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Ch. 26
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2002 LAWS OF MARYLAND
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A PERSON WHO VIOLATES THIS SECTION IS SUBJECT TO § 5-106(B) OF THE
COURTS ARTICLE.
REVISOR'S NOTE: This section is new language derived without substantive
change from former Art. 27, §§ 374 and 375.
In subsection (a)(1)(ii) of this section, the former reference to a "territory or
possession" of the United States is deleted as included in the defined term
"state".
In subsection (a)(1)(iii) of this section, the former reference to a machine
gun that "is of the kind described in [former] § 379 is deleted as
unnecessary in light of the fact that former § 379, which is revised as §
4-403(b) of this subtitle, required all machine guns to be registered when
acquired, and annually thereafter,
In subsection (c) of this section, the reference to being "guilty of a
misdemeanor" is added to state expressly that which only was implied in
the former law. In this State, any crime that was not a felony at common
law and has not been declared a felony by statute, is considered to be a
misdemeanor. See State v. Canova, 278 Md. 483, 490 (1976), Bowser v.
State, 136 Md. 342, 345 (1920), Dutton v. State, 123 Md. 373, 378 (1914),
and Williams v. State, 4 Md. App. 342, 347 (1968).
In subsection (d) of this section, the reference to a violation being "subject
to § 5-106(b) of the Courts Article" is substituted for the former reference
to the violation subjecting the defendant to imprisonment "in the
penitentiary" for clarity and consistency within this article. See General
Revisor's Note to article.
The Criminal Law Article Review Committee notes, for the consideration
of the General Assembly, that the presumption of offensive or aggressive
purpose based on alienage revised in subsection (a)(1)(ii) of this section
appears to be unconstitutional. The presumption attaches to any
"unnaturalized foreign-born person" who possesses or uses a machine gun.
According to the Attorney General, there does not appear to be any
rational connection between the proved fact of foreign birth and the
presumed fact of an offensive or aggressive purpose in possessing a
machine gun. In the absence of such a rational basis, the provision violates
both the Equal Protection and Due Process clauses of the U.S.
Constitution. Although there is no direct Maryland case law construing
subsection (a)(1)(ii) of this section, [former § 375(b)] the Attorney General
cites a case under the similar Virginia statute finding that the
presumption based on alienage violates both clauses. Sandiford v.
Commonwealth, 225 S.E.2d 409, 410 (Va. 1976), citing Graham v.
Richardson, 403 U.S. 365, 371-372 and 375 (1971) and Leary v. U.S., 395
U.S. 6, 32-36 (1969). The General Assembly may wish to address this
matter in substantive legislation. See Letter of Advice from Attorney
General J. Joseph Curran, Jr. to Judge Alan M. Wilner, pp. 8-9 (May 21,
2001).
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