Federal judge upholds Massachusetts ban on assault weapons

A federal judge has upheld the state's long-standing ban on AR-15 rifles and similar weapons - and said the state had the right to extend that to "copycat" weapons that high slight differences from and different names than the weapons specifically mentioned in the original law.

Gun owners sued the state after Attorney General Maura Healey issued an "enforcement order" banning the so-called copycat weapons in 2016. They argued the 1994 law in general and Healey's proposed interpretation and extension violated the Second Amendment and the Supreme Court's 2008 Heller decision, which overturned a complete ban on the possession of guns in people's homes.

In a ruling filed late yesterday, US District Court Judge William Young - appointed by Ronald Reagan - started by tossing the claim that Healey's proposed copy-cat order violated gun owners' rights to due process by retroactively criminalizing the purchase and sale of "tens of thousands" of firearms that were legal at the time of the transactions. Young said the question was simply not legally "ripe" for adjudication yet, because the "enforcement order" was not yet a final state regulation - and that, in any case, the order itself says the state intends no action against people who bought the proscribed weapons before the order was announced.

But what of the state law itself? Young says that the Heller decision, in which the Supreme Court upheld the rights of Americans to possess firearms, has limits. Even Justice Scalia, who wrote the decision, recognized that some weapons - weapons that were of use mainly in wartime, such as machine guns - were exempt from the Second Amendment, Young writes:

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." As matter of law, these weapons and LCMs thus fall outside the scope of the Second Amendment and may be banned.

The plantiffs 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 miliary and civilian uses." As a result, the AR-15 is versatile and adaptable "for military, law enforcement, civilian self-defense, hunting, target shooting and other sporting purposes." ... The AR-15 design is almost identical to the MI16, except for the mode of firing.

Young continues to discuss the legal and technical issues involved, before concluding:

Both their general acceptance and their regulation, if any, are policy matters not for the 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.

Complete ruling (2.2M PDF).

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Comments

Cue the non stop arguments

from the gun nuts who undoubtedly will start their inane arguments with techno babble about their deadly little toys and how no one outside their little club of the easily scared understands the love they have for the Constitution their hero Trump and Wayne LaPoohbelle is shitting all over.

Not that all gun nuts are Trump voters....

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Hey, no problem!

Had to take a few minutes from bitch slapping Dana Loesch's suitcase pimp of a husband on Twitter to pipe in.

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Actual ruling is that the AG

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Actual ruling is that the AG's "Enforcement Notice" can't be challenged until the AG actually enforces it. So the judge is create a precedent legalizing a regulatory 'chilling effect' where by unenforced regulations may be proglumated by government administrators to discourage activities without legal recourse.

I know all you anti-gun people are gleeful about this ruling. But the implications of this precedent are much broader and downright scary. This sets the stage for a massive unaccountable power shift to administrators and agencies and away from the legislature without any check from the courts.

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Please go back and read the decision ...

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Yes, the judge said he can't rule on the extension order yet because it hasn't been enforced yet.

But he also pretty much said that he would have ruled against the gun owners on a key part of their argument - that the order is an unconstitutional after-the-fact seizure of guns - because the AG's office has said it will only enforce the ban going forward, not on guns people already keep under their pillows (in a locked box, of course, since Massachusetts law requires that for guns).

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The regulation is currently

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The regulation is currently being enforced by threat of litigation (the guidance letter & press conference) rather than enforcement. This is the regulatory equivalent of a strategic lawsuit against public participation (SLAPP).

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We've seen that MO before

Some politically well-connected developer has his eyes on a piece of real estate (Nashoba Winery). How to ensure a favorable price?

The ABCC announces that it won't renew their operating license when it next comes up a year down the road. Boom. Big cloud over the business. There goes the real estate value. And the business's ability to secure financing. And when the business seeks injunctive relief against the ABCC, the court rules that they have no standing until the ABCC actually denies the license renewal.

It's really quite effective. I hope they don't get away with it.

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You can call people "anti gun

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You can call people "anti gun" but in fact "pro not being shot to death" is more accurate. American gun owners have proven themselves to be tremendously irresponsible and dangerous. You had your chance and blew it so now the majority of Americans are fighting for more gun control.

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That's not even remotely true

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99.995 percent of gun owners cause no trouble to anyone at all.

That's more metaphorical nines of good behavior than motorists (but the two are really the same in your view, so whatevs) or the food service industry (heart attacks from a lifetime of poor diet).

How many nines is enough?

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Let me throw a strawman at you Roman....

And to start, I don't really lose much sleep one way or the other on the issue. If MA wanted to ban semi-automatic rifles or any rifle with a detachable magazine, I would be ok with it. If they don't, I'm fine with that too.

Let's say Sony made a TV that was the best in the world (lets call it SonyX). It could pick up any channel anywhere for free, and it had the best picture and sound in the world by far. But, if you pushed a known code on the TV, it would blow up your house. For arguments sake, lets say the TV would never blow up unless a semi-complicated code was entered (similar to a gun not going off unless a person really wants it too).

Couldn't you argue the same that 99.99% of TV owners would not cause any trouble? We of course would need to give people licenses to purchase these TVs, but wouldn't you want one if the price was right?

I know the constitution doesn't give us the right to watch TV, but for the "x% of gun owners argument", isn't this the same? It would be people trying to limit the amount of TV because of the possible destruction they would do.

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Out on a limb

You know I love you man but you are so far out on a limb I can’t tell which tree it’s attached to.

I mean, TV sets that blow up with a cheat code? Is this an analogy or an episode of Black Mirror?

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But that's true with TVs

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Or at least it used to be true with tube TVs. If you bought a top-of-the-line Sony Trinitron 32" flat screen vintage 1998, you certainly got a nice television set, with good picture quality and all that jazz. But if you wanted to, you could take it apart, get at the back of the CRT, and get yourself a nice source of lethally high electric charge. It won't blow up your house, but you could either kill yourself with or someone else if you put your mind to.

The awesome power of the federal government dealt with this problem by:

Requiring TV manufacturers to put warning stickers on the back of the TV case and on the inside, and occasionally issuing recalls of unsafe televisions. The UL testing, the safety design, the everything else was left to the TV manufacturers and a reliance on the fact that people don't want to get themselves killed.

Sorry Pete, the straw man might have won this one.

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Man, you are such a child

"Everyone that drives a car is irresponsible and dangerous."

"Everyone that owns a gun is irresponsible and dangerous."

I don't even own a gun, but saying stuff like that really just makes you look like an idiot.

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You can't rule on sabre rattling

Young said the question was simply not legally "ripe" for adjudication yet, because the "enforcement order" was not yet a final state regulation - and that, in any case, the order itself says the state intends no action against people who bought the proscribed weapons before the order was announced.

Proper ruling.

There is no regulation and this is why these are legal to buy in MA:

http://theminutemanarmory.com/mass-legal-ars/

The government is clearly going to make trouble when it can.... but it can't. Legally savvy and rich people are not bothered by the "enforcement order" and neither are judges. The weak and the poor are bullied. That is a common progressive government parlor trick.

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By all means

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Share your drugs with the class.

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I failed to reach you....

And that makes me sad.

A small time carpenter from Roxbury, let's say his name is Seamus McDongle, gets pulled over in his pickup truck and the officer wants to search the truck. Seamus has a bag of heroin in the glove box.

At the same time a bigtime contractor from Westwood, let's say his name is Tyrone Washington Carver, gets pulled over and the officer wants to search his truck. Tyrone has 1400 Oxys in the glove box not in his name.

The officers both pull the "It would be in your interest to work with me" and the "I'm just gonna get the drug dogs here if you do not consent".

The law applies equally to each of them. Our laws are like that for the most part.

What do you think about the resources available to either gentleman and how they will come into play? What is the usual way these things play out all the way to the end?

The bottom line and the same deal is identical to the shitty lookalike "enforcement order". They are legally toothless but a little chutzpah and bullying from the government makes the weaker citizens break so easy.... for better or for worse.

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If you're going to make up hypothetical examples

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Could you at least ground yourself in some reality?

Unless your strawmen have given the officer good reason to search the car, like they were speeding away from a bank that just got robbed, or there's a gun in plain sight, because they're stupid strawmen who leave guns on the dashboard, the cop's not going to open the glove box, because he's presumably going to remember the lesson from the academy about the Constitution and Terry stops and stuff and will know that anything he finds after he opens that glove box will be thrown out roughly 30 seconds after Mr. Straw's lawyer hands the judge's clerk a brief on the illegality of the search.

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Point

and will know that anything he finds after he opens that glove box will be thrown out roughly 30 seconds after Mr. Straw's lawyer hands the judge's clerk a brief on the illegality of the search.

Since Strawman McDongle strawmanningly consented to the search, McDongle aint getting anything thrown out.

Police are trained to psychologically trick searchees into searches. the same way the attorney general is trying to mindfuck the AR15 lookalike makers in this state. Legally toothless tactics but effective results. The judge sees it, I see it, don't know why you don't see it.

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Mind tricks

Can you let me know where those trainings are?

You are going to have to join an academy or do your own legwork for scheduling of outside courses.

http://www.patc.com/weeklyarticles/vehicle_searches.shtml

You can even get your police jedi on by reading trade web pages:

Asking the Right Questions

Trying to be polite, many officers ask for consent by saying things like, "Do you mind if I search you? Do you mind if I search your car? Do you mind if I come inside?" These are foolish questions, because of the structure of our language.

"Do you mind?" means "Do you object?" Therefore, a person who answers, "No," is really saying, "No, I don't object." A person who answers, "Yes," is actually saying, "Yes, I do mind, so you may not search." But most criminal defendants are not going to get on the witness stand and brag about their linguistic skills. They're going to say that "No" means "No, you may not search." Your prosecutor will have a hard time selling "No" in the courtroom as consent to search. But you set yourself and the prosecutor up for trouble by building in this ambiguity in your request for consent.

Better: "OK if I search you? OK if I search your car? OK if I come in?" If the person answers, "Yes," we get to sell "Yes" as consent. If the person says, "No," you know the person is not giving consent. No ambiguity. No wiggle room for the defendant and his lawyer to claim a linguistic confusion that negates consent. (And remember, we have the burden of proving valid consent.)

http://www.policemag.com/channel/patrol/articles/2013/02/consent-searche...

This link is from alternet (puke) but it is a pretty good resource if you work backwards, not forwards.

https://www.alternet.org/civil-liberties/7-ways-police-will-break-law-th...

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Dynomite!

How about if the driver is named JJ and he has DYNOMITE in his glove box?

It’s oppression I’m telling ya

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Those firearms look to very

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Those firearms look to very specifically designed the meet the letter of the law.

Further, I think they have taken perfectly reasonable restrictions on the gun, as the inability to attach a potentially illicitly obtained large capacity magazine is in fact a reasonable safety and security measure.

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Assault weapon?

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They're simply semi-auto. 'Assault-Weapon' is a made-up phrase. The military uses far more deadly automatic firearms.

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So can a rock

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A pickup truck, a shovel, a pocket knife, and lots of stuff you might find in your garage or under your kitchen sink.

As for phrases, "made up" implies a concerted effort on the part of a small number of people with a specific purpose. The proportion of words and phrases in any natural language that have that property is rather small. It's usually restricted to brand names or marketing slogans and scientific or technical terms generated from Latin or Greek roots or acronyms.

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Oh, like Xelnorm?

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For people who speak English, though, the meaning of "assault weapon" is clear, even if that phrase is a bit vague ("mass-murder weapon" is probably clearer, but whadaya gonna do?).

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No, like “anti-gun.”

Gun control is supported by the vast majority of Americans. The epithet “anti-gun” for people who support public safety through sensible legislation was made up by a small minority of people for political purposes.

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Also "gunsplaining"

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Gunsplaining, noun. A portmanteau of "gun" and "explain" used to dismiss fact-based arguments against specific gun control regulations as jargon-based bullying.

"Sensible" and "supported by the vast majority" are weasel words. They are intentionally vague and that vagueness is a tool by which support is garnered for a blank check in writing new laws.

It is a fact that individual specific measures like background checks are supported by most people, including most gun owners. It is also a fact that universal registration has less support. But it is also a fact that we pretty much do have background checks for all retail purchases and many private sales (all, in Mass, California, etc). The enforcement of that regulation is not up to par. So you could also say "support for background checks" can mean support for enforcement to the letter and spirit of the law, or it can mean new laws. Vagueness is not your friend here.

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Yawn

Like most gunsplainers, I'm sure you know all this from reading gunpr0n and not from actually touching weapons or spending most of your childhood hunting - or even anything like serving in the military for any length of time.

Right?

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You know me Swirly

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I'm just a cuttin' and pastin' machine.

Of course, I never actually handled scissors or paste with my own hands. I just read about them on Breitbart.

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Another infringement on the Founders intent.

The Second Amendment is clear in its intent and its application. Look no further than those opening shots of the Revolution that took place in Lexington and Concord a mere 243 years ago next week. Farmers with their bump stock equipped AR-15's took on the greatest army of its day and fought them to a draw. There were no background checks. We were not even a country and we were a better country than we are today. No out of control deep state, no Mexico so no illegals, no Hillary, no gays.....

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No. Look further.

I realize your comment is parody, but for those who don't:
The 2nd Amendment itself, and and to an even greater extent, its later application, have nothing to do with the Revolution, or with opposing tyranny.

The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.
As early as 1840, antebellum historian Richard Hildreth observed that violence was frequently employed in the South both to subordinate slaves and to intimidate abolitionists. In the South, violence also was an approved way to avenge perceived insults to manhood and personal status. According to Hildreth, duels “appear but once an age” in the North, but “are of frequent and almost daily occurrence at the [S]outh.” Southern men thus carried weapons both “as a protection against the slaves” and also to be prepared for “quarrels between freemen.”

Why should we adopt the views of violent slave owners over those of our own forefathers?

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Whatever dude

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The slave-owning southerners breathed oxygen, Hitler built the autobahns, and Stalin championed rural electrification. Slave-owning southerners, in addition, also drafted the Declaration of Independence, and ratified the first and fifth amendments too.

I'm not in a hurry to stop breathing, tear up all the highways, unplug everyone outside city limits, submit to the state church, or forgo my right to own stuff.

This argument (but the slaveholders wanted it!) seems to be a new tack. Is that because everything else is failing?

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Nope

The new tack is pretending that the violent "Southern code of honor" is a legal reason to allow people to walk around with lethal weapons. Only recently has that pretense gained any legal traction outside the South.

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Not even close

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I direct your attention to our three northern neighbors, to the mountain west, to a whole bunch of other places not in the South which have been pretty damn gun-friendly since forever.

I also direct your attention to your elementary school history books, which even in liberal Massachusetts might contain a line or two about a pair of obscure battles at Lexington and Concord some time around when the colonies politely asked for independence and received it from a magnanimous King George III.

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I direct your attention

to the utter and complete irrelevance of your comment. You really do think your bloviated opinions are significant, don't you?

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I consider

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my facts significant, especially when they refute your assertions.

I consider my opinions and my sarcasm a cherry on top for your amusement as a consolation prize.

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They don't refute anything

Your facts are consistently either irrelevant to the discussion, or not facts at all, but shit you make up. They don't refute anything, but serve only to move the goalposts of every argument to a different stadium.

You're a troll, and a particularly tiresome one.

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