Respondents Brief — Maryland Shall Issue, Inc., et al., Petitioners v. Lawrence J. Hogan, Jr., Governor of Maryland

Supreme Court briefMar 29, 2021

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No. 20-855

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MARYLAND SHALL ISSUE, INC., et al.,

Petitioners,

LAWRENCE J. HOGAN, JR.,

GOVERNOR OF MARYLAND,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------BRIAN E. FROSH

Attorney General of Maryland

ADAM D. SNYDER*

Assistant Attorney General

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

asnyder@oag.state.md.us

(410) 576-6398

Attorneys for Respondent

MARCH 2021

*Counsel of Record

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

In Las Vegas, Nevada on October 1, 2017, a gunman ﬁring semiautomatic riﬂes modiﬁed with bump

stocks killed 58 people and wounded more than 850

others. The use of bump stocks enabled the gunman to

ﬁre more than a thousand rounds of ammunition in

just ten minutes, a rate of ﬁre comparable to that of

machine guns banned by federal law.

In response to the Las Vegas shooting, Maryland,

like many other States, exercised its police powers to

outlaw bump stocks and other devices that mimic the

ﬁrepower of a machine gun. The federal government

took similar action. No party before the Court contends

that Maryland lacked the power to institute the ban;

nor does any party contend that this exercise of the police power infringes the constitutional right to bear

arms.

The questions presented are as follows:

1. May the State outlaw dangerous devices without having to pay compensation under the Takings

Clause of the Fifth Amendment, when the State exercises its public safety police power to ban the devices

and not its power of eminent domain to take them for

a public use?

2. When addressing a post-decision petition for

rehearing, does an appellate court act within its discretion in declining to certify a question to a State’s

highest court when the request to do so is based on the

requesting party’s misunderstanding of the appellate

court’s decision and its treatment of State law?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

TABLE OF AUTHORITIES .................................

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI ..................................

STATEMENT .......................................................

The Las Vegas Massacre and Maryland’s Ban

on Bump Stocks and Other Rapid Fire Trigger

Activators .........................................................

The Federal Government’s Long-Standing Regulation of Machine Guns and Recent Classification of Bump Stocks and Other Devices as

Machine Guns...................................................

Procedural History ...........................................

REASONS FOR DENYING REVIEW ................. 11

A STATE’S EXERCISE OF ITS PUBLIC SAFETY

POLICE POWER, AS OPPOSED TO ITS POWER

OF EMINENT DOMAIN, DOES NOT REQUIRE

COMPENSATION ............................................ 11

II. HORNE DID NOT CREATE A NEW CATEGORY

OF PER SE TAKINGS FOR GOVERNMENT POSSESSION-BANS .............................................. 19

A. The Act Does Not Constitute a Per

Se Taking Under Horne, Loretto, or

Lucas ................................................... 22

iii

TABLE OF CONTENTS—Continued

Page

B. There Is No Circuit Split That Requires

this Court’s Resolution of Whether the

Lucas Per Se Test Applies to Regulations of Personal Property ................... 27

III.

THE REQUEST TO CERTIFY STATE-L AW QUESTIONS TO MARYLAND’S HIGHEST COURT REFLECTS A MISUNDERSTANDING OF MARYLAND

LAW AND A MISREADING OF THE FOURTH CIRCUIT’S DECISION .......................................... 30

CONCLUSION..................................................... 34

TABLE OF AUTHORITIES

Page

CASES

A&D Auto Sales, Inc. v. United States,

748 F.3d 1142 (Fed. Cir. 2014) ................................27

Acadia Tech., Inc. v. United States,

458 F.3d 1327 (Fed. Cir. 2006) ............................ 7, 14

Akins v. United States,

312 F. App’x 197 (11th Cir. 2009) .......................... 6, 7

Akins v. United States,

82 Fed. Cl. 619 (Fed. Cl. 2008) .................... 14, 25, 28

Alexander v. Sandoval, 532 U.S. 275 (2001) ..............26

AmeriSource Corp. v. United States,

525 F.3d 1149 (Fed. Cir. 2008) .......................... 13, 29

Andrus v. Allard, 444 U.S. 51 (1979) ..........................18

Association of N.J. Riﬂe & Pistol Clubs, Inc. v.

Attorney Gen., 910 F.3d 106 (3d Cir. 2018) ....... 14, 22

Attorney Gen. of Md. v. Waldron,

289 Md. 683 (1981) ..................................................31

Bennis v. Michigan, 516 U.S. 442 (1996) ........ 13, 17, 22

Bowditch v. Boston, 101 U.S. 16 (1879) ......................13

Clayland Farm Enters., LLC v. Talbot County,

Md., 987 F.3d 346 (4th Cir. 2021) ...........................33

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................................15

Ellis v. McKenzie, 457 Md. 323 (2018) ................. 30, 32

Fesjian v. Jefferson, 399 A.2d 861

(D.C. Ct. App. 1979) .................................................14

TABLE OF AUTHORITIES – Continued

Page

Garcia v. Village of Tijeras,

108 N.M. 116 (Ct. App. 1988) ..................................13

Gardner v. Michigan, 199 U.S. 325 (1905) .................13

Guedes v. Bureau of Alcohol, Tobacco, Firearms

& Explosives, 920 F.3d 1 (D.C. Cir. 2019),

cert. denied, 140 S. Ct. 789 (2020) .......................... 5

Guedes v. Bureau of Alcohol, Tobacco, Firearms,

& Explosives, No. 18-CV-2988 (DLF), 2021 WL

663183 (D.D.C. Feb. 19, 2021), appeals ﬁled

Nos. 21-5045, 21-1707 (D.C. Cir. Feb. 23 and

March 2, 2021)............................................. 15, 16, 29

Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430 (8th Cir. 2007) ..........................23

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, Inc., 452 U.S. 264 (1981) ...............................18

Holliday Amusement Co. of Charleston, Inc. v.

South Carolina, 493 F.3d 404 (4th Cir. 2007) .... 13, 25

Horne v. Department of Agric.,

576 U.S. 350 (2015) ......................................... passim

Hunt v. State, No. 1D19-2143, 2021 WL 282284

(Fla. Dist. Ct. App. Jan. 28, 2021) ...........................15

Kam-Almaz v. United States,

682 F.3d 1364 (Fed. Cir. 2012) .......................... 13, 29

Kane v. Board of Appeals of Prince George’s

County, 390 Md. 145 (2005) ....................................31

Kelo v. City of New London, Conn.,

545 U.S. 469 (2005) .................................................17

TABLE OF AUTHORITIES – Continued

Page

Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470 (1987) .................................................15

Lehman Bros. v. Schein, 416 U.S. 386 (1974)................33

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ......................................... passim

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)........................................ passim

Maritrans, Inc. v. United States,

342 F.3d 1344 (Fed. Cir. 2003) ................................27

McCutcheon v. United States,

145 Fed. Cl. 42 (2019)...................... 14, 15, 16, 28, 29

McKesson v. Doe, 141 S. Ct. 48 (2020) ........................33

Miller v. Schoene, 276 U.S. 272 (1928) .......................13

Mitchell Arms, Inc. v. United States, 26 Cl. Ct. 1

(1992), aff ’d, 7 F.3d 212 (Fed. Cir. 1993).................25

Modern Sportsman v. United States,

145 Fed. Cl. 575 (2019)................................ 14, 28, 29

Mugler v. Kansas, 123 U.S. 623 (1887) ..... 12, 13, 15, 16

Murr v. Wisconsin, 137 S. Ct. 1933 (2017) ..... 19, 20, 25

Muskin v. State Dep’t of Assessments & Taxation,

422 Md. 544 (2011) ............................................ 31, 32

Neifert v. Department of Env’t,

395 Md. 486 (2006) ............................................ 30, 33

Penn Cent. Transp. Co. v. New York City,

438 U.S. 104 (1978) ..................................... 12, 21, 28

vii

TABLE OF AUTHORITIES – Continued

Page

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) .................................................20

Piselli v. 75th Street Med., 371 Md. 188 (2002)..........31

Pumpelly v. Green Bay Co., 80 U.S. 166 (1871) ..........16

Roberts v. Bondi, 2018 WL 3997979

(M.D. Fla. 2018) ................................................. 15, 17

Rose Acre Farms, Inc. v. United States,

373 F.3d 1177 (Fed. Cir. 2004) ................................28

Samuels v. McCurdy, 267 U.S. 188 (1925) .................12

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302 (2002) .... 20, 22, 24, 27

United States v. Caltex, 344 U.S. 149 (1952) ..............13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. II ....................................................8

U.S. Const. amend. V .......................................... passim

U.S. Const. amend. XIV ................................................9

Magna Carta, Chap. 39 (1215) ...................................31

Md. Const. Art. III, § 40 ...................................... passim

Md. Declaration of Rights, Art. 24 ........... 31, 32, 33, 34

STATUTES

18 U.S.C. § 921(a)(23) ...................................................5

18 U.S.C. § 922(o) ...................................................... 5, 6

26 U.S.C. §§ 5801-5861 ............................................ 5

viii

TABLE OF AUTHORITIES – Continued

Page

26 U.S.C. § 5845(a) ........................................................5

26 U.S.C. § 5845(b) ................................................... 5

44 U.S.C. § 1507 ............................................................3

Firearm Owners’ Protection Act, Pub. L. 99308, 100 Stat. 499 ................................................. 5

Gun Control Act of 1968, 18 U.S.C. §§ 921-931 ....... 5, 6

National Firearms Act of 1934 ................................. 5, 6

Md. Code Ann., Crim. Law § 4-301(e)

(Lexis-Nexis Supp. 2020) ..........................................4

Md. Code Ann., Crim. Law § 4-301(f )

(Lexis-Nexis Supp. 2020) ..........................................4

Md. Code Ann., Crim. Law § 4-301(m)(1)

(Lexis-Nexis Supp. 2020) ..........................................4

Md. Code Ann., Crim. Law § 4-301(m)(2)

(Lexis-Nexis Supp. 2020) ..........................................4

Md. Code Ann., Crim. Law § 4-305.1(a)

(Lexis-Nexis Supp. 2020) ..........................................3

Md. Code Ann., Crim. Law § 4-305.1(b)

(Lexis-Nexis Supp. 2020) .................................... 4, 23

Md. Code Ann., Crim. Law § 4-306(a)

(Lexis-Nexis Supp. 2020) ..........................................3

REGULATIONS

27 C.F.R. § 478.11 .........................................................6

83 Fed. Reg. 13,442 (Mar. 29, 2018) .............................3

TABLE OF AUTHORITIES – Continued

Page

83 Fed. Reg. 13,444 .......................................................6

83 Fed. Reg. 13,447 .......................................................3

83 Fed. Reg. 66,514 (Dec. 26, 2018) ..............................6

83 Fed. Reg. 66,516 ................................................... 6, 7

83 Fed. Reg. 66,524 .......................................................7

83 Fed. Reg. 66,530 .......................................................7

83 Fed. Reg. 66,531 .......................................................7

83 Fed. Reg. 66,534 ............................................... 23, 29

OTHER AUTHORITIES

Senate Bill 707............................................ 3, 4, 8, 9, 23

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

The petition for a writ of certiorari neither identiﬁes an outcome-determinative circuit split nor asks

the Court to resolve ambiguities in the Court’s own

precedents. The petition does not assert a Second

Amendment right to own, possess, or use bump stocks

to increase a ﬁrearm’s capacity to ﬁre ammunition cartridges in rapid succession, and it concedes the State’s

authority to ban bump stocks and other rapid ﬁre trigger activators. Pet. 2. The petition’s only argument is

that the State, if it wishes to outlaw these dangerous

devices, must pay owners for the privilege of doing so.

In effect, the petition seeks a new category of per

se takings for “possession-bans,” under which a State

or the federal government must pay compensation

whenever it outlaws the possession of unreasonably

dangerous personal property, whether it be weapons,

lethal chemicals, dangerous drugs, or child pornography.

This Court has declined to require such “regulation by purchase,” and it has long held that exercises

of the State’s core police power to protect public safety

do not implicate the Takings Clause. The Court’s takings jurisprudence does not recognize a category of per

se taking of personal property other than when the

government takes the property for public use, either

for use by the government itself, as was the case in

Horne v. Department of Agriculture, 576 U.S. 350

(2015), or for use by third parties, as in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

And Lucas v. South Carolina Coastal Council, on which

the petition heavily relies, limited its category of per se

takings for “denial of all economically viable use” to

regulatory takings of land, which has not been subject

to the State’s “traditionally high degree of control” over

personal property. 505 U.S. 1003, 1027 (1992). Horne

highlighted that distinction and did not disavow it.

Finally, the petition provides no grounds for remanding to certify state-law issues to Maryland’s highest court, relief that petitioners requested for the ﬁrst

time in their petition for rehearing and rehearing en

banc. That request was based on both a misunderstanding of Maryland law and a misreading of the

Fourth Circuit’s panel decision, which does not opine,

as the petition suggests, that “no property rights are

acquired by purchase.” Pet. 29.

---------------------------------♦---------------------------------

STATEMENT

The Las Vegas Massacre and Maryland’s

Ban on Bump Stocks and Other Rapid Fire

Trigger Activators

On October 1, 2017, Las Vegas experienced the

deadliest mass shooting in this country’s modern history. A gunman armed with several semi-automatic riﬂes equipped with bump stocks ﬁred hundreds of

rounds of ammunition into an outdoor concert. The resulting casualties included 58 dead and more than

850 wounded. Pet. App. 45a. The Las Vegas shooting

“highlighted the destructive capacity of firearms

equipped with bump-stock-type devices and the carnage they can inﬂict” and “made their potential to

threaten public safety obvious.”1

In response to the Las Vegas massacre, Maryland

enacted legislation to ban bump stocks and similar devices that, as the sponsor of the legislation explained,

“modif[y] the ﬁrearm’s rate of ﬁre to mimic that of an

automatic ﬁrearm.” 4th Cir. Joint Appendix (“4th Cir.

J.A.”) 82. The legislation, Senate Bill 707 (2018 Legis.

Sess.), was intended to “ ‘sav[e] . . . innocent lives, and

minimiz[e] the magnitude of tragic events such as the

Las Vegas shooting.’ ” Pet. App. 48a (quoting legislative

testimony).

On April 24, 2018, Governor of Maryland Lawrence J. Hogan, Jr. signed Senate Bill 707 into law as

Chapter 252 of the 2018 Laws of Maryland (the “Act”).

Pet. App. 49a. Effective October 1, 2018, the Act made

it unlawful for a person to “transport a rapid ﬁre trigger activator into the State; or . . . manufacture, possess, sell, offer to sell, transfer, purchase, or receive a

rapid ﬁre trigger activator.” Md. Code Ann., Crim. Law

§ 4-305.1(a) (LexisNexis Supp. 2020). A person who violates the Act is guilty of a misdemeanor and subject

to imprisonment not exceeding 3 years and a ﬁne of up

to $5,000. Id. § 4-306(a).

Bump-Stock-Type Devices, 83 Fed. Reg. 13,442, 13,447

(Mar. 29, 2018), available at https://www.gpo.gov/fdsys/pkg/FR-201803-29/pdf/2018-06292.pdf. “The contents of the Federal Register

shall be judicially noticed. . . .” 44 U.S.C. § 1507.

The Act deﬁnes a “rapid ﬁre trigger activator” to

mean any device “constructed so that, when installed

in or attached to a ﬁrearm: (i) the rate at which the

trigger is activated increases; or (ii) the rate of ﬁre increases,” id. § 4-301(m)(1), including bump stocks and

binary trigger systems, id. § 4-301(m)(2). A bump stock

is “a device that, when installed in or attached to a ﬁrearm, increases the rate of ﬁre of the ﬁrearm by using

energy from the recoil of the ﬁrearm to generate a reciprocating action that facilitates repeated activation

of the trigger.” Id. § 4-301(f ). A “binary trigger system”

is “a device that, when installed in or attached to a ﬁrearm, ﬁres both when the trigger is pulled and on release of the trigger.” Id. § 4-301(e).

The Act’s ban does not apply to the possession of a

device if the owner (1) possessed the device before October 1, 2018; (2) applied to the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF’) before

October 1, 2018, for authorization to possess the device; (3) by October 1, 2019, received authorization

from the ATF to possess a rapid ﬁre trigger activator;

and (4) complies with all federal requirements for possession of the device. Md. Code Ann., Crim. Law § 4305.1(b) (LexisNexis Supp. 2020). On April 24, 2018,

the ATF issued an advisory stating that it “is without

legal authority to accept and process such an application” for authorization and, thus, “applications or

requests will be returned to the applicant without action.” Pet. App. 52a.

The Federal Government’s Long-Standing

Regulation of Machine Guns and Recent

Classification of Bump Stocks as Machine

Guns

The federal government has long regulated the

possession of machine guns and, with exceptions not

relevant here, has banned their transfer or possession. 18 U.S.C. § 922(o). The National Firearms Act of

1934 (“NFA”) “regulates the production, dealing in,

possession, transfer, import, and export of ” machine

guns, among other covered ﬁrearms. Guedes v. Bureau

of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d

1, 6 (D.C. Cir. 2019) (citing 26 U.S.C. §§ 5801-5861,

5845(a)), cert. denied, 140 S. Ct. 789 (2020). The NFA

deﬁnes a “machinegun” as “any weapon which shoots,

is designed to shoot, or can be readily restored to shoot,

automatically more than one shot, without manual reloading, by a single function of the trigger.”2 26 U.S.C.

§ 5845(b). The definition also covers “the frame or receiver of any such weapon” and “any part” or “combination of parts designed and intended, for use in

converting a weapon into a machinegun.” Id.

The Gun Control Act of 1968 (“GCA”), as amended,

18 U.S.C. §§ 921-931, incorporates by reference the

NFA’s deﬁnition of machine gun. 18 U.S.C. § 921(a)(23).

In 1986, Congress passed the Firearm Owners’ Protection Act, Pub. L. 99-308, 100 Stat. 499, which made

it “unlawful for any person to transfer or possess a

Except where quoting statutes or other sources, this brief

uses the more common two-word spelling of “machine gun.”

machinegun,” with an exception for lawful transfers

or possession of machine guns that were lawfully possessed when the statute went into effect. 18 U.S.C.

§ 922(o). The value of these pre-1986 machine guns

“has steadily increased over time,” and this increase in

price “has spurred inventors and manufacturers to develop ﬁrearms, triggers, and other devices that permit

shooters to use semiautomatic riﬂes to replicate automatic ﬁre without converting these riﬂes into ‘machineguns’ under the GCA and NFA.” 83 Fed. Reg. at

13,444.

After the 2017 Las Vegas shooting, the ATF undertook formal rulemaking to interpret the term “machinegun”; the resulting rule deﬁnes the term to

include “a self-acting or self-regulating mechanism

that allows the ﬁring of multiple rounds through a single function of the trigger.” 27 C.F.R. § 478.11. The regulation includes within the deﬁnition of “machinegun”

a “bump-stock-type device,” which “allows a semi-automatic ﬁrearm to shoot more than one shot with a single

pull of the trigger by harnessing the recoil energy of

the semi-automatic ﬁrearm to which it is afﬁxed so

that the trigger resets and continues ﬁring without additional physical manipulation of the trigger by the

shooter.” Id.

The federal regulation was adopted to “ ‘rectify’ ”

previous “classiﬁcation errors” that had resulted from

insufﬁcient legal analysis regarding bump-stock devices. 83 Fed. Reg. 66,514, 66,516 (Dec. 26, 2018) (ﬁnal

rule, quoting Akins v. United States, 312 F. App’x 197,

200 (11th Cir. 2009) (per curiam)). For example, as of

2006, the ATF considered a bump-stock device to fall

within the deﬁnition of machine gun only if it “use[d]

an internal spring” to harness the recoil to ﬁre multiple shots. 83 Fed. Reg. at 66,516; see also Akins, 312 F.

App’x at 199. Between 2008 and 2017, the ATF issued

classiﬁcation decisions concluding that other “bumpstock-type devices did not ﬁre ‘automatically,’ and thus

were not ‘machineguns,’ because the devices did not

rely on internal springs or similar mechanical parts to

channel recoil energy,” 83 Fed. Reg. at 66,516, but instead required the shooter to maintain forward pressure on the barrel. That conclusion “relied on the

mistaken premise that the need for ‘shooter input’ (i.e.,

maintenance of pressure) for ﬁring with bump-stock

type devices means that such devices do not enable ‘automatic’ ﬁring.” Id. at 66,531. Those 2008 to 2017 classiﬁcation decisions were “correct[ed]” by the December

2018 ﬁnal rule. See id. at 66,530.

In issuing the ﬁnal rule, the ATF responded to

comments suggesting that the proposed change in

classiﬁcation amounted to a taking under the Fifth

Amendment because continued possession of the

newly classified machine guns would be unlawful.

Rejecting that contention, the ATF explained that a

“restriction on ‘contraband or noxious goods’ and dangerous articles by the government to protect public

safety and welfare ‘has not been regarded as a taking

for public use for which compensation must be paid.’ ”

83 Fed. Reg. at 66,524 (quoting Acadia Tech., Inc. v.

United States, 458 F.3d 1327, 1332 (Fed. Cir. 2006), and

citing and discussing other cases).

Procedural History

On June 11, 2018, plaintiffs (petitioners in this

Court) ﬁled a ﬁve-count, putative class action complaint in the United States District Court for the District of Maryland. Pet. App. 48a. The lead plaintiff,

Maryland Shall Issue, Inc. (“MSI”), is an organization

that is “dedicated to the preservation and advancement of gun owners’ rights in Maryland.” Pet. ii. It

brought this action on behalf of itself and, separately,

on behalf of its members. Pet. App. 2a. The individual

plaintiffs, Paul Mark Brockman, Robert Brunger, Caroline Brunger, and David Orlin, are all Maryland residents and MSI members, each of whom claims to have

lawfully owned “bump stocks” or “binary trigger” systems or both. Pet. App. 52a; 4th Cir. J.A. 161, 169, 171.

The complaint sought compensatory damages for

the loss of the banned devices and declaratory and permanent injunctive relief to bar enforcement of the Act.

Pet. App. 52a-53a. But it “did not challenge the power

of the State to ban” bump stocks, Pet. 2, and did not

claim that the ban implicated the individual plaintiffs’

Second Amendment right to bear arms.

Counts I and II of the complaint alleged that the

Act’s ban on possession of bump stocks and other devices violates the Takings Clause of the Fifth Amendment to the United States Constitution and Article III,

§ 40 of the Maryland Constitution, respectively. Pet.

App. 53a-54a; 4th Cir. J.A. 24-25. Counts III and IV alleged that the Act violates the Due Process Clause of

the Fourteenth Amendment because (1) the plaintiffs’

inability to take advantage of the Act’s conditional exception for certain pre-owned devices rendered compliance with the Act impossible, and (2) the deﬁnition of

what constitutes a “rapid ﬁre trigger activator” is unconstitutionally vague. Pet. App. 54a-55a; 4th Cir. J.A.

25-29. Count V alleged that the statute violates Article

24 of the Maryland Constitution because it retrospectively abrogates vested property rights. Pet. App. 54a.

Governor Hogan ﬁled a motion to dismiss the complaint, which the district court granted. Pet. App. 45a.

The district court began by concluding that MSI lacked

standing in its organizational capacity, because “the

only direct harm MSI alleges to support standing in its

non-representational, organizational capacity is that

the Act ‘undermin[es] [MSI’s] message and act[s] as

an obstacle to the organization’s objectives and purposes.’ ” Pet. App. 55a (quoting Compl. ¶ 8, 4th Cir. J.A.

11). The court also dismissed the complaint’s vagueness claim (count IV) for lack of standing because there

was no “credible threat” that the statute would be enforced in the way that would, according to the complaint, render it vague. Pet. App. 76a-78a.

Relying on this Court’s and circuit takings jurisprudence, the district court dismissed the complaint’s

takings challenges (counts I and II) on the merits. The

court concluded that Maryland’s prohibition on bump

stocks and similarly dangerous devices was a proper

exercise of the State’s police power, and it rejected the

plaintiffs’ argument that the ban on possession constituted a taking under Horne. Pet. App. 56a-73a. Next,

the court dismissed the complaint’s state-law Article

24 claim (count V) on the ground that the Act does not

operate retrospectively to abrogate vested rights. Pet.

App. 73a-75a. Finally, the court dismissed the due process claim (count III), because the complaint had failed

to identify any requirement of the law with which it is

impossible to comply. Pet. App. 79a-84a.

The court of appeals afﬁrmed. It ﬁrst held that

MSI did not have organizational standing, because the

only injury it suffered was “a mere disagreement with

the policy decisions of the Maryland legislature.” Pet.

App. 9a. The court also upheld the district court’s conclusion that none of the plaintiffs had standing to challenge the ban as unconstitutionally vague, when the

ambiguity they asserted—that the law could be read to

prohibit a bipod or any other device that made it easier

to aim and ﬁre a weapon—was not “even arguably” implicated by a law that bans devices that “essentially

turn ﬁrearms into automatic weapons.” Pet. App. 12a.

The petition in this Court challenges neither holding.

On the merits, the court of appeals ﬁrst concluded

that the Maryland bump-stock ban did not amount to

a “physical appropriation” because it did not require

owners of the devices to “physically turn them over to

the Government,” as in Horne, or to a third party, as in

Loretto. Pet. App. 13a-15a. The court also held that the

ban did not qualify as a regulatory taking under Lucas

because the per se rule of that case “applies only to

real property.” Pet. App. 14a n.4. In rejecting plaintiffs’

state-law takings claim for retrospective abrogation of

vested rights, the court explained that the statute did

not operate retrospectively and that plaintiffs had not

argued as much and thus had waived the claim. Pet.

App. 18a-20a.

Judge Richardson dissented. He would recognize a

new class of per se takings—called “classic” takings—

that would require compensation whenever the government “ ‘ousts the owner’ of possession,” even if the

property is not put to public use by the Government or

any third party. Pet. App. 21a (citation omitted).

Plaintiffs timely ﬁled a petition for rehearing and

rehearing en banc in which they reiterated their appellate arguments and asked “alternatively,” Pet. 28, in a

single sentence, that the court of appeals certify to

Maryland’s highest court “the extent to which personal property is protected by the Maryland Takings

Clause,” Doc. 51 at 18-19. The court of appeals denied

the petition, with no judge requesting a poll under

Rule 35. Pet. App. 44a.

---------------------------------♦---------------------------------

REASONS FOR DENYING REVIEW

A STATE’S EXERCISE OF ITS PUBLIC SAFETY

POLICE POWER, AS OPPOSED TO ITS POWER OF

EMINENT DOMAIN, DOES NOT REQUIRE COMPENSATION.

A taking does not occur when the State bans

dangerous devices, and the lower courts’ adherence

to this established principle does not conflict with

the holdings of this Court or any other circuit. The district court’s decision correctly concluded that “[t]he Act

regulates rapid ﬁre trigger activators as contraband, a

legitimate exercise of the state’s traditional police

power to regulate for public safety.” Pet. App. 56a. This

Court “has routinely upheld property regulations, even

those that ‘destroy[ ]’ a recognized property interest,

where a state ‘reasonably concluded that the health,

safety, morals, or general welfare’ would be advanced.”

Pet. App. 57a (quoting Penn Cent. Transp. Co. v. New

York City, 438 U.S. 104, 125 (1978)).

Over a century ago, in Mugler v. Kansas, 123 U.S.

623 (1887), the Court rejected a claim under the Takings Clause by challengers who had purchased or

erected their breweries before enactment of a Kansas

law prohibiting the manufacture and sale of alcoholic

beverages. The Court ruled that a “prohibition

simply upon the use of property for purposes that are

declared, by valid legislation, to be injurious to the

health, morals, or safety of the community, cannot, in

any just sense, be deemed a taking or an appropriation

of property for the public beneﬁt.” Id. at 668-69. That

holding applied with equal force to (1) the ban on manufacture and use of liquor and (2) the seizure and the

destruction of the contraband liquor and the equipment used to make and serve it. Id. at 670-71; see also

Samuels v. McCurdy, 267 U.S. 188, 198 (1925) (applying Mugler and concluding that “[l]egislation making

possession unlawful is therefore within the police

power of the states as a reasonable mode of reducing

the evils of drunkenness”).

The principle applied in Mugler has been applied

to insulate other exercises of the State’s police powers

from challenge on takings grounds. See, e.g., Miller v.

Schoene, 276 U.S. 272, 279-80 (1928) (no taking resulted from order to destroy diseased cedar trees to

prevent infection of nearby orchards); Gardner v. Michigan, 199 U.S. 325, 330-32 (1905) (State’s destruction

of hotel’s accumulated kitchen scraps not a taking even

though the refuse had value as livestock feed); United

States v. Caltex, 344 U.S. 149 (1952) (destruction of oil

terminal during wartime not a taking when at risk

from enemy combatants); Bowditch v. Boston, 101 U.S.

16, 18 (1879) (no compensation required when public

ofﬁcials “destroy real and personal property . . . to prevent the spreading of a ﬁre”); Holliday Amusement Co.

of Charleston, Inc. v. South Carolina, 493 F.3d 404, 41011 (4th Cir. 2007) (relying on Mugler to ﬁnd no taking

from State ban on the possession of certain gambling

machines); Garcia v. Village of Tijeras, 108 N.M. 116,

123 (Ct. App. 1988) (ban on possession of American pit

bulls not a taking).

The same result obtains when a State seizes lawfully purchased property in connection with its enforcement of criminal laws and the administration of

other measures under its police powers. See Bennis v.

Michigan, 516 U.S. 442 (1996) (forfeiture of car used in

criminal activity not a taking, even as to innocent coowner); Kam-Almaz v. United States, 682 F.3d 1364,

1371 (Fed. Cir. 2012) (customs’ seizure and inadvertent

destruction of laptop not a taking); AmeriSource Corp.

v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008)

(no taking from seizure of pharmaceuticals from innocent party in connection with criminal prosecution, despite expiration of drugs during trial); Acadia Tech.,

Inc. v. United States, 458 F.3d 1327, 1329 (Fed. Cir.

2006) (seizure of cooling fans with potentially counterfeit certiﬁcation not a taking).

Applying these principles, lower federal courts

and state courts have concluded that bans on unreasonably dangerous weapons do not implicate the

Takings Clause of the Fifth Amendment. See, e.g., Association of N.J. Riﬂe & Pistol Clubs, Inc. v. Attorney

Gen., 910 F.3d 106 (3d Cir. 2018) (ban on large capacity

magazines constitutes an exercise of police power and

is not a taking); Akins v. United States, 82 Fed. Cl. 619

(Fed. Cl. 2008) (ban on “Akins accelerators,” which like

bump stocks mimicked machine guns, was a valid exercise of police power and thus did not constitute a taking); Fesjian v. Jefferson, 399 A.2d 861 (D.C. Ct. App.

1979) (ban on machine guns in District of Columbia

constitutes an exercise of police power, not eminent domain, and thus does not require compensation).

Consistent with this body of law, every lower court

to address the takings implications of bump-stock bans

enacted in the wake of the 2017 Las Vegas shooting has

rejected the claim that compensation was due, even

when the banned items were legal when purchased.

See McCutcheon v. United States, 145 Fed. Cl. 42

(2019), appeal ﬁled No. 20-1188 (Fed. Cir. Nov. 27,

2019) (rejecting takings challenge to federal bumpstock ban); Modern Sportsman v. United States, 145

Fed. Cl. 575 (2019), appeal ﬁled No. 20-1107 (Fed. Cir.

Nov. 1, 2019) (same; consolidated on appeal with

McCutcheon); Guedes v. Bureau of Alcohol, Tobacco,

Firearms, & Explosives, No. 18-CV-2988 (DLF), 2021

WL 663183, at *9-*10 (D.D.C. Feb. 19, 2021), appeals

ﬁled Nos. 21-5045, 21-1707 (D.C. Cir. Feb. 23 and

March 2, 2021) (rejecting takings challenge to federal

bump-stock ban); Roberts v. Bondi, 2018 WL 3997979

(M.D. Fla. 2018) (rejecting takings challenge to Florida’s bump stock possession-ban); Hunt v. State, No.

1D19-2143, 2021 WL 282284 (Fla. Dist. Ct. App. Jan.

28, 2021) (same).

Thus, federal court decisions are not divided on

the principal issue presented by this case: Whether

compensation is due to owners of property that the

State has deemed to be so injurious to public health or

safety as to merit its ban. Instead, “[c]ourts have consistently held that a State need not provide compensation when it diminishes or destroys the value of

property by stopping illegal activity or abating a public

nuisance.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 492 n.22 (1987) (citing cases); see

also id. at 485 (no taking where character of government action is to address a “signiﬁcant threat to the

common welfare”). That conclusion is consistent with

the Nation’s “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ” District of

Columbia v. Heller, 554 U.S. 570, 627 (2008) (citation

omitted).

This Court recognized the important difference

between a State’s exercise of eminent domain and

its exercise of the police power in Mugler, which

distinguished Pumpelly v. Green Bay Co., 80 U.S. 166

(1871), on that very ground. Pumpelly, on which petitioners and the dissent below rely, found a taking

where Wisconsin ﬂooded the plaintiff ’s land in connection with a public works system “for improving the

navigation of the Fox and Wisconsin Rivers.” Mugler,

123 U.S. at 667. Because the public works project required the flooded land “to be devoted to the use of

the public,” the “question in Pumpelly v. Green Bay Co.,

arose under the state’s power of eminent domain.”

Mugler, 123 U.S. at 668. But as the Court explained in

Mugler, in rejecting a takings challenge to a Kansas

law prohibiting the manufacture or sale of intoxicating

liquors within the State, “A prohibition simply upon

the use of property for purposes that are declared, by

valid legislation, to be injurious to the health, morals,

or safety of the community, cannot, in any just sense,

be deemed a taking or an appropriation of property for

the public beneﬁt.” Id. at 668-69.

Thus, the question in Mugler arose “under what

are, strictly, the police powers of the state, exerted for

the protection of the health, morals, and safety of the

people.” Id. at 668. That police power, exercised here to

protect lives, not sobriety, places this case outside the

realm of the Takings Clause, as every court to have analyzed similar bump-stock bans has concluded. See,

e.g., McCutcheon, 145 Fed. Cl. at 52 (“Because the prohibition on possession involved an exercise of the government’s police power,” and not its power of eminent

domain, “there was no taking within the meaning of

the Fifth Amendment.”); Guedes, 2021 WL 663183, at

*9 (federal ban not a taking because bump stocks were

not “ ‘taken for a public use’ ” but prohibited “ ‘pursuant

to a valid exercise of the government’s police power’ ”

(citation omitted)); Roberts v. Bondi, 2018 WL 3997979,

at *4 (upholding Florida’s bump-stock ban as “an exercise of the legislative police power, not the state’s eminent domain power”). As the Court observed in Bennis,

“[t]he government may not be required to compensate

an owner for property which it has already lawfully acquired under the exercise of governmental authority

other than the power of eminent domain.” 516 U.S. 442,

452 (1996).

The principle that the State’s exercise of its police

powers to ban the possession and use of dangerous contraband does not give rise to a taking makes both textual and practical sense.

The principle makes textual sense because the

Fifth Amendment prohibits the Government from taking private property “for public use.” It does not matter

whether it is the Government, the public, or even private parties that ultimately use the property that is

“taken,” so long as it is taken for a public purpose. See

Kelo v. City of New London, Conn., 545 U.S. 469, 480

(2005). But whenever the Government exercises its

powers of eminent domain, someone uses the property

for that public purpose. The federal government took

the raisins in Horne and used them to regulate the raisin market. See 576 U.S. at 354. The City of New London took Ms. Kelo’s property and used it for taxgenerative redevelopment. See Kelo, 545 U.S. at 472.

Even Mr. Lucas’s beachfront property, though it was

required to remain undeveloped, was “pressed into

some form of public service,” Lucas, 505 U.S. at 1018,

namely, to preserve the beaches that promote tourism,

serve as habitat for indigenous ﬂora and fauna, and

protect existing homes from hurricane-related erosion,

id. at 1075.

Here, no “public use” is even potentially implicated

because no one uses the banned bump stocks; they are

simply prohibited, the objective being to prevent their

use. The State thus is not exercising its eminent domain powers, but is instead banning the possession

and use of bump stocks within Maryland as an exercise

of its police powers.

The principle makes practical sense because the

potentially prohibitive costs of paying compensation

claims should not be permitted to deter a State from

taking steps to address new threats to public safety.

The contrary rule, urged by petitioners here, “would

effectively compel the government to regulate by purchase,” Andrus v. Allard, 444 U.S. 51, 65 (1979) (emphasis in original), which this Court has never required.

And it would undermine state police powers that this

Court has identiﬁed as “a paramount governmental interest which justiﬁes summary administrative action,”

even when it results in the “deprivation of property.”

Hodel v. Virginia Surface Mining & Reclamation Ass’n,

Inc., 452 U.S. 264, 300 (1981).3

One of petitioners’ amici, the Cato Institute, agrees that

“[a] regulation that prevents a true public harm is a valid exercise

of the police power for which no compensation is required[.]” Brief

II.

HORNE DID NOT CREATE A NEW CATEGORY OF

PER SE TAKINGS FOR GOVERNMENT POSSESSIONBANS.

Although petitioners concede that the State has

the police power to enact the bump-stock ban, Pet. 2,

they do not address the distinction between exercises

of the State’s police power and its power of eminent

domain. Instead, they contend that the Court’s eminent domain jurisprudence establishes that the State’s

decision to ban unreasonably dangerous items constitutes a per se taking that always requires compensation. As the court of appeals correctly perceived,

petitioners misread this Court’s precedents.

The Court’s takings cases distinguish between two

types of takings: (1) physical appropriation of private

property and (2) regulatory burdens. Murr v. Wisconsin, 137 S. Ct. 1933, 1942-43 (2017). In the case of a

physical appropriation of land or personal property

for public use, this Court has found the plain language of the Takings Clause to require compensation.

Id. at 1942; see also Horne, 576 U.S. at 361 (physical

of the Cato Institute as Amicus Curiae in Support of Petitioners

at 7. So too do the petitioners in Cedar Point Nursery v. Hassid,

No. 20-107, which plaintiffs here consider “similar” to this case,

Pet. 9. The Cedar Point petitioners acknowledge that, because

“[p]roperty owners hold title subject to background principles of

property law,” governmental exercises of the police power do not

“implicat[e] the Takings Clause,” Cedar Point, No. 20-107, Reply

Br. of Pet’rs at 18-19, when addressing a public harm, see Transcript of Oral Argument at 36 (lines 15-21; noting the “unambiguous line” between entering into an agricultural operation and

regulating “toxic chemicals” and other things that “cause public

harm”).

appropriation of personal property). The government’s

acquisition of land for a highway is the archetype of

this form of taking, and it has always required compensation.

Regulatory takings are different. First recognized

in Pennsylvania Coal Co. v. Mahon, regulatory takings

involve situations where the government does not actually seize title to the property, but instead regulates

it in a way that “goes too far.” 260 U.S. 393, 415 (1922).

Regulatory takings are typically evaluated through

“ ‘ad hoc, factual inquiries, designed to allow careful

examination and weighing of all the relevant circumstances.’ ” Murr, 137 S. Ct. at 1942 (quoting TahoeSierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 322 (2002)).

The Court has identiﬁed “two discrete categories

of regulatory action as compensable without case-speciﬁc inquiry into the public interest advanced in support of the restraint.” Lucas, 505 U.S. at 1015. The ﬁrst

concerns “regulations that compel the property owner

to suffer a physical ‘invasion’ of his property.” Id. The

archetype for this taking is Loretto, in which owners of

apartment buildings were required to allow third parties to attach cable television equipment to their buildings to facilitate access to cable services. 458 U.S. at

421-22. The second type of per se regulatory taking

arises “where regulation denies all economically beneﬁcial or productive use of land.” Lucas, 505 U.S. at

1015. The archetype here is Mr. Lucas’s beachfront

lot, which he was required to leave undeveloped to

preserve intact the beaches that promote tourism,

preserve habitat, and provide hurricane-protection. Id.

at 1075.

Plaintiffs do not assert a claim under the Penn

Central test that typically governs regulatory takings,

Pet. App. 13a n.3, and for good reason: the character of

the government action—here, the State’s compelling

interest in public safety—weighs heavily against such

a claim, as does the tenuousness of petitioners’ investment-backed expectations in devices that, at the time

of their acquisition, pushed the limits of legality.4 Consequently, petitioners’ only way forward is to try to ﬁt

Maryland’s regulatory ban into one of the three categories of takings that do not require application of the

Penn Central balancing test.

But the Court has never held that a ban on the

possession of dangerous devices constitutes either a

government appropriation of property (like the raisins

in Horne) or a per se regulatory taking (as in Loretto

or Lucas). Despite the Court’s admonition to “resist the

temptation to adopt per se rules” under the Takings

The bump stocks and other devices that petitioners purchased came with non-binding interpretive letters from the ATF

concluding that, at the time, the devices did not fully meet the

deﬁnition of a machine gun. See 4th Cir. J.A. 163 (June 7, 2010

ATF letter concluding that bump stocks are not prohibited as

machine guns because, instead of “automatically functioning

mechanical parts,” the shooter “must apply constant forward

pressure with the non-shooting hand and constant rearward pressure with the shooting hand”), 164 (November 20, 2013 ATF letter

reevaluating the agency’s earlier classiﬁcation of binary trigger

as a machine gun, based on its redesign with a “positive disconnector function”).

Clause, Tahoe-Sierra, 535 U.S. at 326, petitioners ask

the Court to read Horne as having done just that.

A. The Act Does Not Constitute a Per Se

Taking Under Horne, Loretto, or Lucas.

Plaintiffs read Horne as requiring compensation

both for the “direct appropriation” of property and for

regulations that ban possession, Pet. 12, but that

sweeping proposition far exceeds the case’s holding.

Horne clariﬁed that the government owes compensation when it physically appropriates private property

for its own use, regardless of whether the property at

issue is personal property or real estate. “The Government has a categorical duty to pay just compensation

when it takes your car, just as when it takes your

home.”5 576 U.S. at 358. The government’s conﬁscation

of raisins in Horne mirrored the archetypal taking of

land for a highway: “Actual raisins are transferred

from the growers to the Government,” id. at 361; “[t]itle

to the raisins passes to the [Government],” id. at 364;

and the government uses the raisins “as it wishes,” id.

This case is not like Horne. Maryland did not acquire title to bump stocks or the other devices covered

by the Act or use them in any way. In the language of

the Fifth Amendment, the State did not “take” the devices or put them to “public use”; it banned their possession. See Association of N.J. Riﬂe & Pistol Clubs,

Of course, as discussed above, the government does not owe

compensation when it seizes the car through the exercise of its

public safety police power. Bennis, 516 U.S. 442.

910 F.3d at 124 n.32 (distinguishing Horne on the

ground that it “dealt with a taking involving property

for government use”).

Nor was the Maryland ban absolute. Plaintiffs had

six months between enactment of the legislation and

its effective date in which to sell the devices or remove

them for use outside the State. See, e.g., Hawkeye

Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430,

440-41 (8th Cir. 2007) (no taking of banned lottery machines when owner “may take them to another state

(or nation) that allows monitor-vending-machine gambling”). Alternatively, the law provided an exception

permitting owners to retain a covered device if the

owner complied with the Act’s requirements.6 Crim.

Law § 4-305.1(b). The Act thus is not the blanket prohibition that petitioners make it out to be.

But even if the Act were a complete ban, petitioners’ argument that a regulatory possession-ban constitutes a per se taking would still ﬁnd no support in

Horne, which repeatedly emphasized that it addressed,

not the regulation of use or possession, but “direct

Although the court of appeals suggested that the ATF’s refusal to accept applications for authorization to retain the banned

devices rendered “ineffectual” the Act’s exception for devices

owned before its effective date, Pet. App. 14a, the unavailability

of a formal federal approval process is mitigated by the ATF’s subsequent rulemaking, which identiﬁed devices that were legal

(e.g., binary triggers) and illegal (e.g., bump stocks). See 83 Fed.

Reg. 66,534. That rulemaking, combined with the agency’s issuance of interpretive letters, may provide a substitute means for

effectuating the Maryland legislature’s intent to provide a path to

continued possession when consistent with federal law.

appropriations” of personal property for the government’s own use. 576 U.S. at 361. Rather than extending

its holding to regulatory takings, as petitioners suggest, Horne stressed “the ‘longstanding distinction’

between government acquisitions of property and regulations,” id. at 361 (quoting Tahoe-Sierra, 535 U.S. at

323), and “the settled difference” between the two in

the Court’s takings jurisprudence, id. at 362.

The Court’s careful and oft-repeated distinction

between physical appropriations and regulatory takings makes clear that Horne’s holding is limited to “direct appropriations” or “government acquisitions of

property.” 576 U.S. at 361. Here, because it is undisputed that the State has not physically acquired the

banned devices for its own use, the ban on possession

is not a per se taking under the rule announced in

Horne.

Nor does Loretto apply here. Loretto involved a

challenge to a New York statute requiring a landlord

to permit a cable television company to install its cable

facilities on her property. 458 U.S. at 421-22. The

Court’s “narrow” holding in that case “afﬁrm[ed] the

traditional rule that a permanent physical occupation

of property” authorized by the government “is a taking.” Id. at 441. Horne found Loretto’s reasoning regarding “a physical appropriation” of real property to

be “equally applicable to a physical appropriation of

personal property.” 576 U.S. at 360 (emphasis in original). It did not, however, hold that a ban on possession

of dangerous devices constitutes a per se taking.

Finally, the per se rule applied in Lucas to regulations that deprive land of its economic value does not

apply here under Lucas’s plain terms, which limit its

holding to restrictions on land use. See 505 U.S. at

1119, 1028 (describing its holding as pertaining to

“owner[s] of real property” and “the case of land”); see

also, e.g., Murr, 137 S. Ct. at 1943 (describing Lucas’s

categorical rule as requiring “the denial of all economically beneﬁcial use of land”); Holliday Amusement,

493 F.3d at 411 n.2 (“Lucas by its own terms distinguishes personal property.”).

Petitioners argue that Horne expanded the Lucas

category of per se takings beyond regulations of real

property to encompass any regulation that renders

personal property valueless. Pet. 16-18. But Lucas

made clear that its categorical rule was limited to real

estate, because “in the case of personal property, by

reason of the State’s traditionally high degree of control over commercial dealings, [the owner] ought to be

aware of the possibility that new regulation might

even render his property economically worthless.”7 505

Lucas’s caution is “all the more true in the case of a heavily

regulated and highly contentious activity,” Holliday Amusement,

493 F.3d at 411, and it applies with extra force with respect to

bump stocks and other devices that have always been of questionable status in light of federal machine gun restrictions, as the

ATF letters accompanying them establish. As at least one court

has stated with respect to another device that mimics a machine

gun, “‘enforceable rights sufﬁcient to support a taking claim . . .

cannot arise in an area voluntarily entered into and one which,

from the start, is subject to pervasive Government control.’ ”

Akins, 82 Fed. Cl. at 623 (quoting Mitchell Arms, Inc. v. United

States, 26 Cl. Ct. 1, 5 (1992), aff ’d, 7 F.3d 212 (Fed. Cir. 1993)).

U.S. at 1027-28. And Horne, in eliminating the distinction between real and personal property within the

context of physical appropriations, repeatedly reiterated the distinction that Lucas drew between the two

forms of property in the context of regulatory takings:

Lucas recognized that while an owner of personal property “ought to be aware of the possibility that new regulation might even

render his property economically worthless,”

such an “implied limitation” was not reasonable in the case of land. . . . The different treatment of real and personal property in a

regulatory case suggested by Lucas did not

alter the established rule of treating direct

appropriations of real and personal property

alike.

576 U.S. at 361 (citation omitted).

Because the Act does not constitute a per se taking

under any of the Court’s precedents, petitioners urge

the Court to expand the three, narrow categories of per

se takings to include any governmental action that

results in the dispossession of any property for any

reason. To justify that expansion, petitioners take language from various decisions describing the effect of

governmental takings and characterize that language

as having silently created a new, stand-alone category

of per se taking for the “deprivation of the right of possession.” Pet. 10. The Court, however, “is bound by holdings, not language,” Alexander v. Sandoval, 532 U.S.

275, 282 (2001), and petitioners offer nothing about

the holdings of this Court’s precedents to overcome the

Court’s traditional “resist[ance]” to adopting per se

rules, Tahoe-Sierra, 535 U.S. at 326.

B. There Is No Circuit Split That Requires

this Court’s Resolution of Whether the

Lucas Per Se Test Applies to Regulations of Personal Property.

There is no outcome-determinative circuit split on

whether Lucas’s per se rule applies to personal property. Petitioners argue incorrectly that there is such a

division of authority, based on language in A&D Auto

Sales, Inc. v. United States, 748 F.3d 1142 (Fed. Cir.

2014). In that case, the Federal Circuit noted that

“other circuits view the Lucas categorical test as applying only to land,” and it quoted the passage from

Lucas in which this Court distinguished personal property from real estate based on the former being subject

to “ ‘the State’s traditionally high degree of control over

commercial dealings.’ ” Id. at 1151 (quoting Lucas, 505

U.S. at 1027-28). The Federal Circuit acknowledged

that it had “applied the categorical test to personal

property on occasion,” 748 F.3d at 1151 (citing two

cases), but it “declined to decide” whether that test applied to the intangible property that was before it, id.

at 1152.

Although the Federal Circuit had considered the

issue in the two cases cited by A&D Auto Sales, in neither case did the court ﬁnd a categorical taking of personal property. In Maritrans, Inc. v. United States, 342

F.3d 1344 (Fed. Cir. 2003), the appellate court initially

applied Lucas’s categorical test to the restriction at

issue—a requirement that oil tankers be doublehulled—but ultimately rejected both that claim, id.

at 1355, and a claim under the more ﬂexible Penn Central standard, id. at 1359. And in Rose Acre Farms, Inc.

v. United States, the Federal Circuit held that Lucas’s

categorical approach did not apply to the government’s

seizure and destruction of hens suspected of salmonella contamination. 373 F.3d 1177, 1197 (Fed. Cir.

2004) (“We think not.”).

More importantly, all these decisions were issued

before Horne conﬁrmed that the Lucas per se rule applied only to takings of land. Courts within the Federal

Circuit have noted as much, concluding that “the Federal Circuit has not squarely addressed whether and

under what circumstances the Lucas categorical regulatory taking standard applies to personal property.”

McCutcheon, 145 Fed. Cl. at 55 (citing Horne and concluding that the Lucas per se approach “should not be

applied” to the federal bump-stock ban).

And as to the principal issue in this case, the

courts within the Federal Circuit uniformly hold that

bans on dangerous devices are exercises of the police

power, not eminent domain, and thus do not give rise

to takings claims to begin with. See Modern Sportsman, 145 Fed. Cl. at 582 (federal ban on bump stocks

not a taking because “the courts have consistently

found that property is not taken for a ‘public use’ when

seized or retained pursuant to the police power”);

Akins, 82 Fed. Cl. at 623 (ban on “Akins Accelerator”

device, also used to mimic machine gun ﬁre, is an

exercise of police power and thus not a taking). On the

issue that controls this case, the Federal Circuit has

declared that its “precedent is clear: ‘Property seized

and retained pursuant to the police power is not taken

for a ‘public use’ in the context of the Takings Clause.’ ”

Kam-Almaz, 682 F.3d at 1371 (quoting AmeriSource,

525 F.3d at 1153).

As petitioners point out, the Federal Circuit is currently deciding the consolidated appeals in McCutcheon and Modern Sportsman, and its decision there

might create a circuit split on the speciﬁc issue presented by this case. The District of Columbia Circuit

may also rule, as the plaintiffs in Guedes have appealed the dismissal of their takings claim. If either

appellate court were to disagree with the conclusion

reached by the Fourth Circuit, this Court would presumably have the opportunity to address the resulting

circuit split and do so in a case having nationwide effect. But current law in the Federal Circuit provides no

basis for certiorari review here.

The effect of the federal ban on bump stocks also

reduces the scope of this case, as it renders moot petitioners’ permanent takings claim as applied to bump

stocks, leaving in place only their claims with respect

to “binary trigger systems” and any other devices

placed at issue in the complaint and not banned by federal law. See, e.g., 83 Fed. Reg. 66,534 (disagreeing with

comments that “binary triggers . . . will be reclassiﬁed

as machineguns under this rule”). The limited effect of

the Maryland law provides further reason why this

case is not a suitable vehicle for addressing the issues

that petitioners raise.

III. THE REQUEST TO CERTIFY STATE-LAW QUESTIONS

TO MARYLAND’S HIGHEST COURT REFLECTS A

MISUNDERSTANDING OF MARYLAND LAW AND A

MISREADING OF THE FOURTH CIRCUIT’S DECISION.

The petition’s second question presented does not

warrant this Court’s review because it merely asks

whether, in denying a petition for rehearing, the

Fourth Circuit acted within its discretion in declining

to grant petitioners’ alternative request to certify

state-law takings issues to Maryland’s highest court.

The court below did not abuse its discretion by denying

that request, which was based on petitioners’ misunderstanding of Maryland law and the Fourth Circuit’s

treatment of it.

Maryland law recognizes two types of takings

claims. The ﬁrst is under Article III, § 40 of the Maryland Constitution: “The General Assembly shall enact

no Law authorizing private property, to be taken for

public use, without just compensation[.]” Section 40 is

“equated with the Takings Clause of the Fifth Amendment,” Ellis v. McKenzie, 457 Md. 323, 332 (2018), and

this Court’s precedents “are practically direct authorities,” Neifert v. Department of Env’t, 395 Md. 486, 517

n.33 (2006). Plaintiffs brought a claim under this provision in Count II of their complaint. Pet. App. 49a; 4th

Cir. J.A. 25.

The second type of state-law takings claim is

brought under Article 24 of the Maryland Declaration

of Rights: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges,

or outlawed, or exiled, or, in any manner, destroyed, or

deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”8 This provision, when read in combination with Article III, § 40,

gives rise to a “vested rights” takings claim that goes

beyond federal law and for which “federal cases interpreting the federal constitutional provisions are

treated merely as potentially persuasive authority.”

Muskin v. State Dep’t of Assessments & Taxation, 422

Md. 544, 556 (2011). Count V of the complaint asserts

this type of claim. Pet. App. 49a; 4th Cir. J.A. 29-31.

The petitioners take issue with the Fourth Circuit’s statement that the Act “ ‘does not alter the rights

Appellants possessed when they purchased their rapid

ﬁre trigger activators.’ ” Pet. 27 (quoting Pet. App. 20a).

They interpret this statement to mean that “a prior,

lawful purchase of these items did not give rise to any

property right to possess these items,” Pet. 27—which,

Article 24’s language is derived from Chapter 39 of the original Magna Carta (1215). See Piselli v. 75th Street Med., 371 Md.

188, 205 n.6 (2002). Article 24 “vindicate[s] important personal

rights protected by the Maryland Constitution or those recognized

as vital to the history and traditions of the people of this State.”

Attorney Gen. of Md. v. Waldron, 289 Md. 683, 715 (1981). Personal rights protected by Article 24 include due process of law, see

Kane v. Board of Appeals of Prince George’s County, 390 Md. 145,

169 n.16 (2005), and equal protection, see Waldron, 289 Md. at

704-05.

in their view, “necessarily means that personal property

is wholly unprotected by Maryland’s Constitution,” Pet.

8. Fortunately for Marylanders, the petitioners misunderstand the Fourth Circuit’s meaning.

The statement in question appears in Part III.D.

of the opinion, which addresses petitioners’ Article 24

vested rights claim. Pet. App. 18a. As discussed above,

that claim is a “separate per se takings theory under

the State Constitution,” Pet. App. 4a, and it requires

the plaintiff to establish that the law operates retrospectively to abrogate vested rights. See Ellis, 457 Md.

at 335 (to determine whether a legislative enactment

is constitutional under Article 24, the court must “evaluate[ ] ‘whether the statute purports to apply retrospectively’ ” (quoting Muskin, 422 Md. at 557)). The

Fourth Circuit was merely making the point that the

bump-stock ban did not operate retrospectively to alter

the rights that petitioners possessed in their devices

“when they purchased” them, i.e., before the ban was in

effect. Pet. App. 20a. In other words, the ban did not

reach back and alter the legal consequences of prior

actions or “impose new liability back to the date of purchase,” Pet. App. 20a, which would be the type of retrospective deprivation prohibited under Article 24, see

Muskin, 422 Md. at 557-58. The court was not opining

that Maryland law recognizes no “property right” in

personal property, Pet. 27; rather, the court was merely

observing that, because the ban acted prospectively

only, it did not constitute a retrospective abrogation of

vested rights under Maryland law.

A valid takings claim under Article III, § 40 of the

Maryland Constitution, like one brought under the

Fifth Amendment, does not require that the law at issue have retrospective effect, if it otherwise constitutes

a taking. The Fourth Circuit, however, disposed of that

aspect of petitioners’ claim in Part II.C. of its opinion,

where it rejected their takings claim under this Court’s

Fifth Amendment precedents, which effectively govern

state-law takings claims brought under § 40. Neifert,

395 Md. at 517 n.33.

Given the clarity of pertinent Maryland law, there

was no need to certify a question to Maryland’s highest

court. Certiﬁcation is committed to “ ‘the sound discretion of the federal court,’ ” and because it “can prolong

the dispute and increase the expenses incurred by the

parties,” it is resorted to “only rarely” and in “exceptional instances.” McKesson v. Doe, 141 S. Ct. 48, 51

(2020) (quoting Lehman Brothers v. Schein, 416 U.S.

386, 391 (1974)). Ordinarily, “[o]ur system of ‘cooperative judicial federalism’ presumes federal and state

courts alike are competent to apply federal and state

law.” McKesson, 141 S. Ct. at 51. That presumption is

well warranted here, given the Fourth Circuit judges’

familiarity with the laws of Maryland, one of four

states within the circuit. See Lehman Bros., 416 U.S. at

391 (remanding for Second Circuit to certify issue of

Florida law, as to which the Second Circuit judges

“lack[ed] the common exposure to local law which

comes from sitting in the jurisdiction”); see also, e.g.,

Clayland Farm Enters., LLC v. Talbot County, Md., 987

F.3d 346 (4th Cir. 2021) (addressing Maryland takings

claims brought under Article III, § 40 and Article 24).

---------------------------------♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

ADAM D. SNYDER*

Assistant Attorney General

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

asnyder@oag.state.md.us

(410) 576-6398

Attorneys for Respondent

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.