Due Process Guarantees Apply to Firearms Regulations

By:

David Kerrigan

Few public policy issues generate such polarized viewpoints as efforts to regulate firearms. Firearm owners through national organizations such as the 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 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 Fourteenth 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” firearms3 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 also 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 interpreted G.L. 140 § 12 and its copies and duplicates language narrowly. 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.

  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.
KandSlg2Due Process Guarantees Apply to Firearms Regulations