Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Massachusetts attorney general Maura Healey has willfully abused the power of her office to push a progressive gun-control agenda. In July, she unilaterally expanded the state’s assault-weapon ban by reinterpreting it to include guns that duplicate or copy assault weapons.
Gun retailers are expected to comply with two vague tests: “If a gun’s operating system is essentially the same as that of a banned gun, or if the gun has components that are interchangeable with those of a banned weapon,” it is now illegal in Massachusetts. But since even two months later no one knows which guns Healey has in mind, the National Shooting Sports Foundation (NSSF) and four Massachusetts gun retailers have filed a lawsuit challenging her ambiguous directive.
Rather than specify which guns are now banned, Healey has issued an interpretation of the law so nebulous as to give her incredibly broad authority to ban any gun she sees fit. The directive could mean that all banned types of guns, even if they have been modified to abide by state law, are now illegal. (“In other words, it could mean that all AR-15s that have been modified to comport with Massachusetts law are now illegal purely because they are AR-15s,” as National Review’s own Charlie Cooke put it.) Or it could mean that all semi-automatic weapons are now banned in Massachusetts, since nearly every such gun has characteristics similar to those of a banned gun that would fall under the copycat test.
Healey has made no effort to clarify the directive, which gives her the power to criminally charge retailers. NSSF’s lawsuit, however, could force her to establish legal boundaries.
Across the state, gun retailers made numerous “attempts to get clarification” from Healey’s office regarding the directive, Mike Bazinet, NSSF’s director of public affairs, tells NR. But every time retailers reached out to Healey’s office for clarification, they got a similar response: The office “did not know the answer, and they did not have a list of what would be prohibited assault weapons,” according to the NSSF’s court filing. When pressed for answers, Healey’s office simply told retailers to use their “best judgment.”
Why leave it up to retailers to interpret the directive? Because Healey hasn’t devised a way to enforce it herself without violating the due-process protections in the Fifth and Fourteenth Amendments, as well as the Second Amendment’s right to keep and bear arms. The directive, according to the court filing, is “arbitrary and capricious and an abuse of discretion or is not otherwise in accordance with law.”
In the meantime, gun retailers have had to “err on the side of caution,” Bazinet says. No one wants to face criminal charges for unwittingly selling a now-illegal gun, and the only solution is to pull off the shelves any model that might violate the directive. The court filing describes IWI–Tavor model rifles, Smith and Wesson M&P .15-.22 rifles, and other firearms being taken out of stock at various gun shops in response to the threat of criminal prosecution, even though the guns were legal before.
The lawsuit seeks a permanent injunction against Healey’s directive owing to its vagueness. Healey may have the power to implement unilateral actions, as Massachusetts governor Charlie Baker has argued, but it is an abuse of that power to issue directives so vague as to constitute an open-ended rewriting of state law, and then threaten criminal charges against those who fail to abide by those directives.
This is not the first instance of Healey’s abuse of power being challenged in the courts. Just two weeks ago, Texas attorney general Ken Paxton and ten other attorneys general filed an amicus brief on behalf of ExxonMobil in an ongoing lawsuit over the company’s response to climate change. Paxton called into question the constitutionality of Healey’s use of subpoena power to gain access to 40 years’ worth of internal ExxonMobil documents related to climate change, saying she was using her legal authority in the context of an “ongoing public-policy debate of international importance.”
Given the pushback she’s receiving in the courts, September has been Healey’s worst month as attorney general. If she continues to play politics with the law, there will be even rougher months to come.
— Austin Yack is a William F. Buckley Fellow in Political Journalism at the National Review Institute.