The loophole in the Mass. assault weapons ban

[Nuclear Unicorn]

The following is a press release from the Attorney General of Massachusetts --

The loophole in the Mass. assault weapons ban

....

The Massachusetts assault weapons ban mirrors the federal ban Congress allowed to expire in 2004. It prohibits the sale of specific weapons like the Colt AR-15 and AK-47 and explicitly bans “copies or duplicates” of those weapons. But gun manufacturers have taken it upon themselves to define what a “copy” or “duplicate” weapon is. They market “state compliant” copycat versions of their assault weapons to Massachusetts buyers. They sell guns without a flash suppressor or folding or telescoping stock, for example, small tweaks that do nothing to limit the lethalness of the weapon.

That will end now. On Wednesday, we are sending a directive to all gun manufacturers and dealers that makes clear that the sale of these copycat assault weapons is illegal in Massachusetts. With this directive, we will ensure we get the full protection intended when lawmakers enacted our assault weapons ban, not the watered-down version of those protections offered by gun manufacturers.

The directive specifically outlines two tests to determine what constitutes a “copy” or “duplicate” of a prohibited weapon. If a gun’s operating system is essentially the same as that of a banned weapon, or if the gun has components that are interchangeable with those of a banned weapon, it’s a “copy” or “duplicate,” and it is illegal. Assault weapons prohibited under our laws cannot be altered in any way to make their sale or possession legal in Massachusetts.

We recognize that most residents who purchased these guns in the past believed they were doing so legally, so this directive will not apply to possession of guns purchased before Wednesday. In the dozen years since the federal assault weapons ban lapsed, only seven states have instituted their own assault weapons ban. Many of those bans have been challenged (unsuccessfully) by the gun industry, and we anticipate our directive may be too. But our job is to enforce state laws and to keep people safe. This directive does both.

https://www.bostonglobe.com/opinion/2016/07/20/the-loophole-mass-assault-weapons-ban/eEvOBklTriWcGznmXqSpYM/story.html

Seems overly broad and will end up including weapons well outside the scope of the law. Moreover, it was decided by the AG's office, not the legislature. As such it seems ripe for judicial challenge.

[discntnt_irny_srcsm]

1. Another Justice Stewart type case...

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

The opinion of a skull and bones Republican infects another area of law.

IMHO it is impossible to object too strenuously to measures articulated in this manner.


Bravo for your OP and thanks.

[DonP]

2. "Hurry up ... and screw up"

Always in a big hurry "grandstanding" to be first with the most stringent laws (See NY SAFE Laws), but; "Piss on those folks that actually know the details of firearms, we don't need those stupid gun humpers".

Then, when gun manufacturers can't read their minds about what they "really meant" as opposed to the actual law they wrote, they get all pissy and call it a "loophole" instead of recognizing their own ignorance.

Almost sounds like Massachusetts had some senior advisors from DU GD helping the state AG draft the law?

[pablo_marmol]

22. Massachusetts is losing the battle of idiotic laws to California.

Can't have that!

[scscholar]

26. Their laws might be idiotic and have holes in them, but their AG is great for trying to fix them!

It's nice to see idiotic laws that allow those things get destroyed and the people protected.

[DonP]

27. Umm, nothing is being destroyed

Yes, the law is idiotic, poorly written and full of holes.

It is up to the legislature to "fix them". That's the way things work. They pass a law and she enforces what they pass to the best of her "ability", no matter how stupid.

We know it's a big disappointment for you, but there will not be a house to house search and confiscation, so the several hundred thousand plus existing standard issue 30 round magazines and semi-auto rifles will all be just fine for at least the next century or so.

And unless you favor border checkpoints too, she also can't stop people from bringing standard magazines into or out of the state either.

But hey, it's nice somebody likes ignorant politicians that don't bother getting any expert input then try to make up new laws as they go along.

What's next, how about some nice medical regulation without checking with the AMA?

[shadowrider]

30. That's why politicians have jobs

Go in search of a problem, propose a solution that doesn't work, "tweak" the law by passing more restrictions/clarifications that result in easily get-aroundable solutions, so the politicians pass more laws etc etc etc.

No one needs to know the difference between a clip and a magazine
No one needs to know the difference between an "assault weapon" (totally made up term to confuse)
and an assault rifle
No one needs to know the difference between a barrel shroud and the "thing that goes up".

It all about feely good no impact laws written by people who think they're smarter than everyone else in the room.

[pablo_marmol]

34. Indeed.

K. Harris is the perfect politician. Photogenic, grandstanding.....and essentially incompetent. Screams about a non-existent "epidemic of gun violence"* while doing nothing about the catastrofuck that is California's firearm-related databases. And she's left a shit-ton of money on the table dedicated to improving mental health problems in the state. A hypocrite supreme.

* http://www.pewsocialtrends.org/2013/05/07/gun-homicide-rate-down-49-since-1993-peak-public-unaware/

"California Attorney General Kamala Harris, a candidate actively campaigning for the Senate seat that is opening up with Barbara Boxer’s retirement, recently made the news when she tried to shame members of Congress for refusing to enact unconstitutional and counterproductive gun-control laws. “They should have closed the chambers of Congress on the House and the Senate side, and said all you members go in there, only you, and spread out the autopsy photographs of and them to look at those photographs. And then vote your conscience,” Harris said at Politicon, a political convention held in Los Angeles.

Wow! That’s some pretty extreme rhetoric. But is the pot calling the kettle black here? Harris is the highest level law enforcement officer in California, and the head of the Department of Justice (DOJ). DOJ is responsible for maintaining criminal records, mental illness records, records of those who have become ineligible to possess firearms, and all of the databases used to perform background checks on gun buyers, to register firearms, and to take firearms away from people who are prohibited from possessing them but who still have firearms registered in their name.

Those records, and the related databases, are a hot mess."

http://213ajq29v6vk19b76q3534cx.wpengine.netdna-cdn.com/wp-content/uploads/2016/01/Special-Feature-K-Harris.pdf

[pablo_marmol]

41. The MA AG isn't fixing a damn thing.

See post #29. Rifles aren't the problem.......but as always, your ilk is spitting out "solutions" in search of a problem.

[sarisataka]

3. Well remember defining what you are regulating

Is merely a distraction. You don't need any of that fancy technical words to describe what it is just to make a law.

The first part, it's meaningless. Pretty much every center fire semi-automatic rifle uses some form of a gas operating system. That doesn't help define an assault rifle in any way.

The second, addressing components, is a better effort but it is fatally flawed. Merely stating compatible components is going to be struck down as being vague and overly broad. If simply one component, such as if a screw, fits a AR-15 and a Browning BAR with its 4 round fixed magazine the Browning is now an assault rifle? Yet if they say 100% component interchangeability all the manufacturers have to do is come out with the new B-17 Modern Rifle which looks and functions exactly as an AR-15 but it has a larger takedown pin that does not fit the AR-15.

[Nuclear Unicorn]

4. "vague and overly broad"

Maybe I'm just being paranoid but I can't help but think that is deliberate and preferred.

[krispos42]

5. So...

"They sell guns without a flash suppressor or folding or telescoping stock, for example, small tweaks that do nothing to limit the lethalness of the weapon."

So the key legal requirements of an"assault weapon" do nothing to limit the lethalness of the guns?

Somebody want to tell the GCRA crowd?

[Nuclear Unicorn]

6. "Somebody want to tell the GCRA crowd?"

We've tried. The Lord in Heaven knows we have tried.

[Eleanors38]

7. That quote indicates it is ALL about culture war. nt

[Schema Thing]

8. er, what you just said is the exact opposite of what the AG said. Try to keep up.

[sarisataka]

12. Um that is exactly

What she said. The current criteria that defines what is or is not an assault rifle has nothing to do with lethality and everything to do with cosmetics.

That has been pointed out by folks who actually know something about guns for over 20 years now.

[Straw Man]

36. Actually, it is what she said.

The law as written spells out those features as definitive of an "assault weapon." The AG seems to think that this isn't enough. She seems to think she can stretch enforcement beyond "law as written" to "spirit of the law." I don't think the higher courts will agree, but we'll see.

Military-looking rifles don't fire any faster than other semi-auto rifles. If it's not the cosmetic features, then ultimately she's going to go after all semi-automatic rifles with detachable magazines, because that's where the increased lethality lies. And that will never pass the "common use" standard because such rifles have been in civilian use for over 100 years.

That is what happens when you pass ill-conceived, sloppily written laws.

[Duckhunter935]

17. Yes I saw that

But that is not what the gun control people keep telling us.

[Hangingon]

9. Who is sending this directive?

I admit that I am not seeing well after surgery. but I didn't see who is sending the directive. Is the Globe directly running the state now?

[Nuclear Unicorn]

11. The piece was written by the AG and published through the Globe (and elsewhere, I presume).

[Hangingon]

16. Thx! I should have read closer.

[beevul]

10. If this is true...

The Massachusetts assault weapons ban mirrors the federal ban Congress allowed to expire in 2004.

If the above is true, and I'm remembering correctly, the legislation defines what is or isn't legal.

If so, the AG is inventing this definition in contradiction of what the actual legislation says.

I expect this will end up in court, and someone will get a Chicago Style check.

[benEzra]

28. Yup, the 1994 Federal AWB did *not* ban AR and AK variants that passed the features test.

More AR's and civilian AK's were sold 1994-2004 than in the prior decades combined, because a Romanian SAR-1 with a target crown is not a "copy or duplicate" of a Chinese AK, and a Rock River 16" midlength AR is not a "copy or duplicate" of a Colt AR-15(tm). That's how the law was interpreted when it was passed, by those who wrote and passed it, and how it has been interpreted for 22 years since.

Now, in the dead of night, the Massachusetts AG comes out with a letter that basically rewrites the law as it has been understood for two decades now, and turns the owners of the most popular rifles in Massachusetts into criminals (although she says that she will use her "prosecutorial discretion" to not prosecute them FOR NOW, but reserves the right to change the terms later).

I expect the backlash against this will be large, nationwide. It reminds me of the damn fool stunt that the Virginia Attorney General pulled a few months ago, when he unilaterally said he was going to cancel recognition of almost all out-of-state conceal carry licenses, even in states with stricter standards than Virginia (like NC). The backlash was immense, and the Virginia governor made the AG walk that one back almost immediately.

[beevul]

31. Well said, Ben.

When I think of this sort of anti-gun nonsense, "damn fool" is exactly what comes to mind.

I hope this leads to a very expensive, very embarrassing, very public beating in court.

[discntnt_irny_srcsm]

38. It is a shame that 'knowing what one is doing" isn't a political criteria

Time and again politicians who fail to understand basics, not only of firearms but of common sense, repeat the mistakes made by other similarly impaired politicians in the past.

While the Violent Crime Control and Law Enforcement Act which contained the Federal AWB was being legislated and passed here, Ms Healey was playing pro basketball in Austria. She returned to the US, graduated law school and passed the bar. Her experience in law includes:
- "compliance reports on the cleanup of the Boston Harbor"
- "assisted the judge with trials, hearings and case conferences"
- "subsequently spent more than 7 years with a focus on commercial and securities litigation"
- "she also served as a special assistant district attorney in Middlesex County, where she tried drug, assault, domestic violence and motor vehicle cases in bench and jury sessions and argued bail hearings, motions to suppress, and probation violations and surrenders"
- "served as Chief of the Civil Rights Division, where she spearheaded the state's challenge to the federal Defense of Marriage Act. She led the winning arguments for Massachusetts in America’s first lawsuit striking down the law."
- "In 2012, she was promoted to Chief of the Public Protection & Advocacy Bureau. She was then appointed Chief of the Business and Labor Bureau."
- "As a division chief and bureau head in the Attorney General's Office, Healey oversaw 250 lawyers and staff members and supervised the areas of consumer protection, fair labor, ratepayer advocacy, environmental protection, health care, insurance and financial services, civil rights, antitrust, Medicaid fraud, not-for-profit organizations and charities, and business, technology and economic development."

Possibly she should consult with her partner before embarking on these obscure trips into wonderland.

[discntnt_irny_srcsm]

13. The failure

"But gun manufacturers have taken it upon themselves to define what a “copy” or “duplicate” weapon is."

Lacking specifics to the contrary, the terms "copy" and "duplicate" mean exactly what they say. That is, the form, fit and function of a device which matches exactly those named items in the law. I find it reprehensible that a attorney in a position of public trust decides that American companies, operating to as businesses often do, TO MAKE A PROFIT, are somehow breaking the law.

The AR-15 is about the most popular rifle in the US today. I quote directly from Wikipedia:

"On July 20th, 2016 Healey announced an unconstitutional directive, effective immediately, that would ban the sale or transfer of virtually every semi-automatic rifle inside the Commonwealth of Massachusetts. This was done with no vote, deliberation, passage of law, nor due process be re-interpreting an existing law which has been on the books for over 18 years."

https://en.wikipedia.org/wiki/Maura_Healey

While I applaud a number of her accomplishments, this action is tyrannical and without any excuse.

There are canons for statutory interpretation. From Wikipedia: https://en.wikipedia.org/wiki/Statutory_interpretation

Expressio unius est exclusio alterius ("the express mention of one thing excludes all others&quot

Items not on the list are impliedly assumed not to be covered by the statute or a contract term. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

In determining the legal meaning of 'assault weapon' the list of attributes written in the law are those required. If certain particular models of an item are to be restricted by name then those names are operative as the list. The legislature could/can (as has been done elsewhere) identify specific models by specific manufactures and also list functional and form attributes to provide a clear and deterministic idea of any and all items to be covered by the restriction. Barring the legislature writing into the law a phrase such as: "Whatever Ms. Healey thinks is materially similar enough to what we defined as an assault weapon is also banned." this proclamation is just a posturing pile of dung.

[Nuclear Unicorn]

14. I don't know why but discussions of legal concepts always fascinates me.

Thank you for the post.

[discntnt_irny_srcsm]

18. I'm grateful that that is so and quite sorry so few pro-control folks share your fascination

[GreydeeThos]

15. Your new rifle has a #4-40 screw holding the cover plate to the grip

This #4-40 screw is interchangeable with a screw on that other prohibited weapon, therefore your new rifle is also prohibited.
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[TeddyR]

19. The AG of this state

Has decided that firearms that actually comply with the law should nonetheless be banned because she thinks they are lethal. Neither the AG nor the courts get to write laws. If she doesn't like the law then she can petition the state legislature to change it and ban all semi-auto firearms. If the firearm is compliant -- for example, if the lack of a flash suppressor makes it compliant -- then the AG doesn't get to decide otherwise. Hopefully the firearms manufacturers will tell her to pound sand and she can take it to court.

Does anyone know what exactly is banned under the Massachusetts law? Is it all semi-auto rifles or only those with certain features (like a folding stock)?

[jmg257]

20. Basically the '94 ban...

''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...

[TeddyR]

21. Thanks

"Copies or duplicates" is pretty vague. Be interested to see how this plays out. I'd think that if Massachusetts wanted to simply ban these types of firearms they'd be able to drum up the support to make it happen instead of relying on the AG to interpret a vague law. I suspect this one is going to court.

[jmg257]

23. I know after reading NY's 1st ban way back when, I was quite surprised so many "copies"

were quite legal. Obviously not the intent of the ban.

Ah well...such is law I guess!

[discntnt_irny_srcsm]

24. I grew up Catholic and got use to the idea that...

...certain "bans" didn't really have logic behind them. The world seems replete with instances of "It doesn't need to make sense, it's just a rule."

BTW welcome to the Whine Cellar blocked list.

[jmg257]

25. Why, thank you! Couldn't have been a more benign post...just stats on increasing # of permits.

Ah well- sheltered folks need their safe-spaces, I guess!

[benEzra]

29. Like many other states, MA reported *zero* rifle homicides in 2014.

https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-20

Out of 131 murders in the state, not a single one was committed with any type of rifle. Nationwide, less than 250 rifle murders were reported in 2014.

It's not about violence; it's about doing things to hurt the Hated Other, in this case lawful gun owners.

[Jackieduda]

32. Our AG is an idiot

And this broad piece of confusing rhetoric confirms my belief. Btw, here in Massachusetts, thousands of new gun owners are emerging every month because of events and legal stunts like this. People who never dreamed they would ever shoot a gun are getting permitted, taking training courses, buying weapons. Local gun clubs cant even keep up with it. Just try and take something away and all of a sudden everybody wants it,

[Straw Man]

35. It will certainly be challenged.

You can't expect people to go by "the spirit of the law" when it's a law they despise in the first place. The law was sloppily written, and the AG is hoping to take advantage of that sloppiness to reinterpret it as she sees fit.

From the link:

But gun manufacturers have taken it upon themselves to define what a “copy” or “duplicate” weapon is. They market “state compliant” copycat versions of their assault weapons to Massachusetts buyers. They sell guns without a flash suppressor or folding or telescoping stock, for example, small tweaks that do nothing to limit the lethalness of the weapon.

This is absolutely false. It is the law itself that enumerates the features that constitute and "assault weapon." A version of the same rifle without those features does not fit the definition. That is not a "loophole." It is the letter of the law.

That will end now. On Wednesday, we are sending a directive to all gun manufacturers and dealers that makes clear that the sale of these copycat assault weapons is illegal in Massachusetts. With this directive, we will ensure we get the full protection intended when lawmakers enacted our assault weapons ban, not the watered-down version of those protections offered by gun manufacturers.

This is an attempted end-run that will not stand judicial scrutiny. If the current law is not having the desired effect, then try to amend the law. It is not the Attorney General's function to rewrite law.

[beevul]

43. Making up new criteria out of thin air...

Bansalot has loudly given their approval.

[jmg257]

37. Here's the actual "Enforcement Notice"

http://www.mass.gov/ago/public-safety/awbe.html

“Assault weapon” is defined as a:
{Section 121 Background}
The sale, transfer, or possession of an “Assault weapon,” as defined in Section 121, is unlawful pursuant to G.L. c. 140, §§ 128 and 131M.

“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}, of any caliber, known as:
i 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;
...
Section 121 incorporates by reference the definition of “semiautomatic assault weapon” in the former federal assault weapons ban. This establishes that in Massachusetts weapons with the following characteristics are also within the definition of Assault weapon:

18 U.S.C. section 921(a) (30) as appearing in such section on September 13, 1994:

B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of—
{typical 2 feature test}
...

Guidance:

A weapon is a Copy or Duplicate and is therefore a prohibited Assault weapon if it meets one or both of the following tests and is 1) a semiautomatic rifle or handgun that was manufactured or subsequently configured with an ability to accept a detachable magazine, or 2) a semiautomatic shotgun.

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.

Interchangeability Test: A weapon is a Copy or Duplicate if it has a receiver that is the same as or interchangeable with the receiver of an Enumerated Weapon. A receiver will be treated as the same as or interchangeable with the receiver on an Enumerated Weapon if it includes or accepts two or more operating components that are the same as or interchangeable with those of an Enumerated Weapon. Such operating components may include, but are not limited to: 1) the trigger assembly; 2) the bolt carrier or bolt carrier group; 3) the charging handle; 4) the extractor or extractor assembly; or 5) the magazine port.

If a weapon meets one of the above tests, it is a Copy or Duplicate (and therefore a prohibited Assault weapon), even if it is marketed as “state compliant” or “Massachusetts compliant.”

The fact that a weapon is or has been marketed by the manufacturer on the basis that it is the same as or substantially similar to one or more Enumerated Weapons will be relevant to identifying whether the weapon is a Copy or Duplicate (and therefore a prohibited Assault weapon) under the applicable test(s).

Under Section 121, the Features Test in the former 18 U.S.C. section 921(a)(30) remains an independent basis for qualification as an Assault weapon.

If a weapon, as manufactured or originally assembled, is a Copy or Duplicate under one or both of the applicable tests, it remains a prohibited Assault weapon even if it is altered by the seller. Therefore, a Copy or Duplicate will be treated as an Assault weapon even if it is altered, for example, by pinning the folding or telescoping stock in a fixed position, by removing the pistol grip, by removing a bayonet mount or flash suppressor, or by preventing the weapon from accepting a detachable magazine.

Purely cosmetic similarities to an Enumerated Weapon, such as finish, appearance, or shape of the stock, or appearance or shape of the rail, will not be treated as relevant to a determination of whether a weapon is a Copy or Duplicate.

Application of this Enforcement Notice (dealers licensed under G.L. c. 140, § 122):

The Guidance will not be applied to future possession, ownership or transfer of Assault weapons by dealers, provided that the dealer has written evidence that the weapons were transferred to the dealer in the Commonwealth prior to July 20, 2016, and provided further that a transfer made after July 20, 2016, if any, is made to persons or businesses in states where such weapons are legal.

Application of this Enforcement Notice (individual gun owners):

The Guidance will not be applied to possession, ownership or transfer of an Assault weapon obtained prior to July 20, 2016.

The AGO reserves the right to alter or amend this guidance.

Huh - So apparently the Copy/Duplicate Guidance is in reference to the Enumerated Weapons list only.

Wonder when the 1st Mass. compliant MCX comes out, one without a folding stock or flash suppressor?

[DashOneBravo]

39. Semi auto deer rifles?

Wouldn't that include any that could use the same scope on both rifles?

Example: a Remington 742 is a 4-5 shot semi auto. It's a very common deer rifle. If there is a scope that fits it and an AR wouldn't it be banned?

[jmg257]

40. "Internal functioning components". Nt

[DashOneBravo]

44. Not that part

I meant the interchangeable components.

[pablo_marmol]

42. Great timing.

Between MA and CA we're reminding voters going into the general that we have our heads up our asses on the issue of gun violence.

Hope this doesn't bite us in the crotch.

[discntnt_irny_srcsm]

45. In the interest of...

...loopholes and technicalities, does this gun have any "internal" operating systems?

&feature=youtu.be