Due Process Guarantees Apply to Firearms Regulations

Issue March/April 2019 March 2019 By David R. Kerrigan
Public Law Section Review

KerriganFew public policy issues generate such polarized viewpoints as efforts to regulate firearms. Firearm owners, through national organizations such as the National Rifle Association (NRA), and locally through the Gun Owners’ Action League, do not hesitate to express their views on gun regulation, while those favoring greater regulation have recently become more vocal and organized in pursuing their goals. Regardless of one’s stance on the policy debate, everyone must acknowledge that efforts to regulate firearms face several constitutional hurdles, including limitations imposed by the Second and 14th amendments to the United States Constitution. This article will focus on one recent Massachusetts regulatory effort rife with constitutional challenges.

Regulatory Background

Massachusetts regulates firearms on multiple levels, including requiring licenses for firearms sales and ownership. For example, to sell, rent or lease firearms or ammunition, G.L. c. 140 §122 requires an individual or business to obtain a license from their local police department. Local police chiefs must also approve all firearms identification cards, which permit the purchase and possession of non-large-capacity rifles and shotguns. Local police departments issue licenses to carry that allow individuals to purchase, possess and carry all large- and non-large-capacity handguns, rifles, shotguns and feeding devices, as well as handguns. In addition, each firearm transaction must be recorded with the Massachusetts Department of Public Safety.

In addition to transactional licensing, the federal and state government place limitations on what types of firearms may be purchased and sold. For example, in 1994, Congress enacted the Public Safety and Recreational Firearms Use Protection Act, prohibiting the manufacture, transfer or possession of narrowly defined, so-called “assault weapons.”2 18 U.S.C. § 921(a)(30). The 1994 federal statute defined “assault weapons” to include a short list of specifically identified semi-automatic firearms, the so-called “enumerated” firearms,3 and “copies and duplicates” of those listed firearms. 18 U.S.C. § 921(a)(30). In addition to the specifically enumerated firearms and their copies and duplicates, the federal legislation banned any semiautomatic rifle, pistol or shotgun that had two or more specific features that Congress found transformed legal firearms into “assault weapons.” Under the “features test,” a rifle is an assault weapon if it has the ability to accept a detachable magazine and has at least two of these features: a folding or telescoping stock; a pistol grip that protrudes conspicuously beneath the action of the weapon; a bayonet mount; a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and a grenade launcher.4

Massachusetts Adopts the Federal "Assault Weapon" Definitions

In 1998, the Massachusetts Legislature amended the firearm licensing statute, G.L. c. 140, to mirror the federal ban on assault weapons. G.L. c. 140, § 12. For the nearly two decades between 1998 and the summer of 2016, all parties involved in the sale and regulation of firearms narrowly interpreted G.L. 140 § 12 and its copies and duplicates language. Everyone interpreted the law to apply only to the specific, enumerated firearms: those firearms that did not meet the features test were considered illegal under the law.

This consistent statutory interpretation changed suddenly in July 2016, when, without notice, hearing or public comment, Attorney General Maura Healey issued what she called an Enforcement Notice, which defined further what the terms “copy and duplicate” mean in G.L. c. 140. According to the notice, copy includes firearms whose “internal functioning components are substantially similar in construction and configuration” to the enumerated firearms, as well as other firearms that have interchangeable receivers. The attorney general announced the notice at a press conference and warned that violating the statute, as defined by the notice, carries criminal penalties, as well as the threat of G.L. c. 93A enforcement.

Upon receiving the notice in the mail, the licensed retailers realized that the notice expanded the law’s scope far beyond how stores and individuals had interpreted it for nearly two decades. The stores also had a number of questions concerning its application to various types of firearms, so they called and wrote the Attorney General’s Office to ask if the notice applied to specific firearms. Many faced no luck. In most instances, they were told to “use their best judgment,” a disconcerting response by the drafter and chief law enforcement officer of the commonwealth. If the Attorney General’s Office could not tell how to apply the law to specific firearms, how could the law-abiding public know how to conform their conduct to the law?

Constitutional principles affect regulatory efforts

One of the fundamental principles of our criminal laws is that persons subject to the law’s application need to know what conduct is prohibited. Unduly vague laws run afoul of this principle in at least two respects: First, vague laws prevent those affected from conforming their conduct to the law. Second, vague laws allow enforcers to interpret and apply the laws unevenly and perhaps discriminatorily against individuals, groups, or classes of disfavored citizens.5

Drawing on these principles, several store owners and the National Shooting Sports Foundation (NSSF) brought a due process challenge to Attorney General Healey’s July 2016 enforcement notice. The complaint alleged that the notice was too vague to apply properly and described how the notice’s new definition presented a conundrum to manufacturers and retailers trying to decide what firearms fell under its scope. Read broadly, “substantially similar” operating systems could mean that all semi-automatic rifles were now outlawed because the three basic operating systems are arguably similar on basic physics principles. In addition, store owners were unable to determine whether certain firearms types had a “substantially similar” operating system to the enumerated firearms depending on the interpretation of what “substantially similar” meant.

The Attorney General’s Office moved to dismiss the complaint on various technical grounds, including the inability to make a facial due process challenge outside of the First Amendment, and that the 11th Amendment allegedly barred the claim.

After a hearing, the United States District Court (Hillman, J.) found that the store owners’ complaint could proceed on an as-applied vagueness challenge because the notice’s scope was difficult for the store owners to discern and apply to the firearms described in the complaint. The court stated that “[t]he Attorney General’s Notice and subsequent failure to clarify arguably has resulted in a lack of fair notice of which conduct will be subject to criminal sanction. It is in the interest of all parties that this be resolved in order to effectuate a clear and effective regulatory regime in which sanctionable conduct is properly prescribed.”6 As a result, the case will proceed to discovery to allow the stores to demonstrate the scope of the uncertainties they face.7

The vagueness challenge may be difficult for the Attorney General’s Office to overcome, particularly when, in a related case, one of the attorney general’s experts acknowledged in a deposition that he could not tell whether a firearm he helped construct to comply with New York law would comply with the Massachusetts enforcement notice. He testified as follows:

Q. And do you know if your AR-15 that you constructed has internal functional components that are substantially similar in construction and configuration to the Colt AR-15?

A. That would be reluctant to say without — I would be reluctant to say.

Q. What additional information would you need to know?

A. Well, it depends on what these internal parts are that you're referring to are and to what extent they do or do not appear in other subsequent versions.

When an expert is reluctant to say whether a firearm he helped construct complies with the law as interpreted through an enforcement notice, it is easy to see why store owners are likewise confused about its application to other firearms. Store owners and individuals should not depend on whimsical, case-by-case interpretations by law enforcers to provide them with the means to determine whether the law applies to their conduct. Regardless of which side of this policy debate one takes, laws and regulations should be clear to provide those affected and those enforcing the laws with the means to interpret them consistently and correctly.

David Kerrigan is a director at Kenney & Sams PC. He works as a trial attorney with experience representing individuals and groups in challenges to state regulations and statutes, and defending and asserting civil rights claims and constitutional law matters. He has years of experience bringing and defending claims related to a range of business, constitutional law, construction and employment litigation.


1 The author is one of the lead counsel on the case discussed in this article.

2 The term “assault weapon” is a statutory creation and has no technical meaning.

3 For example, the Norinco, Mitchell and Poly Technologies Avtomat Kalashnikovs (also known as AK-47s); UZIs Beretta Ar70 (SC-70); and Colt AR-15, along with other specific, enumerated firearms.

4 Various aspects of the federal legislative history indicate that Congress did not intend the statute to apply to other firearms beyond the enumerated firearms and those meeting the features test.

5Draper v. Healey, 98 F. Supp. 3d 77, 83 (D. Mass. 2015) aff’d 827 F.3d 1 (1st Cir. 2016).

6 Pullman Arms Inc. et al. v. Healey, 301 F. Supp. 3d 227, 231-232 (D. Mass. 2018).

7 The Attorney General’s Office recently filed a motion to stay the Pullman action, relying on the Colorado River abstention doctrine. The court has not ruled on that motion as of the time this article was written.

8 Deposition of Robert Spitzer, taken in Worman v. Healey, C.A. No. 17-CV-10107-WGY, p. 124, filed with the cross-motions for summary judgment.