MASSACHUSETTS GUN LAWS CLEAR VIOLATION OF THE SECOND AMENDMENT A GAY LEFT AG AND A LEFT WING GENERAL COURT

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THE LAW!

No. 18-1545
In the
United States Court of Appeals
for the First Circuit
──────────────────────────
DAVID SETH WORMAN; ANTHONY LINDEN; JASON WILLIAM SAWYER;
PAUL NELSON CHAMBERLAIN; GUN OWNERS’ ACTION LEAGUE, INC.; ON TARGET
TRAINING, INC.; OVERWATCH OUTPOST
Plaintiffs-Appellants
NICHOLAS ANDREW FELD
Plaintiff
V.
MAURA T. HEALEY, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL
OF THE COMMONWEALTH OF MASSACHUSETTS; DANIEL BENNETT, IN HIS OFFICIAL
CAPACITY AS THE SECRETARY OF THE EXECUTIVE OFFICE OF PUBLIC SAFETY AND
SECURITY; KERRY GILPIN, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE
MASSACHUSETTS STATE POLICE
Defendants-Appellees
CHARLES D. BAKER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE
COMMONWEALTH OF MASSACHUSETTS; MASSACHUSETTS STATE POLICE
Defendants
──────────────────────────
On Appeal from the United States District Court
for the District of Massachusetts (Boston)
Case No. 1:17-cv-10107-WGY
──────────────────────────
BRIEF OF APPELLANTS
──────────────────────────
James Michael Campbell
Richard Paul Campbell
Campbell Campbell Edwards & Conroy PC
1 Constitution Center
3rd Floor
Boston, MA 02129
(617) 241-3000
jmcampbell@campbell-trial-lawyers.com
John Parker Sweeney
T. Sky Woodward
James W. Porter, III
Marc A. Nardone
Bradley Arant Boult Cummings LLP
1615 L Street NW, Suite 1350
Washington, D.C. 20036
(202) 393-7150
jsweeney@bradley.com
Attorneys for Plaintiffs-Appellants
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CORPORATE DISCLOSURE STATEMENT
The nongovernmental corporate Plaintiffs-Appellants in this civil action, Gun
Owners’ Action League, Inc., On Target Training, Inc., and Overwatch Outpost, do
not have any parent corporations, and no publicly held corporation owns 10% or
more of their stock.
This, the 22nd day of August, 2018.
/s/ John Parker Sweeney
John Parker Sweeney
Attorney for Plaintiffs-Appellants
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STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs-Appellants respectfully request oral argument in this case of first
impression. Until now, this Court has not had occasion to analyze Massachusetts’
statutory ban on commonly owned semiautomatic rifles and magazines. The
important constitutional issues raised by this appeal have not been decided
previously by this Court, and counsel’s responses to inquiries from the Court may
aid the Court in its decisional process. See Fed. R. App. P. 34(a)(1).
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TABLE OF CONTENTS
Corporate Disclosure Statement ……………………………………………………………..i
Statement Regarding Oral Argument ……………………………………………………… ii
Table of Authorities …………………………………………………………………………..v
Jurisdictional Statement ………………………………………………………………………1
Statement of Issues Presented for Review ………………………………………………..2
Statement of the Case …………………………………………………………………………3
I. Course of Proceedings ………………………………………………………………..3
II. Statement of the Facts ………………………………………………………………..4
A. The individual Plaintiffs are law-abiding, responsible citizens
seeking to exercise their fundamental rights………………………………4
B. The other Plaintiffs represent the interests of law-abiding,
responsible citizens seeking to exercise their fundamental
rights. …………………………………………………………………………….5
C. The Challenged Laws ban firearms and magazines commonly
kept for lawful purposes by law-abiding, responsible citizens. ……….6
1. The Challenged Laws prohibit the acquisition and
possession of common semiautomatic firearms and
ammunition magazines. ………………………………………………6
2. The Banned Firearms and Magazines are in common use
by law-abiding, responsible citizens across the country. ……….7
3. The Banned Firearms and Magazines are common
because they are useful for many lawful purposes,
including self-defense. ………………………………………………..9
Summary of the Argument ………………………………………………………………… 13
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Argument …………………………………………………………………………………….. 13
I. Supreme Court precedent makes clear that the Second Amendment
protects the Banned Firearms and Magazines………………………………….. 13
A. The Supreme Court held in Heller that handguns—including
semiautomatic handguns with standard magazines holding more
than ten rounds—cannot be banned from the homes of lawabiding,
responsible citizens. ……………………………………………… 14
B. McDonald and Caetano affirmed that the Second Amendment
extends prima facie to all instruments that constitute bearable
arms. ………………………………………………………………………….. 17
C. Heller, McDonald, and Caetano demonstrate that the Second
Amendment includes the Banned Firearms and Magazines and
they cannot be banned. …………………………………………………….. 19
II. The district court erred in upholding the Challenged Laws. ………………… 21
A. The district court misread the Supreme Court’s controlling
precedent to exclude the Banned Firearms and Magazines from
the Second Amendment and uphold the Challenged Laws. …………. 21
B. The Challenged Laws fail any heightened scrutiny analysis
because a ban is not adequately tailored. ……………………………….. 27
Conclusion……………………………………………………………………………………. 30
Certificate of Compliance …………………………………………………………………. 31
Certificate of Service……………………………………………………………………….. 32
Addendum ……………………………………………………………………………………. 33
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TABLE OF AUTHORITIES
Cases Page(s)
Caetano v. Massachusetts,
136 S. Ct. 1027 (2016) (per curiam)…………………………………………… passim
Crawford v. Washington,
541 U.S. 36 (2004) ……………………………………………………………………… 15
District of Columbia v. Heller,
554 U.S. 570 (2008) ……………………………………………………………… passim
Friedman v. City of Highland Park,
136 S. Ct. 447 (2015)…………………………………………………………………… 22
Heller v. District of Columbia (Heller II),
670 F.3d 1244 (D.C. Cir. 2011) …………………………………………….. 15, 21, 27
Jackson v. City & Cnty. of S.F.,
135 S. Ct. 2799 (2015) …………………………………………………………….. 27, 28
Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017)……………………………………………….. 3, 4, 22, 23
McCullen v. Coakley,
134 S. Ct. 2518 (2014) …………………………………………………………….. 28, 29
McDonald v. Chicago,
561 U.S. 742 (2010) ……………………………………………………………… passim
Powell v. Tompkins,
783 F.3d 332 (1st Cir. 2015) ………………………………………………………. 3, 27
Ramirez v. Commonwealth,
479 Mass. 331 (2018) ………………………………………………………………….. 18
Staples v. United States,
511 U.S. 600 (1994) ……………………………………………………………….. 20, 23
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State v. Kessler,
614 P.2d 94 (Or. 1980)…………………………………………………………………. 24
Turner Broad. Sys., Inc. v. FCC (Turner I),
512 U.S. 622 (1994) ……………………………………………………………….. 28, 29
Turner Broad. Sys., Inc. v. FCC (Turner II),
520 U.S. 180 (1997) ……………………………………………………………….. 28, 29
United States v. Miller,
307 U.S. 174 (1939) ………………………………………………………….. 16, 23, 24
United States v. Playboy Ent. Group, Inc.,
529 U.S. 803 (2000) ……………………………………………………………………. 28
Statutes
28 U.S.C. § 1291 ……………………………………………………………………………… 1
28 U.S.C. § 1331 ……………………………………………………………………………… 1
G. L. c. 140 § 121 ………………………………………………………………………. 1, 3, 7
G. L. c. 140 § 131M ……………………………………………………………………. 1, 3, 7
Rules
Fed. R. App. P. 34(a)(1) ……………………………………………………………………… ii
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JURISDICTIONAL STATEMENT
Plaintiffs-Appellants (“Plaintiffs”) challenge the Massachusetts ban on
common semiautomatic firearms and standard-capacity magazines (the “Banned
Firearms and Magazines”)—established by G. L.
2
STATEMENT OF ISSUES PRESENTED FOR REVIEW
The United States Supreme Court recently rejected a Massachusetts ban of
common arms, reaffirming, “The Court has held that ‘the Second Amendment
extends, prima facie, to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding,’ District of Columbia v. Heller,
554 U.S. 570, 582 [ ] (2008), and that this ‘Second Amendment right is fully
applicable to the States,’ McDonald v. Chicago, 561 U.S. 742, 750 [ ] (2010).”
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (per
3
STATEMENT OF THE CASE
I. Course of Proceedings
Plaintiffs challenge the Massachusetts ban on semiautomatic firearms and
standard capacity magazines under G. L. c. 140 §§ 121, 131M. (Complaint, Joint
Appendix (“JA”) Vol. 1 at 0025–57); (Challenged Laws, Addendum (“Add.”) at
A-17, A-22). The Challenged Laws violate the Second Amendment by banning an
entire class of
4
and Magazines are “‘weapons that are most useful in military service’” and “‘thus
fall outside the scope of the Second Amendment and may be banned.’” (Id. at A-9)
(quoting Kolbe, 849 F.3d at 121).
II. Statement of the Facts
A. The individual Plaintiffs are law-abiding, responsible citizens
seeking to exercise their fundamental rights.
The four individual Plaintiffs are law-abiding, responsible citizens of
Massachusetts and are eligible under state and federal law to purchase and possess
firearms and magazines. Each individual Plaintiff currently possesses and/or wishes
to possess Banned Firearms and Magazines and would do so but for the credible
threat of prosecution under the Challenged Laws. (Pls.’ Statement of Undisputed
Facts (“SUF”), JA Vol. 1 at 0082–85).
Plaintiffs David Seth Worman, Jason William Sawyer, and Anthony Linden
all own firearms and magazines that are banned by the Challenged Laws as
interpreted by the Massachusetts Attorney General’s Notice of Enforcement, dated
July 16, 2016 (“Notice of Enforcement”).2 (Id. at 0082–84). All keep their firearms
2 The Plaintiffs legally purchased these firearms, sold as “Massachusetts Compliant
Firearms,” after the enactment of the Challenged Laws but before the issuance of the
Notice of Enforcement. (Complaint, JA Vol. 1 at 0040–41). These purchases were
made from licensed dealers and were duly recorded with Defendants. (Id. at 0042–
43).
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in their homes to protect themselves and their families, and all have taken numerous
safety and training courses on the proper use of firearms. (Id.). Dr. Worman also
keeps his firearms for target practice and as collector’s items. (Id. at 0082–83). Mr.
Sawyer, a former Marine Corps Corporal, is a nationally ranked competitive shooter
and a certified firearms instructor for the National Rifle Association and the
Massachusetts State Police. (Id. at 0083–84). Mr. Linden suffers polyarthritis and
owns AR-15-platform rifles because they are easier to use at the practice range,
while hunting, and in self-defense if necessary.3 (Id. at 0084).
Unlike the other individual Plaintiffs, Paul Nelson Chamberlain does not
currently own a Banned Firearm but would purchase a Banned Firearm but for the
Challenged Laws. (Id. at 0084–85).
B. The other Plaintiffs represent the interests of law-abiding,
responsible citizens seeking to exercise their fundamental rights.
Plaintiff Gun Owners’ Action League, Inc. (“GOAL”) is a non-profit
corporation dedicated to promoting safe and responsible firearms ownership,
marksmanship competition, and hunter safety throughout Massachusetts. (Id. at
3 Polyarthritis is a type of arthritis that involves five or more joints simultaneously.
(Id. at 0084). Individuals with polyarthritis may not be able to operate bolt action
rifles efficiently, withstand the recoil effect of higher power rifles and shotguns, or
replace magazines quickly, and would benefit from the Banned Firearms. See infra
at 9–11.
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0085). In this lawsuit, GOAL represents itself and its members—who are lawabiding,
responsible citizens—all of whom are precluded by the Challenged Laws
from acquiring the most popular semiautomatic rifles and standard capacity
magazines sold today. (Id.; Complaint, JA Vol. 1 at 0031–32).
Plaintiffs On Target Training, Inc. (“On Target”) and Overwatch Outpost
(“Overwatch”) are federally licensed firearms dealers, who are also licensed in
Massachusetts to sell firearms and ammunition. (SUF, JA Vol. 1 at 0086–87). Both
On Target and Overwatch would sell the Banned Firearms and Magazines but for
the credible threat of prosecution under the Challenged Laws. (Id.). On Target and
Overwatch represent themselves and their current and potential customers—who are
law-abiding, responsible citizens—all of whom are precluded by the Challenged
Laws from acquiring the most popular semiautomatic rifles and standard capacity
magazines sold today. (Complaint, JA Vol. 1 at 0033).
C. The Challenged Laws ban firearms and magazines commonly kept
for lawful purposes by law-abiding, responsible citizens.
1. The Challenged Laws prohibit the acquisition and possession
of common semiautomatic firearms and ammunition
magazines.
The Challenged Laws, as interpreted by the Notice of Enforcement, prohibit
by name some of the most popular firearms in the country, including the ubiquitous
AR-15 rifle, as well as their “copies or duplicates.” (SUF, JA Vol. 1 at 0077); see
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also (G. L. c. 140 § 121, Add. at A-17). The phrase “copies or duplicates” is not
defined under Massachusetts law, see id., but was broadly defined in the Notice of
Enforcement. (SUF, JA Vol. 1 at 0080–81) (defining “copies and duplicates” to
include firearms whose “operating system and firing mechanism . . . are based on
or otherwise substantially similar to one of the Enumerated Weapons”). A “large
capacity feeding device” is “a fixed or detachable magazine . . . capable of accepting,
or that can be readily converted to accept, more than ten rounds of ammunition . . . .”
(G. L. c. 140 § 121, Add. at A-19). The Challenged Laws impose severe penalties,
including large fines and imprisonment, for the transfer and possession of Banned
Firearms and Magazines acquired after September 13, 1994. (G. L. c. 140 § 131M,
Add. at A-22).
The Challenged Laws operate to ban many if not most semiautomatic rifles
and magazines in the Commonwealth of Massachusetts. The Challenged Laws do
not provide an exception for the acquisition and possession of Banned Firearms and
Magazines by law-abiding, responsible citizens for self-defense in the home. (SUF
JA Vol. 1 at 0082).
2. The Banned Firearms and Magazines are in common use by
law-abiding, responsible citizens across the country.
The Challenged Laws ban some of the most commonly owned firearms and
magazines in the country. Specifically, the Challenged Laws target firearms that are
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semiautomatic, meaning they can fire only one shot with each pull of the trigger (Id.
at 0087–88). Repeating firearms are hardly novel. The Founders were familiar with
multiple shot repeating firearms at the time the Second Amendment was drafted and
ratified. (Id. at 0088). These semiautomatic firearms have been commercially
available for over a century. (Id.).
The firearms banned by the Challenged Laws are in common use. They
include the most frequently sold long guns in America. (Id. at 0089). AR- and AKplatform
rifles, which are specifically banned by the Challenged Laws, have been
sold to civilians in the United States since the 1950s. (Id. at 0088). Often referred to
collectively as “Modern Sporting Rifles,” these semiautomatic firearms have
become wildly popular. (Id. at 0088–89). Between 1990 and 2015, approximately
13.7 million rifles based on these platforms were manufactured in or imported into
the United States. (Id. at 0088). As of 2013, more than 4,800,000 people own at least
one Modern Sporting Rifle. (Id. at 0089). In 2015 alone, more than 1,500,000
Modern Sporting Rifles were manufactured in or imported into the United States—
nearly double the production of the most commonly sold motor vehicle in the United
States (the Ford F-series pick-up trucks). (Id.).
Ammunition magazines capable of holding more than ten rounds of
ammunition are also in common use. (Id.). Limiting the necessity to reload has
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always been a goal of firearm development. (Pls.’ Resp. to Def.’s SUF, JA Vol. 8 at
3301–02). Throughout the 17th and 18th centuries, many commercially available
firearms had a capacity of more than ten rounds. (SUF, JA Vol. 1 at 0096). Between
1990 and 2015, Americans owned approximately 115 million magazines holding
more than ten rounds, accounting for approximately half of all magazines during this
time. (Id. at 0089). Many more such magazines were likely purchased in the United
States prior to 1990 because magazines holding more than ten rounds have long been
provided as standard equipment for many semiautomatic rifles and pistols sold in
the United States. (Id. at 0090).
By any conceivable metric, the Banned Firearms and Magazines are common.
3. The Banned Firearms and Magazines are common because
they are useful for many lawful purposes, including selfdefense.
The Banned Firearms and Magazines are kept for a variety of lawful purposes,
including self-defense and hunting, as well as recreational and competitive target
shooting. (Id.). The record includes many reports of citizens using the Banned
Firearms for self-defense. (Pls.’ Resp. to Def.’s SUF, Vol. 8 at 3308–10). The
Banned Magazines are so ubiquitous that their defensive use is too frequent to count.
AR-platform rifles are ideal home-defense firearms. They are ergonomic,
safe, reliable, and especially effective for civilian defensive use, which requires
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stopping one or more human aggressors as quickly as possible. (SUF, JA Vol. 1 at
0090–91). These and other Banned Firearms offer superior accuracy, less recoil,
greater effective range, faster reloading, potentially reduced downrange hazard from
over penetration, and a larger ammunition capacity than other firearms. (Id.). The
Banned Firearms are also relatively lightweight, have a vertical pistol grip, and can
be used with one hand, making them easy to use accurately in close-quarter
encounters, or to free a hand for other purposes (such as turning on a light or calling
the police). (Id. at 0091). Law enforcement, including the FBI, choose the Banned
Firearms and Magazines for their personnel to use in self-defense and in defense of
others, and recommend them to civilians for the same uses. (Id. at 0092–93).
The Banned Firearms are superior to handguns and shotguns for use in
defensive situations. (Id. at 0092). Handguns are more difficult to use accurately
than semiautomatic rifles, especially under the stress of an attack, because they are
less accurate, harder to steady, absorb less recoil, and are more sensitive to
deficiencies in a user’s technique. (Id.). Shotguns have significantly more recoil than
semiautomatic rifles, which makes it more difficult to fire repeat shots accurately.
(Id.). Also, the “spread” of shotgun pellets increases the likelihood that some
projectiles will miss the intended target and penetrate others, critically compounding
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the problem of inaccuracy already inherent to shotguns. The Banned Firearms do not
present the same risks. (Id.).
The ammunition used in the Banned Firearms is also superior for use in selfdefense.
(Id. at 0091–92). This ammunition is more effective and reliable at stopping
human attackers. (Id. at 0091). The Banned Firearms fire projectiles of intermediate
power that are less likely to over-penetrate their targets or surrounding buildings,
thereby endangering bystanders, when compared to common handguns, shotguns,
and even so-called traditional hunting rifles. (Id. at 0092).
Many semiautomatic firearms, including the Banned Firearms, are designed
for and sold with standard magazines with capacities greater than ten rounds. (Id. at
0093). Higher capacity magazines allow individuals to better protect themselves,
their families, and their homes. (Id. at 0095). Higher capacity magazines reduce the
need to reload in defensive situations requiring more than ten rounds of ammunition
to stop one or more attackers. (Id. at 0093–95). Even if additional ammunition is
available, very few defensive situations afford the victim the time necessary to
reload his or her weapon (id.), which is a time-consuming process that is especially
onerous if the victim is disabled or injured. (Id. at 0094–95). The time to reload is
negatively affected by many factors—including noise, distractions, multiple
assailants, poor lighting, nervousness, and fatigue. (Id.). The reloading process
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requires both hands, limiting the victim’s ability to escape, fend off an attacker, call
911, or give physical aid and direction to others. (Id. at 0095). Even trained law
enforcement officers often require more than ten rounds of ammunition in defensive
situations, so virtually all law enforcement agencies, including the FBI, typically
issue their officers firearms with standard magazines holding more than ten rounds.
(Id. at 0094).
The Banned Firearms are distinct from military weapons like M-16 rifles,
which are fully automatic (meaning multiple shots are fired with only one pull of the
trigger) and are restricted by the National Firearms Act of 1934 (the “NFA”). (Id. at
0096). Automatic fire is the critical feature that makes a firearm military in nature
(Pls.’ Resp. to Def.’s SUF, JA Vol. 8 at 3299), as Congress recognized by drawing
a bright line between automatic and semiautomatic firearms in the NFA. No military
force in the world uses semiautomatic rifles, including the Banned Firearms, as its
standard service rifles. (Id. at 3290). Defendants concede that the semiautomatic AR-
15 is the “civilian version” of the military’s M-16 rifle. (SUF, JA Vol. 1 at 0096).
Although semiautomatic rifles may bear some cosmetic similarities to fully
automatic rifles, they are dissimilar in their basic modes of operation. (Id. at 0097).
Because semiautomatic firearms fire only as quickly as the operator can pull the
trigger, the Banned Firearms fire no more quickly than any other semiautomatic
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firearms, including handguns and rifles expressly exempted by the Challenged Laws.
(Id.). In other words, all semiautomatic firearms, including handguns, shotguns,
Banned Firearms, and rifles fire at the same rate: one shot per pull of the trigger.
(Pls.’ Resp. to Def.’s SUF, JA Vol. 8 at 3291).
SUMMARY OF THE ARGUMENT
At the heart of this case is the straightforward question the United States
Supreme Court has already answered in Heller, McDonald, and Caetano: Can the
government ban an entire class of arms commonly kept by law-abiding, responsible
citizens for lawful purposes? The Supreme Court painstakingly examined the text,
history, and tradition of the Second Amendment, including two hundred years of
judicial interpretations, and concluded the government cannot ban from the homes
of law-abiding, responsible citizens bearable arms that are in common use. This
Court should answer this question as the Supreme Court repeatedly has and hold the
Challenged Laws unconstitutional.
ARGUMENT
I. Supreme Court precedent makes clear that the Second Amendment
protects the Banned Firearms and Magazines.
In Heller, the Supreme Court applied a text, history, and tradition analysis to
conclude that the Second Amendment protects the right of law-abiding, responsible
citizens to choose, acquire, and possess bearable arms in common use typically kept
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for lawful purposes. The Court’s analysis and holding in Heller was affirmed in
McDonald and Caetano. These three cases demonstrate that a ban of commonly kept
arms from the homes of law-abiding, responsible citizens is a policy choice that is
“off the table.” See Heller, 554 U.S. at 636.
Applying that principle to modern semiautomatic rifles and standard capacity
magazines in this case, the Second Amendment protects the right of law-abiding,
responsible citizens to own the Banned Firearms and Magazines. There is no dispute
that the Banned Firearms and Magazines are commonly kept for lawful purposes,
including self-defense in the home. The Challenged Laws cannot survive any more
than the similar firearm bans in Heller and McDonald or the stun gun ban in
Caetano.
A. The Supreme Court held in Heller that handguns—including
semiautomatic handguns with standard magazines holding more
than ten rounds—cannot be banned from the homes of lawabiding,
responsible citizens.
In Heller, the Supreme Court struck down as unconstitutional a handgun ban
that included within its sweep many popular semiautomatic firearms. In doing so,
the Court engaged in an extensive text, history, and tradition analysis that established
a process for determining the scope of Second Amendment protection as well as the
clear principle that the Second Amendment protects, prima facie, all bearable arms
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commonly kept by law-abiding citizens for lawful purposes. See Heller, 554 U.S. at
625.
The Supreme Court declared that the scope of the Second Amendment is
grounded in history and is free from the interest balancing of “future legislatures or
[ ] even future judges.” Heller, 554 U.S. at 634–35 (declining to adopt either Justice
Breyer’s explicit interest-balancing inquiry or the enhanced intermediate or strict
scrutiny often applied in the First Amendment area); see also McDonald, 561 U.S.
at 789, 790–91 (plurality opinion) (rejecting the notion that judges will be forced to
make difficult empirical judgments because doing so is precluded by the Court’s
holding in Heller regarding text, history, and tradition of the Second Amendment).
The Court held that such interest balancing is inappropriate because the Second
Amendment is “the very product of an interest balancing” at the time of its
enactment, and the right of law-abiding, responsible citizens to use arms is elevated
above all other interests. Heller, 554 U.S. at 635.4 Consistent with the Court’s text,
4 This approach to analyzing constitutional rights is not novel; several other
individual rights are subject to “categorical constitutional guarantees” rather than
open-ended balancing tests. See Heller v. District of Columbia (Heller II), 670 F.3d
1244, 1283 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (citing Crawford v.
Washington, 541 U.S. 36, 67–68 (2004) (recognizing a categorical constitutional
guarantee under the Sixth Amendment for the accused “to be confronted with the
witness against him”)).
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history, and tradition analysis, the Second Amendment excludes only those arms that
are not “in common use” and, therefore, are both “dangerous and unusual.” See id.
at 627 (“Miller said, as we have explained, that the sorts of weapons protected were
those ‘in common use at the time.’ [United States v. Miller, 307 U.S. 174, 179
(1939).] We think that limitation is fairly supported by the historical tradition of
prohibiting the carrying of ‘dangerous and unusual weapons.’”).5
The Supreme Court held that the District of Columbia’s handgun ban violated
the Second Amendment because it was a “prohibition of an entire class of arms”
commonly kept by law-abiding, responsible citizens for lawful purposes, including
self-defense. Heller, 554 U.S. at 628–29; see also McDonald, 561 U.S. at 767–68.
The Court reached that conclusion under its text, history, and tradition analysis
notwithstanding evidence that handgun violence presents a serious problem in the
United States. Heller, 554 U.S. at 634, 635. There is simply no historical support,
however, for a handgun ban. Id. at 629. While governments are free to take other
measures, a ban of a common firearm kept for lawful purposes is per se
unconstitutional because it conflicts with the text, history, and tradition of the
5 See also Caetano, 136 S. Ct. at 1031 (Alito, J., concurring) (noting that an arm
must be both “dangerous” and “unusual” in order to be outside the Second
Amendment).
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Second Amendment. Heller, 554 U.S. at 629; see also McDonald, 561 U.S. at 791
(plurality opinion). As discussed in Section II.A below, the district court in this case
erred when it disregarded this core holding of Heller and its progeny, instead holding
that these common firearms and magazines are wholly exempted from Second
Amendment protection.
B. McDonald and Caetano affirmed that the Second Amendment
extends prima facie to all instruments that constitute bearable
arms.
The Supreme Court’s post-Heller decisions in McDonald and Caetano are
significant here for two reasons. First, the Court affirmed the text, history, and
tradition analysis it set out in Heller as the framework for evaluating the
constitutionality of bans like the Challenged Laws. See McDonald, 561 U.S. at 767–
68; Caetano, 136 S. Ct. at 1027–28. Second, the Court affirmed the principle that
bans of bearable arms commonly kept for lawful purposes are per se
unconstitutional.
The Supreme Court did not stray from either the analysis or the principle
established in Heller, but reinforced them both. The Court asked the same question
in both McDonald and Caetano: Does the law ban a class of arms commonly kept
by law-abiding, responsible citizens for lawful purposes? The Court did not engage
in any form of interest balancing, but merely applied this straightforward “in
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common use” test. See, e.g., McDonald, 561 U.S. at 785–86, 790–91 (reaffirming
the Court’s rejection of interest balancing in Heller and affirming that a ban on
common arms in the home is unconstitutional). The Court’s rejection of any interestbalancing
approach is particularly evident in Caetano, which concerned a wholly
modern arm entirely unrelated to the handguns at issue in Heller and McDonald.
Like the handgun bans before it, however, the stun gun ban did not survive. See
Ramirez v. Commonwealth, 479 Mass. 331, 332, 336–37 (2018) (applying Caetano
to hold “that the absolute prohibition against civilian possession of stun guns . . . is
in violation of the Second Amendment”).6
Taken together, Heller, McDonald, and Caetano are unequivocal. The only
framework of analysis for a ban of common bearable arms is Heller’s text, history,
and tradition approach, which demonstrated that a ban of bearable arms commonly
kept for lawful purposes is per se unconstitutional. Government restrictions failing
this “in common use” test cannot survive constitutional challenge.
6 See Caetano, 136 S. Ct. at 1032–33 (Alito, J., concurring) (“While less popular
than handguns, stun guns are widely owned and accepted as a legitimate means of
self-defense across the country. Massachusetts’ categorical ban of such weapons
therefore violates the Second Amendment.”)
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C. Heller, McDonald, and Caetano demonstrate that the Second
Amendment includes the Banned Firearms and Magazines and
they cannot be banned.
This Court should apply the analysis set forth in Heller, McDonald, and
Caetano. That text, history, and tradition analysis resulted in a straightforward
standard: Are the Banned Firearms and Magazines commonly possessed by lawabiding,
responsible citizens for lawful purposes? This is the simple and
straightforward holding of Heller. Like the handguns in Heller and McDonald and
the stun guns in Caetano, there is no dispute that the Banned Firearms and
Magazines are commonly kept for lawful purposes, including self-defense in the
home. And, like the bans rejected in Heller, McDonald, and Caetano, the Challenged
Laws violate the Second Amendment.
Massachusetts’ prohibitions make it illegal to acquire some of the most
common firearms and magazines on the market today. (SUF, JA Vol. 1 at 0088).
Millions of law-abiding Americans own these rifles. (Id. at 0088–89). Magazines
capable of holding more than ten rounds of ammunition are even more common. (Id.
at 0089–90). There is no dispute that Massachusetts prohibits firearms and
magazines in common use. See (Opinion, Add. at A-11) (“. . . Plaintiffs [argue] the
AR-15 is an extraordinarily popular firearm. Indeed, the data they proffer as to its
popularity appears unchallenged by the Defendants.”).
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Likewise, the commonly owned Banned Firearms and Magazines are used for
lawful purposes, see Heller, 554 U.S. at 625–27, including self-defense. (SUF, JA
Vol. 1 at 0090). These firearms offer unique advantages compared to handguns and
other long guns, including better control and greater accuracy (Id. at 0092), and ease
of use in a self-defense situation (Id. at 0094–95). Not surprisingly, semiautomatic
rifles, like the AR-15, have long been widely accepted as “lawful possessions.” See
Staples v. United States, 511 U.S. 600, 612 (1994).
Nothing in Heller or its progeny supports drawing arbitrary distinctions
between semiautomatic handguns and semiautomatic rifles, or between handguns
with magazines that hold more than ten rounds and those that hold ten or less. See
Heller, 554 U.S. at 629 (foreclosing the argument that prohibition of an entire class
of arms can be justified due to the existence of alternatives). Under the Court’s text,
history, and tradition analysis, all such prohibitions are subject to the same inquiry.
See, e.g., Caetano, 136 S. Ct. at 1031 (Alito, J., concurring) (rejecting the evaluation
of a weapon’s dangerousness alone in order to determine whether it falls within the
Second Amendment).
The Challenged Laws, like the laws in Heller and McDonald, ban firearms
protected by the Second Amendment. Because the Banned Firearms and Magazines
were not banned at the time of the Second Amendment, have not historically been
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banned, and are not “dangerous” and “unusual” because they are “‘the sorts of lawful
weapons that’ citizens typically ‘possess [ ] at home,’” see Heller II, 670 F.3d at
1271–72 (Kavanaugh, J., dissenting) (quoting Heller, 554 U.S. at 627),
Massachusetts cannot ban them now.
II. The district court erred in upholding the Challenged Laws.
The district court abandoned Heller’s text, history, and tradition analysis and
“in common use” test in favor of a “two-part approach” and a “most useful in
military service test” to exclude the Banned Firearms and Magazines from the
Second Amendment and uphold the Challenged Laws. Had the district court
followed Supreme Court precedent and applied the correct analysis and test, it would
have held the Challenged Laws unconstitutional. Even under some form of
heightened constitutional scrutiny, however, the Challenged Laws would still fail
because a ban cannot be adequately tailored. This Court should correct the district
court’s departure from Supreme Court precedent and hold the Challenged Laws
unconstitutional.
A. The district court misread the Supreme Court’s controlling
precedent to exclude the Banned Firearms and Magazines from the
Second Amendment and uphold the Challenged Laws.
The district court erroneously excluded the Banned Firearms and Magazines
from the Second Amendment—even though there is no dispute that they are
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commonly owned for lawful purposes (Opinion, Add. at A-5 n.3 (accepting
Plaintiffs’ recitation of the facts as true; see supra at 6–13))—by relying on an
unsupported test in direct conflict with Heller and its progeny. This error allowed
the district court to uphold the Challenged Laws.
The district court’s mistake lies in its reading of Heller to create a
civilian/military firearm dichotomy to define the scope of the Second Amendment.
No such dichotomy exists. Following the Fourth Circuit’s Kolbe opinion, the district
court framed this test as whether the Banned Firearms and Magazines are “most
useful in military service.” But the Supreme Court has never adopted that test in any
form. The Court emphasized in Heller that the Second Amendment does not
prioritize any class of common arms over any other. See Heller, 554 U.S. at 629; see
also Caetano, 136 S. Ct. at 1031 (Alito, J., concurring). Classes of common arms
are treated the same, regardless of their usefulness in military service, so long as they
are arms commonly kept by law-abiding, responsible citizens for lawful purposes.7
There is no constitutionally cognizable difference between the Banned Firearms and
7 See Friedman v. City of Highland Park, 136 S. Ct. 447, 449 (2015) (Thomas &
Scalia, JJ., dissenting from denial of cert.) (noting that the distinction Heller draws
is between commonly owned firearms and weapons specially adapted to unlawful
and uncommon uses like short-barreled shotguns).
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protected semiautomatic handguns, or between the Banned Magazines and protected
magazines holding ten rounds or less. See supra at 12–13.8
Following the Fourth’s Circuit’s Kolbe opinion, the district court claimed to
root its “most useful in military service” test in Heller. When the Supreme Court
observed that firearms “like M-16s” may be restricted under the NFA, Heller, 554
U.S. at 624, it referred to other automatic firearms that, like M-16 rifles, are defined
as machine guns by virtue of their automatic fire capability and have long been
restricted under the NFA. That Court was referring to automatic firearms subject to
an existing restriction, not to the semiautomatic AR-15 and other semiautomatic
firearms that have long been widely accepted as “lawful possessions.” Staples, 511
U.S. at 612.
The district court’s test also cannot be squared with pre- or post-Heller
jurisprudence. In Heller, the Court clarified that the operative test set out in United
8 Even if this Court were to engage in an unnecessary comparison of the Banned
Firearms and Magazines to those protected in Heller and McDonald, however, the
record does not support the district court’s disparate treatment. See supra at 19–21.
The majority of handguns are semiautomatic. See (SUF, JA Vol. 1 at 0097).
Semiautomatic firearms, whether a handgun or rifle, operate identically: one shot
fired per each pull of the trigger. (Id.). Many of these semiautomatic handguns are
designed for and sold with the Banned Magazines. See (id. at 0090). And, to the
extent that they differ materially, firearm violence in this country is overwhelmingly
perpetrated with handguns, not the Banned Firearms. (Declaration of Gary Kleck
(“Kleck Decl.”), Ex. C., JA Vol. 1 at 0256).
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States v. Miller for determining whether a firearm is protected by the Second
Amendment is not its usefulness in military service, but whether the arms are “‘of
the kind in common use at the time.’” Heller, 554 U.S. at 624–25 (quoting Miller,
307 U.S. at 179). The Court further explained that the “historical understanding of
the scope of the right” was that the firearms “‘used by militiamen and weapons used
in defense of person and home were one and the same.’” Id. at 624–25 (quoting State
v. Kessler, 614 P.2d 94, 98 (Or. 1980)). The Court concluded that the ban on shortbarreled
shotguns survived in Miller because the firearms were not the sort used in
defense of person and home that would have been “part of ordinary military
equipment” brought to a militia assembly. See id. at 622, 624. In other words, they
were not the kind of firearms commonly kept for lawful purposes by law-abiding,
responsible citizens. The district court’s test ignores this historical understanding
and would ban firearms commonly kept in defense of person and home because they
might also be useful in military service—like the personal defense arms “in common
use” at the time of the founding. The district court’s reasoning would turn both Miller
and Heller upside down.
Caetano provides further support for Heller’s reading of Miller and also
undermines the district court’s “most useful in military service” test. The
Massachusetts Supreme Judicial Court did not consider whether the stun guns were
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commonly owned for lawful purposes, focusing instead on an analysis of their
military usefulness, as the district court did here. Caetano, 136 S. Ct. at 1028. In a
per curiam decision, the Supreme Court summarily dismissed that approach as
inconsistent with Heller, id. (citing Heller, 554 U.S. at 624–25 (setting out the ‘in
common use” test)), demonstrating that the Second Amendment protects both arms
that are useful in military service and those that are not.
The “most useful in military service” test is at odds with these cases because
it infringes upon the fundamental principle the Supreme Court found enshrined in
the Second Amendment’s text, history, and tradition: The Second Amendment
extends, prima facie, to all instruments that constitute bearable arms. As long as the
arms are commonly owned by law-abiding, responsible citizens for lawful purposes,
they are protected by the Second Amendment and cannot be banned. See Heller, 554
U.S. at 626–27, 634–35; supra at 14–18. The district court’s “most useful in military
service” test lacks objective standards for appropriately limiting the sort of ad hoc
judicial assessments rejected by the Supreme Court. See Heller, 554 U.S. at 635 (“A
constitutional guarantee subject to future judges’ assessments of its usefulness is no
constitutional guarantee at all.”); McDonald, 561 U.S. at 791 (plurality opinion). For
example, is the Colt 1911 pistol, the standard sidearm of the United States armed
forces from World War I until the mid-1980s, not protected by the Second
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Amendment because it was designed for and used in military service? Consistent
with the district court’s analysis, the answer may be yes. But excluding such a
firearm from Second Amendment protection—as well as the many copies and
duplicates of its iconic design—directly contradicts both Heller and McDonald.
Heller’s “in common use” test avoids the uncertainty and inevitable inconsistency
that the district court’s approach invites. See McDonald, 561 U.S. at 789 (plurality
opinion).
The district court erred by substituting its preferred “most useful in military
service” test in direct conflict with the “in common use” test that the Court
established in Heller and reiterated in McDonald and Caetano. This is not a matter
of discretion, however, and the district court failed to follow the law of the land as
clearly articulated by the Supreme Court. The Banned Firearms and Magazines are
covered by the Second Amendment, and bans like the Challenged Laws are “off the
table” and per se unconstitutional. Heller, 554 U.S. at 636.
The district court’s validation of the Challenged Laws is in direct conflict with
controlling Supreme Court precedent. Under the Heller analysis, there can be no
justification for this disfavored treatment of Plaintiffs’ Second Amendment rights.
See McDonald, 561 U.S. at 778–79 (rejecting the suggestion that “the Second
Amendment should be singled out for special—and specially unfavorable—
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treatment”). The only holding consistent with Heller, McDonald, and Caetano is that
the Challenged Laws are unconstitutional.
B. The Challenged Laws fail any heightened scrutiny analysis because
a ban is not adequately tailored.
In adopting its categorical test forbidding a ban of common firearms, the
Supreme Court expressly disavowed the balancing analysis required by the district
court’s “two-part approach” here. See supra at 14–18; Heller, 554 U.S. at 634–35;
see Jackson v. City & Cnty. of S.F., 135 S. Ct. 2799, 2801–02 (2015) (Thomas, J.,
dissenting from denial of cert.).9 Consistent with Heller, this Court has yet to adopt
the “two-part approach” embraced by other Circuits and the district court here. See
Powell v. Thompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015) (identifying those courts
that have adopted the “two-part framework” and declaring that this Court has
“hewed closely and cautiously to Heller’s” analysis). This Court should not adopt
the “two-part approach” now.
If this Court were to apply heightened scrutiny under a two-step approach,
however, strict scrutiny is the only appropriate standard of review. The Challenged
Laws prohibit citizens from keeping common firearms in their homes for self-
9 Justice Breyer’s interest-balancing test is nothing more than heightened scrutiny
in disguise. See Heller II, 670 F.3d at 1276–77 & n.8 (Kavanaugh, J., dissenting).
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defense. The Challenged Laws thus impose a severe restriction that infringes on the
core Second Amendment right. To survive constitutional scrutiny, the Challenged
Laws must be narrowly tailored to achieve a compelling government interest. See
United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 813 (2000). But the
Challenged Laws are not narrowly tailored. Nor could any ban be. Cf. Heller, 554
U.S. at 629, 634–35 (rejecting the argument “that it is permissible to ban the
possession of handguns so long as the possession of other firearms . . . is allowed”
and holding that the ban fails under any level of scrutiny); see also Jackson, 135 S.
Ct. at 2801 (Thomas, J., dissenting from the denial of cert.). The government cannot
meet its burden under strict scrutiny here.
Similarly, bans, by their very nature, infringe upon the constitutional right at
the core of the Second Amendment and lack the tailoring required even under
intermediate scrutiny. McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014) (holding
“buffer zones” invalid because they burden substantially more speech than is
necessary). Intermediate scrutiny requires that a law impacting a fundamental right
be narrowly tailored to serve a substantial government interest. See id. at 2534;
Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 662 (1994). The
government must demonstrate the ban does not “burden substantially more
[protected conduct] than is necessary to further that interest.” Turner Broad. Sys.,
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Inc. v. FCC (Turner II), 520 U.S. 180, 2113–14 (1997) (quoting Turner I); see
McCullen, 134 S. Ct. at 2534–41. The record demonstrates that the Challenged Laws
do just that here. The Challenged Laws address far more than the criminal use of the
Banned Firearms and Magazines, reaching as well into the homes of law-abiding,
responsible citizens who wish to exercise their core Second Amendment right to
self-defense. A law that substantially restricts a core Second Amendment right
cannot be narrowly tailored to satisfy intermediate scrutiny.
This Court need look no further than the Supreme Court’s consistent rejection
of Justice Breyer’s balancing test to see that heightened scrutiny analysis is entirely
inconsistent with the Supreme Court’s holdings. See Heller, 554 U.S. at 634–35. In
any event, heightened scrutiny cannot save the Challenged Laws, which “would fail
constitutional muster” “[u]nder any of the standards of scrutiny . . . applied to
enumerated constitutional rights,” id. at 628; see also McDonald, 561 U.S. at 790–
91 (plurality opinion).
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CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court
reverse the district court and declare the Challenged Laws unconstitutional.
Respectfully submitted,
/s/ John Parker Sweeney
John Parker Sweeney
Attorney for Plaintiffs-Appellants
Of Counsel:
John Parker Sweeney
T. Sky Woodward
James W. Porter, III
Marc A. Nardone
Bradley Arant Boult Cummings LLP
1615 L Street NW, Suite 1350
Washington, D.C. 20036
(202) 393-7150
jsweeney@bradley.com
James Michael Campbell
Richard Paul Campbell
Campbell Campbell Edwards & Conroy PC
1 Constitution Center
3rd Floor
Boston, MA 02129
(617) 241-3000
jmcampbell@campbell-trial-lawyers.com
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31
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because, excluding the parts of the document exempted by Fed. R.
App. P. 32(f), this document contains 6,480 words.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced typeface using
Microsoft Word 2013 in Times New Roman font size 14.
This, the 22nd day of August, 2018.
Respectfully submitted,
/s/ John Parker Sweeney
John Parker Sweeney
Attorney for Plaintiffs-Appellants
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32
CERTIFICATE OF SERVICE
I hereby certify that on August 22, 2018, I filed the foregoing with the Clerk
of the Court via CM/ECF, which will serve the following individuals:
Julia Eleanor Kobick
Gary Klein
William W. Porter
Jeffrey Thomas Collins
Elizabeth A. Kaplan
Massachusetts Attorney General’s Office
1 Ashburton Place
Boston, MA 02108
Respectfully submitted,
/s/ John Parker Sweeney
John Parker Sweeney
Attorney for Plaintiffs-Appellants
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ADDENDUM TO BRIEF OF APPELLANTS
TABLE OF CONTENTS
District Court Judgment ………………………………………………………………………….. A-1
District Court Memorandum and Order…………………………………………………….. A-2
G.L. c. 140 § 121 ……………………………………………………………………………………. A-17
G.L. c. 140 § 131M ………………………………………………………………………………… A-22
Case: 18-1545 Document: 00117329743 Page: 40 Date Filed: 08/22/2018 Entry ID: 6192779
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
David Seth Worman et al
Plaintiff
CIVIL ACTION
V.
Maura Healey et al NO. 17cv10107-WGY
Defendant
JUDGMENT
YOUNG, D. J.
In accordance with the Court’s MEMORANDUM AND ORDER entered on April
5, 2018, it is hereby ORDERED:
Judgment for the DEFENDANTS.
By the Court,
April 6, 2018 /s/Matthew A. Paine
Date Deputy Clerk
Case 1:17-cv-10107-WGY Document 94 Filed 04/06/18 Page 1 of 1
A-1
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Worman v. Healey, 293 F.Supp.3d 251 (2018)
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1
293 F.Supp.3d 251
United States District Court, D. Massachusetts.
David Seth WORMAN, Anthony Linden, Jason
William Sawyer, Paul Nelson Chamberlain,
Gun Owners’ Action League, Inc., On Target
Training, Inc., and Overwatch Outpost, Plaintiffs,
v.
Maura HEALEY, in her official capacity as
Attorney General of the Commonwealth of
Massachusetts; Daniel Bennett, in his official
capacity as the Secretary of the Executive Office
of Public Safety and Security; and Colonel Kerry
Gilpin, in her official capacity as Superintendent
of the Massachusetts State Police, Defendants.
CIVIL ACTION NO. 1:17–10107–WGY
|
Filed 04/05/2018
Synopsis
Background: Firearm owners, dealers, and advocacy
association brought action against Attorney General
of Massachusetts and other state officials, challenging
statute that banned the transfer or possession of assault
weapons and large capacity magazines under Second and
Fourteenth Amendments. Parties filed cross-motions for
summary judgment.
Holdings: The District Court, William G. Young, J., held
that:
[1] plaintiff’s claim that Attorney General’s enforcement
notice explaining what a “copy” was for purpose of statute
banning assault weapons and copies or duplicates of those
weapons constituted a retroactive enlargement of scope of
statute in violation of Due Process Clause, was not ripe
for judicial review;
[2] assault weapons and large capacity magazines that
were banned by statute fell outside the scope of the Second
Amendment; and
[3] phrase “copies or duplicates” in statute banning certain
assault weapons or copies or duplicates of those weapons
was not unconstitutionally vague.
Dismissed in part, and defendants’ motion for summary
judgment granted in part.
Attorneys and Law Firms
*253 Connor M. Blair, Bradley Arant Boult Cummings
LLP, Nashville, TN, James M. Campbell, Eric M.
Apjohn, Campbell, Campbell, Edwards & Conroy, PC,
Boston, MA, James W. Porter, III, John Parker Sweeney,
Marc A. Nardone, T. Sky Woodward, Bradley Arant
Boult Cummings LLP, Washington, DC, for Plaintiffs.
Jeffrey T. Collins, William W. Porter, Office of the
Attorney General, Elizabeth A. Kaplan, Gary E. Klein,
Massachusetts Attorney General’s Office, Boston, MA,
for Defendants.
MEMORANDUM AND ORDER
WILLIAM G. YOUNG, DISTRICT JUDGE
*254 SECOND AMENDMENT,
U.S CONSTITUTION
A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms,
shall not be infringed.
I. THE CONTROLLING LAW
For most of our history, mainstream scholarship
considered the Second Amendment as nothing more
than a guarantee that the several states can maintain
“well regulated” militias. See, e.g., Lawrence H. Tribe,
American Constitutional Law 226 n.6 (1978); Peter Buck
Feller & Karl L. Gotting, The Second Amendment: A
Second Look, 61 Nw. U. L. Rev. 46, 62 (1966); John
Levin, The Right to Bear Arms: The Development of
the American Experience, 48 Chi.–Kent L. Rev. 148, 159
(1971).
Then, in 1999, a United States District Judge held that,
in fact, the Second Amendment conferred upon our
citizens an individual right to bear arms. See United States
v. Emerson, 46 F.Supp.2d 598, 602 (N.D. Tex. 1999)
(Cummings, J.), rev’d and remanded on other grounds,
270 F.3d 203 (5th Cir. 2001). This determination was
A-2
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Worman v. Healey, 293 F.Supp.3d 251 (2018)
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2
upheld. See United States v. Emerson, 270 F.3d 203, 264
(5th Cir. 2001).
Eventually, the issue found its way to the Supreme Court.
In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct.
2783, 171 L.Ed.2d 637 (2008), the Supreme Court struck
down a District of Columbia provision that made it illegal
to possess handguns in the home, holding that the core
right guaranteed by the Second Amendment is “the right
of law-abiding, responsible citizens to use arms in defense
of hearth and home.” Id. at 635, 128 S.Ct. 2783. Justice
Scalia wrote for the five-member majority and his opinion
is a tour de force example of his “original meaning”
jurisprudence. 1 The Second Amendment, he explained,
is comprised of a prefatory clause, “[a] well regulated
Militia, being necessary to the security of a free State, …”
and an operative clause, “… the right of the people to keep
and bear Arms, shall not be infringed.” Speaking for the
Supreme Court, he went on to offer extensive historical
grounding for this interpretation. Id. at 579–600, 128 S.Ct.
2783.
Well aware that he was writing more than two centuries
after the words the Supreme Court was interpreting had
been adopted as part of our Constitution, Justice Scalia
carefully defined the words “bear” and “arms,” giving
them the meaning those words bore at the time of the
Second Amendment’s adoption. Id. at 581–92, 128 S.Ct.
2783.
Speaking for the Supreme Court and focusing on the
word “arms,” he clarified that “the right secured by the
Second Amendment is not unlimited.” Id. at 626, 128 S.Ct.
2783. It is “not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever
purpose.” Id. For example, it is constitutional to prohibit
“the possession of firearms by felons and the mentally ill.”
Id. “[L]aws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial
sale of arms” are also presumptively proper *255 under
the Second Amendment. Id. at 626–27, 128 S.Ct. 2783
& n.26. Another important limitation articulated by the
Supreme Court is that the weapons protected under the
Second Amendment “were those ‘in common use at the
time.’ ” Id. at 627, 128 S.Ct. 2783 (quoting United States
v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206
(1939) ). More specifically, Justice Scalia explained that
“weapons that are most useful in military service—M–16
rifles and the like” are not protected under the Second
Amendment and “may be banned.” Id.
Justice Scalia well recognized that interpreting the Second
Amendment such that military style weapons fell beyond
its sweep could lead to arguments that “the Second
Amendment right is completely detached from the
prefatory clause.” Id. He explained, however, that the
Supreme Court’s interpretation did not belie the prefatory
clause because the consonance of the two clauses must
be assessed “at the time of the Second Amendment’s
ratification,” when “the conception of the militia …
was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons that they
possessed at home to militia duty.” Id. “Indeed, it may be
true that no amount of small arms could be useful against
modern-day bombers and tanks.” Id. Yet the Supreme
Court ruled that “the fact that modern developments have
limited the degree of fit between the prefatory clause and
the protected right” could not “change [its] interpretation
of the right.” Id. at 627–28, 128 S.Ct. 2783.
When looking at the prohibition against possession of
handguns in the home in Heller, the Supreme Court
ruled it unconstitutional because the ban extended “to
the home, where the need for self, family, and property
is most acute.” Id. at 628, 128 S.Ct. 2783. The ban also
troubled the Supreme Court because “[t]he handgun ban
amount[ed] to a prohibition of an entire class of ‘arms’
that is overwhelmingly chosen by American society for
that lawful purpose.” Id. Accordingly, “[u]nder any of
the standards of scrutiny that [the Supreme Court has]
applied to enumerated constitutional rights, banning from
the home ‘the most preferred firearm in the nation to
“keep” and use for protection of one’s home and family,’
would fail constitutional muster.” Id. at 628–29, 128 S.Ct.
2783 (quoting Parker v. District of Columbia, 478 F.3d
370, 400 (D.C. Cir. 2007) ).
Following Heller, the Supreme Court decided two other
landmark Second Amendment cases. In McDonald v.
City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177
L.Ed.2d 894 (2010), the Supreme Court extended the
reach of the Second Amendment and stated that “the
Second Amendment right is fully applicable to the
States” via the Due Process Clause of the Fourteenth
Amendment. Id. at 744, 130 S.Ct. 3020. In Caetano
v. Massachusetts, ––– U.S. ––––, 136 S.Ct. 1027, 194
L.Ed.2d 99 (2016) (per curiam), the Supreme Court
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reaffirmed its holding in Heller, reiterating that the Second
Amendment “extends … to … arms … that were not
in existence at the time of the founding” and does not
protect only “those weapons useful in warfare.” Id. at 1028
(quoting Heller, 554 U.S. at 582, 624, 128 S.Ct. 2783).
Since Heller, circuit courts have wrestled with the proper
standard of review to apply to Second Amendment
claims. Most circuit courts apply a two-part approach.
See, e.g., Kolbe v. Hogan, 849 F.3d 114, 138–47 (4th
Cir. 2017) (en banc); New York State Rifle and Pistol
Ass’n, Inc. v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015);
GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng’rs, 788
F.3d 1318, 1322 (11th Cir. 2015); Jackson v. City and Cty.
of San Francisco, 746 F.3d 953, 962–63 (9th Cir. 2014);
United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.
2013); *256 Drake v. Filko, 724 F.3d 426, 429 (3d Cir.
2013); Woollard v. Gallagher, 712 F.3d 865, 874–75 (4th
Cir. 2013); National Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185,
194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510,
518 (6th Cir. 2012); Heller v. District of Columbia, 670
F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago,
651 F.3d 684, 701–04 (7th Cir. 2011); United States v.
Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States
v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010); United
States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
Under the two-part approach, courts first consider
whether the law “imposes a burden on conduct that falls
within the scope” of the Second Amendment. Powell
v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015);
see Kolbe, 849 F.3d at 133. If the answer is no, the
analysis ends. If the answer is yes, the next step is to
“determine the appropriate form of judicial scrutiny to
apply (typically, some form of either intermediate scrutiny
or strict scrutiny)” to test the constitutionality of the
law. Powell, 783 F.3d at 347 n.9. Under strict scrutiny,
“the government must prove that the challenged law is
‘narrowly tailored to achieve a compelling governmental
interest.’ ” Kolbe, 849 F.3d at 133 (quoting Abrams v.
Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d
285 (1997) ). Under intermediate scrutiny, the government
must “show that the challenged law ‘is reasonably adapted
to a substantial governmental interest’ ” Id. (quoting
United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir.
2011) ).
II. THE CASE AT BAR
In 1998, four years after the passage of the federal statute
banning assault weapons, Massachusetts enacted “An Act
Relative to Gun Control in the Commonwealth.” 1998
Mass. Acts ch. 180, §§ 1–80 (codified in Mass. Gen. Laws
ch. 140 et seq.) (the “Act”). Among other restrictions,
the Act proscribes the transfer or possession of assault
weapons and large capacity magazines (“LCMs”). Mass.
Gen. Laws Ann. ch. 140, § 131M (2018). Though the
Act largely was styled after the federal assault weapons
ban and initially echoed the federal ban’s 2004 expiration
date, the Massachusetts Legislature declined to let the Act
expire and instead made it permanent in that year.
On January 23, 2017, a group comprised of
Massachusetts firearm owners, prospective firearm
owners, firearm dealers, and a firearm advocacy
association (collectively, the “Plaintiffs”) filed suit against
Charles Baker, the Governor of the Commonwealth of
Massachusetts; Maura Healey, the Attorney General of
the Commonwealth of Massachusetts (the “Attorney
General”); Daniel Bennett, the Secretary of the Executive
Office of Public Safety and Security; Colonel Richard
McKeon, the Superintendent of the Massachusetts State
Police; and the Massachusetts State Police (collectively,
the “Defendants”). 2
The Plaintiffs filed this action against the Defendants
alleging violations of their constitutional rights and
seeking declaratory and injunctive relief. Compl. Decl.
& Inj. Relief (“Compl.”), ECF No. 1. Specifically, the
Plaintiffs claim that the Act infringes their Second
Amendment rights and violates their rights to due
process *257 afforded to them through the Fourteenth
Amendment. Id. ¶¶ 72–107.
On December 15, 2017, both parties cross-moved for
summary judgment on all counts. Pls.’ Mot. Summ. J.
(“Pls.’ Mot.”), ECF No. 57; Pls.’ Mem. Supp. Mot.
Summ. J. (“Pls.’ Mem.”), ECF No. 58; Pls.’ Statement of
Undisputed Material Facts (“Pls.’ Statement of Facts”),
ECF No. 59; Defs.’ Mot. Summ. J. (“Defs.’ Mot.”),
ECF No. 61; Mem. Supp. Defs.’ Mot. Summ. J. (“Defs.’
Mem.”), ECF No. 62; Defs.’ Statement Material Facts
(“Defs.’ Statement of Facts”), ECF No. 63. The Plaintiffs
also moved to strike certain witness declarations and
expert opinions proffered by the Defendants. See Pls.’
Mot. Strike Undisclosed Witness Decls., ECF No. 68;
Pls.’ Mot. Strike Ops. Defs.’ Experts, ECF No. 75.
On January 22, 2017, the Court allowed in part the
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motion to strike the witness declarations, ruling that the
Defendants cannot rely on them in pressing their motion
for summary judgment, but denied the motion as to
all other purposes. See Elec. Order, ECF No. 85. The
Court denied the motion to strike the challenged expert
opinions “insofar as [they] are proffered in opposition to
the Plaintiffs’ motion for summary judgment,” expressing
no opinion on whether the challenged affidavits may
be considered in support of the Defendants’ motion for
summary judgment. Elec. Order, ECF No. 84.
On February 9, 2018, this Court heard oral argument on
the cross-motions for summary judgment and took the
matter under advisement. See ECF No. 89.
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). For a movant to prevail,
it “bears the initial responsibility” of demonstrating “the
absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). The burden then “shifts to the nonmoving
party, who must, with respect to each issue on which she
would bear the burden of proof at trial, demonstrate that
a trier of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v. Serrano–Isern, 605
F.3d 1, 5 (1st Cir. 2010). “An issue is ‘genuine’ if the
evidence of record permits a rational factfinder to resolve
it in favor of either party.” Id. at 4.
[1] [2] In evaluating a motion for summary judgment,
the Court must consider “all of the record materials on file,
including the pleadings, depositions, and affidavits,” but
it is not permitted to “evaluate the credibility of witnesses
nor weigh the evidence.” Ahmed v. Johnson, 752 F.3d
490, 495 (1st Cir. 2014). All inferences, however, are to
be drawn in favor of the nonmoving party. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
III. THE UNDISPUTED FACTS 3
A. The Development of the AR–15 Rifle
In 1957, after the United States Army had adopted
the M14, a select fire full-auto military rifle, it “began
searching for a .22 (centerfire) caliber lightweight select
fire rifle” to best meet the needs of the military. Pls.’
Statement of Facts, Ex. 13 at A–15, ECF No. 59–12.
“Since the mid–1950’s Armalite [a gun manufacturer]
had been developing gas-operated rifles that differed
substantially from traditional wood *258 stock designs
in the use of modern materials and ergonomics.” Id. The
Armalite Rifle (“AR”)–10 was developed in 1956 for a
7.62×51 mm cartridge. Id. A smaller version designed
for the military, with its specifications in mind, was
developed and named the AR–15. The AR–15 was a
scaled down version of the AR–10, with a .223 Remington
(5.56×45mm) cartridge. Id. In 1964, the Army adopted the
AR–15 and renamed it the M16. Id. Colt manufactured
the M16 and also created a semi-automatic version of the
weapon and named it the AR–15. Id.
B. The Federal Ban and the Act
In 1994, Congress enacted the Public Safety and
Recreational Firearms Use Protection Act to decrease the
spread of assault weapons similar to military weapons.
Pub. L. No. 103–322, §§ 110101–06, 108 Stat. 1796, 1996–
2010 (1994). While in effect from 1994 to 2004, the federal
statute banned the manufacture, transfer and possession
of nineteen models of semiautomatic weapons, and copies
or duplicates of those firearms. §§ 110102–06, 108 Stat.
at 1996–2010. It also banned any semiautomatic rifle,
pistol, or shot gun that had two or more combat-style
features, and rifles and pistols that had the ability to
accept a detachable magazine, as well as LCMs that could
hold more than ten rounds of ammunition. Id. The ban
exempted assault weapons that were possessed lawfully
on September 13, 1994, the date of its enactment, as well
as hundreds of rifles and shotguns commonly used for
hunting and target practice. Id.
Four years later, Massachusetts enacted the Act, which
tracked the language of the federal ban and adopted the
same definition of “assault weapon.” Mass. Gen. Laws ch.
140, § 121. The Act makes it a crime to sell or possess a
number of assault weapons, including Colt AR–15s, and
copies and duplicates of those weapons. Id. § 131M. It also
makes it a crime to sell or possess a fixed or detachable
large capacity magazine that is capable of holding more
than ten rounds of ammunition. Id.; see id. § 121. The Act
makes an exception for weapons otherwise lawfully owned
on September 13, 1994. Id. § 131M.
On July 20, 2016, the Attorney General issued an
“Enforcement Notice” to the public to “provide a
framework to gun sellers and others for understanding
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the definition of ‘Assault weapon’ contained in [the Act].”
Pls.’ Statement of Facts, Ex. 25 (“Enforcement Notice”)
at 1. The Enforcement Notice explained that a weapon
is a “copy” or “duplicate” of an Enumerated Weapon
if (i) the weapon’s “internal functional components are
substantially similar in construction and configuration to
those of an Enumerated Weapon,” or (ii) the weapon “has
a receiver that is the same as or interchangeable with the
receiver of an Enumerated Weapon.” Id. at 3–4.
The Enforcement Notice declared that with respect to
individuals, its guidance “will not be applied to possession,
ownership or transfer of an Assault weapon obtained
prior to July 20, 2016.” Id. at 4. Proceeding to address
firearms dealers, it stated that its 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.” Id.
IV. APPLYING THE LAW TO THE FACTS
This Court begins with a description of the Plaintiffs’
claims, which provides helpful context for its analysis. The
Plaintiffs make three challenges to the Act. In Count One,
they bring a Second Amendment challenge to the Act.
Arguing that the Act *259 “prohibits an entire class of
firearms … commonly kept by law-abiding, responsible
citizens for lawful purposes,” Compl. ¶ 74, the Plaintiffs
allege that this prohibition “extend[s] into the home[ ],”
where Second Amendment protections are “at their
zenith,” id. ¶ 76, and that the Act thus unconstitutionally
infringes on their Second Amendment right to bear arms,
id. ¶ 77.
Count Two alleges that the Notice of Enforcement
unforeseeably and “retroactively criminalizes the transfers
of tens of thousands of Massachusetts Compliant
Firearms,” id. ¶ 4, “retroactively expos[ing] … Plaintiffs[ ]
to criminal penalty” and violating their right to
due process, id. ¶ 70. The Plaintiffs acknowledge
the Enforcement Notice’s limitation on retroactive
application to individuals, but they maintain that it
“provides no exception to its application to dealers
for transfers made before July 20, 2016.” Id. ¶ 64.
Consequently, they assert, the Enforcement Notice’s novel
interpretation of the Act constitutes an unconstitutional
retroactive enlargement of the Act’s scope, similar to “an
Ex Post Facto law passed by a legislature or a retroactive
decision issued by a state supreme court.” Id. ¶ 96.
Lastly, in Count Three, the Plaintiffs challenge the Act as
unconstitutionally vague, thereby violating their right to
due process of law. Specifically, they allege that the phrase
“copies or duplicates” is nowhere defined in the Act or
in any Massachusetts law, and the Enforcement Notice’s
“unprecedented” definition of that phrase provides
insufficient guidance as to what constitutes a “copy or
duplicate.” Id. ¶¶ 99–104. The term’s resulting vagueness,
the Plaintiffs allege, “chills exercise of Second Amendment
rights” and fails to warn ordinary citizens of the conduct
the Act prohibits. Id. ¶¶ 106–07.
A. Ripeness
[3] Though the Defendants have not raised the issue of
ripeness, this Court sees fit to do so. Ripeness “may
be considered on a court’s own motion.” National Park
Hosp. Ass’n v. Department of Interior, 538 U.S. 803,
808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). Because
ripeness implicates “the question of whether this court has
jurisdiction to hear the case,” Roman Catholic Bishop of
Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir.
2013), the Court addresses it first.
1. Legal Standard
[4] “[T]he doctrine of ripeness has roots in both the
Article III case or controversy requirement and in
prudential considerations.” Id. (quoting Mangual v.
Rotger–Sabat, 317 F.3d 45, 59 (1st Cir. 2003) ). It “seeks to
prevent the adjudication of claims relating to ‘contingent
future events that may not occur as anticipated, or indeed
may not occur at all.’ ” Reddy v. Foster, 845 F.3d 493, 500
(1st Cir. 2017) (quoting Texas v. United States, 523 U.S.
296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) ). “The
requirement of ripeness is ‘particularly relevant in the
context of actions for preenforcement review of statutes,’
because it ‘focuses on the timing of the action.’ ” Gun
Owners’ Action League, Inc. v. Swift, 284 F.3d 198, 205
(1st Cir. 2002) (quoting Navegar, Inc. v. United States, 103
F.3d 994, 998 (D.C. Cir. 1997) ). In determining whether
an issue is ripe, the Court ought consider “both the fitness
of the issue[ ] for judicial decision and the hardship to the
parties of withholding court consideration.” Abbott Labs.
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v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d
681 (1967), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
Typically, “both factors must be present.” Doe v. Bush,
323 F.3d 133, 138 (1st Cir. 2003).
*260 [5] [6] The fitness determination “typically
involves subsidiary queries concerning finality,
definiteness, and the extent to which resolution of the
challenge depends upon facts that may not yet be
sufficiently developed.” Gun Owners’ Action League, 284
F.3d at 206 (quoting Rhode Island Ass’n of Realtors, Inc.,
v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999) ). “The
critical question concerning fitness for review is whether
the claim involves uncertain and contingent events that
may not occur as anticipated or may not occur at all.”
McInnis–Misenor v. Maine Med. Ctr., 319 F.3d 63, 70 (1st
Cir. 2003) (quoting Ernst & Young v. Depositors Econ.
Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995) ). Cases
that are “largely hypothetical … are seldom fit for federal
judicial review.” Ernst & Young, 45 F.3d at 538.
[7] [8] The hardship inquiry asks “whether the
challenged action creates a direct and immediate dilemma
for the parties.” Gun Owners’ Action League, 284 F.3d
at 206 (quoting Rhode Island Ass’n of Realtors, 199 F.3d
at 33). To demonstrate that this hardship exists, a party
must show that it is put “between a rock and a hard place”
without pre-enforcement review, forced either to “forego
possibly lawful activity because of her well-founded fear
of prosecution” or intentionally to commit a violation,
“thereby subjecting herself to criminal prosecution and
punishment.” Navegar, 103 F.3d at 998 (citing Babbitt v.
United Farm Workers Nat. Union, 442 U.S. 289, 298–99,
99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ). “The greater the
hardship, the more likely a court will be to find ripeness.”
McInnis–Misenor, 319 F.3d at 70.
2. Analysis
[9] Whereas Counts One and Three challenge the
constitutionality of the Act itself, Compl. ¶¶ 72–77, 97–
107, Count Two alleges that the Enforcement Notice
is unconstitutional, Compl. ¶ 96. It further alleges
that the Plaintiffs’ due process rights are violated from
retroactive application of the Enforcement Notice, rather
than through the possibility of prospective enforcement
(Counts One and Three). These two distinctions underpin
the conclusion that unlike Counts One and Three, Count
Two is not ripe for adjudication.
[10] Several factors weigh against the fitness of Count
Two for judicial resolution. To start, the Enforcement
Notice lacks the binding effect and force of law and does
not constitute a “final” agency action. The First Circuit
has explained that “[a]n agency action … is not ‘final’ or
ripe for review if it makes no change in the status quo itself,
but rather requires ‘further administrative action other
than the possible imposition of sanctions,’ before rights,
obligations or duties arise.” Roosevelt Campobello Int’l
Park Comm’n v. EPA, 684 F.2d 1034, 1040 (1st Cir. 1982)
(quoting Northeast Airlines, Inc. v. C.A.B., 345 F.2d 662,
664 (1st Cir. 1965) ). An action that “merely explains
how the agency will enforce a statute or regulation” is
not generally subject to pre-enforcement judicial review,
National Min. Ass’n v. McCarthy, 758 F.3d 243, 252
(D.C. Cir. 2014); the agency must have “rendered its last
word on the matter,” Omnipoint Holdings, Inc. v. City
of Cranston, 586 F.3d 38, 46 (1st Cir. 2009) (quoting
Harrison v. PPG Indus., Inc., 446 U.S. 578, 586, 100 S.Ct.
1889, 64 L.Ed.2d 525 (1980) ).
[11] Here, the agency action is, as the Defendants
describe, “a prosecutor’s advisory to the public of
her interpretation of a criminal law committed to her
enforcement.” 4 Defs.’ Mem. 14. The mere existence
*261 of the Enforcement Notice, which was not directed
at any particular individual or entity and contemplates
that it may be “alter[ed] or amend[ed],” Enforcement
Notice at 4, does not bring about a change in rights
or obligations. Rather, it is the decision to initiate
enforcement actions under this guidance that would
constitute the Attorney General’s “last word on the
matter” and give rise to any real effect on the Plaintiffs’
rights and obligations. 5 See Roosevelt Campobello
Int’l Park Comm’n, 684 F.2d at 1039–40 (holding that
agency actions were not “sufficiently ‘final’ to call
for judicial review” where they did not confer rights
until another agency action, which had been proposed
but not executed, took place); Kemler v. Poston, 108
F.Supp.2d 529, 542 (E.D. Va. 2000) (concluding that
challenge to state ethics committee’s advisory opinion
was not fit for review where the opinion could have
“[n]o concrete effect” until enforced by the appropriate
state commission or court); cf. Northeast Airlines, 345
F.2d at 664 (explaining that judicial review is appropriate
where agency “determination is not a mere advisory or
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interpretive opinion”), To conclude otherwise would be
to exalt form over substance and discourage a desirable
practice: If any comment on a law’s interpretation by the
Attorney General could be considered to have binding
effect just because citizens may accord it considerable
weight, the Attorney General would forever remain silent,
providing citizens with less notice and creating a higher
risk that their rights to due process may someday be
violated.
Further, the actual threat of an enforcement action to
activate those rights is minimal. In contrast to Counts
One and Three, which anticipate the possibility of
enforcement for prospective transactions, Count Two’s
alleged deprivation of due process rests on the notion that
the Enforcement Notice “retroactively criminalizes” prior
conduct. Compl. ¶ 4. Yet the Attorney General declared
in the Enforcement Notice itself that her interpretation
of the Act would not be enforced retroactively against
individuals. Enforcement Notice at 4. While her language
concerning dealers is arguably more ambiguous, it implies
that the same principle applies to dealers, and the
Attorney General’s office has since confirmed that it does.
See Defs.’ Mem. 14; Dec. Supp. Defs.’ Mot. Summ. J.,
Ex. 1 at 162:5–10, 163:17–23, ECF No. 65–1. Thus, the
Plaintiffs’ claim of lack of due process due to retroactive
enforcement of the Enforcement Notice is “largely
hypothetical,” *262 weighing against a determination
that the issue is fit for review. 6 Ernst & Young, 45 F.3d
at 538; see McInnis–Misenor, 319 F.3d at 72 (“[T]hat the
future event may never come to pass augurs against a
finding of fitness.”).
Even if the Attorney General were to decide to enforce
the Act under the Enforcement Notice’s interpretation
with respect to transactions occurring prior to July
20, 2016, she may exercise her discretion to revise her
understanding as laid out in the Enforcement Notice,
or to bring prosecutions under a different theory of
liability. Review at this point thus may deprive her “of
the opportunity to refine, revise or clarify the particular
rule or other matter at issue” or “of the opportunity to
resolve the underlying controversy on other grounds.”
Roosevelt Campobello Int’l Park Comm’n, 684 F.2d at
1040. Alternatively, a court may choose not to give
effect to the Enforcement Notice’s interpretation. See
Matamoros v. Starbucks Corp., 699 F.3d 129, 135 (1st Cir.
2012) (explaining that while the Massachusetts Attorney
General’s interpretation of a law that she is charged
with enforcing is “entitled to ‘substantial deference’
” by a court interpreting that law, it also must be
“reasonable” (quoting DiFiore v. American Airlines, Inc.,
454 Mass. 486, 910 N.E.2d 889, 897 n.11 (2009) ) ).
Consequently, allowing adjudication of Count Two at
this time would “be setting in motion a constitutional
adjudication that not only could have a thunderous
impact on important state interests but that might well
prove to be completely unnecessary.” Ernst & Young, 45
F.3d at 538.
[12] Nor have the Plaintiffs demonstrated sufficient
hardship 7 with respect to Count Two. Courts have
consistently pointed to the government’s express intent to
prosecute or express disavowal of that intent as a major
factor in the determination of whether a credible threat of
prosecution exists. See Poe v. Ullman, 367 U.S. 497, 507,
81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (plurality opinion)
(“If the prosecutor expressly agrees not to prosecute, a suit
against him for declaratory and injunctive relief is not such
an adversary case as will be reviewed here.”); SOB, Inc. v.
County of Benton, 317 F.3d 856, 865–66, (8th Cir. 2003)
(determining fear of prosecution to be unrealistic where
alleged fear was based on unreasonable interpretation
of ordinance and county attorney had publicly declared
that ordinance did not prohibit activity in question);
cf. Babbitt, 442 U.S. at 302, 99 S.Ct. 2301 (concluding
that reasonable fear of prosecution was shown where
statute’s criminal prohibition was clear and the state had
not “disavowed any intention” of invoking it against the
plaintiffs); Presbytery of N.J. of Orthodox Presbyterian
Church v. Florio, 40 F.3d 1454, 1468 (3d Cir. 1994)
(observing that state’s pointed refusal to forswear future
prosecution “indicates … a real threat of prosecution”).
*263 As discussed supra, the Attorney General expressly
disavowed her intention to enforce the Enforcement
Notice’s interpretation as to transactions that took place
before the Enforcement Notice was issued. 8 That fact,
together with the Plaintiffs’ failure to provide this Court
with any other reason to believe that they face imminent
prosecution for these past transactions, weighs heavily
against concluding that there is a credible threat of
prosecution. See Fortuna Enterprises, L.P. v. City of
Los Angeles, 673 F.Supp.2d 1000, 1015 (CD. Cal. 2008)
(dismissing as not ripe claim seeking declaration that
ordinance cannot be applied retroactively, where there
was “no reason to believe that the Ordinance will be
applied retroactively”).
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Further, the Plaintiffs do not face the same kind of
dilemma with respect to this retroactivity claim as they
do with respect to their other claims, because they cannot
retroactively forgo lawful activity. Whereas the threat of
prosecution for future transactions may pressure them
not to engage in those future transactions, the threat
of prosecution for past transactions has no reasonable
bearing on their future activity. The Plaintiffs thus suffer
from no coercive effect of the remote threat of prosecution
for these past transactions. See Lake Carriers’ Ass’n v.
MacMullan, 406 U.S. 498, 507, 92 S.Ct. 1749, 32 L.Ed.2d
257 (1972) (noting the Poe plurality’s observation that “a
justiciable controversy does not exist where ‘compliance
with (challenged) statutes is uncoerced by the risk of their
enforcement’ ” (quoting Poe, 367 U.S. at 508, 81 S.Ct.
1752) ); Marine Equip. Mgmt. Co. v. United States, 4
F.3d 643, 647 (8th Cir. 1993) (“To present an actual
controversy … the threat of enforcement must have some
sort of immediate coercive consequences.”). The Plaintiffs
may fear prosecution for these past transactions, but given
that this fear is unreasonable and does not produce a
coercive effect, there is little “hardship to the parties of
withholding court consideration,” Abbott Labs., 387 U.S.
at 149, 87 S.Ct. 1507.
Because the potential deprivation of due process asserted
in Count Two depends entirely on “uncertain and
contingent events that may not occur as anticipated, or
indeed may not occur at all,” W.R. Grace & Co. v.
Environmental Protection Agency, 959 F.2d 360, 364 (1st
Cir. 1992) (quoting Lincoln House, Inc. v. Dupre, 903
F.2d 845, 847 (1st Cir. 1990) ), and the Plaintiffs do not
face a “direct and immediate dilemma” with respect to
Count Two, Count Two is not ripe for adjudication. *264
The Court therefore DISMISSES that claim for lack of
subject matter jurisdiction.
B. The Scope of the Second Amendment
[13] In Count One, the Plaintiffs allege that the Act
infringes their Second Amendment rights. They claim that
this Court ought grant summary judgment in their favor
because the assault weapons and LCMs banned by the
Act are within the scope of the Second Amendment right
to bear arms. This Court disagrees. Assault weapons and
LCMs—the types banned by the Act—are not within the
scope of the personal right to “bear Arms” under the
Second Amendment.
The Act in this case makes it a crime to possess assault
weapons or LCMs after September 13, 1994. Mass. Gen.
Laws ch. 140, § 131M. Assault weapons include:
(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–ll, 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.
Id. § 121.
As noted supra, the Supreme Court explained in Caetano
that “Heller rejected the proposition ‘that only those
weapons useful in warfare are protected.’ ” Caetano,
136 S.Ct. at 1028 (quoting Heller, 554 U.S. at 624,
128 S.Ct. 2783). Heller did not make such a rejection,
however, in order to conclude that all weapons useful in
warfare are protected. On the contrary, Heller rejected
that premise because it would lead to the “startling”
conclusion that “the National Firearms Act’s restrictions
on machineguns … might be unconstitutional, machine
guns being useful in warfare in 1939.” Heller, 554 U.S.
at 624, 128 S.Ct. 2783. Thus, as Heller concluded, it
cannot be that “only those weapons useful in warfare
are protected,” because some of those weapons are not
protected. Id. Weapons that are most useful in military
service, as Justice Scalia later observed, fall outside the
scope of the Second Amendment and may be banned. Id.
at 627, 128 S.Ct. 2783.
Consequently, “Heller … presents us with a dispositive and
relatively easy inquiry: Are the banned assault weapons
and large-capacity magazines ‘like’ ‘M–16 rifles,’ i.e.,
‘weapons that are most useful in military service,’ and thus
outside the ambit of the Second Amendment?” Kolbe, 849
F.3d at 136 (quoting Heller, 554 U.S. at 627, 128 S.Ct.
2783). The undisputed facts in this record convincingly
demonstrate that the AR–15 and LCMs banned by
the Act are “weapons that are most useful in military
service.” 9 As matter of law, these weapons and LCMs
thus fall outside the scope of the Second Amendment and
may be banned.
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The Plaintiffs argue that the AR–15 is the civilian
version of the M16 because it cannot fire in fully
automatic mode like the M16 and therefore cannot be
considered a military weapon. As the Plaintiffs also point
out in their undisputed facts, however, “[i]mprovements
in firearms technology tend to be adopted for both
military and civilian use” and so “[f]irearms designers
and manufacturers have historically marketed new
developments for both military and civilian uses.” Pls.’
Statement of Facts Ex. 13, ¶ 9. As a result, the AR–
15 design is versatile and adaptable “for military, *265
law enforcement, civilian self-defense, hunting, target
shooting, and other sporting purposes.” Pls.’ Statement of
Facts, Ex. 11 at A–9 (emphasis added); see Ex. 13 at A–18.
The AR–15 design is almost identical to the M16, except
for the mode of firing.
By 1956, Armalite had designed the AR–10, a lightweight
select fire rifle for the United States Army. Ex. 13 at A–
15. “In response to the military specifications, a similar
scaled down AR–15 select fire rifle for the .223 Remington
(5.56×45mm) cartridge was developed.” Id. The Air Force
adopted the AR–15 in 1962. Id. The Army followed
soon after in 1964, renaming it the M16. Id. Colt, the
manufacturer of the Army’s M16, reused the name “AR–
15” for its semiautomatic version of the rifle. Id. The
AR–15 became well known among civilians following the
Vietnam War when veterans brought the “AR pattern
rifles” home with them for civilian use. Id. at A–16.
“Soldiers who become familiar with a particular type of
handgun or rifle in the service tend to seek out similar
type[s of] firearms for personal use after leaving the
military.” Id.
AR–15s are “weapons that are based on designs of
weapons that were first manufactured for military
purposes” and “ha[ve] most of the features[,] other
than [the automatic mode], of the military weapon.”
Pls.’ Statement of Facts, Ex. 17 at 153:20–154:4. Some
characteristics of a military weapon include: (1) the
“ability to accept a large detachable magazine,” (2)
“folding/telescoping stocks,” advantageous for military
purposes, (3) pistol grips designed to allow the shooter
to fire and hold the weapon, or “aid in one-handed
firing of the weapon in a combat situation,” 10 (4) flash
suppressors, (5) bipods, (6) grenade launchers, (7) night
sights, (8) the ability for selective fire, and (9) the ability
to accept a centerfire cartridge case of 2.25 inches or less.
Pls.’ Statement of Facts, Ex. 28 at 6–8. Like the M16, the
AR–15 is “available with a telescoping/adjustable stock,”
a “vertical pistol grip” that allows for the weapon to be
“fired with one hand,” and “utilize[s] magazines with a
standard capacity of 20 or 30 rounds.” Pls.’ Statement of
Facts ¶ 42. The AR–15 is also lightweight, a characteristic
important for the military. See Pls.’ Statement of Facts
Ex. 12, at A–10; Ex. 8, ¶¶ 7–8. Other similarities between
the M16 and the AR–15 include “the ammunition,” “[t]he
way in which it is fired and the availability of sighting
mechanisms, … [t]he penetrating capacity, … [and] [t]he
velocity of the ammunition as it leaves the weapon.” Pls.’
Statement of Facts, Ex. 17 at 154:17–23.
The design of the AR–15 is common and well known
in the military. “[O]ver 25 million American veterans …
have been taught how to properly use an AR–15 type rifle
through their military training.” Pls.’ Statement of Facts,
Ex. 11 at ¶ 8. The AR–15 offers “similar ergonomics and
operating controls” as the M16s used in military service.
Pls.’ Statement of Facts, Ex. 11 at A–9.
LCMs are also “indicative of military firearms” and
fall outside the scope of the Second Amendment. Pls.’
Statement of Facts, Ex. 28 at 6. “That a firearm is designed
and sold with a large capacity magazine, e.g., 20 or 30
rounds, is a factor to be considered in determining whether
a firearm is a semiautomatic assault rifle.” Id.
“Simply put, AR–15–type rifles are ‘like’ M16 rifles,”
and fall outside the scope of the Second Amendment.
Kolbe, 849 F.3d at 136. The features of a military style
rifle *266 are “designed and intended to be particularly
suitable for combat rather than sporting applications.”
Pls.’ Statement of Facts, Ex. 28 at 12. The AR–15 and the
M16 were designed and manufactured simultaneously for
the military and share very similar features and functions.
Therefore, because the undisputed facts convincingly
demonstrate that AR–15s and LCMs are most useful
in military service, they are beyond the scope of the
Second Amendment. But see New York State Rifle &
Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 257 (2nd
Cir. 2015) (proceeding “on the assumption” that laws
banning the AR–15 are subject to scrutiny under the
Second Amendment); Friedman v. City of Highland
Park, 784 F.3d 406, 416 (7th Cir. 2015) (concluding
that because AR–15s are “commonly used and are not
unusual … they are covered by the Second Amendment”);
Fyock v. Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015)
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(holding that “a regulation restricting possession of
certain types of magazines burdens conduct falling within
the scope of the Second Amendment”). The Defendants
are entitled to summary judgment on Count One—the Act
is constitutional on Second Amendment grounds.
But wait, argue the Plaintiffs, the AR–15 is an
extraordinarily popular firearm. Indeed, the data they
proffer as to its popularity appears unchallenged by
the Defendants. Pls.’ Mem. at 6–7, 10; Pls.’ Statement
of Facts ¶¶ 30–32, 35–37; Defs.’ Statement of Facts ¶
61; see Ali Watkins, John Ismay, & Thomas Gibbons–
Neffmarch, Once Banned, Now Loved and Loathed: How
the AR–15 Became ‘America’s Rifle’, N.Y. Times (Mar.
3, 2018), https://nyti.ms/2CWFS9m. They thus argue that
the Act must fall as unconstitutional as it “amounts
to a prohibition of an entire class of ‘arms’ that is
overwhelmingly chosen by American society for [a] lawful
purpose.” Heller, 554 U.S. at 628, 128 S.Ct. 2783.
[14] Yet the AR–15’s present day popularity is not
constitutionally material. See Kolbe, 849 F.3d at 141–42.
But see Friedman, 784 F.3d at 416. This is because the
words of our Constitution are not mutable. They mean
the same today as they did 227 years ago when the Second
Amendment was adopted. The test is not the AR–15’s
present day popularity but whether it is a weapon “most
useful in military service.” Heller, 554 U.S. at 627, 128
S.Ct. 2783. Indeed as Justice Scalia was most fond of
reminding his audiences:
Our attitude today is that if
something ought to be so, why then
the Constitution, that embodiment
of all that is good and true and
beautiful, requires it. And we fight
out these battles about what ought
to be … not in the democratic forum
but in the law courts. The major
issues that shape our society are
to be decided for the whole nation
by a committee of nine lawyers….
There is a certain irony in the fact
that the society which takes all these
issues out of the democratic process,
and require them to be decided as
constitutional absolutes, prides itself
upon (of all things) its toleration.
It is willing to tolerate anything,
apparently, except disagreement and
divergence and hence the need for
continuing democratic debate and
democratic decision-making, on an
ever-increasing list of social issues.
Antonin Scalia, Interpreting the Constitution, in Scalia
Speaks: Reflections on Law, Faith, and Life Well Lived
188, 199 (Christopher J. Scalia & Edward Whelan eds.,
2017).
I urge you not to embrace the living Constitution—
for a number of reasons. The most important one
is that only the traditional view that the meaning
of the Constitution does not change places any real
constraints upon the decisions of future members of
Congress or future *267 judges. Since I accept that
view, I am hand-cuffed. Show me what the original
understanding was, and you got me…. There is no
other criterion that is not infinitely manipulable. Unless
you conduct a national opinion poll, the “evolving
standards of decency … of a maturing society” tend to
be whatever you (or I) care passionately about…. To
leave that visceral call to the unelected Supreme Court
is to frustrate democratic self-government; and to leave
it to the current Congress is to make the Constitution
superfluous. We do not need a Constitution to change
according to the desires of current society; all we need is
a legislature and a ballot box. The whole function of a
Constitution is to prevent future majorities from doing
certain things, and if you turn over the identification
of those things to the future majorities themselves, you
have accomplished nothing.
Antonin Scalia, Congressional Power, in Scalia Speaks,
supra, 213, 221–22.
C. Vagueness
The Plaintiffs next challenge the phrase “copies or
duplicates” within the Act’s definition of “assault
weapon” as rendering the Act unconstitutionally vague,
violating their right to fair notice and denying them
due process of law. Compl. ¶¶ 97–107. The Court first
considers the propriety of such a claim.
[15] “[F]acial challenges are typically disfavored because
they ‘often rest on speculation,’ which lead to the risk
of premature interpretation of statutes and regulations.”
Draper v. Healey, 98 F.Supp.3d 77, 82 (D. Mass.
2015) (Gorton, J.) (quoting Washington State Grange
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v. Washington State Republican Party, 552 U.S. 442,
450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ). Even
more unfortunate for the Plaintiffs here, however, are
the Supreme Court’s suggestions that facial vagueness
challenges to statutes not implicating First Amendment
rights are never appropriate. See Maynard v. Cartwright,
486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372
(1988) (“Vagueness challenges to statutes not threatening
First Amendment interests are examined in light of the
facts of the case at hand; the statute is judged on an
as-applied basis.”); United States v. Mazurie, 419 U.S.
544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (observing
that vagueness challenges that “do not involve First
Amendment freedoms must be examined in the light of the
facts of the case at hand”).
The First Circuit has similarly recognized that even
“where an enactment is alleged to be ‘impermissibly vague
in all of its applications,’ … it is clear that such an
allegation must first be considered in light of the facts of
the case—i.e., on an as-applied basis.” Love v. Butler, 952
F.2d 10, 13 (1st Cir. 1991) (quoting Village of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S.
489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ); Draper
v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (“We now turn
to the dealers’ claim that the load indicator requirement
is vague in violation of due process, a constitutional
claim eligible only for as-applied, not facial, review.”). In
Love, the First Circuit noted that “a facial challenge was
inappropriate” where the petitioner, who was convicted
under the challenged statute, conceded that the statute was
not vague as applied to him but “instead insist[ed] only
that it is facially vague.” Love, 952 F.2d at 13.
At the same time, it appears that the First Circuit has
tended not to dismiss these challenges out of hand, instead
opting to base its ruling on an as-applied analysis. See,
e.g., id. (noting that facial challenge was “inappropriate”
yet needed not be addressed because the statute was
not unconstitutionally vague as applied); Draper, 827
F.3d at 3 (addressing only the *268 plaintiffs’ as-applied
challenge). In both of these cases, however, there was
reason to conduct an as-applied analysis: in Love, the
petitioner had been convicted under the statute, and in
Draper, the plaintiffs challenged the regulation on both
a facial and as-applied basis. Here, the Plaintiffs do not
claim that the Act is unconstitutionally vague as applied,
and because this is a pre-enforcement challenge, such a
claim would indeed be inappropriate. 11
Two courts faced with circumstances more similar to
these, where the plaintiffs have not made any as-applied
challenge, have, however, addressed a facial vagueness
challenge on the merits. In Kolbe v. Hogan, the en
banc Fourth Circuit addressed a challenge to Maryland’s
assault weapons ban on the basis of unconstitutional
vagueness (among other grounds). Kolbe, 849 F.3d at
148. The plaintiffs in that case brought only a facial
challenge to the statute, and the district court had noted
that whether such a challenge was available was unclear.
See Kolbe v. O’Malley, 42 F.Supp.3d 768, 799 n.40 (D.
Md. 2014) (Blake, J.), aff’d en banc sub nom. Kolbe v.
Hogan, 849 F.3d 114 (4th Cir. 2017). The district court
concluded that it need not decide whether such a challenge
was appropriate because in any event the statute was not
unconstitutionally vague, and both the Fourth Circuit
panel and the Fourth Circuit en banc seemed to endorse
that approach, analyzing the claim on the merits and
affirming the district court’s holding that the statute in
question was not unconstitutionally vague. 12 See id. at
148–149.
The Second Circuit also allowed a facial challenge to
laws banning assault weapons in New York State Rifle
& Pistol Ass’n, Inc. v. Cuomo. It noted that “[b]ecause
plaintiffs pursue this ‘pre-enforcement’ appeal before
they have been charged with any violation of law, it
constitutes a ‘facial,’ rather than ‘as-applied,’ challenge,”
but it nevertheless went on to address the challenge on
the merits, ultimately concluding that the laws were not
unconstitutionally vague. New York State Rifle & Pistol
Ass’n, 804 F.3d at 265.
Though neither precedent is binding on this Court,
the approach taken by Judge Blake in the District of
Maryland commends itself to this Court. Accordingly, the
Court declines to determine whether this facial vagueness
claim is allowable because, even if it is, the claim fails on
its merits.
[16] [17] “The prohibition of vagueness in criminal
statutes ‘is a well-recognized requirement …’ and a statute
that flouts it ‘violates the first essential of due process.’ ”
Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551,
2556–57, 192 L.Ed.2d 569 (2015) (quoting Connally v.
General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70
L.Ed. 322 (1926) ). For a long time, it appeared to be
settled that to succeed in a facial challenge to a statute,
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“the challenger must establish that no set of circumstances
exists under which the Act would be valid.” *269 United
States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095,
95 L.Ed.2d 697 (1987). Recently, however, in Johnson,
the Supreme Court clarified that a vague law is not
constitutional “merely because there is some conduct that
clearly falls within the provision’s grasp.” Johnson, 135
S.Ct. at 2561. Nonetheless, the “threshold for declaring a
law void for vagueness is high.” Id. at 2576. A statute will
be held unconstitutionally vague “only if it wholly ‘fails
to provide a person of ordinary intelligence fair notice of
what is prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory enforcement.’ ” Id.
(quoting United States v. Williams, 553 U.S. 285, 304, 128
S.Ct. 1830, 170 L.Ed.2d 650 (2008) ).
[18] As the Defendants point out, another session of
this Court has already rejected a vagueness challenge to
the Act’s definition of “assault weapon” (within which
the phrase “copies or duplicates” is found). 13 See Defs.’
Mem. 18–19; Decl. Supp. Defs.’ Mot. Summ. J., Exs. 19–
20. In an order granting the defendants’ motion to dismiss,
Judge O’Toole concluded that “it is patently apparent
that the definitions, even if they might be unclear at the
margins, are not impermissibly vague in all applications,
especially in light of the amendments to the Act which
addressed some of the potential uncertainty.” Mem. &
Order, Gun Owner’s Action League, Inc. v. Cellucci,
No. 98–12125–GAO, slip op. at 2 (D. Mass. Sept. 28,
2000) (O’Toole, J.). Though Judge O’Toole’s assessment
employed the higher pre-Johnson standard, this Court
agrees with his reasoning and concludes that the phrase
“copies or duplicates” is not impermissibly vague even by
the lower Johnson standard.
Though the Act does not define “copies or duplicates,”
the phrase’s plain meaning provides a person of
ordinary intelligence fair notice as to what is
prohibited under the Act. The commonly understood
meaning of “copy,” as described by the Merriam–
Webster dictionary, is “an imitation, transcript, or
reproduction of an original work.” Copy, Merriam–
Webster, https://www.merriam-webster.com/dictionary/
copy (last updated Mar. 21, 2018). A “duplicate” is “either
of two things exactly alike and usually produced at the
same time or by the same process.” Duplicate, Merriam–
Webster, https://www.merriam-webster.com/dictionary/
duplicate (last updated Mar. 17, 2018). The combined
term “copies and duplicates,” in the context of the list of
enumerated firearms, thus plainly refers to exact replicas
of the enumerated firearms as well as firearms that may
not be identical to the enumerated firearms but are
nevertheless “imitations.” While citizens may need to
apply their own interpretation of this language “at the
margins,” this obligation does not render the language
impermissibly vague because “ ‘[f]air’ notice is understood
as notice short of semantic certainty.” Draper, 827 F.3d
at 4.
Further, both the Second and Fourth Circuits have
rejected vagueness challenges to similar or identical
language. In New York State Rifle & Pistol Ass’n, the
Second Circuit held the phrase “copies or duplicates”
within the context of an assault weapons ban not to be
unconstitutionally vague because the statute “provided
not only an itemized list of prohibited models but also [a]
military-style features test,” therefore providing citizens
with another reference point for what may constitute a
“copy or duplicate.” *270 New York State Rifle & Pistol
Ass’n, 804 F.3d at 267. The Fourth Circuit upheld a
statute’s ban on “copies” of enumerated assault weapons
in Maryland’s assault weapons ban, relying heavily on
the fact that notices issued by the Maryland Attorney
General and the Maryland State Police “explain how
to determine whether a particular firearm is a copy of
an identified assault weapon.” Kolbe, 849 F.3d at 149.
The Sixth Circuit sustained a vagueness challenge to
an ordinance banning certain firearms, but emphasized
that the ordinance “outlaws assault weapons only by
outlawing certain brand names without including within
the prohibition similar assault weapons of the same type,
function or capability,” “permits the sale and possession
of weapons which are virtually identical to those listed
if they are produced by a manufacturer that is not
listed,” and defines “assault weapon” by naming various
individual models and then adding “other models … that
have slight modifications or enhancements of firearms
listed.” Springfield Armory, Inc. v. City of Columbus,
29 F.3d 250, 252 (6th Cir. 1994). In reasoning that the
statute could easily be corrected, the Sixth Circuit noted
that “[o]ther gun control laws which seek to outlaw
assault weapons provide a general definition of the type of
weapon banned.” Id. at 253.
Though the Second, Fourth, and Sixth Circuits do not
set controlling precedent for this Court, this Court is
persuaded by their analyses, all of which bolster the
conclusion that the phrase “copies or duplicates” is
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sufficiently clear. Here, the Act lists certain individual
models that qualify as “assault weapons” but also
incorporates the now-expired federal ban’s general
definition of “semiautomatic assault weapon.” See Mass.
Gen. Laws ch. 140, § 121; 18 U.S.C. § 921(a)(30) (1994)
repealed by Pub. L. No. 103–322, § 110105(2), 108 Stat.
1796, 2000 (1994). This general definition contains both a
list of enumerated weapons and several features-style tests
that citizens may use as a second data point if they are
uncertain as to what constitutes a “copy or duplicate.” See
18 U.S.C. § 921(a)(30). The Attorney General also issued
a notice to the public (the Enforcement Notice) providing
further guidance on how to determine whether a firearm
is a “copy or duplicate” and thus prohibited. All of these
characteristics conform with those of the statutes upheld
in New York State Rifle & Pistol Ass’n and Kolbe, and
with the characteristics that the Sixth Circuit indicated
would have saved the ordinance in Springfield Armory.
The Plaintiffs argue that the Act is nevertheless vague
because the Enforcement Notice does not articulate
every test that may be applied to determine whether a
weapon is a copy or duplicate, and because the two
tests it does set forth are not sufficiently clear to permit
citizens to determine which weapons are prohibited. Pls.’
Mem. at 18. While the Enforcement Notice states that
a manufacturer’s advertising of a weapon is “relevant”
to whether that weapon is a “copy or duplicate,” the
Plaintiffs contend that it “provides no explanation as to
how to apply such a standard.” Id. They further claim that
because the Enforcement Notice provides that a firearm
meeting either test remains a “copy or duplicate” even if it
is altered to look like it does not meet the test, unknowing
citizens could be subject to criminal liability. Id.
These arguments, which center on the Enforcement
Notice, have no merit. As the Defendants note, the First
Circuit “has already rejected an attempt to invoke a
prosecutor’s interpretation of a criminal statute in support
of a facial attack on that statute.” Mem. Opp’n Pls.’ Mot.
Summ. J. 19, ECF No. 72. In McGuire v. Reilly, 386 F.3d
45 (1st Cir. 2004), the First Circuit addressed an argument
that an interpretation of law issued by the Massachusetts
*271 Attorney General (then Thomas Reilly) “set up a
new ground for facial unconstitutionality.” Id. at 58. The
First Circuit roundly rejected this argument, explaining
that while a federal court evaluating a challenge to state
law must “consider any limiting construction that a state
court or enforcement agency has proffered,” this rule is
intended to help “save a statute that would otherwise
be facially unconstitutional.” Id. (first quoting Ward v.
Rock Against Racism, 491 U.S. 781, 796, 109 S.Ct. 2746,
105 L.Ed.2d 661 (1989) ). The court concluded that
“[l]ogically, there is no way … that an authority’s nonbinding
and non-authoritative interpretation of a facially
valid statute can make it more facially constitutionally
vulnerable than it would be otherwise.” Id. (footnote
omitted). Though this statement is dicta, its reasoning
is persuasive. Here too, the Act is facially valid, and
the Enforcement Notice’s interpretation—even if it were
construed as expanding the Act’s scope—cannot render
it unconstitutionally vague. See McCullen v. Coakley,
571 F.3d 167, 183 (1st Cir. 2009) (“It is difficult to
understand … how or why a challenger can mount a facial
attack on a statute that is itself not vague simply because
an enforcement official has offered an interpretation of
the statute that may pose problems down the road. As
a matter of logic, we do not believe that an official’s
interpretation can render clear statutory language vague
so as to make the statute vulnerable to a facial (as opposed
to an as-applied) attack.” (citations omitted) ), overruled
on other grounds, ––– U.S. ––––, 134 S.Ct. 2518, 189
L.Ed.2d 502 (2014); Cutting v. City of Portland, Maine,
802 F.3d 79, 84 (1st Cir. 2015).
Finally, the Plaintiffs argue that the phrase “copies
or duplicates” is unconstitutionally vague because it
allows for the possibility of “arbitrary and subjective
enforcement.” Pls.’ Mem. 19. The Plaintiffs provide no
further detail or evidence as to how the Act has been or can
be enforced on a discriminatory basis. Courts consistently
reject pre-enforcement, facial vagueness challenges where
“no evidence has been, or could be, introduced to
indicate whether the ordinance has been enforced in a
discriminatory manner.” Village of Hoffman Estates, 455
U.S. at 503, 102 S.Ct. 1186 (1982); see also Gonzales v.
Carhart, 550 U.S. 124, 150, 127 S.Ct. 1610, 167 L.Ed.2d
480 (2007) (rejecting pre-enforcement challenge based
on claim of arbitrary or discriminatory enforcement,
noting that the arguments “are somewhat speculative”);
Richmond Boro Gun Club, Inc. v. City of New York,
97 F.3d 681, 686 (2d Cir. 1996) (declining to entertain
“premature” pre-enforcement vagueness challenge based
on “speculative threat of arbitrary enforcement,” in
part because the government “may choose to limit
enforcement … to weapons clearly proscribed by the
law”); cf. New York State Rifle & Pistol Ass’n, 804
F.3d at 266 (“Should such [an unfair] prosecution ever
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Worman v. Healey, 293 F.Supp.3d 251 (2018)
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 14
occur, the defendant could bring an ‘as applied’ vagueness
challenge …. That improbable scenario cannot, however,
adequately support the facial challenge plaintiffs attempt
to bring here.”). The Plaintiffs offer no reason to believe
that the threat of arbitrary enforcement is not purely
speculative. As a result, the Court remains convinced that
the phrase “copies or duplicates” as used in the Act is not
impermissibly vague.
V. CONCLUSION
For the foregoing reasons, the Court DISMISSES Count
Two of the Plaintiffs’ complaint and GRANTS summary
judgment for the Defendants on Counts One and Three.
The Plaintiffs’ motion for summary judgment on those
counts is DENIED.
SO ORDERED.
*272 The AR–15 and its analogs, along with large
capacity magazines, are simply not weapons within the
original meaning of the individual constitutional right to
“bear Arms.”
Both their general acceptance and their regulation, if any,
are policy matters not for courts, but left to the people
directly through their elected representatives. In the
absence of federal legislation, Massachusetts is free to ban
these weapons and large capacity magazines. Other states
are equally free to leave them unregulated and available to
their law-abiding citizens. These policy matters are simply
not of constitutional moment. Americans are not afraid
of bumptious, raucous, and robust debate about these
matters. We call it democracy.
Justice Scalia would be proud.
All Citations
293 F.Supp.3d 251
Footnotes
1 Indeed, Brandon J. Murrill, the Legislative Attorney for the Congressional Research Service, cites Heller as the
paradigmatic example of original meaning jurisprudence. See Brandon J. Murrill, Modes of Constitutional Interpretation,
Cong. Res. Service 8 (Mar. 15, 2018), https://fas.org/sgp/crs/misc/R45129.pdf.
2 The parties have since stipulated to the dismissal of the defendants Charles Baker and the Massachusetts State Police.
Stip. Dismissal, ECF No. 39. Per Rule 25(d) of the Federal Rules of Civil Procedure, Colonel Kerry Gilpin, who is
the current Superintendent of the Massachusetts State Police, has been automatically substituted for Colonel Richard
McKeon.
3 In light of the ultimate disposition, this Court relies only on legislative materials that are undisputed and the Plaintiffs’ own
recitation of facts. All inferences are drawn in the Plaintiffs’ favor.
4 That the agency in question here is a prosecuting authority weighs against fitness more so than it might in the context of
most other administrative agencies, because “the decision to prosecute is particularly ill-suited to judicial review.” Wayte
v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Rather than issue the Enforcement Notice,
the Attorney General could have decided simply to initiate a prosecution under her interpretation of the Act. Absent
a showing of discriminatory or arbitrary enforcement, that exercise of prosecutorial discretion would be “shielded from
intense judicial review” in both federal and Massachusetts courts. United States v. Bernal–Rojas, 933 F.2d 97, 99 (1st
Cir. 1991); see Commonwealth v. Latimore, 423 Mass. 129, 136, 667 N.E.2d 818 (1996). Thus, reviewing a manifestation
of that discretion here might well upset the traditional principle that “[i]n our criminal justice system, the Government
retains ‘broad discretion’ as to whom to prosecute.” Wayte, 470 U.S. at 607, 105 S.Ct. 1524 (quoting United States v.
Goodwin, 457 U.S. 368, 380 n.11, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ); see Commonwealth v. Taylor, 428 Mass.
623, 629, 704 N.E.2d 170 (1999) (“[0]ur decisions uniformly uphold a prosecutor’s wide discretion in deciding whether
to prosecute a particular defendant.”).
5 This Court notes, however, that another Judge of this Court, addressing a similar challenge, has recently disagreed,
ruling that the Enforcement Notice itself has the effect of a regulation and is reviewable. See Pullman Arms Inc. v. Healey,
No. 16-CV-40136-TSH, 301 F.Supp.3d 227, ––––, 2018 WL 1319001, at *2 (D. Mass. Mar. 14, 2018) (Hillman, J.).
6 The Plaintiffs allege that in addition to the threat of state prosecution, because federal law criminalizes the sale of firearms
in any state prohibiting the purchase or possession of such a firearm, the Enforcement Notice also causes them to face
a credible threat of federal prosecution for these previous transactions. Compl. ¶ 92. While there has been no similar
disavowal by federal prosecutors, the Plaintiffs have not pointed to the initiation of any such prosecutions and have failed
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© 2018 Thomson Reuters. No claim to original U.S. Government Works. 15
to demonstrate beyond a hypothetical possibility that federal prosecutors will now bind themselves to the Enforcement
Notice’s guidance, yet reject its limits on retroactive enforcement. Further, as explained infra, this threat—like the threat of
state prosecution—does not create a sufficiently “direct and immediate dilemma” to demonstrate hardship. Gun Owners’
Action League, 284 F.3d at 206 (quoting Rhode Island Ass’n of Realtors, 199 F.3d at 33).
7 Even where a fitness showing is minimal, the Court considers whether the hardship is so great so as to compensate for
lack of fitness. See McInnis–Misenor, 319 F.3d at 73.
8 By contrast, the Attorney General has not made any such promise with respect to prospective transactions prohibited by
the statute. With respect to Counts One and Three, then, the Plaintiffs face the immediate dilemma of buying a prohibited
firearm and risking prosecution, or forgoing such a transaction, resulting in a potential deprivation of rights. See, e.g.,
New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 990 F.Supp.2d 349, 358–59 (W.D.N.Y. 2013) (holding credible threat
to exist where plaintiffs testified that but for the statute, they would acquire weapons rendered illegal by the statute),
rev’d in part on other grounds, 804 F.3d 242; Ezell v. City of Chicago, 651 F.3d 684, 695 (7th Cir. 2011) (“The very
‘existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper ….’ ” quoting Bauer v.
Shepard, 620 F.3d 704, 708 (7th Cir. 2010) ); Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 529 (6th
Cir. 1998) (explaining that case is ripe where plaintiffs “face a clear Hobson’s choice” between risking prosecution or
depriving themselves of use of weapons, and the government “clearly state[d]” its intent to prosecute); cf. Gun Owners’
Action League, 284 F.3d at 207 (concluding that there was no hardship where the statute’s licensing scheme “provide[d]
a process for resolving uncertainty about the scope of the regulation,” but observing that the argument for hardship “might
have some force if the Act banned [the weapons] outright instead of licensing them”).
9 While the Act defines an array of weapons banned by the Act, both parties focus their analysis on the AR–15 and whether
a ban of it is unconstitutional. This Court will do the same.
10 “[T]he vast majority of sporting firearms employ a more traditional pistol grip built into the wrist of the stock of the firearm
since one-handed shooting is not usually employed in hunting or competitive target competitions.” Pls.’ Statement of
Facts, Ex. 28 at 6.
11 Though Draper was also a pre-enforcement action, the plaintiffs in that case had received letters from the Attorney
General responding to their specific inquiries regarding violations of the regulation at issue. Draper, 98 F.Supp.3d at
79–80.
12 The Fourth Circuit panel did note, however, that the statute had not been enforced against the plaintiffs, and that the
plaintiffs had not claimed that they were “forced to forego their Second Amendment rights because they were uncertain
whether weapons they wished to acquire were prohibited.” Kolbe v. Hogan, 813 F.3d 160, 190 (4th Cir. 2016). Despite this
implication that the challenge may not have been proper, the panel continued on to the merits of the vagueness inquiry.
13 In a footnote, the Defendants note that because one of the Plaintiffs here was a plaintiff in that prior case, the vagueness
claim as asserted by that plaintiff is “plainly barred by claim and issue preclusion.” Defs.’ Mem. 19 n.52. Because the
Defendants have not pursued this as a formal defense, however, and because in any event the Court rules that the
phrase is not impermissibly vague, the Court need not address this assertion.
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
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§ 121. Firearms sales; definitions; antique firearms; application of…, MA ST 140 § 121
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1
Massachusetts General Laws Annotated
Part I. Administration of the Government (Ch. 1-182)
Title XX. Public Safety and Good Order (Ch. 133-148a)
Chapter 140. Licenses (Refs & Annos)
M.G.L.A. 140 § 121
§ 121. Firearms sales; definitions; antique firearms; application of law; exceptions
Effective: August 17, 2018
Currentness
<[ Introductory paragraph of first paragraph effective until
August 17, 2018. For text effective August 17, 2018, see below.]>
As used in sections 122 to 131Q, inclusive, the following words shall, unless the context clearly requires otherwise, have
the following meanings:–
<[ Introductory paragraph of first paragraph as amended by 2018, 123, Sec. 1 effective
August 17, 2018. See 2018, 123, Sec. 18. For text effective until August 17, 2018, see above.]>
As used in sections 122 to 131Y, inclusive, the following words shall, unless the context clearly requires otherwise, have
the following meanings:–
“Ammunition”, cartridges or cartridge cases, primers (igniter), bullets or propellant powder designed for use in any
firearm, rifle or shotgun. The term “ammunition” shall also mean tear gas cartridges.
“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.
<[ Definition of “Bump stock” in first paragraph applicable as provided by 2017, 110, Sec. 53.]>
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© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2
“Bump stock”, any device for a weapon that increases the rate of fire achievable with such weapon by using energy from
the recoil of the weapon to generate a reciprocating action that facilitates repeated activation of the trigger.
“Conviction”, a finding or verdict of guilt or a plea of guilty, whether or not final sentence is imposed.
<[ Definition of “Court” inserted following definition of “Conviction” in first
paragraph by 2018, 123, Sec. 2 effective August 17, 2018. See 2018, 123, Sec. 18.]>
“Court”, as used in sections 131R to 131Y, inclusive, the division of the district court department or the Boston municipal
court department of the trial court having jurisdiction in the city or town in which the respondent resides.
“Deceptive weapon device”, any device that is intended to convey the presence of a rifle, shotgun or firearm that is used
in the commission of a violent crime, as defined in this section, and which presents an objective threat of immediate death
or serious bodily harm to a person of reasonable and average sensibility.
<[ Definitions of “Extreme risk protection order” and “Family or household
member” inserted following definition of “Deceptive weapon device” in first
paragraph by 2018, 123, Sec. 3 effective August 17, 2018. See 2018, 123, Sec. 18.]>
“Extreme risk protection order”, an order by the court ordering the immediate suspension and surrender of any license to
carry firearms or firearm identification card which the respondent may hold and ordering the respondent to surrender all
firearms, rifles, shotguns, machine guns, weapons or ammunition which the respondent then controls, owns or possesses;
provided, however, that an extreme risk protection order shall be in effect for up to 1 year from the date of issuance
and may be renewed upon petition.
“Family or household member”, a person who: (i) is or was married to the respondent; (ii) is or was residing with the
respondent in the same household; (iii) is or was related by blood or marriage to the respondent; (iv) has or is having a
child in common with the respondent, regardless of whether they have ever married or lived together; (v) is or has been
in a substantive dating relationship with the respondent; or (vi) is or has been engaged to the respondent.
<[ Definition of “Firearm” in first paragraph effective until
July 3, 2018. For text effective July 3, 2018, see below.]>
“Firearm”, a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be
discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as
originally manufactured; provided, however, that the term firearm shall not include any weapon that is: (i) constructed
in a shape that does not resemble a handgun, short-barreled rifle or short-barreled shotgun including, but not limited to,
covert weapons that resemble key-chains, pens, cigarette-lighters or cigarette-packages; or (ii) not detectable as a weapon
or potential weapon by x-ray machines commonly used at airports or walk- through metal detectors.
<[ Definition of “Firearm” in first paragraph as amended by 2018, 123, Sec.
4 effective July 3, 2018. For text effective until July 3, 2018, see above.]>
“Firearm”, a stun gun or a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or
bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of
a shotgun as originally manufactured; provided, however, that the term firearm shall not include any weapon that is: (i)
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§ 121. Firearms sales; definitions; antique firearms; application of…, MA ST 140 § 121
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3
constructed in a shape that does not resemble a handgun, short-barreled rifle or short-barreled shotgun including, but not
limited to, covert weapons that resemble key-chains, pens, cigarette-lighters or cigarette-packages; or (ii) not detectable
as a weapon or potential weapon by x-ray machines commonly used at airports or walk- through metal detectors.
“Gunsmith”, any person who engages in the business of repairing, altering, cleaning, polishing, engraving, blueing or
performing any mechanical operation on any firearm, rifle, shotgun or machine gun.
“Imitation firearm”, any weapon which is designed, manufactured or altered in such a way as to render it incapable of
discharging a shot or bullet.
“Large capacity feeding device”, (i) a fixed or detachable magazine, box, drum, feed strip or similar device capable of
accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun
shells; or (ii) a large capacity ammunition feeding device as defined in the federal Public Safety and Recreational Firearms
Use Protection Act, 18 U.S.C. section 921(a)(31) as appearing in such section on September 13, 1994. The term “large
capacity feeding device” shall not include an attached tubular device designed to accept, and capable of operating only
with, .22 caliber ammunition.
“Large capacity weapon”, any firearm, rifle or shotgun: (i) that is semiautomatic with a fixed large capacity feeding
device; (ii) that is semiautomatic and capable of accepting, or readily modifiable to accept, any detachable large capacity
feeding device; (iii) that employs a rotating cylinder capable of accepting more than ten rounds of ammunition in a rifle
or firearm and more than five shotgun shells in the case of a shotgun or firearm; or (iv) that is an assault weapon. The
term “large capacity weapon” shall be a secondary designation and shall apply to a weapon in addition to its primary
designation as a firearm, rifle or shotgun and shall not include: (i) any weapon that was manufactured in or prior to the
year 1899; (ii) any weapon that operates by manual bolt, pump, lever or slide action; (iii) any weapon that is a singleshot
weapon; (iv) any weapon that has been modified so as to render it permanently inoperable or otherwise rendered
permanently unable to be designated a large capacity weapon; or (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 large capacity weapon.
“Length of barrel” or “barrel length”, that portion of a firearm, rifle, shotgun or machine gun through which a shot or
bullet is driven, guided or stabilized and shall include the chamber.
“Licensing authority”, the chief of police or the board or officer having control of the police in a city or town, or persons
authorized by them.
<[ Definition of “Machine gun” in first paragraph applicable as provided by 2017, 110, Sec. 53.]>
“Machine gun”, a weapon of any description, by whatever name known, loaded or unloaded, from which a number
of shots or bullets may be rapidly or automatically discharged by one continuous activation of the trigger, including a
submachine gun; provided, however, that “machine gun” shall include bump stocks and trigger cranks.
<[ Definitions of “Petition” and “Petitioner” inserted following definition of “Machine gun”
in first paragraph by 2018, 123, Sec. 5 effective August 17, 2018. See 2018, 123, Sec. 18.]>
“Petition”, a request filed with the court by a petitioner for the issuance or renewal of an extreme risk protection order.
“Petitioner”, the family or household member, or the licensing authority of the municipality where the respondent resides,
filing a petition.
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§ 121. Firearms sales; definitions; antique firearms; application of…, MA ST 140 § 121
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4
“Purchase” and “sale” shall include exchange; the word “purchaser” shall include exchanger; and the verbs “sell” and
“purchase”, in their different forms and tenses, shall include the verb exchange in its appropriate form and tense.
<[ Definition of “Respondent” inserted following definition of “Purchase” in first
paragraph by 2018, 123, Sec. 6 effective August 17, 2018. See 2018, 123, Sec. 18.]>
“Respondent”, the person identified as the respondent in a petition against whom an extreme risk protection order is
sought.
“Rifle”, a weapon having a rifled bore with a barrel length equal to or greater than 16 inches and capable of discharging
a shot or bullet for each pull of the trigger.
“Sawed-off shotgun”, any weapon made from a shotgun, whether by alteration, modification or otherwise, if such
weapon as modified has one or more barrels less than 18 inches in length or as modified has an overall length of less
than 26 inches.
“Semiautomatic”, capable of utilizing a portion of the energy of a firing cartridge to extract the fired cartridge case and
chamber the next round, and requiring a separate pull of the trigger to fire each cartridge.
“Shotgun”, a weapon having a smooth bore with a barrel length equal to or greater than 18 inches with an overall length
equal to or greater than 26 inches, and capable of discharging a shot or bullet for each pull of the trigger.
<[ Definitions of “Stun gun” and “Substantive dating relationship” inserted following
definition of “Shotgun” in first paragraph by 2018, 123, Sec. 7 effective July 3, 2018.]>
“Stun gun”, a portable device or weapon, regardless of whether it passes an electrical shock by means of a dart or
projectile via a wire lead, from which an electrical current, impulse, wave or beam that is designed to incapacitate
temporarily, injure or kill may be directed.
“Substantive dating relationship”, a relationship as determined by the court after consideration of the following factors:
(i) the length of time of the relationship; (ii) the type of relationship; (iii) the frequency of interaction between the parties;
and (iv) if the relationship has been terminated by either person, the length of time elapsed since the termination of the
relationship.
<[ Definition of “Trigger crank” in first paragraph applicable as provided by 2017, 110, Sec. 53.]>
“Trigger crank”, any device to be attached to a weapon that repeatedly activates the trigger of the weapon through the
use of a lever or other part that is turned in a circular motion; provided, however, that “trigger crank” shall not include
any weapon initially designed and manufactured to fire through the use of a crank or lever.
“Violent crime”, shall mean any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such
term if committed by an adult, that: (i) has as an element the use, attempted use or threatened use of physical force or
a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of
explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another.
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§ 121. Firearms sales; definitions; antique firearms; application of…, MA ST 140 § 121
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5
“Weapon”, any rifle, shotgun or firearm.
Where the local licensing authority has the power to issue licenses or cards under this chapter, but no such licensing
authority exists, any resident or applicant may apply for such license or firearm identification card directly to the colonel
of state police and said colonel shall for this purpose be the licensing authority.
The provisions of sections 122 to 129D, inclusive, and sections 131, 131A, 131B and 131E shall not apply to:
(A) any firearm, rifle or shotgun manufactured in or prior to the year 1899;
(B) any replica of any firearm, rifle or shotgun described in clause (A) if such replica: (i) is not designed or redesigned for
using rimfire or conventional centerfire fixed ammunition; or (ii) uses rimfire or conventional centerfire fixed ammunition
which is no longer manufactured in the United States and which is not readily available in the ordinary channels of
commercial trade; and
(C) manufacturers or wholesalers of firearms, rifles, shotguns or machine guns.
Credits
Amended by St.1934, c. 359, § 1; St.1957, c. 688, § 4; St.1959, c. 296, § 1; St.1960, c. 186; St.1968, c. 737, § 1; St.1969, c.
799, § 1; St.1971, c. 456, § 1; St.1973, c. 892, § 1; St.1983, c. 516, § 1; St.1984, c. 116, § 1; St.1989, c. 433; St.1990, c. 511, §
1; St.1996, c. 151, §§ 300, 301; St.1998, c. 180, § 8; St.1999, c. 1, § 1; St.2004, c. 150, §§ 1 to 3, eff. Sept. 13, 2004; St.2014,
c. 284, §§ 19, eff. Jan. 1, 2015; St.2014, c. 284, §§ 20, 21, eff. Aug. 13, 2014; St.2017, c. 110, §§ 18 to 20, eff. Feb. 1, 2018;
St.2018, c. 123, §§ 1 to 3, 5, 6, eff. Aug. 17, 2018; St.2018, c. 123, §§ 4, 7, eff. July 3, 2018.
Notes of Decisions (105)
M.G.L.A. 140 § 121, MA ST 140 § 121
Current through Chapter 155, except Chapter 154 of the 2018 2nd Annual Session
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
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§ 131M. Assault weapon or large capacity feeding device not…, MA ST 140 § 131M
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1
Massachusetts General Laws Annotated
Part I. Administration of the Government (Ch. 1-182)
Title XX. Public Safety and Good Order (Ch. 133-148a)
Chapter 140. Licenses (Refs & Annos)
M.G.L.A. 140 § 131M
§ 131M. Assault weapon or large capacity feeding device not lawfully
possessed on September 13, 1994; sale, transfer or possession; punishment
Effective: August 13, 2014
Currentness
No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not
otherwise lawfully possessed on September 13, 1994. Whoever not being licensed under the provisions of section 122
violates the provisions of this section shall be punished, for a first offense, by a fine of not less than $1,000 nor more than
$10,000 or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment,
and for a second offense, by a fine of not less than $5,000 nor more than $15,000 or by imprisonment for not less than
five years nor more than 15 years, or by both such fine and imprisonment.
The provisions of this section shall not apply to: (i) the possession by a law enforcement officer; or (ii) the possession by
an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving
such a weapon or feeding device from such agency upon retirement.
Credits
Added by St.1998, c. 180, § 47. Amended by St.2014, c. 284, § 65, eff. Aug. 13, 2014.
M.G.L.A. 140 § 131M, MA ST 140 § 131M
Current through Chapter 155, except Chapter 154 of the 2018 2nd Annual Session
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
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