- The Washington Times - Monday, September 30, 2013

Gun rights activists who filed a federal lawsuit attempting to block stringent new gun restrictions in Maryland demonstrated neither a likelihood of success in the case nor irreparable harm they would suffer if the law goes into effect Tuesday and should not be granted a temporary restraining order, lawyers for the state say.

Maryland Attorney General Douglas F. Gansler’s office argued in court papers filed Monday that the very fact that plaintiffs waited six months to challenge the legality of the Firearms Safety Act of 2013 should preclude them from having a judge grant their motion.

“Notwithstanding their keen awareness of, and vehement opposition to, this legislation even before it was enacted, the plaintiffs made a calculated decision to wait to bring their legal challenge until the eve of the law’s effective date,” the memo filed in U.S. District Court for the District of Maryland on Monday said.


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The 30-page response memo takes issue with plaintiffs’ claims that they have a likelihood of success in their case and that they will suffer irreparable harm if the law goes into effect — both elements of which must be proved to get a temporary restraining order to block the act while the judge considers a lawsuit declaring it unconstitutional. A hearing on the motion is scheduled for 11 a.m. Tuesday.

The lawsuit, backed by the National Rifle Association, lists as plaintiffs three state residents — including two veterans — four state-based groups that advocate for the rights of gun owners and dealers and two gun stores.

With regard to the gun stores, lawyers for the state argued that “monetary harm does not qualify as irreparable harm” and that the decision to wait until two business days before the law’s effective date might have been “economically rational,” given that gun stores have profited from a dramatic uptick in gun sales in advance of the law.

“These claims of economic harm from the firearms dealers are particularly ironic given the significant surge in sales of the weapons and magazines at issue in the months leading up to the effective date,” a footnote to the response memo said.

State attorneys said the individuals named as plaintiffs in the lawsuit say they currently own weapons. The memo pointed out that current law has thus far not prevented them from acquiring additional weapons that will be prohibited after Tuesday, suggesting they have not demonstrated irreparable harm.

The attorney general’s office acknowledged that the Supreme Court recognized the right of an individual to keep and bear arms in the historic 2008 District of Columbia v. Heller decision, but that limitations still exist. While the court has been vague on setting boundaries on gun ownership, the state’s lawyers argued that additional firearms placed on the state’s list of banned assault weapons are among the “dangerous and unusual weapons” not considered protected by the Second Amendment.

The Maryland law adds 45 guns to a list of banned assault weapons and limits handgun magazines to 10 rounds.

In response to the plaintiffs’ objection that imposing a 10-round restriction on magazines could limit the effectiveness of a weapon, state lawyers posed the question of whether a detachable magazine is subject to protection under the Second Amendment at all.

The attorney general’s office took issue with the plaintiffs’ claims that they were denied equal protection because some parts of the new Maryland law don’t apply to former law-enforcement officers, arguing that the exception is “much narrower than implied by their discussion.”

The lawyers also countered complaints about the vagueness of guidelines governing the list of banned weapons by saying the list itself has been in existence for nearly two decades and that even the plaintiffs in the case have thus far had little difficulty determining whether their weapons are among them.

“The plaintiffs’ inability to establish any risk of irreparable harm, much less the likelihood of irreparable harm they are required to prove, mandates the denial of their motion for a temporary restraining order,” state attorneys wrote.