Massachusetts Sneak Legal Attack on Gun Owners and Dealers

[barnbwt]

Saw this posted on another site (the "Four Seasons" gun store);

Email from the most pro black rifle gun store and training
establishment in MA:

Today is your LAST DAY to purchase a semi-automatic rifle in Massachusetts!

We have been notified by the Attorney General of Massachusetts that today is the last day we can sell semi-automatic rifles and shotguns in Massachusetts (including lower receivers).

I know you all have questions. This latest development from the Attorney General is hard to understand. What we do know is that, at the very least, we will be prohibited from selling AR-15, AK-47, or other similar rifles, including stripped receivers, after today.

This does not only affect dealers. Any of these items that come into your personal possession after today will also be prohibited.

In light of this we will be open today only until 11:59pm.

***We also cannot do any phone or internet sales for these items as these transactions must be completed today.

So already the *chill* is setting in...

TCB

 

[barnbwt]

So, uh, Most All Semi-Autos Were Just Banned in Mass...

*Massachusetts
Seems to have caught most folks off-guard, seems to *not* really be attracting as much interest as you'd think a jugular-shot like this would warrant. Maybe folks are still in shock, or disbelief that something like this could be enacted without a legislature, and through an Op-ed no less? Talk about 'assault media'

Link to the Op-Ed carrying the force of law

Other site posted this, from Four Seasons gun shop --stores that don't plan on being test-cases are already shutting down the market;

Email from the most pro black rifle gun store and training establishment in MA:

Today is your LAST DAY to purchase a semi-automatic rifle in Massachusetts!

We have been notified by the Attorney General of Massachusetts that today is the last day we can sell semi-automatic rifles and shotguns in Massachusetts (including lower receivers).

I know you all have questions. This latest development from the Attorney General is hard to understand. What we do know is that, at the very least, we will be prohibited from selling AR-15, AK-47, or other similar rifles, including stripped receivers, after today.

This does not only affect dealers. Any of these items that come into your personal possession after today will also be prohibited.

In light of this we will be open today only until 11:59pm.

***We also cannot do any phone or internet sales for these items as these transactions must be completed today.

The thrust of the new reg is that assault weapon ban statutes will be seen to not only apply to all weapons that *look* like those in the explicit ban (clones, conversions, builds, etc.) but now also those previously ban-compliant guns who function similarly. Direct impingement, gas piston, recoil operation, roller delay, and straight blow back were just outlawed, in other words. Oh, any designs that use common parts (like extractors and charging handles) will be treated as banned items, so good-bye ARES SCR 50-State AR --it was good while they 'allowed' you.

Apparently the AG pushing this has recently been seen palling around with America's Greatest Gun Salesman, Eight Years Running, for whatever that implies for the rest of us.

Oh, she did have the charity to *allow* all currently owned firearms that would fall under the ban to be possessed legally, but none can be sold and none can be introduced into the market going forward (midnight tonight, it seems). For now, you see, since it was made clear this exemption was at the discretion of the AG office.

No more bullet buttons, no compliance stocks, no more running, no more hiding, no more ducking, bobbing weaving, or complying. You'll either have semi-autos, or you won't, Massachusetts, depending on your immediate course of action.

Hopefully I'll be able to update this with a volunteer test case ID by the morning, but I have my doubts...

TCB

*Yup, better we keep this in legal, where only nerds bother to read posts & discussion is more strictly controlled, and censored...

 

[Ryanxia]

Good thing every Mass resident just completed 100 80% stripped lowers right before the ban... Right? (Don't know MA law if that is/was legal).

 

[Ellsnjel]

Have to say, it is odd that 'charging handle' and 'extractor' were added, but not barrel. Very odd choice of item completely irrelevant to function, there. Potentially brilliant, though; not hardly ANY semi-autos on that list with equivalents that don't use the same bolt head AND charging handle (heck, even the ultra-neutered HK guns like the SL8 still used the same handle & extractor on their 'trimmed' bolt head)

Irrelevant since none of the HK guns are on the banned list

 

[Ellsnjel]

Maybe one of the lawyers can correct me if I'm wrong, but the similarity test is testing similarity to one of these firearms

Avtomat Kalashnikov (AK) (all models);
Action Arms Israeli Military Industries UZI and Galil;
Beretta Ar70 (SC-70);
Colt AR-15;
Fabrique National FN/FAL, FN/LAR and FNC;
SWD M-10, M-11, M-11/9 and M-12;
Steyr AUG;
INTRATEC TEC-9, TEC-DC9 and TEC-22; and
revolving cylinder shotguns, such as, or similar to, the Street Sweeper and Striker 12;

So for example a CETME with out any banned features would be legal since it isn't similar to any of the enumerated firearms

 

[Spats McGee]

Unless and until I've learned more about MA law and read this Enforcement Directive very, very thoroughly, I'm going to have to pass on offering a legal opinion.

 

[Frank Ettin]

A lot of gnashing of teeth and rending of garments and almost no discussion of the law. But ignorance and twaddle aren't welcome here.

This raises some legal issues that deserve serious discussion:

1. What is Massachusetts law on semi-automatic rifles? Cite statutes, regulations and other legal authority.
   
   
2. On what bases is the Massachusetts AG claiming authority to do what she has done? Cite statutes, regulations and other legal authority.
   
   
3. Is the position of the Massachusetts AG legally infirm? Why and how? Cite statutes, regulations and other legal authority.

Those questions would be the bases for a useful, serious discussion. But it seems that no one is really interested in a serious discussion. It's too much work. So folks would rather bellow and snort.

If this thread doesn't turn into a serious discussion soon, it'll be closed.

 

[xxjumbojimboxx]

Here's what I will say on this topic. My home state is Massachusetts. I grew up in Attleboro, on the Rhode Island line. The people of Massachusetts know very little about firearms on a whole. I took me a lifestyle change (move to Texas) before I knew anything about them. It is very, very easy to persuade the masses that guns shouldn't exist in an area where they don't really exist anyways. Don't get me wrong, I know they exist to some extent. But nothing like here in Texas, or really anywhere else. You have to jump through incredible hoops and even get permission from the local police for an LTC. This is an example of how backdoor legislation with continue to nit pick at whats left of the freedoms they still have in mass. An example as to why we need to fight every new piece of legislation. Because they're all slippery slopes.

 

[natman]

A lot of gnashing of teeth and rending of garments and almost no discussion of the law. But ignorance and twaddle aren't welcome here.

This raises some legal issues that deserve serious discussion:

1. What is Massachusetts law on semi-automatic rifles? Cite statutes, regulations and other legal authority.
   
   
2. On what bases is the Massachusetts AG claiming authority to do what she has done? Cite statutes, regulations and other legal authority.
   
   
3. Is the position of the Massachusetts AG legally infirm? Why and how? Cite statutes, regulations and other legal authority.

Those questions would be the bases for a useful, serious discussion. But it seems that no one is really interested in a serious discussion. It's too much work. So folks would rather bellow and snort.

If this thread doesn't turn into a serious discussion soon, it'll be closed.

Let's see what we can do toward that end. From the letter from the Mass AG:

“Assault weapon” is defined as a: semiautomatic assault weapon as defined in the federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. section 921(a)(30) as appearing in such section on September 13, 1994, and shall include, but not be limited to, any of the weapons, or copies or duplicates of the weapons [emphasis added[by the AG]], of any caliber, known as:
1
(i)Avtomat Kalashnikov (AK) (all models);
(ii)Action Arms Israeli Military Industries UZI and Galil;
(iii)Beretta Ar70 (SC-70);
(iv)Colt AR-15;
(v)Fabrique National FN/FAL, FN/LAR and FNC;
(vi)SWD M-10, M-11, M-11/9 and M-12;
(vii)Steyr AUG;
(viii)INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix)revolving cylinder shotguns, such as, or similar to, the Street Sweeper and Striker 12;

Under the Commonwealth’s statutory definition, the following are“Assault weapons”:

1)Weapons on the list enumerated in G.L. c. 140, § 121, such as the Colt AR-15(“Enumerated Weapons”);

2)“Copies”or“Duplicates”of the Enumerated Weapons(“Copies or Duplicates”); and

3)Weapons with certain features as identified in former 18 U.S.C. § 921(a) (30)(“Features Test”).

I'm going to assume, open to correction, that the highlighted phrase about copies or duplicates was in the original law. It sounds to me like the AG decided to actively enforce the copies or duplicates clause, which apparently had not previously been enforced. This would be within the AG's authority.

Now if the copies or duplicates clause was NOT in the law previously, the AG doesn't get to rewrite the law, just enforce it.

How to decide if a gun is a copy or duplicate of an Enumerated gun? One way is if it has interchangeable components. Another is the "Similarity test":

Similarity Test: A weapon is a Copy or Duplicate if its internal functional components are substantially similar in construction and configuration to those of an Enumerated Weapon. Under this test, a weapon is a Copy or Duplicate, for example, if the operating system and firing mechanism of the weapon are based on or otherwise substantially similar to one of the Enumerated Weapons.

It's iffy if this is going to ban ALL semiautos. A Remington 1100 or a Mini 14 is neither enumerated, a copy of an enumerated gun nor does it fail the features test. I suppose the interchangeability test could be abused to include them based on some tiny spring, but this seems far fetched.

A lot would depend on how the similarity test is interpreted. I suppose one could make a case that if the term "operating system" is sufficiently broadly defined, a Mini 14 could be considered "substantially similar" to an enumerated gun.

I can see how it would come as a shock to anyone who was planning on buying an featureless AR15 clone that they thought was going to be legal.

 

[Speedo66]

Hmm, I foresee a run on SKS's in MA. They don't share interchangeable parts with an AK, don't have removable magazines, and don't have enough evil parts, i.e., folding stocks, pistol grips, etc. Only one evil part, bayonet mount, and even that can be removed.

What about her sinister "the AGO reserves the right to alter or amend this guidance"? That's saying, "in case I missed something, I'm giving myself an out to go and root out some more evil".

 

[grampajack]

Correct me if I'm wrong, but if there's a challenge to the current interpretation of the law, wouldn't that have to be settled in the state's Supreme Court? If I recall my college govment learning correctly, shouldn't the attorney general have filed a lawsuit against the manufacturers and let the courts decide what the correct interpretation of the law was??? I was under the impression that her job was to enforce the law in its current form, including the current interpretation of said law.

 

[General Geoff]

A lot would depend on how the similarity test is interpreted. I suppose one could make a case that if the term "operating system" is sufficiently broadly defined, a Mini 14 could be considered "substantially similar" to an enumerated gun.

Yep, it's all going to come down to who challenges this decree, how much money the challengers have for legal counsel, which judges hear the challenge, how much the judges know about the technical aspects of modern small arms, what kind of testimony they hear from admitted expert witnesses, and finally, the personal biases of the judges who decide these things.

In other words, there's no way of knowing how this will turn out until a legal challenge is mounted and gets rolling through the MA court system. Then again, the AG will have to actually indict a manufacturer or dealer for selling one of these supposedly banned firearms in order for a challenge to be had.

 

[Spats McGee]

Let's take a peek at the underlying statutes in MA law. I've tinkered with the formatting a little, and added some emphasis.

“Assault weapon”, shall have the same meaning as a semiautomatic assault weapon as defined in the federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. section 921(a)(30) as appearing in such section on September 13, 1994, and shall include, but not be limited to, any of the weapons, or copies or duplicates of the weapons, of any caliber, known as:
(i) Avtomat Kalashnikov (AK) (all models);
(ii) Action Arms Israeli Military Industries UZI and Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National FN/FAL, FN/LAR and FNC;
(vi) SWD M-10, M-11, M-11/9 and M-12;
(vi) Steyr AUG;
(vii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(viii) revolving cylinder shotguns, such as, or similar to, the Street Sweeper and Striker 12;

provided, however, that the term assault weapon shall not include:
(i) any of the weapons, or replicas or duplicates of such weapons, specified in appendix A to 18 U.S.C. section 922 as appearing in such appendix on September 13, 1994, as such weapons were manufactured on October 1, 1993;
(ii) any weapon that is operated by manual bolt, pump, lever or slide action; (iii) any weapon that has been rendered permanently inoperable or otherwise rendered permanently unable to be designated a semiautomatic assault weapon;
(iv) any weapon that was manufactured prior to the year 1899;
(v) any weapon that is an antique or relic, theatrical prop or other weapon that is not capable of firing a projectile and which is not intended for use as a functional weapon and cannot be readily modified through a combination of available parts into an operable assault weapon;
(vi) any semiautomatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition; or
(vii) any semiautomatic shotgun that cannot hold more than five rounds of ammunition in a fixed or detachable magazine.

Mass. Gen. Laws Ann. ch. 140, § 121 (West)

So, yes, the MA law defining assault weapons includes duplicates & clones. I don't think she's legislating on that issue. What she has done is take a hard turn on enforcement. Looking at the legislative history of the above-captioned statute, I'd be that the part defining assault weapons was added in 1996. I don't know that for certain, but that's my best bet. Her hard turn effectively reverses 20 years of non-enforcement. The "duplicates & clones" language has always been there, but AFAIK, it was never enforced until today. I question whether this sudden, 180 turn violates Due Process. I don't know that it does, but I'll bet someone makes the argument.

danez71, you asked about my earlier post. In March of this year, the Fourth Circuit decided Kolbe v. Hogan, 813 F.3d 160. That decision had some very interesting tidbits:

Having determined that the Second Amendment covers the prohibited semi-automatic rifles, we next consider whether the district court erred in applying intermediate scrutiny.

Kolbe v. Hogan, 813 F.3d 160, 179 (4th Cir.), reh'g en banc granted, 636 F. App'x 880 (4th Cir. 2016)

First, the FSA's ban on semi-automatic rifles and larger-capacity magazines burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest. It implicates the “core” of the Second Amendment: “the right of law-abiding, responsible citizens to use arms in defense of *180 hearth and home.” Heller, 554 U.S. at 634, 635, 128 S.Ct. 2783; see Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir.2012) (“What we know from [Heller and McDonald] is that Second Amendment guarantees are at their zenith within the home.”).

Kolbe v. Hogan, 813 F.3d 160, 179-80 (4th Cir.), reh'g en banc granted, 636 F. App'x 880 (4th Cir. 2016)

Second, we conclude that the challenged provisions of the FSA substantially burden this fundamental right. The burden imposed in this case is not merely incidental. Maryland law imposes a complete ban on the possession by law-abiding citizens of AR–15 style rifles-the most popular class of centerfire semi-automatic rifles in the United States. As we explained in Section III.A., these weapons are protected under the Second Amendment. We therefore struggle to see how Maryland's law would not substantially burden the core Second Amendment right to defend oneself and one's family in the home with a firearm that is commonly possessed by law-abiding citizens for such lawful purposes. Moreover, the FSA also reaches every instance where an AR–15 platform semi-automatic rifle or LCM might be preferable to handguns or bolt-action rifles-for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.

Kolbe v. Hogan, 813 F.3d 160, 180 (4th Cir.), reh'g en banc granted, 636 F. App'x 880 (4th Cir. 2016)

Obviously, the petition for rehearing en banc has been granted. No decision has been rendered, but the recording can be found here: http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments

Anyway, IMHO, the AG is teeing it up for a fight. MA got slapped around by the 4th Circuit, and someone (maybe the AG, maybe the governor) wants to push back. The AG is pushing maximum enforcement and she knows that she & the State will get sued. She'll have sovereign immunity, so she's not worried about her own bank account. She wants this to go past the 4th and on to SCOTUS. That's my theory, anyway.

 

[Spats McGee]

Correct me if I'm wrong, but if there's a challenge to the current interpretation of the law, wouldn't that have to be settled in the state's Supreme Court?

Not necessarily. A challenge under the Due Process clause of the 14th Amendment would (probably) be brought in federal court. With that said, in this circuit, the federal courts will occasionally "certify a question," meaning that the federal court basically sends a question to the state supreme court. The state supreme court then sends its ruling back on that one particular issue, which the federal court then uses to illuminate whatever case it has to decide.

If I recall my college govment learning correctly, shouldn't the attorney general have filed a lawsuit against the manufacturers and let the courts decide what the correct interpretation of the law was??? I was under the impression that her job was to enforce the law in its current form, including the current interpretation of said law.

The AG likely has more than one avenue to choose from, and this is one of them. It may be easier to simply enforce what's already in the law, than file lawsuits based on something that you haven't enforced for 20 years.

 

[Rockrivr1]

Yep, it's all going to come down to who challenges this decree

In Mass there are two pro gun organizations that will work to fight this. The first is Gun Owners Action League (GOAL), who works to push pro gun legislation. One person in particular has a very good reputation working with legislators and has had decent success. The AG knew this and was able to execute this plan without including Legislators or GOAL in any form. She also announced this right as legislators were heading to summer break. Many of them are not happy about this situation, which might help.

The second is a group of lawyers called Comm2A. They do a lot of Pro-Bono work to help out gun owners who have been burned by laws that are vague at best. They work through donations and they have a strong following and donation base for this work. They are also looking at what the AG has done and work to get an injunction.

Everyone in MA is freaking out, but hopefully with a little time this AG ploy can be put down.

 

[benEzra]

So, yes, the MA law defining assault weapons includes duplicates & clones

It seems to me that she is making a major change to the prior definition of what constituted a "duplicate or clone".

Her position now seems to be that if a rifle has some parts interchangeability with a named gun, even if significantly different from that gun and made by a completely different company, it is still a "duplicate or clone" of that gun. Under prior interpretations, a midlength 16" AR is not a "clone or duplicate" of a Colt AR-15, and an Ares SCR most certainly is not (the Ares is even NYC-legal). This appears to throw that interpretation out the window. It is unclear what degree of parts interchangeability is required, but I suspect that her intent is to outlaw anything that will take an AR upper, among other things.

 

[easy]

Now MA just has to define 'copy' or 'duplicate' correctly. Being as 'copy' is the same as the original, not like the original.

I guess that depends on "what is, is".

 

[Frank Ettin]

...It seems to me that she is making a major change to the prior definition of what constituted a "duplicate or clone"....

There has been no change in definitions, or, it appears, the "similarity" test.

What the AG would probably argue is that she is changing her enforcement policy to include rifles falling within the definition of prohibited assault weapons but with respect to which the law hasn't, by policy, been enforced.

Viewed from that perspective, this could become something of a test of the elasticity of prosecutorial discretion.

 

[barnbwt]

All the more reason to force a test case as soon as possible.

 

[Jim Watson]

I am not clear. Is the "similarity test" in the law or is it a bureaucratic regulation?

 

[Frank Ettin]

I am not clear. Is the "similarity test" in the law or is it a bureaucratic regulation?

Okay, now that I've been able to spend some more time on this, it appears the the "similarity test" is an attempt to clarify the meaning of " copies or duplicates" as a matter of enforcement policy.

Since the "similarity test" doesn't appear to part of the statute, nor does it appear to have been adopted through any formal rule making procedure or pursuant to authority explicitly conferred on the AG by statute, the use of the "similarity test" might be the principal vulnerability of the AG's position here. Arguably something that is merely similar to a named firearm isn't necessarily a duplicate or copy as those words are usually understood.

 

[barnbwt]

I believe her jargon was "substantially similar," does certainly seem far, far broader than "duplicate," in that it bans a class of technology rather than a single configuration (with different names)

Gotta hand it to 'em though, they finally found statute language that accomplishes what they set out to do

 

[VoodooMountain]

Assault weapons banned in Mass.

Surprised I didint see this posted but how is this legal? Can this actually go into effect as is?

Basically, the attorney general has decided to ban 'assault weapons' yet there was a Supreme Court case that stated civilians have the right to access firearms used by our military. Plus, how can an ag create a law?

http://www.thetruthaboutguns.com/20...usetts-attorney-general-bans-new-ar-15-sales/

 

[barnbwt]

There's a thread in Activism where no one will see it...

 

[Carl N. Brown]

There's a few threads open on the subject:

Massachusetts Sneak Legal Attack on Gun Owners and Dealers
http://www.thehighroad.org/showthread.php?t=807479

Massachusetts Gun Owners Rally at State House
Rockrivr1
http://www.thehighroad.org/showthread.php?t=807511

Personally, I think this will end up like the Virginia AG's decision to refuse to recognize the carry permits of several states whose permits Virginia had previously honored: an overreach overturned by the legislature.