Does a misdemeanor conviction from another state count against you under Maryland's firearms disqualification law?

Plain-English summary

The Superintendent of the Maryland State Police asked the Attorney General two questions about Maryland's regulated firearms law, which bars a person convicted of a "disqualifying crime" from possessing a handgun or certain assault weapons. One category of disqualifying crime was a misdemeanor conviction carrying a potential penalty of more than two years. The Superintendent asked whether that category covered only Maryland convictions or also out-of-state convictions, and whether the relevant penalty was the one in effect when the person was convicted or the one in effect when they later possessed a firearm.

The opinion concluded that the misdemeanor disqualification applied to out-of-state convictions as well as Maryland convictions, based on the statute's legislative history, which showed the Legislature modeled the provision on an analogous federal firearms law and never intended to exempt people with serious out-of-state records. The opinion further concluded that, when applying the disqualification to an out-of-state conviction, the relevant "more than two years" penalty was the one Maryland law assigned to the equivalent offense, not the penalty under the other state's law. On the second question, the opinion concluded that the relevant penalty was the one in effect at the time the person possessed the firearm, not at the time of the original conviction, and that applying a later, increased penalty this way did not violate the Ex Post Facto Clause because the firearms law regulates a person's current ability to possess a firearm rather than adding punishment to the original conviction.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, definition, or penalty threshold mentioned here.

Common questions

Did a 2006 Maryland opinion say a misdemeanor conviction from another state could bar someone from having a gun in Maryland?
Yes. The opinion concluded that an out-of-state misdemeanor conviction was a "disqualifying crime" under Maryland's regulated firearms law if the offense would be classified as a misdemeanor carrying a penalty of more than two years under Maryland law.

Did the opinion say courts should use the other state's sentencing range or Maryland's when deciding if an out-of-state misdemeanor disqualifies someone?
Maryland's. The opinion concluded that the "more than two years" threshold should be measured against the penalty Maryland law assigned to the equivalent offense, not the penalty under the convicting state's law.

Did the opinion say raising the penalty for an offense after someone's conviction could newly disqualify them from having a gun they already owned?
Yes. The opinion concluded that if the Legislature later increased an offense's maximum penalty above the two-year threshold, a person convicted of that offense before the change could become disqualified from continuing to possess a firearm, and that this did not violate the Ex Post Facto Clause because the disqualification regulates current firearm possession rather than punishing the earlier crime.

Background and statutory framework

At the time of this opinion, Maryland's regulated firearms law, PS § 5-133(b)(1), barred anyone convicted of a "disqualifying crime" from possessing a regulated firearm, and PS § 5-101(g) defined "disqualifying crime" to include a crime of violence, a Maryland felony, or "a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years." The misdemeanor category had been added in 1996 based on recommendations of the Governor's Commission on Gun Violence, which wanted Maryland law to track an analogous federal disqualification, 18 U.S.C. § 922(g)(1), covering crimes punishable by more than one year but excluding certain lesser state misdemeanors under 18 U.S.C. § 921(a)(20)(B).

The opinion traced the statute's history back to a 1941 handgun-transfer law and 1966 amendments that had explicitly disqualified convictions "in this State or elsewhere," and found that the 1996 amendment's silence on out-of-state convictions was not meant to eliminate them, since doing so would conflict with the Commission's stated purpose of reducing gun violence and would produce the anomalous result of treating out-of-state offenders more leniently than in-state ones. The opinion also reasoned that using Maryland's own penalty for the equivalent offense, rather than the penalty under the convicting state's law, better reflected the Legislature's own policy judgments about which offenses signal a disqualifying propensity for lawbreaking, and it addressed the Ex Post Facto question through cases distinguishing collateral firearms disqualifications from criminal punishment.

Citations and references

Statutes:
- PS § 5-101(g), defining "disqualifying crime" to include certain misdemeanors carrying more than a two-year penalty
- PS § 5-133(b)(1), barring possession of a regulated firearm by anyone convicted of a disqualifying crime
- PS § 5-101(c), defining "crime of violence" by listing specific offenses
- 18 U.S.C. § 922(g)(1), the federal firearms disqualification for certain prior convictions
- 18 U.S.C. § 921(a)(20)(B), excluding certain lesser state misdemeanors from the federal disqualification

Cases:
- United States v. Coleman, 158 F.3d 199, 203-4 (4th Cir. 1998), holding that the potential sentence under state law, not the sentence actually imposed, determines whether a misdemeanor triggers the federal firearms disqualification
- Melton v. State, 379 Md. 471, 484, 842 A.2d 743 (2004), on the strong legislative desire to keep firearms away from felons and potentially violent persons
- Johnson v. State, 67 Md. App. 347, 378, 507 A.2d 1134 (1986), on the original 1941 purpose of barring handgun transfers to people with a demonstrated propensity for violence
- United States v. Mitchell, 209 F.3d 319, 322-23 (4th Cir. 2000), holding that applying a later-added firearms disqualification to a pre-existing conviction did not violate the Ex Post Facto Clause

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2006/91oag68.pdf

Original opinion text

68 [91 Op. Att'y

                        FIREARMS

DISQUALIFICATION UNDER MARYLAND LAW BASED ON
MISDEMEANOR CONVICTION

                       March 27, 2006

Colonel Thomas E. Hutchins
Superintendent, Maryland State Police

  You have asked for our opinion on two questions concerning

application of the statute that prohibits an individual from possessing
or receiving certain classes of firearms if that individual has been
convicted of a "disqualifying crime." That statute defines
"disqualifying crime" to include, among other offenses, a "violation
classified as a misdemeanor in the State that carries a statutory
penalty of more than two years." Specifically, you ask:

      1. Does the Maryland statute apply only to misdemeanor

convictions under Maryland law or does it also encompass
convictions in other states that would be classified in Maryland as
misdemeanors that carry a penalty in excess of two years?

          2. For purposes of determining whether a particular

conviction falls within the definition of "disqualifying crime,"
should one look to the maximum penalty associated with the offense
at the time of conviction or to the penalty associated with the offense
at the time of the firearms transaction?

 In our opinion, the answers to your questions are as follows:

        1. The phrase "disqualifying crime" includes out-of-State

offenses, as well as those committed in Maryland. An offense in
another state that would be classified as a misdemeanor in Maryland
with a potential penalty under Maryland law in excess of two years
imprisonment falls within that definition. Thus, an individual who
has been convicted of such an offense may not possess a regulated
firearm in Maryland.

        2. Because the firearms law regulates the current possession

or reception of a firearm, the determination as to whether a particular
misdemeanor "carries" a penalty in excess of two years should be
made with reference to the penalty at the time of possession, if it is
different from the potential penalty at the time of conviction.

                                  I

                       Statutory Provision

  The State's regulated firearms law governs the possession,

sale, and transfer of handguns and certain assault weapons.
Annotated Code of Maryland, Public Safety Article ("PS"), §5-101
et seq. Under that law, an individual who has been convicted of a
"disqualifying crime" may not possess a regulated firearm. PS §5-
133(b)(1). As a consequence of this prohibition, the statute sets
forth related restrictions. Such an individual is ineligible for a
firearms dealer's license. PS §5-107(b)(4)(iii); §5-114(b)(2)(i). Nor
may that individual purchase, rent, or otherwise receive a regulated
firearm. PS §§5-118(b)(3)(ii), 5-134(b)(2).

 The statute defines "disqualifying crime" as follows:

                    "Disqualifying crime" means:

                         (1)   a crime of violence;

                         (2) a violation classified as
             a felony in the State; or

                         (3) a violation classified as
             a misdemeanor in the State that carries
             a statutory penalty of more than 2 years.

PS §5-101(g).1 Your questions are directed to the third category of

   1
       The statute defines "crime of violence" as follows:

                    "Crime of violence" means:

                         (1) abduction;
                         (2) arson in the first degree;
                         (3) assault in the first or second degree;
                         (4) burglary in the first,
             second, or third degree;
                         (5) carjacking and armed
             carjacking;
                         (6) escape in the first degree;
                                                          (continued...)

70 [91 Op. Att'y

offense – crimes that are classified as misdemeanors and that carry
a maximum penalty of more than two years incarceration.

                                 II

                             Analysis

A. Out-of-State Crimes

    As indicated above, the statute defines "disqualifying crime"

to include "a violation classified as a misdemeanor in the State that
carries a statutory penalty of more than two years." You ask whether
this provision encompasses out-of-State misdemeanor convictions
that would carry a maximum penalty of at least two years if
committed in Maryland.

   1
       (...continued)
                          (7) kidnapping;
                          (8) voluntary manslaughter;
                          (9) maiming as previously
             proscribed under former Article 27, §386
             of the Code;
                        (10) mayhem as previously
             proscribed under former Article 27, §384
             of the Code;
                          (11) murder in the first or second degree;
                          (12) rape in the first or second degree;
                          (13) robbery;
                          (14) robbery with a dangerous weapon;
                          (15) sexual offense in the first,
             second, or third degree;
                        (16) an attempt to commit any
             of the crimes listed in items (1) through
             (15) of this subsection; or
                         (17) assault with intent to
             commit any of the crimes listed in items
             (1) through (15) of this subsection or a
             crime punishable by imprisonment for
             more than 1 year.

PS §5-101(c).

Gen. 68] 71

          1.      Alternative Interpretations of Maryland Statute

    The literal language of the statute is not dispositive of your

question as there are potentially several ways to interpret it. First, it
could be construed to describe only Maryland convictions. In that
case, the answer to your question would be simple: an out-of-State
conviction would never be a disqualifying crime under this
provision.

    Second, the phrase could be construed to include out-of-State

convictions – specifically, certain convictions for offenses that
would be "classified as a misdemeanor in the State" if committed in
Maryland. However, there remains some ambiguity as to the
universe of such offenses that are disqualifying crimes under this
interpretation. On the one hand, the language could encompass only
those out-of-State offenses that would be classified as misdemeanors
in Maryland and that carry a penalty in excess of two years under the
law of the state of conviction. Under that view, the benchmark is the
potential penalty in the other state. Cf., e.g., State v. Langlands, 583
S.E.2d 18, 19-22 (Ga.S.Ct. 2003) (construing Georgia felon-in-
possession statute not to encompass Pennsylvania manslaughter
conviction classified as a misdemeanor in Pennsylvania).
Alternatively, it could include any out-of-State offense that would be
classified as a misdemeanor if committed in Maryland and that
would carry a maximum sentence in excess of two years if
committed in Maryland, regardless of the sentence that the other
state has designated for the offense. Cf., e.g., State v. Pollard, 44
P.3d 1261 (Kan.S.Ct. 2002) (construing Kansas felon-in-possession
law to be triggered by a Missouri disposition involving probation
before imposition of sentence, even though such a disposition is not
considered a conviction under Missouri law).

    To resolve these interpretive issues, it is helpful to review the

legislative history of PS §5-101(g)(3) and, for reasons that shall
become apparent, an analogous federal law.

          2.      Federal Firearms Disqualification

 The federal firearms law restricts the possession of firearms

or ammunition 2 by individuals who fall into a number of

   2
    The statute defines "firearm" broadly to include "any weapon ...

designed to ... expel a projectile by the action of an explosive" and "any
(continued...)

72 [91 Op. Att'y

disqualifying categories. 18 U.S.C. §922(g). 3 Pertinent to our
discussion, it includes in the category of disqualified persons any
one "who has been convicted in any court of, [sic] a crime
punishable by imprisonment for a term exceeding one year." 18
U.S.C. §922(g)(1).

    While the federal restriction concerning individuals with prior

convictions may seem straightforward at first glance, the statute
elaborates on its meaning with respect to state offenses in a way that
is not entirely intuitive. Under 18 U.S.C. §921(a)(20), the phrase
"crime punishable by imprisonment for a term exceeding one year"
does not include, among other things, "any State offense classified
by the laws of the State as a misdemeanor and punishable by a term
of imprisonment of two years or less." 18 U.S.C. §921(a)(20)(B).4
Thus, the federal statute excludes from the definition of "crime
punishable by imprisonment for a term exceeding one year" state
misdemeanor offenses for which the maximum penalty is up to two
years imprisonment. The limitation of disqualifying misdemeanors
by reference to a potential sentence in excess of two years became
part of the federal statute in an early amendment during the year that
the federal law first went into effect. See Pub.L.No. 90-618, Title I,
§102, 82 Stat. 1213 (1968).

   Thus, as a general rule, an individual who has been convicted

of a state misdemeanor is disqualified under federal law from
possessing a firearm if the offense carries a sentence in excess of
two years imprisonment. The federal statute looks to the penalty in

   2
      (...continued)

destructive device", among other things. 18 U.S.C. §921(a)(3). The
statute also includes a definition of "ammunition." 18 U.S.C. §921(a)(17).
3
This subsection prohibits anyone subject to an enumerated
disqualification from shipping, transporting, possessing, or receiving a
firearm or ammunition in or affecting interstate or foreign commerce. See
generally Jackson, Federal Firearms Prosecutions: A Primer, 33
U.Balt.L.F. 2 (2002).
4
The statute also excludes "any Federal or State offense pertaining
to antitrust violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business practices." 18
U.S.C. §921(a)(20)(A).

Gen. 68] 73

the state of conviction as the benchmark.5 In determining whether
a misdemeanor falls within this category, the critical inquiry is the
potential sentence under state law, not the actual sentence imposed
in a particular case. See United States v. Coleman, 158 F.3d 199,
203-4 (4th Cir. 1998) (en banc) (conviction for common law assault
under Maryland law fell within category as potential punishment was
limited only by Cruel and Unusual Punishment clauses of federal
and State constitutions).

   The Maryland General Assembly looked to this part of the

federal statute when it added a similar misdemeanor disqualification
to the Maryland firearms law, as a brief excursion into its legislative
history demonstrates.

          3.      Legislative     History      of     Misdemeanor
           Disqualification in Maryland

    The precursor of PS §5-133 was enacted in 1941. Chapter

622, Laws of Maryland 1941, then codified at Article 27, §531D.
That law made it illegal to sell or otherwise transfer a handgun to a
person who "has been convicted of a crime of violence..." Id. It was
"intended to prevent those who have already demonstrated a
propensity for violence, as evidenced by a conviction of a crime of
violence, from possessing handguns." Johnson v. State, 67 Md.
App. 347, 378, 507 A.2d 1134, cert. denied, 307 Md. 260, cert.
denied, 479 U.S. 993 (1986). The statute defined "crime of
violence" by listing various crimes, without explicitly indicating any
limits on the jurisdiction of conviction. The statute also disqualified
a "fugitive from justice" from possessing a handgun. It defined
"fugitive from justice" to include anyone "who has fled from any
State, Territory, or the District of Columbia, or possession of the
United States, to avoid prosecution for a crime of violence ..." This
indicates that "crime of violence" was not a phrase confined to
Maryland offenses.

  In 1966, the firearms law was substantially revised. Chapter

502, Laws of Maryland 1966. Under those amendments, an

   5
     Similarly, under a 1986 amendment of the federal statute, "[w]hat

constitutes a conviction of such a crime shall be determined in accordance
with the law of the jurisdiction in which the proceedings were held." 18
U.S.C. §921(a)(20); see also United States v. Pennon, 816 F.2d 527, 528-
29 (10th Cir. 1987) (discussing 1986 addition of "choice of law" provision
to federal statute).

74 [91 Op. Att'y

individual could not purchase a handgun from a firearms dealer
unless the purchaser could truthfully attest that he or she had not
been convicted "in this State or elsewhere" of a crime of violence or
certain firearms crimes. Annotated Code of Maryland, Article 27,
§442(e)(2)(i) (1967 Repl. Vol.). Similarly, in order to obtain a
license to deal in firearms, an individual was required to state under
penalties of perjury that he or she had not been convicted of the
same categories of crimes "in this State or elsewhere." Id.,
§443(d)(4)(iii). The statute also made clear that conviction of such
a crime "in this State or elsewhere" would result in revocation of the
dealer's license. Id., §443(h)(2).6

    Over the next three decades, the Legislature amended the

statute in other respects, but retained the references to disqualifying
convictions "in this State or elsewhere," as well as definitional
language that referenced prosecutions for "crime of violence" in
other jurisdictions. See Annotated Code of Maryland, Article 27,
§§441(f), 442(f)(2)(i), 443(d)(4)(iii), and 443(h)(2) (1992 Repl.Vol.
& 1995 Cum. Supp.). It was thus clear that the disqualification
based on a prior conviction for a crime of violence encompassed
convictions in other states. This was consistent with the original
purpose of the firearms law – to keep regulated firearms out of the
hands of those with an established propensity for serious
lawbreaking.

   In 1996, the statute was amended to apply to assault rifles, as

well as handguns, which were collectively defined as "regulated
firearms." Chapter 561, §2; Chapter 562, §2, Laws of Maryland
1996. The law was also revised in other respects. Notably, the
range of disqualifying crimes was expanded to include misdemeanor
offenses. The 1996 amendments were largely based on the
recommendations of the Governor's Commission on Gun Violence
("Commission"). Among other things, the Commission
recommended that Maryland law "incorporate federal law 'reasons
to deny a handgun' into State law." Governor's Commission on Gun
Violence, Comprehensive Reform for a Safer Maryland (November

   6
     Oddly, the General Assembly did not add the phrase "in this State

or elsewhere" to the original disqualification provision, which had been
recodified in Annotated Code of Maryland, Article 27, §445 (1967 Repl.
Vol.). However, as noted above, another portion of the original statute
made clear that the phrase "crime of violence" was not limited to
Maryland offenses.

Gen. 68] 75

1, 1995), Recommendation No. 17, p.20. The Commission
explained this recommendation:

           Under federal law, if a person is
           convicted of any misdemeanor that
           carries more than a two year term of
           imprisonment, they are prohibited from
           owning a firearm.           There are
           approximately 90 misdemeanors in the
           State of Maryland that trigger this
           prohibition. Once an individual is
           convicted of such a misdemeanor, under
           federal law, she or he may no longer
           purchase or possess a firearm.

Id. In the same vein, an explanatory memo in the legislative file
states that the addition of the reference to misdemeanors in what is
now part of the definition of "disqualifying crime" was designed to
parallel 18 U.S.C. §921(a)(20). Legislative files for Senate Bill 215,
House Bill 297 (1996).7

    Consistent with the recommendations of the Commission, the

General Assembly in 1996 sought to restrict further the categories of
convicted individuals who could lawfully possess a regulated
firearms. See Fiscal Note for House Bill 297 (April 3, 1996) (This
Administration bill ... expands exclusions on who may buy or
possess regulated firearms...") However, in the course of revising
the firearms law to incorporate the misdemeanor disqualification
from the federal statute, restate the existing disqualifications, and
add to the categories of disqualifying convictions, the Legislature
did not include the qualifying phrase "in this State or elsewhere" that
had appeared in the prior version of the statute. Conceivably, the
absence of that phrase could signal a legislative intent that no out-of-
state conviction – whether for a "crime of violence", a felony, or a
misdemeanor – would any longer be a disqualifying conviction

   7
      Although it is apparent that the 1996 amendment of the Maryland

statute was intended to incorporate the substance of an analogous federal
statute, this does not necessarily mean that other similar terms that appear
in both the State and federal firearms laws are necessarily co-terminous.
Compare 18 U.S.C. §924(c)(3) (defining "crime of violence" for purposes
of federal firearms law by reference to elements and nature of offense)
with PS §5-101(c) (defining "crime of violence" for purposes of Maryland
firearms law by listing specific offenses).

76 [91 Op. Att'y

under the Maryland firearms law. However, such an interpretation
would be completely at odds with the recommendations of the
Commission and the stated purposes of the 1996 amendments.
Nothing in the legislative file indicates any intention of cutting back
on the universe of crimes that would result in a disqualification. See
Floor Report for Senate Bill 215 (1996) ("This bill is aimed at
reducing gun-related violent crime in Maryland [by] ... changes to
the current law governing the sale, transfer, and possession of
[firearms]"). An interpretation of the statute that completely
eliminated out-of-State convictions as disqualifying crimes would be
contrary to the "the strong desire to keep firearms away from felons
and potentially violent persons" that underlay this law. See Melton
v. State, 379 Md. 471, 484, 842 A.2d 743 (2004).

   In a 2002 amendment, the Legislature directed that the State

Police undertake a criminal history records check in connection with
applications for firearms dealer licenses and individual handgun
permits, specifying a "State and national criminal history records
check." Chapter 418, Laws of Maryland 2002, now codified at PS
§§5-108(b), 5-305(b) (emphasis added).8 The specification of a
national criminal records check also confirms that the Legislature
contemplated that out-of-State convictions would remain within the
universe of disqualifying crimes.

          4.      Summary

   With respect to the first interpretive issue – whether the

phrase "a violation classified as a misdemeanor in the State" denotes
only Maryland misdemeanor convictions or covers equivalent out-
of-State offenses as well – the legislative history of PS §5-133
demonstrates that the disqualification based on prior convictions was
intended to include out-of-State convictions. If the statute were
interpreted otherwise, an individual who had been convicted of
multiple serious offenses in another state and who came to Maryland
might face no impediment under Maryland law to acquiring a
handgun while a lifetime resident with a single local conviction
would be subject to the disqualification. This would be an
anomalous result for a statute intended to keep firearms out of the

   8
      The statute concerning the investigation of applicants to purchase

a firearm uses more general language concerning the investigation that
does not specifically advert to the criminal history check. PS §5-121 ("the
Secretary shall conduct an investigation promptly to determine the truth
or falsity of the information supplied...").

Gen. 68] 77

hands of individuals present in Maryland who have shown a
propensity for serious lawbreaking.

   Having determined that the definition of "disqualifying

crime" was meant to include out-of-State offenses, we must address
the second interpretive issue: whether one looks to the potential
penalty in the state of conviction or the potential penalty for the
equivalent Maryland offense to determine whether the two-year
threshold for misdemeanor offenses is satisfied.

   In our view, the more reasonable approach is to look to the

potential penalty for the equivalent offense in Maryland for at least
two reasons.9 First, in order to apply the definition of "disqualifying
crime" in PS §5-101(g) to an out-of-State conviction, one has to
determine the equivalent Maryland offense. It appears consistent to
use the penalty associated with that Maryland-equivalent offense to
apply what is, after all, one phrase: "a violation classified as a
misdemeanor in the State that carries a statutory penalty of more
than 2 years."

   Second, such a construction better reflects the policy

judgments the Maryland General Assembly has made in setting
penalties for various types of offenses and linking the firearms
disqualifications to those penalties. When it defined "disqualifying
crime" in PS §5-101(g), the General Assembly made a judgment as
to those offenses that indicate that an individual has such a
propensity for lawbreaking that he or she should be barred from
possessing a regulated firearm in Maryland. In expressing that
judgment, the Legislature used as one reference point the various
potential penalties that it has assigned to misdemeanor offenses.
That same reference point should be used to assess whether an

   9
     The federal firearms law, of course, uses the penalty in the state

of conviction as the reference point. However, federal criminal law
generally defines national or interstate offenses and in many instances has
no clear equivalent to local crimes common to every state. Cf. Small v.
United States, 125 S. Ct. 1752, 1756 (2005) (noting difficulty of equating
a foreign conviction to American offenses in holding that a foreign
conviction was not a disqualifier under the federal firearms law). For
example, in defining crimes on land under federal jurisdiction, the
Assimilative Crimes Act, 18 U.S.C. §13, simply incorporates by reference
the criminal law of the state in which the federal land is located. Thus,
the use of the penalty in the state of conviction for the federal firearms
disqualification is, in some respects, a matter of necessity.

78 [91 Op. Att'y

equivalent out-of-State offense results in a firearms disqualification
in Maryland. It seems unlikely that, in defining the universe of
disqualifying offenses, the General Assembly meant essentially to
defer to the judgment of other states as to whether or not an
individual should be able to possess a firearm in Maryland. Cf. State
v. Menard, 888 A.2d 57 (R.I. S.Ct. 2005) (whether Arizona
conviction is "crime of violence" for purposes of Rhode Island
firearms law to be determined by whether similar crime in Rhode
Island would fit Rhode Island definition of "crime of violence").

B. Relevant Penalty

    You have also raised a question based on the possibility that

legislatures, on occasion, change the maximum penalty for offenses.
For example, suppose John Doe was convicted five years ago of a
misdemeanor offense for which the maximum penalty at the time
was less than two years incarceration. Assuming that the particular
offense was not a "crime of violence" and that no other
disqualification applied, Mr. Doe would not have been disqualified
from possessing a regulated firearm in Maryland at that time.
Suppose that the Legislature has since revised the penalty for that
particular offense and it now carries a maximum penalty in excess
of two years. Is Mr. Doe now disqualified from possessing a firearm
in Maryland? In other words, in determining whether a particular
conviction is a "disqualifying crime" under Maryland law, does one
look to the maximum penalty associated with the offense at the time
of conviction or at the time of possession of the firearm?

    The text of the statute suggests that one looks to the penalty

at the time of possession of the firearm. The firearms law has
always defined the misdemeanor disqualification in the present
tense: "a violation classified as a misdemeanor in the State that
carries a statutory penalty of more than 2 years." PS §5-101(g)(3)
(emphasis added). Our review of the legislative history of the 1996
amendment that added the misdemeanor disqualification did not
reveal anything that contradicts the apparent meaning of the text in
this regard. (By contrast, if the disqualification had been defined in
terms of a violation that "carried" a certain penalty, the text would
have indicated that the penalty at the time of conviction governed
application of the disqualification).

   Under this interpretation, an individual like Mr. Doe, who

was lawfully in possession of a regulated firearm, would be
disqualified from continuing to possess that firearm after the
Legislature increased the potential penalty for the offense for which

Gen. 68] 79

he had been convicted. Is this result forbidden by the constitutional
prohibitions against "ex post facto" laws?

    An individual who is convicted of a criminal offense faces

whatever maximum penalty applied to that offense at the time he or
she committed the offense. If the Legislature subsequently decides
to enhance the maximum penalty for the violation, the new penalty
would not apply to the individual by virtue of the Ex Post Facto
clauses of the federal and State constitutions. United States
Constitution, Article I, §10; Maryland Declaration of Rights, Article
17. While a disqualification under the regulated firearms law can be
a collateral consequence of a criminal conviction, it is not part of the
sentence. Rather, the regulated firearms law regulates the current
possession and transfer of certain types of firearms. The Ex Post
Facto Clause does not prevent a legislature from making a
conviction that was once not a disqualification into one that is. See,
e.g., Lehman v. Pennsylvania State Police, 839 A.2d 265, 269-74
(Pa.S.Ct. 2003); United States v. Brady, 26 F.3d 282, 291 (2d Cir.
1994).

   In essence, such an action is no different than if the

Legislature chose to add a new category of offenses to the list of
disqualifying crimes – as it did when it added misdemeanors to the
class of disqualifying crimes – or otherwise to expand the categories
of disqualifications. See also 85 Opinions of the Attorney General
259 (2000) (Legislature's amendment of regulated firearms law
resulted in prior convictions for common law assault to be included
in the definition of "crime of violence"). Any such change in the
law could convert a lawful possession into unlawful possession,
unless the Legislature specified otherwise. Whether a law should
include such a clause is itself a policy decision that is the prerogative
of the Legislature. However, if the Legislature chose not to include
a grandfather clause, it would not violate the Ex Post Facto Clauses.
See, e.g., United States v. Mitchell, 209 F.3d 319, 322-23 (4th Cir.),
cert. denied, 531 U.S. 849 (2000) (disqualification in federal
firearms law related to domestic violence conviction could be
applied to defendant without violating Ex Post Facto clause, even
though defendant's conviction and original receipt of firearm both
preceded addition of that disqualification to the law).

80 [91 Op. Att'y

                              III

                         Conclusion

   For the reasons set forth above, it is our opinion that:

          1.      The phrase "disqualifying crime" includes out-of-State

offenses, as well as those committed in Maryland. An offense in
another state that would be classified as a misdemeanor in Maryland
with a potential penalty under Maryland law in excess of two years
imprisonment falls within that definition. Thus, an individual who
has been convicted of such an offense may not possess a regulated
firearm in Maryland.

            2.     Because the firearms law regulates the current

possession or reception of a firearm, the determination as to whether
a particular misdemeanor "carries" a penalty in excess of two years
should be made with reference to the penalty at the time of
possession, if it is different from the potential penalty at the time of
conviction.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         Robert N. McDonald
                                         Chief Counsel
                                          Opinions and Advice