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Second
Amendment Rights Under Attack in Massachusetts
Chapter 180: Death of a Constitutional Right by a Thousand Cuts
The
new 1998 law, Chapter 180, is touted as a model for the nation by
anti-gun-rights advocates everywhere, including its chief sponsor,
State Senator Cheryl Jacques. Our gun laws are the most restrictive,
and hardest to decipher, in the country. But
supporters of the Second Amendment right “to keep and bear arms”
see our Constitutional right being killed by a thousand cuts.
Since
1906, a license has been required to carry firearms. Since 1968,
a firearm identification card has been needed to purchase and own
firearms. Then in 1998, the Massachusetts legislature rewrote the
rules in Ch. 180, establishing new categories based on type of weapon
(rifle, shotgun, handgun) and capacity (how much ammunition it could
hold in a single loading operation). Also, handguns would have to
pass safety tests before being sold in the state (testing that is
still underway). Two
basic types of permits now exist: (1) The FID (firearms identification
card) is for non large-capacity shotguns and rifles, or large-capacity
firearms to be used at a licensed range or club. (A lesser FID is
required for possession of ammunition and mace.) (2) The license
to carry, for larger capacity shotguns and rifles, plus all handguns,
includes a special license (“Class A”) just for handguns. Information
on law-abiding gun-owners is kept in the Criminal History Records
Division (in the Executive Office of Public Safety). The local police
department “may” approve an application for the ID’s and licenses
if the applicant demonstrates he is a “suitable person.” If the
police do not give approval, legal review is allowed by law, but
a judge could decide not to hear an appeal. The police may also
impose restrictions on a license. Such loose language opens the
door to future abuses, gun rights advocates argue. ID’s
and licenses carry a fee of $25 and must be renewed every four years.
Whenever the owner moves to a different town, he must notify authorities
by certified mail within 30 days. If the owner forgets these requirements
or is even a few days late, his guns can be confiscated and his
renewal denied. There
is still confusion over which guns fit into which category, and
what exactly the law means in saying that a firearm must be under
the owner’s direct control or locked. (Does each gun need to have
a lock, or is a locked cabinet or closet enough?) Rules covering
transport of weapons are unclear. Attorney General’s Goal: Destroy
Gun Industry
The
legislature’s enactment of Ch. 180 is only part of the challenge
to gun-ownership rights in Massachusetts. In addition to the law,
regulations have also been decreed by the Attorney General. Former
Attorney General Scott Harshbarger decided to “develop a strategy
to go after the gun industry” (his words, in a memo found by GOAL).
He decided to use the state “consumer protection” law to attack
gun manufacturers, gun dealers, and law-abiding citizens wishing
to purchase guns. He issued far-reaching regulations, with no action
by the state legislature, which current AG Tom Reilly says “have
the force of law.” Reilly boasts that 34 other states are looking
to Massachusetts’ new regulations as a model. (The gun industry
is not subject to federal consumer regulations.) The
regulations were first issued by Harshbarger in 1997, but stalled
by a court challenge until April 2000, when the Massachusetts Supreme
Judicial Court upheld the AG’s authority. But the gun industry asks
how an elected official can restrict the sale of a product protected
by Constitutional rights. Under
the regulations, a ban is imposed on so-called “cheap” handguns.
It requires locking devices and mandates tamper-resistant serial
numbers. Semi-automatics must have devices showing whether they
are loaded. Dealers have to issue instructions and warnings to buyers.
Safety testing is required for each manufacturer. Fines of $5,000
per violation were established. While some of these regulations
appear reasonable on the surface, the devil is, of course, in the
details. Intentional Entrapment of Dealers
The
most obvious problem is that no one knows which guns comply with
these regulations, and no dealer in the state can get the AG to
answer the question. Handgun sales have been paralyzed for fear
of unwitting violations, which would surely be followed by prosecution.
The AG’s office has already harassed several dealers in the state
with the apparent intent to intimidate all dealers. About half of
the dealers existing in Massachusetts before the regulations are
no longer in business. When
Massachusetts News contacted the AG’s office to request a list of
compliant handguns, we were referred to the Executive Office of
Public Safety, who in turn referred us to the Firearms Records Bureau
(part of the Criminal History Systems Board). The director of this
office, William Pickett, told us that the Gun Advisory Board (on
which he sits) had just completed testing of hundreds of handguns.
Its findings were sent to the Secretary of Public Safety, who would
“probably issue a list in a month or so” (by mid-October). The newly
named Secretary of Public Safety, James Jajuga, co-sponsored Ch.
180. Even
if some list is issued by Jajuga’s office, the Attorney General
may still discount it, according to Yacino. The list will be a response
to the requirement for testing in the law (Ch.180), not to the AG’s
consumer protection regulations. The “stalling tactics” of the past
three years will continue, Yacino predicts. In
a conflict between statute and regulations, the statute would normally
take precedence, but the AG has said his regulations have the force
of law. Gun dealers, while pointing out that laws are passed by
legislatures and not decreed by an elected official, do not have
the money to challenge him. GOAL
has made a legal challenge to Ch.180. It is pending in the U. S.
Court of Appeals, with a decision likely in the next few months.
The suit concerns First Amendment and “vagueness” issues in the
law. Also, Yacino has said that the AG’s regulations may be challenged
as a “conspiracy in restraint of trade.” Attorney General Not Accountable
One
of the harassed dealers, Mark Cohen of Hyannis, went with his attorney
to meet with House Speaker Finneran about his unjust treatment,
to no avail. Though the AG’s office is acting as a “rogue” agency,
the convolutions of State House politics will keep the legislature
from acting to check its excesses, says Yacino. At
least three state legislators have contacted the AG on behalf of
their constituents, trying to clear up this confusion: Senators
Glodis and Brewer, and Rep. Straus. They have not received answers
to their questions, according to Yacino. Gun manufacturer Ruger
Inc.’s attorney sent a detailed letter to the AG, asking which of
its handguns are compliant, but never received a response. Lack
of clarity is common to the 1968 federal Gun Control Act, Massachusetts
Ch. 180, and the Massachusetts AG’s consumer protection regulations.
Gun-rights advocates call this government by intimidation: making
citizens afraid to act for fear of arbitrary prosecution. One
Massachusetts dealer (who did not want his identity revealed) told
Massachusetts News that all dealers are convinced that the AG has
purposefully designed his regulations to be confusing, imprecise
and vague, as part of a strategy of “intentional entrapment.” Hence,
a “back door gun ban” has in fact been achieved. Other Challenges to Gun Rights
Another
layer of this story is the extra-legal assault on gun manufacturers
led by Bill Clinton’s Dept. of Housing and Urban Development and
other government entities, including the City of Boston. Massachusetts-based
Smith & Wesson capitulated in a deal in March 2000, which is
still shaking the proponents of the Second Amendment and free enterprise.
Following its acceptance of government oversight, S&W has been
boycotted by gun dealers and purchasers across the U.S. The company
was recently sold in a “fire sale” and is in severe financial distress.
(See David Bresnahan, “Smith & Wesson Sold in Fire Sale, www.massnews.com/5151.htm;
and Jeff Snyder, “What No One Bothered to Tell You About the Smith
& Wesson Settlement,” http://communities.prodigy.net/sportsrec/jeffsnyder.html.)
The
assault goes on. In the Massachusetts legislature there are two
extremist “gun control” bills pending. H1681 would make public the
names and addresses of all legal gun owners in the state. H2021
would require a license-to-carry applicant to prove a “specific
and compelling reason to fear injury to his person or property.”
(These are only the most flagrant examples.) Is
there any hope for change? According to Yacino, state legislators
have received so many complaints and requests for help that, at
a minimum, they are less eager to enact any new “gun control” laws.
When quite a few policemen, who may have a minor infraction on their
youthful records, are denied licenses, even the Massachusetts legislature
realizes something is amiss.
A Constitutional Right and a Moral
Obligation
Gun-rights
advocates point out that it is our moral obligation to protect ourselves,
our families, and by natural extension our communities. Massachusetts
law confirms the citizen’s right to fire a weapon “in defense of
life and property.” Even Harvard law professor Lawrence Tribe agrees
that the Second Amendment protects the individual’s right to firearms.
Doesn’t this confirm the unalienable right of a Massachusetts citizen
to buy, transport, and possess a firearm in his home or business?
The
Second Amendment’s defenders ascribe to it a moral aspect. That
is, if one believes that we are a nation specially blessed by our
Creator, and that the Founding Fathers were inspired in their writing
of the Constitution, then we all must recognize that there are profound
reasons for enumerating the right to keep and bear arms. Those who
have an aversion to guns, and even gun ownership rights, need to
reconsider the question in this light. Perceived
weakness, whether of a nation or individual, whether of arms or
of will, invites attack by evildoers. Criminals, the only group
now able to acquire firearms quickly and easily in Massachusetts,
are likely to commit more crimes if they know fewer citizens are
defensively armed. Number of Licensed Gun Owners
Declining
Jim
Wallace of GOAL tells MassNews that the Firearms Records Bureau
has said that (as of July 2001) there are only about 170,000-175,000
licensed gun owners in the state. The Bureau claims that many of
the 1.2 million gun owners on their records before 1998 included
duplicates, deceased or people who had moved. Even if this 1.2 million
figure were halved to account for these errors, Wallace estimates
this might mean that quite a few gun owners (maybe 400,000?) have
not gotten new FIDs and licenses. He says this is credible, given
the very poor job the state did in notifying owners of the new law.
It is also possible that the number of gun owners in the state has
dropped recently. Meanwhile,
the Boston Globe has reported a 12% increase in the number of criminal
weapons seized by the Boston police (in the first half of 2001,
compared to the same period in 2000), which seems to be due to increased
black market activity. It
has been known for years that more “gun control” laws have not reduced
criminal violence. Yacino questions where the law-abiding gun owners
of Massachusetts are “safer” now with the new law and regulations,
or have they just become the undeserving targets of “gun control?”
Are those citizens who choose not to prepare for their self-defense
more likely to become victims of crime now, because fewer law-abiding
citizens are armed? Research (by Lott, Kleck and others) has shown
that millions of violent crimes are prevented each year due to responsible
gun ownership. Most of the media would lead you to believe the opposite,
says Yacino. Gun
Owners Action League, 37 Pierce St., Northboro, MA 01532, 508-393-5333,
www.goal.org
These
laws are very confusing.
The
group, Jews for the Preservation of Firearms Ownership (with members
in Massachusetts), presents a frightening historical perspective
on what may be happening in our state and nation. Their research
demonstrates uncanny parallels between Massachusetts (and federal)
gun laws, and the Nazi gun laws codified in the 1930s. (See www.jpfo.org/GCA_ 68.htm).
Their book, Gun Control: Gateway to Tyranny, reveals the similarity
of the Massachusetts FID and licenses to the formats used in the
Nazi Weapons Law of 1938. They write that even before the Nazis
took control in Germany: “The
center-right, freely elected German government …wanted to curb ‘gang
activity,’ violent street fights between Nazi party and Communist
party thugs. All firearm owners and their firearms had to be registered.
Sound familiar? ‘Gun control’ did not save democracy in Germany.
It helped to make sure that the toughest criminals, the Nazis, prevailed. “The
Nazis inherited lists of firearm owners and their firearms when
they ‘lawfully’ took over in March 1933. The Nazis used these inherited
lists to seize privately-held firearms from persons who were not
‘reliable.’ Knowing exactly who owned which firearms, the Nazis
had only to revoke the annual ownership permits or decline to renew
them. “The
Nazi weapons law [of 1938] introduced handgun control. Firearms
ownership was restricted to Nazi party members and other ‘reliable’
people.” Interestingly,
former Senator Thomas Dodd of Connecticut, the Jewish authors write,
had access to Nazi documents (while serving at the Nuremberg trial)
which may have provided the distinctions he used in drafting the
federal Gun Control Act of 1968. For example, the distinction between
“sporting arms” (the Nazis said “hunting weapons”) and other firearms,
first employed in Germany, was later adopted in federal law. Compare
this with the Massachusetts distinction between “low capacity” rifles
and shotguns (requiring “only” the FID) and higher capacity firearms
(requiring a license to carry). Note especially that a special license
(“Class A”) is required for all handguns. Even
if there were no knowledge of the Nazi model by the authors of laws
in this country, the Jewish warning is a serious one. They believe
that incremental changes in gun laws are taking us down a dangerous
road. Law-abiding citizens, not criminals, are the targets. They
are confronted with more and more challenges in meeting the requirements
of the law. Vagueness and loopholes in the law can easily lead to
future abuses. Institutions are keeping records which make eventual
confiscation a real possibility, they believe. If
you have questions, ask your local police. They are the ones who
have the power over you, and the ones you will have to satisfy. |
Copyright ©2001 Massachusetts News, Inc. Photocopying and data processing storage of all or any part of this issue may not be made without prior written consent. |
If you have always had a .22 in your home and do not have a new
Firearm Identification Card (FID) or License to Carry, you are in
violation of the law. Although the state supposedly notified every
licensed owner about the new 1998 law, many owners are unaware of
the new requirements; or, if they are, they found out about them
long after the new law took effect. To abide by the law, you are
supposed to go to your local police station and get the application
forms that apply to the weapon you possess. (Leave your guns at
home.) Then hope that the authorities in your town are generous
in their application of the law. You may be charged with a crime
and have your weapons confiscated. It’s a gamble.