The Baltimore Sun reports that the Baltimore City Council has given preliminary approval to a constitutionally suspect ordinance that would ban any toys or replicas that look like working firearms.
City Council President Bernard C. “Jack” Young said replica guns are contributing to violence on Baltimore’s streets. He said people are using the fake weapons in robberies, and children who carry them are put in harm’s way….
“It’s something that we should do for the safety of our children,” Young said. “We’re getting stores robbed with replicas. We’ve got people running around with these things and they almost look real. … I don’t think we should be allowing replica guns in the city of Baltimore, especially with the murder rate we have.”
The ordinance makes owning, carrying or otherwise possessing a “replica” that could “reasonably be perceived to be a real firearm” subject to a $250 fine for a first offense. According to the text of the ordinance on the City Council’s website, they’re defining “replica gun” as follows:
“replica gun” means any toy, imitation, facsimile or replica pistol, revolver, shotgun, rifle, air rifle, B-B gun, pellet gun, machine gun, or other simulated weapon, which because of its color, size, shape, or other characteristics, can reasonably be perceived to be a real firearm.
There’s a problem with the city’s proposed ordinance. Mark Pennak, a Maryland attorney and head of Maryland Shall Issue says it may violate federal law.
People can have no way of knowing whether a given replica could be “reasonably perceived to be a real firearm” and federal law (at 15 U.S.C. § 5001) has already preempted states from banning “traditional B-B, paintball, or pellet-firing air guns that expel a projectile through the force of air pressure.” Although the city amended the bill after the NRA and Maryland Shall Issue pointed out these issues, Mr. Pennak says, the amended bill still contains language banning replica compressed air BB, paintball or pellet guns.
The amendments to the bill — kindly supplied by Mr. Pennak — added a series of exceptions. They permit people to possess replicas while ‘being transported in interstate commerce’ or if the replica is used primarily for theatrical productions or historic reenactments; a firearms training class taught by a “certified qualified firearm instructor”; shooting competitions; for display purposes; or for use in paintball. Also per the amendments, replica guns must also be “stored in a locked case or affixed to a wall at all times when not in use.”
Mr. Pennak calls the amended bill “hopelessly vague and subjective.” People can have no way of knowing if a given replica could be “reasonably perceived” to be realistic. It isn’t clear, for example, whether Baltimore Officialdom would consider a citzen’s annual backyard re-enactment of the scene from Raiders of the Lost Ark where Indy shot down the attacking swordsman as a “theatrical production.” Nor would it be clear if my daughter’s hot pink water gun could be reasonably perceived as being ‘realistic’ from a distance, considering that any firearm can be had in any imaginable color nowadays.
It is true that Baltimore has a terrible problem with violence: the crabcake capital of the world racked up 344 murders last year, and already has 276 on the books for 2016. The city also has a troubled relationship between its police and citizenry; the Freddie Grey case is just one incident. Earlier in the year, a 13-year old boy carrying a BB gun was shot and wounded by Baltimore officers, so presumably this is how the matter ended up on the City Council’s radar.
Councilman James B. Kraft, the man who introduced the bill, says that “the fewer guns we have on the streets, real or replica, the safer it is.” Perhaps Mr. Kraft thinks this bill will make the job of the police easier, and thus make everyone safe again. But is banning replica and toy guns actually going to help with either of these issues? Especially when the law itself is so vaguely written?
Alas, no one seems to be addressing that question.