fatal firearms accidents and 20,000 injuries each year. Half of the accidents are in the home, and forty percent of the victims are children. [32]
Firearms are involved in fifty-five percent of all suicides. [33] Suicide by firearms accounted for most of the rise in the suicide rate in the last twenty-five years, according to two studies. [34] Alarmingly, suicide is the third leading cause of death for fifteen to twenty-four year-olds. [35] In a 1988 study showing handguns were used in sixty-nine percent of firearms suicides, the researchers concluded that:
Handguns are most often kept for protection, and are therefore particularly prone to be stored loaded and within easy reach. As [Page 41] survivors of firearm suicide attempts often report acting on impulse, such easy access is likely to be a major contributing factor. The handgun's short barrel length may also be important; it is difficult to aim a rifle or shotgun at oneself and pull the trigger. [36]
Firearms accidents that result in death or injury are not usually as dramatic as murders or suicides, yet safety is a major problem with all firearms, especially handguns, that remains largely unaddressed. In the age of huge jury awards for exploding soda bottles, it is shocking that the firearm, a product which is indisputably dangerous, is not well regulated by the government as to safety. The Consumer Product Safety Commission does not even oversee firearms. [37] The BATF, which is in the Department of the Treasury, is the main federal agency responsible for firearms, but it focuses on interstate sale of firearms, dealer licensing and import control. [38] B. Bruce-Briggs, author of The Great American Gun War, called the BATF "a crude and unsophisticated police agency," an agency that once had the job of stamping out moonshining. [39]
So far the only even partially successful method of imposing safety standards has been products liability litigation. [40] Though plaintiffs have won significant (if scattered) cases, the courts are an imperfect place to achieve the systemic change that is needed to hold firearms manufacturers accountable. For example, the safety problems of the RG17 and similar handguns were so extensive (it was originally designed without a safety mechanism) and the gun was so popular that many accident victims or their estates sued the manufacturer, R.G. Industries. [41] Eventually the company declared bankruptcy. [42]
Periodically handgun violence captures national attention, especially when the victims are Robert Kennedy, John Lennon, Ronald Reagan or James Brady, but the legislative efforts for gun control on the federal level have been modest. Congress has dealt with two major handgun control proposals in the last twenty-five years, the Gun Control Act of 1968 and the "Brady Bill." Previously, there have been such general firearms statutes as the War Revenue Act of 1919, the National Firearms Act of 1934, and [Page 42] the Federal Firearms Act of 1938. [43]
The Gun Control Act of 1968 and the BATF implementing regulations are ineffective in reducing the availability of dangerous handguns in the United States, because they only focus on interstate sales of firearms, import control, and dealer licensing measures. The BATF regulations are very effective in designating dangerous handguns, as will be discussed later. After the Gun Control Act of 1968, domestic handgun manufacturers were able to increase production to meet the demand for handguns unmet by foreign manufacturers. [44] Not only did the Gun Control Act of 1968 serve to stimulate the domestic market, but it also left open a loophole for foreign manufacturers. Some parts for dangerous handguns can still be imported into the United States, as long as the guns are assembled here. [45] For example, the German manufacturer, Roehm GmBH, sent its engineers and managers to Miami to start R.G. Industries, which basically assembled Roehm parts into the same dangerous handguns. [46] Congress is aware of the inability of the Gun Control Act of 1968 to regulate domestic manufacturers of dangerous handguns, but bills to remedy this flaw have failed. [47] In 1986 the part importation loophole that allowed R.G. Industries to flourish was partially closed when barrels -- not just complete guns, frames, and receivers -- of handguns denied importation were also prohibited. [48]
The most recent attempt at handgun control, the Brady Bill, attracted enough support to pass Congress, [49] but it lacks "bite." Handgun Control, Inc. (HCI), a national lobbying group, was the major force behind the effort to pass this bill in 1988, 1989, 1990 and 1991. The bill, named for James Brady and his wife Sarah (vice president of HCI), calls for a nationwide five-working-day "cooling off" period before purchase of a handgun. [50] This measure would give the police time to check the criminal record of potential purchasers and time for the purchasers' possible suicidal or murderous impulses to dissipate. [51] A waiting period would only solve a small part of the dangerous handgun problem, because Saturday [Page 43] Night Specials would still be available to most people after five to seven days. Thus a healthy black market could still exist, and the problem of death and injury due to handgun suicides and accidents would not be addressed. The New Republic deemed the Brady Bill an "absurdly modest" and "pathetically unambitious" proposal, as did members of the House of Representatives who supported the bill. [52]
Given that the Gun Control Act of 1968 is ineffective for domestic handgun control and that the Brady Bill -- if it is enacted -- is modest, it is up to the states to take action against handgun violence. States must be the "laboratories for social and economic experiment" they were intended to be in our federal system. [53] This role for the states in gun control is supported by the fact that the Second Amendment was never "incorporated" via the Fourteenth Amendment, meaning that the right to keep and bear arms does not apply to the states. Furthermore, although the U.S. Supreme Court has not heard many challenges to gun laws, it has consistently held that the right to keep and bear arms is not absolute. In United States v. Cruikshank [54] and Presser v. Illinois [55] the Court established, inter alia, that the Second Amendment is a limitation on the federal government and not on the states. Then the constitutionality of the National Firearms Act of 1939 was challenged in United States v. Miller, [56] where the Court held that the right to keep and bear arms was limited to arms that were necessary for the "well regulated Militia" envisioned by the Second Amendment. More recently, the U.S. Supreme Court denied certiorari for a case challenging a town's complete handgun ban, Quilici v. Morton Grove, [57] and for a case challenging a federal ban on machine guns, Farmer v. Higgins. [58] So responsibility for substantive handgun control rests with the states. Maryland accepted the challenge.
III. Maryland H.B. 1131, History of a Statute
The big NRA/gun control battle took place in Maryland partly because the Maryland Court of Appeals was the first court in the country to recognize a cause of action against handgun manufacturers by crime victims in Kelley v. R.G. Industries. [59] Kelley held manufacturers and marketers of Saturday [Page 44] Night Specials strictly liable for their dangerous products if the gun was used in crime, but not liable if the gun was simply misused. The court rejected the traditional theories of strict liability used in firearms litigation, theories such as the abnormally dangerous activity doctrine and the abnormally dangerous product doctrine. [60] In creating the new cause of action, the court defined Saturday Night Specials as guns that are "particularly attractive for criminal use and virtually useless for the legitimate purposes of law enforcement, sport and protection of person, property and businesses," [61] and further as guns that have the following characteristics: short barrels, light weight, concealability, low cost, poor quality of materials, poor quality of manufacturing, inaccuracy and unreliability. [62]
The NRA reacted to Kelley by trying to convince the Maryland legislature to overrule this ground-breaking case, but this move failed in 1986 and 1987. [63] In 1988 the pro-gun-control legislators went on the offensive, and Delegate Ralph Hughes introduced a bill to codify the Kelley holding, House Bill 1131. The law that the legislature enacted on May 23, 1988, was a compromise between the House Bill allowing the state police to classify dangerous handguns and Senate Bill 484 overturning Kelley. [64] As J. Joseph Curran, Jr., Attorney General of Maryland, explained, the bill was a means of designating Saturday Night Specials using criteria such as concealability, quality, safety, accuracy, caliber and use for sporting or law enforcement purposes. [65] These criteria were patterned after the Kelley criteria, with a Handgun Roster Board being created to add certainty to the subjective guidelines in Kelley and to apply them. [66] Originally, the state police would have done the designating, drawing up a roster of approved handguns. [67] However, in the compromise, the legislators substituted a nine-member Handgun Roster Board for the police board and deleted the term "Saturday Night Special" in the final statute. [68] Despite these changes, the Maryland statute still set up a complete system for review of handguns, a system which was potentially effective in completely banning Saturday Night Specials and not just restricting access to handguns for a limited group of purchasers.
The pertinent parts of the statute are as follows:
A person may not sell . . . in the State a handgun manufactured [Page 45] after January 1, 1985 that is not on the handgun roster. . . . A person or entity may not be held strictly liable for damages of any kind resulting from injuries to another person sustained as a result of the criminal use of any firearm by a third person. . . . The members of the Board shall be: (1) the Superintendent; (ii) a representative of the Association of Chiefs of Police; (iii) a representative of the Maryland State's Attorneys' Association; (iv) a handgun dealer, a gunsmith or a representative of a handgun manufacturer; (v) a representative of the National Rifle Association or its affiliated State association, who is a resident of the State; (vi) a representative of the Marylanders Against Handgun Abuse; and (vii) 3 citizen members. . . . There is a handgun roster that the Board shall compile and publish in the Maryland Register by July 1, 1989, and thereafter maintain, of permitted handguns. . . . The Board shall consider the following characteristics of a handgun in determining whether any handgun should be placed on the handgun roster: (i) concealability; (ii) ballistic accuracy; (iii) weight; (iv) quality of materials; (v) quality of manufacture; (vi) reliability as to safety; (vii) caliber; (viii) detectability by the standard security equipment . . .; and (ix) utility for legitimate sporting activities, self-protection or law enforcement. . . . In determining whether any handgun should be placed on the handgun roster, the Board shall carefully consider each of the characteristics . . . and may not place undue weight on any one characteristic. . . . The Board may place a handgun on the handgun roster upon the Board's own initiative. . . . A person who petitions for placement of a handgun on the handgun roster shall bear the burden of proof that the handgun should be placed on the roster. . . . [A]ny objection to [a handgun's] inclusion in the handgun roster must be filed with the Board within 30 days . . . . The petitioner may request a hearing. . . . Any aggrieved party of record may appeal. . . . Nothing in this section shall be construed as requiring the Board to test any handgun . . . . [69]
IV. Maryland H.B. 1131: Legislative Intent
The legislative intent in enacting the handgun statute was to ban Saturday Night Specials. The intent was also to reduce gun violence through an objective, expert Board instead of through a series of court decisions under Kelley. Because the Maryland Legislature does not record its debates, [70] the most instructive evidence of intent is the changes made in [Page 46] House Bill 1131 and statements made by the statute's drafters, the bill's sponsors, the state police (who were guaranteed a role in implementing the statute), the Maryland Attorney General's Office, Governor Schaefer, the groups campaigning for and against the referendum, and citizens and newspapers (as representatives of the general public). Sometimes sources used the words "Saturday Night Special," and sometimes they used a definition of certain handguns approximating the statutory definition. However, the two descriptions were often employed interchangeably by the same people. The only group that seemed to make the distinction was the NRA when it tried to convince people that the law was not limited to Saturday Night Specials and could end up banning all handguns. [71]
The changes made to House Bill 1131 were seen as a "classic example of legislative compromise," as explained in the Attorney General's opinion on the severability of the handgun control provisions and the abrogation of Kelley provisions in the statute. [72] The elimination of the words "Saturday Night Special," putting more emphasis on the nine characteristics of dangerous handguns, was intended to make the bill more objective, as was the substitution of the nine-member Handgun Roster Board for a state police board. The move to codify Kelley was itself intended to decrease the subjectivity and notice problem in having judges make ad hoc decisions on handguns, as evidenced by a law review article supporting the referendum, a statement from the Attorney General's Office and a letter from Governor Schaefer. [73] The legislators, by giving the handgun decisions to a nine-member board, intended to make the Board more "balanced" than it would have been with the decision- making power concentrated in one entity -- the police -- according to Governor Schaefer. [74] This board was intended to be expert -- again as an improvement over judges who might not know anything about handguns but would be deciding which were dangerous. This is evidenced by statements from Assistant Attorney General Vincent DeMarco, a drafter of the statute, and by the gun- control campaign plan (" The unique approach to handguns will work because of the expertise of the Board"). [75] The expertise and method of the Board were supposed to be similar to the BATF system for import control of dangerous [Page 47] handguns, according to DeMarco. [76]
The purpose of enacting the handgun statute and creating this objective, expert Board was to reduce gun violence through a ban on Saturday Night Specials. Both sides often used the word "ban," with gun-control advocates referring to a ban on Saturday Night Specials and the NRA referring to a compete handgun ban. But whether or not the ban is complete, the word "ban" never referred to anything less than a prohibition of a whole category of handguns called Saturday Night Specials. The former Deputy Director of Research for the Maryland Committee Against the Gun Ban, James J. Boulet, Jr., stated that the Maryland statute "basically banned . . . all handguns made after 1985." [77] Governor Schaefer, DeMarco, and others favoring gun control interpreted the statutory definition of prohibited handguns as a definition of Saturday Night Specials, because they consistently used this expression in referring to the statute. [78] The "legislative good intention" of the ban on Saturday Night Specials was to reduce crime and violence by making handguns hard to get, according to Boulet. [79] A Baltimore Sun editorial echoed this analysis of motivation: "Marylanders who are sick of living in a gun- ridden society, who want to stop the proliferation of cheap but deadly weapons whose only purpose is criminal, had better get to the polls." [80] In an exit poll, eighty-two percent of the voters cited either crime reduction or proliferation of cheap handguns as their reasons for supporting the statute. [81] Furthermore, this was to be achieved by shifting the burden of proving a handgun's legitimacy to gun manufacturers, according to state senator Howard Denis. [82] There was "lots of evidence that the supporters of the bill thought it a first step down the road to total gun control." [83]
After the NRA-sponsored referendum failed, in the winter of 1988-89, Governor Schaefer appointed the Handgun Roster Board. As Superintendent of the Maryland State Police, Colonel Elmer Tippett was assured a spot as chairman; Simon Atlas, Michael Moore and Joan Jackson became the citizen members (they are described more fully below); Matthew Fenton, IV, represented Marylanders Against Handgun Abuse (MAHA); John Keery represented the Maryland Chapter of the NRA; Vernon Stonesifer [Page 48] represented handgun manufacturer Smith & Wesson; Chief Cornelius Behan represented the Maryland Association of Chiefs of Police; and Logan Widdowson represented the State's Attorney's Association. [84] The Board's shaping and implementation of the regulations would determine whether Saturday Night Specials would really be banned.
V. Maryland Statute and Regulations Are Vague and Ineffective in Banning Saturday Night Specials
Due to poor drafting and implementation of the handgun statute, three years after the statute was passed Maryland citizens are spending time and money on a system that has provided little protection for law-abiding citizens against dangerous handguns and little protection for owners of legitimate handguns against arbitrary bans. Yet the clear intent of the statute, and of those who fought the referendum, was to do something substantial about handgun violence in Maryland. [85] "When Maryland finally adopted its so-called 'Saturday Night Special' law last year, anti-gunners hailed it as the ultimate in gun- control legislation," stated a Gun Tests columnist. [86] "Given the vast amount of money spent on this project, the cost of the ban works out to a little more than $2 million per gun." [87] Other attempts to designate and eliminate Saturday Night Specials have been more effective.
The Handgun Roster Board has approved over 1,000 models of handguns for sale of Maryland and disapproved nineteen. [88] The estimate in the proposed regulations was that 200 of the available 2,000 handguns would be banned. This estimate of a ten percent ban was based on the calculations of H.P. White Laboratories -- one of the best independent firearms testing laboratories -- that there were 2,000 handguns in production that year and that up to 200 handguns would not pass the Maryland characteristics. [89] [Page 49]
Both the BATF regulations and the South Carolina melting-point law have resulted in bans on approximately ten percent of the available handguns. [90]
The ten percent goal in the proposed regulations and the legislative intent to ban Saturday Night Specials have been frustrated. There are more than nineteen models of Saturday Night Specials -- even an NRA spokesperson in a debate over House Bill 1131 listed twelve handguns which were unacceptable and should be banned, [91] and a newspaper story on them could randomly pick ten as examples. [92] The BATF designates hundreds of handguns as Saturday Night Specials, [93] and South Carolina has designated 170 handguns as Saturday Night Specials. [94] These systems will be discussed below. The low number of banned handguns in Maryland is due to (1) the insufficient firearms expertise among, and information for, Board members, a problem both in the statute and in the appointments made; (2) the vagueness of the nine characteristics as written in the statute and as applied by the Board; and (3) the rigidity of the statute's petition and objection process.
A. Board Has Insufficient Firearms Expertise and Information
One of the objections to the Board had been that it would be "stacked" with gun control members. [95] However, it appears that Governor Schaefer, in trying to meet his promise of a "balanced" Board, ended up giving all the cards to the pro-gun side. The votes and attitudes of the representatives of the firearms industry, the NRA, law enforcement and MAHA were close to what a typical representative of those particular groups would do, so the real room for "stacking" is in the State's Attorneys' Association representative and the citizen members.
After Governor Schaefer appointed the Board, C.J. Messerschmidt of the State Attorney's Office joined the Board as its legal counsel (not as a member). The legal counsel's role proved to be a key one in writing and explaining the regulations that the Maryland Department of Public Safety and Correctional Services was charged with promulgating. Although Messerschmidt was assumed to be giving "objective" legal advice, her legal [Page 50] philosophy understandably colored what she said. Since the Board members did not know the technical legal issues involved, they deferred to her expertise. Her strict construction of the statute and regulations became their construction. A narrow interpretation of the statute weakens it, because it prevents the Board from having the power to establish an efficient system for designating dangerous handguns. Thinking that the law required the Board not to do anything that was not explicitly in the statute, the members who wanted to follow the intent of the law and ban dangerous handguns believed they were compelled by the "letter of the law" to include questionable handguns. Keery, who voted to include almost all guns, commented that Behan "is an anti-gun spokesperson but he does vote the law," which presumably means he rarely voted to ban a handgun. [96] Jackson, who usually voted pro-gun, revealed that she "accept s guns I don't care for because they seem to meet the criteria we're bound by." [97] There were alternatives to strict construction (of which MAHA was aware and of which Board members were aware, but not in a legal sense), and so the members were not necessarily compelled to vote as they did. [98]
There is nothing inherently wrong with the Board deferring to legal counsel on technical legal issues, such as when Messerschmidt gave a "whirlwind tour of the Administrative Procedures Act." [99] However, when the legal issues are mainly judgment calls, one person -- and in this case, one person not even part of the Board -- becomes too powerful in shaping the statute and regulations. For example, there were at least three areas where the statute and regulations were strictly construed by Messerschmidt and where others disagreed, only to have their ideas be dismissed as legally impossible. [100] These three areas were: adoption of criteria for designating dangerous handguns, weight to give each criterion, and establishment of a separate list of handguns for law enforcement personnel.
The Maryland Administrative, Executive, and Legislative Review Committee (AELR) suggested several changes to the proposed regulations, including incorporation of the detailed BATF criteria for designating dangerous handguns and a definition of the "[no] undue weight on any [Page 51] one characteristic" provision in the statute. [101] Messerschmidt told the Board that the BATF criteria would not be incorporated because it was "not feasible." [102] She also said that the "no undue weight" provision would not be included because it was already in the statute, and that "no undue weight" meant that a handgun must fail on several characteristics and not just one. [103] For example, she advised that a gun which was not detectable in an airport security system could not be excluded from the roster because there were no other problems with it. [104] Other differing but perfectly legal options were not presented to the Board, even though its members were concerned with clarifying the statute.
One option which could have saved the statute's vague drafting would have been to define the nine characteristics. If one keeps in mind the legislative intent to ban dangerous handguns, these characteristics can be defined without going beyond the statutory authority. This is the option MAHA contemplated compelling the Board to consider. On the same day that Messerschmidt presented the BATF criteria suggestion, BATF staff members Jack Patterson and Edward Owen gave a presentation to the Board on their simple point system for eliminating dangerous handguns. [105] This could have been a good model for the Board, but there was little discussion of the system, probably due to Messerschmidt's "not feasible" judgment. [106]
A second option would have been to define "undue weight" more flexibly, because it is not clear what the legislature intended when it used the subjective terms "undue" and "weight." According to one dictionary, undue means "inappropriate" and weight means "importance." [107] The definition of weight used as a verb demonstrates that it requires a value judgment (and not necessarily Messerschmidt's): To give weight to something means to assign a value to one among several things as a measure of relative importance. Messerschmidt's narrow construction of " no undue weight" is not obvious, as is shown by the fact that Boulet pointed to the "no undue weight" provision as evidence that the statute was so vague that [Page 52] the Board need not approve any handguns. [108] In light of the legislative intent to ban dangerous handguns, it should be possible for a handgun to be unacceptable if it fails on one characteristic, as long as the handgun is dangerous and giving importance to that characteristic is not inappropriate. In fact, it is arguably against legislative intent to not give enough weight to -- and to not define or carefully consider -- a characteristic which makes a handgun dangerous, even if it is just one characteristic. Using the example of the undetectable handgun which was approved because it only failed one characteristic, it is contrary to legislative intent to accept this dangerous handgun because the appropriate ("due") amount of importance ("weight") has not been given to the detectability characteristic.
After the proposed regulations were published in the Maryland Register, there were public hearings on them and Messerschmidt presented the comments to the Board. One of the suggestions was a separate list for law enforcement handguns. This suggestion had been made by a Board member at an earlier meeting, and Messerschmidt had said that the statute did not permit this because "the Board may not place undue weight on any one characteristic" and "utility for law enforcement" was one such characteristic. [109] When she later presented the public hearing comments, she said a law enforcement list was a "non-issue" because there was no provision for it in the statute. [110] Messerschmidt's interpretations were legitimate, but there is an equally legitimate interpretation which is potentially more helpful to the purpose of the statute. The "no undue weight" provision does apply to the use for law enforcement. However, creating a separate law enforcement list does not give that characteristic undue weight; it merely defines that characteristic as different than "utility for legitimate sporting activities" -- which it is. The problem with lumping law enforcement handguns in with sporting handguns is that the two uses are different, and the Board might want vice squads to have handguns for which the law-abiding public should have no need. Although the statute did not explicitly provide for a separate law enforcement list, there was no indication that such a list would be contrary to the intent to ban dangerous handguns. The result of Messerschmidt's, and thus the Board's, narrow interpretation was that the law enforcement members brought in lists of approved on- and off-duty handguns that were put on the roster with little discussion. The members were reluctant to label the police's choice of handguns as low quality or easily concealable, even though they might have questioned the usefulness of these handguns for civilian purposes. [111] [Page 53]
The lack of firearms expertise among the Board members often resulted in blanket approval of handguns, because those members with technical firearms knowledge could convince inexpert members of their position simply by sounding knowledgeable. [112] The handgun statute originally included a police board, and that board was intended to be expert. [113] In trying to balance pro- and anti-gun Board members, the statute and Governor Schaefer emphasized diversity of views over ability to make competent decisions on handguns. "We had problems with Board members who had no idea which end of a gun is dangerous, but that's how it was supposed to be -- have citizen and all kinds of views," said counsel for the AELR committee, Robert K. Smith. [114] The Board members need to be able to use the same technical firearms language, or else decisions will be based on emotional and not reasoned opinions about handguns. At one point a Board member's first remark at a meeting was "There's total mass confusion going on here." [115] Behan identified the main problem with the Board as co-operation with experts. [116] The task seemed to overwhelm Jackson: 'I was astounded by the quantity of handguns." [117] Having the BATF staff give a presentation on its criteria was an attempt by the Board to work with the technical details. However, since no definitions were adopted, the ability to vaguely recognize jargon did nothing to help the inexpert members decide appropriate standards.
The most obvious problem seemed to be that Board members did not question the NRA representative's opinions that many guns before the Board for approval were the same as previously approved guns. Thus the Board would accept the handguns without discussing the nine characteristics. For example, on the following dates these reasons were given for summarily approving guns:
August 14, 1989 -- two guns were made in different countries but were the same; the American Derringers were the same gun, just different calibers; an Iver Johnson gun was the same as the Colt Mustang, only lower quality; July 10, 1989 -- Glock and Beretta guns were approved and a Calico gun "may be as good," so it should be approved; October 10, 1989 -- a Para-Ordnance gun was similar to an Essex gun; two Delta guns just had cosmetic differences and were similar to guns already approved but were [Page 54] double-action; Firearms Importers and Exporters (F.I.E.) manufactured several of the same guns with different names. [118]
Some handguns are identical, and so that approach is sometimes legitimate. However, many handguns were summarily dismissed as "the same handgun" when they were different calibers or copies made by different manufacturers, which could change the weight, concealability, quality and other characteristics. If so many handguns were identical, as the NRA representative claimed, manufacturers would really be fooling buyers.
Certainly not all of the Board members were inexpert, and the problem with their summary decision-making was not only lack of technical knowledge but also lack of complete, objective information on handguns. In addition to personal experience and testing, which the Board applied only to a few guns, the firearms industry literature was the only information on specific handguns used by the Board. [119] The industry literature which was available was -- not surprisingly -- "biased," according to Behan. "Why do we just rely on the literature? Most of it is biased from the industry. It's not an undue hardship for us to check, since this is new territory." [120] According to the regulations, manufacturers petitioning for approval must provide handgun samples upon request. [121] However, in many meetings there are no samples. An easy means of assuring some information would have been to make samples mandatory in the statute and to provide for reimbursement for damaged handguns. South Carolina, for example, puts the testing burden on the manufacturer. [122]
As for testing, the statutory language is permissive, not mandatory. Handguns "may" be tested, but the statute states that nothing in it should be construed as requiring testing. [123] With its annual testing budget of $30,000, the Board did not often exercise its right to test handguns. H.P. White Laboratories was discovered to be the only place for independent firearms testing, and the quoted price was approximately $3,000 per gun. [124] So the Board made an informal arrangement with state police firearms[Page 55] examiners, even though their laboratory can only do some of the needed tests. [125] At several meetings Board members expressed doubts about whose responsibility it was to research the handguns: the Board's, the petitioner's or the objector's. [126] Joshua Horwitz, legal counsel for the Educational Fund to End Handgun Violence, explained this problem well:
The board often approves, without debate or testing, guns about which it has little knowledge or in some cases has never even seen. In fiscal 1990, for example, only 35 of the 200 firearms petitioned for approval were ever physically presented to the board. A related problem is that the state police firearms examiner, who does the board's examinations, is not a trained engineer. He does not conduct a metallurgical exam or any other sophisticated tests needed to determine the overall quality of a gun. . . . So far in FY 90 [Fiscal Year] only two firearms have been systematically and rigorously examined under controlled conditions by a qualified firearms testing laboratory. It is interesting that, after seeing the results, the board disapproved both. [127]
B. Statute is Vague About Characteristics for Banning Guns
As for the statute's vagueness problem, defining Saturday Night Specials so as to allow "good" handguns and ban "bad" ones is difficult, but it can and should be done, as will be seen in the BATF and state melting-point systems. At a Board meeting when there was no photograph or sample of a Mitchell Arms handgun which was under discussion, a Board member said "It's a quality weapon -- I know what they look like." [128] This was sufficient evidence for the Board, since it accepted the handgun without further discussion. [129] This comment is reminiscent of Justice Stewart's infamous pornography standard "I know it when I see it," [130] which was insufficient in that context and is equally problematic here. Firearms experts who are both pro- and anti-gun agree that the term "Saturday Night Special" is used loosely and is difficult to define precisely. [131] However, the definitions offered, though vague, are all similar to the Maryland statute's definition, which means there is some consensus in definition along the lines of Maryland's law. [Page 56]
The handgun statute's nine characteristics for designating Saturday Night Specials were vague when the drafters adopted them from the Kelley case, and then, because of the Board's narrow interpretation of the statute and regulations, the Board's implementation of the statute did not correct the vagueness problem. The Board would have done well to heed a pro-gun law review article on the statute written before the Maryland statute's implementation: "The rulemaking power granted pursuant to the Act potentially can clarify the vague 'criteria' set forth in the Act, and perhaps preclude a void-for- vagueness challenge to the Act. The Secretary should adopt comprehensive regulations specifically defining the criteria . . . ." [132] During the referendum campaign one of the NRA side's main objections was that the vagueness of these characteristics made it impossible to predict or control whether the Board would ban all or none of the handguns in Maryland, giving the Board unlimited power. [133] The vagueness has now been resolved in favor of the NRA side. Gun control advocates must advance the NRA's argument for their own purposes. So far the gun control forces in Maryland have been unwilling to admit that " t he Best of Intentions Went Terribly Awry," as Horwitz phrased it. [134] Fenton, the Board's MAHA representative, insisted that the statute works. [135] However, MAHA protested several Board decisions, [136] and " t he anti-gun members of the panel are continually telling the media that the present form of the law is not tough enough to weed out 'crime guns," according to New Gun Week. [137]
The first characteristic the Board must consider is concealability. [138] The common definition of a "concealable" gun in other state laws is a firearm capable of being concealed on or about the person. [139] The Maryland statute and regulations were not even this specific. In discussing the nine characteristics for a particular handgun, the Board members rarely, if ever, debated whether this characteristic was present. [140] Keery called concealability a "nebulous" characteristic. [141] The only hint of controversy [Page 57] was when a Board member said American Derringers certainly come under concealability, and another member shushed him so that this characteristic would be overlooked. [142] Concealability is considered to be strong evidence of attractiveness for criminals, as is evidenced by the large number of states that forbid concealable weapons or require licenses to carry a concealed weapon, and by Philip Cook's recent article. [143] Cook analyzes several characteristics of Saturday Night Specials similar to those in the Maryland statute and concludes that:
readily concealable handguns are peculiarly suited to use in street crime. A ban on . . . small handguns would facilitate local efforts to deter dangerous people from going armed, and thereby reduce the number of spontaneous gun assaults and robberies. . . . [A] ban on small handguns would not affect sportsmen or people who want a gun for protection of their homes; such people would normally want a longer barrelled, more accurate gun. [144]
So concealability, though one of the most basic attributes of a Saturday Night Special, has yet to be defined by the Maryland statute as written or implemented. As discussed above, this lack of definition and consideration is a lack of "due weight," which frustrates the legislative intent to ban dangerous handguns.
Ballistic accuracy, [145] the second characteristic, is another indicator of safety and of attractiveness for crime. An inaccurate handgun is not useful for legitimate purposes such as hunting and law enforcement. Ballistic accuracy can be objectively defined using straightforward standards. State police firearms experts suggested to the Board that accuracy at ten feet was a good guideline because "the average gun fight is ten feet or less." [146] Firing tests would be useful in determining the ballistic accuracy of the different handguns under consideration by the Board, but tests were not often done by the Board. Jackson said she considered banning a gun most seriously if firing tests were done and it misfired. [147] Even if tests are done, the Board has not said whether, as Horwitz wrote, "a gun is considered to be accurate when it is capable of putting six shots in a three- inch cluster at 25 yards, or is a gun accurate merely if it allows a shooter to hit the broad side of a barn?" [148] Because the statute and the Board's implementation left ballistic accuracy without a precise definition, Board discussions of whether this characteristic is present became partisan debates. In discussing [Page 58] Berettas, one Board member suggested that one on the list was inaccurate, and another member retorted, "You're crazy as hell if you say it's inaccurate." [149] A characteristic that is most capable of precise definition must not be a matter of subjective, political bickering -- that it has been illustrates the statute's and Board's fundamental weakness in willingness or ability to define rules.
Weight [150] is one of the least discussed characteristics at Board meetings or in handgun debates, which is probably because it is more an indicator of concealability, ballistic accuracy, quality and safety than a unique feature of Saturday Night Specials on its own. Usually, the heavier a handgun is, the better it is for legitimate purposes. According to the firearms experts who discussed characteristics with the Board, heavier handguns have less recoil, which means they deteriorate more slowly, and heaviness is a sign of quality. [151] Again this characteristic is left vague in the statute and its implementation, giving it lack of -- therefore inappropriate, undue -- weight and frustrating legislative intent.
The characteristics of quality of materials and quality of manufacture [152] can be analyzed together. Cheap guns are attractive for crime but not for legitimate purposes and are greater safety risks. Price, often an indicator of quality, is one of the most important characteristics of Saturday Night Specials, according to Cook. "Guns made from soft, inexpensive metal are troublesome for police investigators because ballistics tests are difficult or impossible to conduct for such guns, and because serial numbers can be filed off so as to make them untraceable." [153] Quality of materials is also a key factor in state melting-point laws that attempt to deal with handguns in a less comprehensive manner than does Maryland's law. [154] When asked about the quality characteristics, member Keery said, "Can anyone tell me what that means? Legislators wrote these dumb words. By what standards are we to work with?" [155]
The fourth and fifth characteristics, material and manufacturing quality, turned out to be key ones, because Board members often approved guns because they were well made, even though the guns had other characteristics of Saturday Night Specials which the members believed made them dangerous. Iris Birenbaum, the Handgun Roster Board Administrator, said that some members would "love" to reject handguns that border [Page 59] on assault weapons, but they approved the guns because they were well made. [156] The following exchange over the quality of a handgun typifies the confusion: "The Iver Johnson's been around a long time," said one member. [157] Another member retorted, "So's the bow and arrow but they make them of different things." [158]
Reliability as to safety, [159] the sixth characteristic, is important whether or not the handgun is attractive for crime, because firearms safety is unregulated by the federal government. The firearms experts described the different safety mechanisms to the Board, emphasizing the importance of a "drop test" in determining safety. [160] The Board did not decide which, if any, safety mechanisms were necessary for a gun to be approved, but it did have drop tests performed on some handguns.
Caliber [161] is an easy handgun characteristic to determine, and the legislators or the Board members should have defined the acceptable range of calibers. Cook believes caliber is a Saturday Night Special characteristic more relevant to quality and size than to sporting purpose. [162] The lower the caliber, the more likely the gun will be lightweight, inaccurate and concealable. The BATF employees who spoke to the Board did emphasize that the characteristics combine to make a "sliding scale" for acceptance, so a lower caliber may also change the other characteristics and make a handgun unacceptable. [163] The Board often, but not always, considered all calibers of a particular handgun together, without separating out low caliber handguns that might be lightweight and unsafe when the higher caliber guns were not. [164]
The eighth characteristic is detectability by standard security equipment. [165] Detectability is not usually mentioned as a characteristic of Saturday Night Specials, but the Maryland statute's drafters wanted to ensure that "plastic guns" and other guns without the characteristic "L" shape [Page 60] were excluded as dangerous handguns. [166] Certain handguns (such as a tiny one which fits inside a plastic case designed to look like a paging device) incited fear of terrorists. [167] The Board debated the definition of the detectability characteristic, but it did not resolve this issue. [168] So again the characteristic is vague, raising the undue weight problem. The Board members remained uncertain about whether detectability meant the "L" shape or running it through airport equipment. [169]
The last and most indeterminate characteristic is utility for legitimate sporting activities, self-protection or law enforcement. [170] Defining "utility" and "legitimate" requires a value judgment, because one man's vulgar crime gun is another's lyrical symbol of independence -- to paraphrase Cohen v. California on the pitfalls of interpretation. [171] In decrying the Maryland law's definitional problems, The American Handgunner called this criterion "probably the most critical criteria for judging the 'worth' of a firearm under Maryland's . . . law." [172] As Cook said,
[d]epending upon the definition of 'unsafe' and 'no legitimate purpose,' these two criteria may yield an empty category. . . . [I]t seems doubtful that there are any guns that are 'useless' to legitimate owners, yet useful to criminals. Cheap, poor quality handguns are far from being ideal weapons for self-defense . . . but many people consider them better than nothing. [173]
Without further definition this characteristic is overinclusive, because it could be argued that any law enforcement or self-defense purpose for a handgun is legitimate. "The Maryland standards are less strict than the BATF [import control regulations] because of the law enforcement and self-defense provisions," noted Fenton. [174] The Board faced a difficult task: "If scholars of divergent opinion on the utility of gun control cannot agree on what transforms a useful handgun into a dangerous one . . ., it would seem that Maryland's Handgun Roster Board will have some difficulty as well." [175] I contend that the task of establishing and implementing definite criteria is not impossible.
Part of the reason that the nine characteristics remained vague in the Board's implementation is that the members were uncertain about their role in setting standards for handgun sales in Maryland. The purpose of [Page 61] the handgun statute was to establish a Board that would designate Saturday Night Specials in order to reduce handgun violence in Maryland and to take that designating power away from the courts. [176] However, Board members' comments indicate that they did not realize that the Maryland legislature and Maryland citizens wanted handgun standards to be set. In discussing detectability and Glock guns a member asked, "Is it our responsibility?" [177] In discussing the BATF criteria, a member stated, "We're not in a position to set standards for American manufacturers." [178] The legal counsel's narrow interpretations exacerbated this tendency to err on the safe side by not setting any rules, for fear of setting rules contrary to the statute. When questioned about this problem, Messerschmidt responded, "The statute says 'characteristics' not 'criteria.' I'm not sure how easy it is to set up standards. It must be done case by case. . . . The regulations track the statute. . . . What you see is what you get -- the characteristics are not defined." [179]
C. Statute's Petition and Objection Process Is Too Rigid
The last major reason for the Maryland statute's ineffectiveness for handgun control is the ease with which guns are approved and the difficulty with which they are removed after approval. The statute provides for a petition and objection process to challenge either approval or disapproval of a handgun for the Roster. [180] The petitioner or objector is entitled to a hearing. If he or she loses at the hearing, the next step is a challenge in court, [181] which stretches the budget of most gun control groups. Furthermore, an NRA-side spokesperson complained of a court challenge by stating, "such a challenge, in light of the vagueness of the standards established by the law, would be impractical." [182]
Part of the ease of approval and difficulty of removal is in the structure of the petition/objection process, and part of this problem is in the Board's [Page 62] implementation. The Board's main task is to compile a published list of approved handguns, which means that the emphasis is on approval, not on disapproval. Structurally, the burden is equally on the petitioner and the objector to establish a handgun's merit, as the regulations state that both must go through hearings and court challenges. [183] However, the Board's practice put more of the burden on the objector, which makes it more difficult for the intent of the statute -- banning dangerous handguns -- to be realized. The statute provides for putting a handgun on the roster by manufacturer petition or by the Board's own initiative, and many of the handguns were approved from different lists that members brought -- a BATF import list and a law enforcement list, among others. [184] So manufacturers were often not required to prove the safety and value of their handguns, and handguns were summarily approved. [185] However, objectors were required to prove the low quality or dangerousness of a handgun, such as when the Glock handguns were approved even when Fenton had evidence that they were undetectable. [186] This imbalance could have easily been corrected by a statutory amendment or by adding a requirement in the regulations that each petitioner (and objector) provide proof, whether the petitioner is a Board member or manufacturer.
Finally, so many guns were easily approved and will be difficult to remove because the Board was rushed to publish the first roster. This could either be a problem of the statute or its implementation. The statute required that the roster be published by July 1, 1989, [187] which actually meant a decision by June 19, 1989 -- only four months after the Board's first meeting. In that time period the Board had to learn what the statute required, help shape the regulations, and compile a roster. [188] Several members commented about the sheer number of handguns to be considered -- "voluminous," noted Behan. [189] The Board also had a lot of trouble determining how to list the guns, because handguns are sometimes [Page 63] identified by model numbers, sometimes by manufacturer name and sometimes by nicknames. [190] When the Board voted to accept all Arcadia Machine Corp. handguns with little discussion. Fenton stated, "I know time and space are limited, but I'm not happy with the blanket approval." [191] His comments outside the meeting were even more revealing: "There was a lot of pressure to approve handguns by July 1st. We wanted to put a lot on the list to prove the NRA wrong. . . . In those four months after the appointments we made our most mistakes." [192]
So now over 1,000 handguns are on a roster that the Board rushed through, using vague characteristics which the members did not fully understand or about which they did not have enough unbiased information. Because of the difficulty of objecting in court, these handguns are almost permanently approved for sale in Maryland. The Maryland statute has not yet become the "inspiration for people in other states attempting to stem the flow of dangerous handguns" which it was supposed to be. [193] Not only does this result frustrate the legislative intent to ban Saturday Night Specials, but this result does not comport with the statutory language. The statute requires that "each" handgun -- not each manufacturer -- be "carefully" -- not quickly or ignorantly -- considered. [194] The Board has not even approached the ten percent ban in the proposed regulations, as explained above. The fact that this low number of banned handguns frustrated the law's intent was noted in The Washington Post and The New York Times. [195] The American Handgunner succinctly summed up the problem in Maryland:
[T]he Maryland Handgun Roster Board has, without the benefit of valid criteria by which to judge each handgun, found it difficult to ban even a small percentage of the many handguns offered them for the anti-gun axe. . . . Now it seems there's little the Maryland gun banners can do except arbitrarily select a sacrificial handgun now and then. [196]
VI. Other States Have Been Less Ambitious, Yet More Successful
The significant alternatives to Maryland's system show that a handgun [Page 64] control measure can be technically and politically workable, although none have yet made as substantial a difference in the domestic availability of Saturday Night Specials as Maryland's law has the potential to do. On the state level, melting-point laws are necessarily limited to testing quality of materials, whereas a comprehensive system like Maryland's can take into account more subjective factors such as legitimate sporting purposes. On the federal level, the Gun Control Act of 1968 was partly aimed at banning Saturday Night Specials from importation. [197] Although the Gun Control Act only serves to stimulate the domestic market for handguns, it is very effective in establishing a comprehensive system for evaluating handguns and then banning importation of dangerous guns.
The Gun Control Act is effective because the BATF regulations precisely and scientifically define the criteria to use in designating unacceptable handguns. [198] A handgun can be imported if it is, "generally recognized as particularly suitable for or readily adaptable to sporting purposes." [199] Sporting purpose potential is determined by standards set by BATF ordnance and firearms experts. [200] Alcohol, Tobacco and Firearms Form 4590, "Factoring Criteria for Weapons," helps classify handguns for importation control purposes. Thus, the subjective sporting purposes standard is transformed into objective criteria, according to a BATF employee. [201] The factoring criteria form is simple to use because it assigns points to different desirable handgun characteristics, and a handgun cannot be imported unless it achieves a minimum score. For example, a pistol must have a positive manually operated safety device and a combined height and length of at least ten inches. It then receives one point per ounce, fifteen points for forged steel frame construction, five points for a target grip, etc. [202] This system has resulted in import bans on hundreds of dangerous handguns, ten times more handguns than are banned in Maryland. [203]
Not only has the BATF effectively designated and eliminated a substantial number of dangerous handguns from foreign manufacturers, but it has also done so with expertise, clarity and predictability -- all qualities [Page 65] which the Maryland system lacks. The Maryland Board did learn how the BATF system works: "Our job is easy," said a BATF employee to the Board, "we just add up the points." [204] However, the Board did not adopt a similar system because Messerschmidt said it was "not feasible," and because the criteria were perceived to be different. [205]
However, the criteria are actually very similar, though worded differently. The BATF and Maryland both have sporting purpose requirements, and Maryland also has law enforcement and self-defense purpose standards. [206] The BATF requires safety devices or tests on handguns, while Maryland considers reliability as to safety. [207] The BATF has a combined length and height requirement for pistols, and it has frame and barrel length requirements for revolvers; Maryland has a concealability characteristic. [208] The BATF assigns points for frame construction, target sights, and target grips, and Maryland considers quality of manufacture and quality of materials. [209] Both systems factor in weapon weight and caliber. [210] Maryland considers ballistic accuracy, and the BATF assigns points for related characteristics such as target sights and frame construction. [211] The only Maryland characteristic not covered by the BATF regulations is detectability by standard security equipment. [212] All of the BATF criteria seem to be covered by the Maryland characteristics. [213]
On the state level, a few states have tried to deal with Saturday Night Specials by enacting melting-point laws. South Carolina established a melting point law in 1968, and I will use this law as the basic model for a discussion of melting-point laws. Minnesota, Illinois and Hawaii have followed suit. [214] South Carolina prohibits the manufacture and sale of guns with die cast, metal alloy frames, or receivers which melt at less than 800 [Page 66] degrees Fahrenheit. [215] The Illinois and Hawaii laws are essentially the same, [216] and the Minnesota law prohibits guns that melt at less than 1,000 degrees, have less than a certain ultimate tensile strength, or are of powdered metal less than a certain density. [217] The melting- point criterion for whether a gun can be sold is clear and easy to administer. In South Carolina the burden is on the manufacturer to prove compliance, and the state law enforcement division is in charge of enforcing the law. [218] South Carolina has banned 170 handguns, almost ten times as many as Maryland has banned. [219] Maryland has banned a few handguns that South Carolina has not banned. However, a comparison of the treatment of F.I.E. handguns by the two state systems is telling: seventy-three were banned in South Carolina, two were banned in Maryland, and thirty-eight were approved in Maryland. [220]
Identifying Saturday Night Specials by the low quality metal some use has been criticized both by the NRA side and the gun-control side; they condemn a melting-point as an arbitrary line. [221] However, any kind of line drawing is always susceptible to the arbitrariness critique, yet this process is often necessary in law. Furthermore, melting-point laws have been modified when necessary to account for other kinds of low quality materials. Concern about dangerous Glock handguns led to the addition of the words "metal alloy" to the South Carolina law. [222] These same Glocks that concerned South Carolina enough to amend its law are approved for sale in Maryland, over the objection of MAHA. [223] The arbitrariness critique is not aimed at the choice of melting points as a characteristic of Saturday Night Specials but at the choice of a particular temperature -- 800 or 1,000 degrees Fahrenheit. Melting-point laws only directly address one of the usual Saturday Night Special characteristics (as exemplified in the Maryland law) -- the quality of materials characteristic. In specifically banning handguns made of low quality metals, as identified by low melting points, state melting-point laws also indirectly ban some handguns which have the Saturday Night Special characteristics of unreliability as to safety, lack of sporting purpose, and inaccuracy. Melting point is not a measure of these characteristics, but handguns which lack quality materials often also lack adequate safety and accuracy mechanisms and thus are not useful to [Page 67] sportsmen. Since a melting point criterion does not address the other Saturday Night Special characteristics, many dangerous handguns are not banned under this system. A high quality handgun with a high melting point can still be dangerous because it can be concealable, lightweight, low caliber and thus more attractive to criminals than to sportsmen. Even though it is not a comprehensive system for evaluating all aspects of a handgun, a melting-point law is at least a good start.
The advantage of a melting-point law is that, in addition to being an objective, simple criterion, it avoids the bureaucracy of a system that puts the burden on a special board. Unlike Maryland's system, a melting-point law does not put the expense of handgun testing on the state government but rather on the manufacturer. Because the decisions are not based on nine vague, subjective criteria, challenges to handgun bans are less time-consuming. Furthermore, a melting-point law avoids the problem of lack of information or expertise on the part of the Maryland Board, because the expertise is built in. South Carolina attacked the problem of Saturday Night Specials by asking what they had in common. The state law enforcement laboratories did tests on confiscated guns and determined that most Saturday Night Specials had die-cast frames or receivers and melted at less than 800 degrees Fahrenheit. [224]
According to John Morris, a gun shop owner in Columbia, South Carolina, part of the reason the law was based on expertise and scientific inquiry more than emotional appeals and politics (as in Maryland), is that the gun shop lobby initiated the move to eliminate Saturday Night Specials. [225] Gun shop owners presumably know something about firearms, and in South Carolina they were the ones who knew from experience that certain handguns were good only for crime rather than for legitimate purposes. "Gun control groups have little following here, and the NRA is opposed to anything and everything," said Morris. "It was the consumers and gun shops who wanted to get rid of the Saturday Night Specials. There were a lot of low-quality guns being sold to little old ladies for self-defense and endangering them. . . . People were buying handguns here to sell in the North." [226] Mitch Sheldon, a State Law Enforcement Division employee, had a similar explanation, saying that the law was a reaction to highly publicized stories of handguns being bought in southern states with lax gun laws and then used for crimes in big northern cities. [227] It was a way for South Carolina to take the blame off itself for New York's crime problems. Although neither Morris nor Sheldon considered themselves supporters of gun control, neither did they consider themselves sympathetic or susceptible [Page 68] to NRA "hassling." [228]
So another secret of the success of melting-point laws appears to be the broad base of support they can generate, support which cuts across the traditional lines separating those who are gun-control/liberal/urban from those who are pro-gun/conservative/rural. Liberals and urban residents in South Carolina might be expected to vote for a gun-control measure, but here support for the law came primarily from gun shop owners, many of whom were rural and/or conservative. The melting-point law in South Carolina has a broader base of support than the Maryland law, which survived a referendum by only fifty-two percent to forty-eight percent. [229] The NRA's use of argumentum ad baculum that led to the fatal weakening of the Maryland law did not vitiate the South Carolina law because the ban's supporters knew which guns were dangerous and why. The NRA was relegated to an extreme position that did not include all gun owners desirous of protecting a right to bear arms.
The ban supporters in Maryland were primarily liberal and/or urban residents, [230] and this split between gun and non-gun culture was not addressed. The emotional baggage carried into such a fight is vividly described in The Great American Gun War: "The first gun at puberty is the bar mitzvah of the rural WASP. . . . To such people, 'sociological' is an epithet. . . . To gun banners, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization." [231] William Tonso similarly noted in "White Man's Law":
[t]he most dedicated and vociferous proponents of strict gun controls are urban, upper-middle-class . . . pro-big-government liberals, . . . most of whom know little or nothing about guns. . . . [Anti-ban people are dismissed as] NRA hunters who drink beer, don't vote, and lie to their wives about where they were all weekend. . . . [T]he most dedicated opponents of gun- control are often rural- or small-town-oriented, working- or middle-class men and women. . . . To these Americans, guns mean freedom, security, and wholesome recreation. [232]
Polls support these characterizations of pro- and anti-gun voters. According to polls from 1938 to 1991, support for gun control ranges from 66% to 84%. In a 1975 poll, support for banning handguns was 41% nationwide, 58% in the East, 44% in the Midwest, 27% in the South, 29% in the West, 66% in cities with over 1 million people, 28% in towns with under [Page 69] 2,500 people, 24% for gun owners and 54% for non-gun-owners. [233] If handgun control advocates can demonstrate, as in South Carolina, that there is a common ground and relegate the NRA to an extreme position, the way will be paved for a strong, effective statute.
Other states have begun to deal with the problem of handgun violence by instituting waiting periods, licensing laws, or registration requirements. These methods of gun control can be categorized as registration by the dealer at the time of purchase; registration as a prerequisite to possession; restrictive or permissive licensing for license to purchase a handgun, license to carry a handgun or license to possess a handgun. [234] Standard state gun laws restrict the availability of guns for convicted felons, the mentally ill, and minors; prohibit sawed-off shotguns and machine guns; and provide exceptions for law enforcement personnel and the military. [235] Many states have no restrictions other than these, which parallel the federal laws. As of 1988, this was true of Alaska, Arizona, Arkansas, Idaho, Kansas, Kentucky, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, West Virginia and Utah. [236] Other than the melting-point laws in South Carolina, Illinois, Hawaii and Minnesota, the most substantive handgun control measure is a waiting period, which has been enacted as of 1988 in Alabama (forty-eight hours for pistols), California (fifteen days for pistols or revolvers), Connecticut (two weeks for pistols or revolvers), Hawaii (ten days for firearms), Illinois (seventy-two hours for concealable guns, twenty-four hours for rifles, etc.), Indiana (seven days for handguns), Iowa (three days for pistols or revolvers), Maryland (seven days for pistols and revolvers), Minnesota (seven days for pistols), New Jersey (seven days for handguns), Oregon (120 hours for pistols and revolvers), Pennsylvania (forty-eight hours for firearms), Rhode Island (seventy-two hours for pistols or revolvers), South Carolina (thirty days for over one pistol per month), South Dakota (forty-eight hours for pistols), Tennessee (fifteen days for firearms), Washington (five days for pistols if other requirements are not met) and Wisconsin (forty-eight hours for handguns). [237] The other state laws include licensing, registration, record-keeping requirements and instantaneous background checks. [238]
These measures only combat the handgun problem by reducing the [Page 70] access of criminals or the mentally ill to handguns. They do not address the problem of injury or death due to handgun accidents or suicide. One study said that licensing has a greater impact on crime than registration because registration is after-the-fact. [239] The reduction in handgun availability with these measures is not enough to prevent a healthy black market. Furthermore, licensing programs can be expensive. A study done for the National Commission on the Causes and Prevention of Violence calculated the cost for a licensing program as $7 to $52 per application, depending on the amount of required paperwork and number of restrictions. [240] In sum, most gun control measures in the United States are "trivial, reasonable and uncontroversial." [241]
VII. Conclusion
Maryland had the guts to take on the NRA, but this desire for handgun control was not coupled with an effective way to stop the violence. Fear of the NRA vitiated the statute, as seen in the compromise on abrogation of Kelley, the substitution of a diverse for an expert board, and the strict construction of the statute. This fear can be combated by winning over gun owners, rural residents and conservatives, thus confining the NRA to a narrow position. There is evidence that the process of marginalizing the NRA began when the police and some hunters became alienated from the NRA when it opposed restrictions on armor-piercing ammunition and machine guns. [242] With a larger mandate, the legislators and those who implement the statute will feel comfortable in setting definite rules for designating dangerous handguns. South Carolina's handgun statute has successfully withstoods NRA "hassling" because of its cross-cultural consensus.
Legislators should not be afraid to put the burden on handgun manufacturers to prove the legitimacy and safety of their products. Domestic handgun manufacturers have so little regulation to worry about that this burden is not unreasonable. This requirement should include comprehensive, independent testing at manufacturer expense, which would solve the Maryland Board's problem with either inexpertise or lack of unbiased information.
The Maryland statute has such potential to eliminate all Saturday Night Specials because of its comprehensive criteria. There should be criteria -- not characteristics or standards -- for designating dangerous handguns. They should be as specific as the BATF system and as scientific and [Page 71] easily applied as the state melting-point laws. For clarity, the Maryland criteria for designating Saturday Night Specials can be condensed into three criteria: concealability, safety and design purpose.
A definition of concealability could include weight, caliber and detectability by standard security equipment. Safety could include ballistic accuracy and quality of manufacture and materials (partly determined by a melting-point test). The most subjective criterion is design purpose, which should include utility for legitimate sporting activities but not utility for law enforcement or self-defense. Uselessness for law enforcement or self- defense can yield an empty category because almost no handgun is useful to criminals yet useless for law enforcement or self-defense. A design purpose criterion would not only help in designating dangerous handguns but would also help in designating assault weapons, a recent problem. Assault weapons are as difficult to define as Saturday Night Specials, and Horwitz advocates applying the Kelley criteria plus design purpose to assault weapons. [243] A design purpose test is better than a sporting purpose test because some assault weapons are great for killing many animals and many people. [244] The BATF has managed to ban forty-three assault weapons for importation using a sporting purpose test. However, the agency admits it designed the test for handguns, not assault weapons, and that there are at least three times as many models of assault weapons as have been banned. [245]
So Maryland's experiment foundered on its technical and political mistakes. But with several amendments to add strength and precision, the statute and regulations -- in Maryland or any other state -- can progress from being a shot in the dark at banning Saturday Night Specials to being right on target.
* Candidate for J.D., 1992, Georgetown University Law Center; B.A., 1987, Williams College; former editor to Lawyers Alert. Special thanks to Professor Roy Schotland for his comments. The administrative practices and members of the Maryland Handgun Roster Board discussed in this article were current as of August 1991.
[1]. Dave Tinker, The High Costs of Gun Control, Gun Tests, July 1990, at 2.
[2]. Marylander of the Year: Vincent DeMarco, Baltimore Sun, Dec. 31, 1988 (editorial).
[3]. Telephone Interviews with Iris Birenbaum, Administrator of Maryland Handgun Roster Board (Feb. 12, Mar. 15, and Apr. 8, 1991); interview with Matthew Fenton, IV, Marylanders Against Handgun Abuse representative to Maryland Handgun Roster Board, in Baltimore, Md. (June 28, 1990); Department of Public Safety and Correctional Services, State of Maryland, Official Handgun Roster (Dec. 5, 1990) [hereinafter Official Handgun Roster]; minutes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Aug. 14, 1989; Dec. 4, 1989; Jan. 8, 1990; Apr. 16, 1990) (minutes of these meetings, and others referenced throughout this article, are on file with the Maryland Handgun Roster Board in Pikesville, Md.).
[4]. Telephone Interview with Edward Owen, Chief of Firearms Technology, Bureau of Alcohol, Tobacco and Firearms (Apr. 8, 1991); South Carolina Law Enforcement Division, Saturday Night Special List (Sept. 17, 1991) [hereinafter Saturday Night Special List]; telephone interview with Mitch Sheldon, South Carolina Law Enforcement Division employee (Jan. 15, Apr. 8, 1991). The other state melting-point laws are in Minnesota, Illinois and Hawaii. These systems are discussed infra sections I, IV, and V.
[5]. 18 U.S.C.A. §§ 921-29 (West 1976 & Supp.1991).
[6]. 18 U.S.C.A. §§ 921-22, 924-29 (West 1976 & Supp.1991).
[7]. 18 U.S.C.A. § 923 (West 1976 & Supp.1991).
[8]. 22 U.S.C. § 2778 (1988).
[9]. 18 U.S.C. § 1715 (1988).
[10]. 26 U.S.C. §§ 4181-82 (1988).
[11]. The Educational Fund to End Handgun Violence, 3 Firearms Litigation Rep. 3 (1989) (a message from the editors).
[12]. S. 1241, 102nd Cong., 1st Sess. (1991).
[13]. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985), reh'g denied, 471 U.S. 1049 (1985).
[14]. See, e.g., S.C. Code Ann. § 23-31-180 (Law. Co-op. Supp.1990); Haw.Rev.Stat. § 134-15 (1988); Ill.Rev.Stat. ch. 38, para. 24- 3(h) (1988); Minn.Stat. § 624.712(4) (1987).
[15]. Letter from James Brady, former press secretary to President Reagan, to potential contributors (Jan. 1991) (letter on file with author).
[16]. The Educational Fund to End Handgun Violence (1989) (pamphlet).
[17]. Dr. Diane Schetky, Children and Handguns - A Public Health Concern, 139 Am.J. of Diseases of Children 229 (Mar. 1985), cited in William W. Treanor & Marjolijn Bijlefeld, Kids & Guns: A Child Safety Scandal 4 (2d ed.1989).
[18]. Atlanta Regional Commission, The Handgun Issue 4 (1977).
[19]. Philip Cook, The "Saturday Night Special": An Assessment of Alternative Definitions From a Policy Perspective, 72 J.Crim.L. & Criminology 1735, 1744 (1981).
[20]. 18 U.S.C.A. § 922(o)(1) (West 1976 & Supp.1991).
[21]. 18 U.S.C.A. § 922(a)(7) (West 1976 & Supp.1991).
[22]. 18 U.S.C.A. § 925(d) (West 1976 & Supp.1991).
[23]. Cook, supra note 19, at 1743-44.
[24]. Treanor & Bijlefeld, supra note 17, at 6.
[25]. George Hackett et al., Kids: Deadly Force, Newsweek, Jan. 11, 1988, at 18-19.
[26]. Treanor & Bijlefeld, supra note 17, at 9-10.
[27]. Atlanta Regional Commission, supra note 18, at 4.
[28]. Josh Sugarmann, The NRA Is Right, 19 Wash. Monthly, June 1987, at 11.
[29]. Treanor & Bijlefeld, supra note 17, at 3.
[30]. Letter from Brady, supra note 15.
[31]. Treanor & Bijlefeld, supra note 17, at 14.
[32]. Atlanta Regional Commission, supra note 18, at 9.
[33]. Garen J. Wintemute et al., The Choice of Weapons in Firearms Suicides, 78 Am.J.Pub. Health 824, 824 (July 1988).
[34]. Jeffrey H. Boyd, The Increasing Rate of Suicide by Firearms, 308 New Eng.J.Med. 872, 872 (1983); David Lester, Gun Control: Issues and Answers 18, 20 (1984).
[35]. Boyd, supra note 34, at 872; Lester, supra note 34, at 20.
[36]. Wintemute, supra note 33, at 825 nn.11 & 12.
[37]. The Educational Fund to End Handgun Violence, 3 Firearms Litigation Rep. 3 (1989) (a message from the editors).
[38]. 18 U.S.C. §§ 922, 923, 925 (1988); Bureau of Alcohol, Tobacco and Firearms, Federal Firearms Regulation 2-18 (1988) (ATF Pub. No. 5300.4).
[39]. 53 Issue of Gun Control 1, 21 (T. Draper ed., 1981).
[40]. Elaine F. Weiss, Guns in the Courts, Atlantic, May 1983, at 8-16; see generally, Rick L. Jett, Do Victims of Unlawful Handgun Violence Have a Remedy Against Handgun Manufacturers: An Overview and Analysis, 1985 U.Ill.L.Rev. 967 (1985).
[41]. See Weiss, supra note 40, at 8-16; see generally Jett, supra note 40.
[42]. Marjolijn Bijlefeld, Maryland Draft 3 (1989) (unpublished study of Maryland handgun referendum).
[43]. American Enterprise Institute For Public Policy Research, Gun Control 3 (1976).
[44]. Cook, supra note 19, at 1738.
[45]. Bureau of Alcohol, Tobacco and Firearms, supra note 38, at 83; 18 U.S.C. § 925(d)(3) (1988).
[46]. Riordan, Gun Was Made Here, But Sale Is Outlawed, Miami Herald, Apr. 1, 1981, at 7.
[47]. American Enterprise Institute for Public Policy Research, supra note 43, at 5.
[48]. Telephone Interview with Jack Killorin, Chief of Public Affairs Branch of Bureau of Alcohol, Tobacco and Firearms (Apr. 12, 1991).
[49]. The Brady Bill passed in the House of Representatives on May 8, 1991 and in the Senate on June 28, 1991, but the two houses need to reconcile the different versions. Telephone Interview with Gwen Fitzgerald, Assistant Director of Communications at Handgun Control, Inc. (Mar. 1992).
[50]. Letter from Brady, supra note 15.
[51]. Id.
[52]. Tom Foley, Gun Nut, New Republic, Jan. 28, 1991, at 7-8 (editorial); television interview on MacNeil/Lehrer news with Representative Lee Hamilton of Indiana (May 7, 1991).
[53]. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985), reh'g denied, 471 U.S. 1049 (1985).
[54]. United States v. Cruikshank, 92 U.S. 542 (1876).
[55]. Presser v. Illinois, 116 U.S. 252 (1886).
[56]. United States v. Miller, 307 U.S. 174 (1939).
[57]. Quilici v. Morton Grove, 695 F.2d 261 (7th Cir.1982), cert. denied, 464 U.S. 863 (1983).
[58]. Farmer v. Higgins, 907 F.2d 1041 (11th Cir.1990), reh'g denied, 914 F.2d 1498 (11th Cir.1990), cert. denied, 111 S.Ct. 753 (1991).
[59]. Kelley v. R.G. Indus., 497 A.2d 1143 (Md.1985).
[60]. Id. at 1148-49.
[61]. Id. at 1154 n.10.
[62]. Id. at 1153-54.
[63]. Bijlefeld, supra note 42, at 3, 5.
[64]. Id.; Marylander of the Year: Vincent DeMarco, supra note 2.
[65]. Statement of J. Joseph Curran, Jr., Attorney General of Maryland, before Maryland House Judiciary Committee, at 2 (Mar. 21, 1988) (in support of House Bill 1131).
[66]. Robert E. Powell & Catherine A. Potthast, House Bill 1131: An Enigma, 19 U.Balt.L.F. 7, 11 (1988).
[67]. H.B. 1131, 395th Sess. (Md.1988).
[68]. Id.; James J. Boulet, Jr., Firearms Folly in Maryland 3 (1989).
[69]. Md.Ann. Code art. 27, §§ 36I-36J (1992).
[70]. Boulet, supra note 68, at 2.
[71]. See generally Boulet, supra note 68.
[72]. 73 Op. Att'y Gen. 78 (1988) (slip op. 2).
[73]. Powell & Potthast, supra note 66, at 11; Statement of Curran, supra note 65, at 2; Boulet, supra note 68, at 100-01 (citing letter from Governor Donald Schaefer to Maryland residents (Oct. 1989)).
[74]. Boulet, supra note 68, at 100-01 (citing letter from Governor Donald Schaefer to Maryland residents (Oct. 1989)).
[75]. Vincent DeMarco, Two Views of Maryland's Proposed Gun Law: A Unique Approach to Handgun Control, 19 U.Balt.L.F. 6, 9 (1988) [hereinafter Unique Approach]; Vincent DeMarco, Marylanders Against Saturday Night Specials Campaign Plan 9 (June 14, 1988) [hereinafter Campaign Plan] (unpublished, confidential material; on file with author).
[76]. Unique Approach, supra note 75, at 9; Campaign Plan, supra note 75, at 7.
[77]. Boulet, supra note 68, at v.
[78]. Unique Approach, supra note 75, at 6; Campaign Plan, supra note 75, at 5; Citizens for Eliminating Saturday Night Specials, Be on the Safe Side (1988); Boulet, supra note 68, at 100-01 (citing letter from Governor Schaefer to Maryland residents (Oct. 1989)).
[79]. Boulet, supra note 68, at 1.
[80]. Id. at 140 (citing It Could Happen to You, Baltimore Sun, Nov. 7, 1988).
[81]. Id. at 71-72 (citing One Last Poll: What Voters Said on the Way Out, Baltimore Sun, Nov. 20, 1988).
[82]. Robert Barnes & Amy Goldstein, Senate Passes Gun Bill Despite NRA Flak, Wash. Post, Apr. 10, 1988, at D1.
[83]. Boulet, supra note 68, at 2.
[84]. Telephone Interview with Joshua Horwitz, legal counsel for Educational Fund to End Handgun Violence (Jan. 1991); meeting of the Maryland Handgun Roster Board in Pikesville, Md. (author was present at the meeting) (June 11, 1990).
[85]. See supra notes 70-83 and accompanying text.
[86]. Tinker, supra note 1, at 2.
[87]. Id.
[88]. The Board does not like to speak of banned handguns, because it only draws up an approved list, not a ban list -- meaning there are several handgun models which have not been approved because no one has yet petitioned to include them. However, tapes of the Board meetings and interviews reveal that 19 handgun models by 12 different manufacturers were specifically considered and disapproved by Board vote. The fact that 10 of those manufacturers have challenged Board decisions proves that rejection decisions were made, because if there had been no rejections there would have been nothing to challenge. Telephone Interviews with Birenbaum, supra note 3; interview with Fenton, supra note 3; Official Handgun Roster, supra note 3; minutes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Aug. 14, 1989; Dec. 4, 1989; Jan. 8, 1990; Apr. 16, 1990).
[89]. Md.Regs. Code tit. 12, § 12.11.07 (proposed Sept. 8, 1989) (data supplied to support proposed regulations).
[90]. Telephone Interview with Owen, supra note 4; Saturday Night Special List, supra note 4; telephone interview with Sheldon, supra note 4.
[91]. Unique Approach, supra note 75, at 6.
[92]. Boulet, supra note 68, at 132.
[93]. Telephone Interview with Owen, supra note 4.
[94]. Saturday Night Special List, supra note 4; telephone interview with Sheldon, supra note 4.
[95]. Campaign Plan, supra note 75, at 8; Baltimore County Police Department, The Facts About Maryland's New Handgun Law (1988) (question and answer sheet), cited in Boulet, supra note 68, at 108-09.
[96]. Telephone Interview with John Keery, NRA representative to Maryland Handgun Roster Board (July 1990).
[97]. Telephone Interview with Joan Jackson, citizen representative to Maryland Handgun Roster Board (July 1990).
[98]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989) (the tape of this meeting, and others referenced throughout this article, are available from the Maryland Handgun Roster Board in Pikesville, Md.).
[99]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Mar. 20, 1989).
[100]. MAHA did consider legal action to compel the Board to establish a more detailed and consistent procedure for evaluating handguns, but the group decided that the statute and the Board were working well enough. Interview with Fenton, supra note 3; Howard Schneider, Md. Gun Control Proponents Question Effectiveness of Law, Wash. Post, May 21, 1990, at E6; telephone interview with Horwitz, supra note 84.
[101]. Telephone Interview with Robert K. Smith, Committee Counsel, Maryland Administrative, Executive and Legislative Review Committee (Apr. 24, 1991). The AELR is a legislative committee which reviews proposed regulations from executive agencies and makes suggestions to help the agency comply with statutory authority and legislative intent.
[102]. Minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989); tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989).
[103]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[104]. Id.
[105]. Minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989); tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989).
[106]. Minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989); tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989); telephone interview with Owen, supra note 4. Owen stated that he was not asked then or now to help with Maryland's criteria in reference to the BATF criteria.
[107]. Webster's New International Dictionary 2492, 2593 (3rd ed.1971).
[108]. Boulet, supra note 68, at 29.
[109]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[110]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Oct. 10, 1989).
[111]. See generally tapes of the Maryland Handgun Roster Board meetings in Pikesville, Md. (Feb. 27, 1989; Mar. 20, 1989; Apr. 17, 1989; May 22, 1989; June 9, 1989; July 10, 1989; Aug. 14, 1989; Oct. 10, 1989; June 11, 1990).
[112]. See, e.g., tapes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Aug. 14, 1989; Oct. 10, 1989); minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[113]. H.B. 1131, 395th Sess. (Md.1988); see generally notes 70-83 and accompanying text.
[114]. Telephone Interview with Smith, supra note 101.
[115]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (June 9, 1989).
[116]. Telephone Interview with Cornelius Behan, Maryland State Chiefs of Police Association representative to Maryland Handgun Roster Board (July 1990).
[117]. Telephone Interview with Jackson, supra note 97.
[118]. Tapes of Maryland Handgun Roster Board meetings in Pikesville, Md. (July 10, 1989; Aug. 14, 1989; Oct. 10, 1989).
[119]. Interview with Fenton, supra note 3. Fenton said that the state police were "amazingly bad at getting the information to us." Id. The firearms manufacturers ignored the Board's letters requesting information about handguns. F.I.E. did not just ignore the Board's request, it wrote a letter stating its refusal to submit its handguns to a Board not governed by standards or criteria but rather by whim or emotion. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (May 22, 1989); interview with Fenton, supra note 3.
[120]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[121]. Md.Regs. Code tit. 12, § 12.11.07 (proposed Sept. 1989) (estimate of economic impact; data supplied to support proposed regulation); tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[122]. Telephone Interview with John Morris, manager of The Gun Shop, Columbia, S.C. (Jan. 21, 1991).
[123]. Md.Ann. Code art. 27, §§ 36I-36J (1992).
[124]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[125]. Id.
[126]. Id.
[127]. Joshua M. Horwitz, How the Best of Intentions Went Terribly Awry, Wash. Post, Nov. 25, 1990, at C8.
[128]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (May 22, 1989).
[129]. Id.
[130]. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
[131]. 53 Issue of Gun Control 1, 22 (T. Draper ed., 1981); Atlanta Regional Commission supra note 18, at 12-13; American Enterprise Institute for Public Policy Research, supra note 43, at 21-23.
[132]. Powell & Potthast, supra note 66, at 11.
[133]. Boulet, supra note 68, at 3-5, 22-23.
[134]. Horwitz, supra note 127. The NRA-side reaction to Horwitz's article was "I told you so," and the gun-control-side reaction was "Maybe so, but we're sending a message." Telephone Interview with Horwitz, supra note 84; Maryland's Saturday Night Special Law, Wash. Post, Dec. 9, 1990, at K8.
[135]. Interview with Fenton, supra note 3.
[136]. Id.
[137]. Joseph Tartaro, The Politics of Maryland Firearms Board, New Gun Week, Feb. 23, 1990, at 11.
[138]. Md.Ann. Code art. 27, § 36J(b)(2) (1992).
[139]. Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances--Firearms 1-122 (1989) (ATF Pub. No. 5300.5).
[140]. Tapes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Feb. 27, 1989; Mar. 20, 1989; Apr. 17, 1989; May 22, 1989; June 9, 1989; July 10, 1989; Aug. 14, 1989; Oct. 10, 1989; June 11, 1990).
[141]. Telephone Interview with Keery, supra note 96.
[142]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[143]. See generally Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances--Firearms 1-122 (1989) (ATF Pub. No. 5300.5); Cook, supra note 19.
[144]. Cook, supra note 19, at 1744-45.
[145]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[146]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[147]. Telephone Interview with Jackson, supra note 97.
[148]. Horwitz, supra note 127, at C8.
[149]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (June 9, 1989).
[150]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[151]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[152]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[153]. Cook, supra note 19, at 1740.
[154]. The firearms experts told the Board that for materials, forged steel is better than pour-cast, and for manufacturing, the finishing and fit of parts should be examined, though there is no general industry standard. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[155]. Telephone Interview with Keery, supra note 96.
[156]. Telephone Interviews with Birenbaum, supra note 3. Behan echoed this in a Washington Post article, Howard Schneider, Md Approves More Guns for Sale: Law's Intent Frustrated, 1 Member Says as List Approaches 800, Wash. Post, Jan. 9, 1990, at B1.
[157]. Tape of Maryland Handgun Roster Board meetings in Pikesville, Md. (May 22, 1989).
[158]. Id.
[159]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[160]. Tapes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Feb. 27, 1989; July 10, 1989). A drop test can help determine a gun's propensity for accidental discharge. Accidental discharge is the cause of many firearms accidents--and litigation--where, for example, hunters trip and drop guns or children knock guns off of a shelf.
[161]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[162]. Cook, supra note 19, at 1738.
[163]. Minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989); tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (July 10, 1989); telephone interview with Owen, supra note 4.
[164]. Tapes of Maryland Handgun Roster Board meeting in Pikesville, Md. (June 9, 1989; July 10, 1989).
[165]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[166]. Statement of Curran, supra note 65, at 3-4; Unique Approach, supra note 75, at 8.
[167]. Unique Approach, supra note 75, at 8.
[168]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[169]. Id.
[170]. Md. Ann. Code art. 27, § 36J(b)(2) (1992).
[171]. Cohen v. California, 403 U.S. 15, 25 (1971).
[172]. Richard E. Gardiner, Maryland Handgun Ban Fails to Define 'Saturday Night Special,' Am. Handgunner, Mar.-Apr. 1990, at 22.
[173]. Cook, supra note 19, at 1736-37.
[174]. Interview with Fenton, supra note 3.
[175]. Boulet, supra note 68, at 5.
[176]. See supra notes 70-83 and accompanying text.
[177]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[178]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (May 22, 1989).
[179]. Telephone Interview with C.J. Messerschmidt, Assistant Attorney General and legal advisor to Maryland Handgun Roster Board (July 1990).
[180]. Md.Ann. Code art. 27, §§ 361-66J (1992).
[181]. Md.Regs. Code tit. 12, §§ 12.11.12(F), 12.11.14(C), 12.11.18 (1988).
[182]. Boulet, supra note 68, at 23 n.*. There have been 10 petitioner challenges to handguns rejected for the roster and two objector challenges to handguns included on the roster. Telephone Interviews with Birenbaum, supra note 3. As of April 1991, there were 11 requests for hearings, of which three decisions were appealed to the courts. Id. Only one of the hearings, and the subsequent court challenge, was requested by an objector. Id. The Board's decisions to reject certain handguns were upheld in the two petitioner court challenges, and twice the Board decided to reverse decisions. Id. See Marylanders Against Handgun Abuse v. Handgun Roster Bd., No. 90172078- CL115448 (Baltimore City Cir.Ct., Dec. 7, 1990); Beretta U.S.A. Corp. v. Handgun Roster Bd., No. CAL90-17111 (Prince George's County Cir.Ct., Jan. 2, 1991); K.B.I., Inc. v. Handgun Roster Bd., No. 90-CG-1730 (Baltimore City Cir.Ct., Feb. 7, 1991).
[183]. Md.Regs. Code tit. 12, §§ 12.11.12(F), 12.11.14(C), 12.11.18 (1988).
[184]. Tapes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Aug. 14, 1989; Oct. 10, 1989); minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[185]. See generally tapes of the Maryland Handgun Roster Board, supra note 111.
[186]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989). Fenton objected to the inclusion of several Glock guns, primarily for detectability reasons. However, the motion failed because some Board members did not believe the Glock guns were undetectable and because the objector did not meet his burden of proof. The Board said the objector did not meet his burden of proving the gun undetectable, even though Fenton had presented some evidence that the guns were dangerous, and it refused to do its own testing because it was unclear that the Board had a duty to do anything unexpected. Id.
[187]. Md.Ann. Code art. 27, § 36J(b)(1) (1992).
[188]. These meetings were monthly, and money for administrative help and testing did not come through until July 1. Tapes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Feb. 27, 1989; May 22, 1989); minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (Feb. 27, 1989).
[189]. Telephone Interview with Behan, supra note 116.
[190]. Minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (June 9, 1989).
[191]. Tape of the Maryland Handgun Roster Board meeting in Pikesville, Md. (Apr. 17, 1989). There were several frustrated remarks, such as "We'll be here till next year if you tentatively object." Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (May 22, 1989).
[192]. Interview with Fenton, supra note 3.
[193]. Marylander of the Year: Vincent DeMarco, supra note 2.
[194]. Md.Ann. Code art. 27, § 36J(b)(3) (1992).
[195]. Schneider, supra note 100; Schneider, supra note 156; B. Drummand Ayres, Jr., Maryland Board Approving of Most Handguns It Considers, N.Y. Times, Oct. 23, 1989, at A12.
[196]. Gardiner, supra note 172, at 22.
[197]. 18 U.S.C.A. §§ 921-29 (West 1976 & Supp.1991).
[198]. Id.
[199]. 18 U.S.C.A. § 925(d)(3) (West 1976 & Supp.1991); Bureau of Alcohol, Tobacco and Firearms, Disapproved Importation of Nonsporting Firearms [hereinafter Disapproved Importation] (Jan. 1985) (Form 5330.17).
[200]. Disapproved Importation, supra note 199.
[201]. Tape of Maryland Handgun Roster Board meeting held in Pikesville, Md. (July 10, 1989).
[202]. Bureau of Alcohol, Tobacco and Firearms, Factoring Criteria for Weapons [hereinafter Factoring Criteria] (Oct. 1977) (Form 4590).
[203]. Telephone Interviews with Birenbaum, supra note 3; interview with Matthew Fenton, IV, supra note 3; Official Handgun Roster, supra note 3; minutes of Maryland Handgun Roster Board meetings in Pikesville, Md. (Aug. 14, 1989; Dec. 4, 1989; Jan. 8, 1990; Apr. 16, 1990).
[204]. Tape of Maryland Handgun Roster Board meeting held in Pikesville, Md. (July 10, 1989).
[205]. Minutes of Maryland Handgun Roster Board meeting in Pikesville, Md. (May 22, 1989).
[206]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[207]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[208]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[209]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[210]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[211]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[212]. Md.Ann. Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[213]. Md.Ann.Code art. 27, § 36J(b)(2) (1992); Disapproved Importation, supra note 199; Factoring Criteria, supra note 202.
[214]. Haw.Rev.Stat. § 134-15 (Supp.1990); Ill.Rev.Stat. ch. 38, para. 24-3(h) (1991); Minn.Stat. § 624.712(4) (1987).
[215]. S.C. Code Ann. § 23-31-180 (Law.Co-op.Supp.1990).
[216]. Haw.Rev.Stat. § 134-16 (Supp.1990); Ill.Rev.Stat. ch. 38, para. 24-3(h) (1991).
[217]. Minn.Stat. § 624.712(4) (1987). For more information, see League of Women Voters of Minn., The Sale, Use and Possession of Firearms in Minnesota (Jan. 1990).
[218]. Telephone Interview with Morris, supra note 122; telephone interview with Sheldon, supra note 4.
[219]. Saturday Night Special List, supra note 4.
[220]. Id.; Official Handgun Roster, supra note 3.
[221]. American Enterprise Institute for Public Policy Research, supra note 43, at 3.
[222]. Telephone Interview with Sheldon, supra note 4.
[223]. Tape of Maryland Handgun Roster Board meeting in Pikesville, Md. (Aug. 14, 1989).
[224]. Telephone Interview with Morris, supra note 122.
[225]. Id.; telephone interview with Sheldon, supra note 4; Saturday Night Special List, supra note 4.
[226]. Telephone Interview with Morris, supra note 122.
[227]. Telephone Interview with Sheldon, supra note 4.
[228]. Telephone Interview with Morris, supra note 122; telephone interview with Sheldon, supra note 4.
[229]. Bijlefeld, supra note 42, at 1.
[230]. Id. at 1, 26-29.
[231]. 53 Issue of Gun Control 1, 13, 35-37 (T. Draper ed., 1981).
[232]. William Tonso, White Man's Law, 17 Reason 25 (1985).
[233]. Atlanta Regional Commission, supra note 18, at apps. B-1, B-2; see also Pamela Brown, Your Response to Our Handgun Poll, USA Weekend, Mar. 17, 1991.
[234]. Atlanta Regional Commission, supra note 18, at 24.
[235]. Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances--Firearms, supra note 139, at 1-22.
[236]. Id.
[237]. Id. For more information, see Michael D. Ridberg, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U. Chicago L.Rev. 185 (1970); Rhonda Canby, 1989 Oregon Gun Control Legislation, 26 Willamette L.Rev. 565 (1990).
[238]. Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances--Firearms, supra note 139, at 1-122.
[239]. Atlanta Regional Commission, supra note 18, at 27.
[240]. Id. at 27-28.
[241]. 53 Issue of Gun Control 1, 15 (T. Draper ed., 1981).
[242]. Jonathon Tilove, The NRA, Toughest Hombre in Town, to Get Tougher Kalamazoo Gazette, Mar. 21, 1991, at B5; The Educational Fund to End Handgun Violence and New Right Watch, Assault Weapons and Accessories in America 27 (1988).
[243]. Joshua M. Horwitz, Kelley v. R.G. Industries: A Cause of Action for Assault Weapons, 15 U. Dayton L.Rev. 125, 138 (1989).
[244]. The Educational Fund to End Handgun Violence and New Right Watch, Assault Weapons and Accessories in America 1-2 (1988).
[245]. Telephone Interview with Killorin, supra note 48; Bureau of Alcohol, Tobacco and Firearms, Fact Sheet 1-3 (July 1989) (press release).