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ASK THE AG
- Thread starter Chopper
- Start date
"Madam Attorney General, why is it that Glocks are considered safe by the Executive Office of Public Safety, as well as numerous state and local police agencies including the Boston Police, and have all the safety features demanded by the Consumer Protection Regulations, yet they still cannot be sold new in Massachusetts?"
"And on what legal grounds do you prohibit the shipping of ammunition to Massachusetts? Is MA above the UCC?"
"And on what legal grounds do you prohibit the shipping of ammunition to Massachusetts? Is MA above the UCC?"
This is the best chance anyone will have to actualy get any type of real feedback, but if no one calls we get no answers.
![[frown]](/xen/styles/default/xenforo/smilies.vb/003.gif "Frown [frown]")
Not got a radio here. Did anyone listen to it?
Oh - post 1000. Do I receive a prize or anything?
Oh - post 1000. Do I receive a prize or anything?
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Yeah. Calls about credit cards raising rates, ebayer getting screwed, car nsurance, RE taxes, and other non firearm related stuff. I think 6 out of the 8 callers were female also, no that there is anything wrong with that ladies.
The first question is an excellent one, well stated.
I'd drop the second question, as the Uniform Commerical Code has nothing to do with the issue (valid or invalid) on which the Attorney General relies concerning the sales of ammunition by unlicensed sellers.
Au contraire. The AG's disregard of the UCC is an entirely pertinent question, as that disregard is the basis for the edict prohibiting out-of-state sales of ammo and what the rest of the world calls components.
I, for one, would love to hear her attempt a legal rationalization of it, and THEN explain how NO OTHER out-of-state sales are considered "in-state." Proof: No sales tax on such sales.
1. The UCC defines only contractual provisions between buyer and seller. It has nothing -- I say again, absolutely nothing -- to do with the extent of the police powers of one state to reach sales into the state from out-of-state origins.
2. The sales tax issue has to do with economics, and is based in the negative implications of the Commerce Clause. Once again, nothing to do with the reach of the police power.
Now, please focus on what I am saying and what I am not saying:
I am not saying that the Attorney General's position is a correct interpretation of the Massachusetts statute (140, 122B, from memory).
I am not saying that the Attorney General's position may not implications under the federal Constitution.
Given that it is perfectly legal for a Massachusetts resident to venture into New Hampshire, purchase ammunition and reloading components, and, if suitably licensed, transport those purchases back home, I am certainly not saying that the result of the Attorney General's position makes an iota of common sense.
I am saying, and saying only, that whether the Attorney General's position is ultimately correct or incorrect has nothing to do with, and is not affected in any respect, one way or the other, by the Uniform Commercial Code.
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Correct, but am I not correct in my understanding that title to, and risk for, a product purchases in an FOB sale takes place at the point the merchandise is delivered to the common carrier? If this is indeed the case, how can such a sale "take place" in a location other than that at which title and ownership responsibility for the product transferred to the purchaser?
Quite wrong. The UCC does not "make the point of sale" anywhere. What the delivery/shipment provisions do is allocate the passage of title (subject to security) and risk between buyer and seller. They have nothing to do with the "nexus" of any person or event for police power analysis, nor were they intended to, nor was that within the writ of the Commissioners on Uniform Laws who drafted and sponsored the code.
All a term of "FOB X" means is that once the goods have made it to (or left) X, title and the risk of loss is in the buyer, not the seller, and only as a matter of the contractual relation between them.
I acknowledge that this point seems to be widely misunderstood by non-lawyers, but the breadth of misunderstanding does not negate its error.
Really? Let's check the list:
1. The sale was received at the seller's place of business - outside the state;
2. Upon being received and processed, the order is filled from the seller's stock at the seller's place of business - outside the state;
3. Title passes ("F.O.B.") when the shipper picks the order up at the seller's place of business - outside the state;
4. Payment for the sale is received at the seller's place of business - outside the state.
So what took place IN Massachusetts? The buyer made a call and then sent a check - unless it was on a credit card (far more likely), which was almost certainly processed OUT OF STATE.
And the nexus of the sale was - WAIT FOR IT! - at the seller's place of business - outside the state.
Here endeth the lesson.
Are you listening, Martha?
Perceptive question. The response to which might take the form of "`take place' for what purpose?" If the purpose of the inquiry is the property or financial risks to the parties to the contract, then an FOB term functions generally as you've identified. If, however, the inquiry is whether an event is sufficiently devoid of nexus to the state in which the purchaser resides and into which the goods will be shipped, FOB (and the Code in general) has no application.
Now I don't want to get too deeply into this, in part for lack of time, in part because no good will come of it, and in part because I will doubtless be mistaken as defending the position of the Attorney General. That position is rather bootless pragmatically (for the reason I set forth previously), but it is not without basis legally.
From a legal perspective, it matters whether the nominally out-of-state seller is a big outfit, with perhaps places of business, ownership of realty, or other connections to Massachusetts, or a small outfit entirely local to the other state. In the former case, the attachment of sufficient nexus is clearer. In the latter, it is not.
In general, one state of the United States may not by legislative enactment render criminal acts that take place entirely beyond its borders. This is known as the "doctrine of extraterritoriality." The whole doctrine is in some disarray; witness the notion that one can be sued in United States courts for conduct that took place in foreign countries. Certainly, Massachusetts could not enact or enforce a statute that rendered it a crime for, for instance, a New Hampshire vendor to sell and deliver ammunition face-to-face to a customer in New Hampshire. And at one time it would have seemed clear that the negative implications of the Commerce Clause would have prevented Massachusetts from outlawing a through-the-mail sale of ammunition in which a New Hampshire vendor ships the goods to a Massachusetts purchaser in Massachusetts via a common carrier. Today, however, I'm not so sure.
Neither, I perceive, is anyone else, which probably explains why the Midways of this world have elected to forego whatever profit they might have made by sales to Massachusetts customers in order to avoid spending several times that much engaged in litigation that would have made the casebooks and enlightened us all.
For present purposes, note that nothing in what I believe to be the applicable legal analysis has anything to do with the commercial terms of the contract between buyer and seller.
I am.
And I've yet to hear anything that suggests that the commercial terms of the private contract between buyer and seller have any implication for the question of whether Massachusetts may legally require one who ships ammunition into Massachusetts at retail sale to have a Massachusetts-issued license to do so. This, as I've observed, is a federal Constitutional issue of extraterritoriality, not of some statute that expressly declaims any implication for the reach of the police power.
I can only tell you what the law is. I really can't make you believe it.
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Ok, how about this -
A MA resident tells a seller "I live in MA. My agent is arriving with payment and will pick up the merchandise from your place of business and will, at a later time, give it to me." The buyers agent show up, picks up a box (which has not been labeled for MA shipment by the seller) and delivers it to the MA resident.
Does that fall under the scope of MA restrictions on the seller because he knew the buyer was an agent for a MA resident?
I figured that I would jump in while there was a little lull in the action.
For tax purposes, courts have held "Point of Sale" occurs at transfer of title or possession, whichever occurs first.
In Rob's scenario both occur at the same time, out of state. This scenario might be more recognized as a sale under the UCC whose terms are FOB: shipping point, COD.
Putting aside how one interprets the statute (sec. 122B?), your hypo is exactly my NH face-to-face scenario -- since, assuming that you are using the term "agent" in its legal sense, the acts of the agent are the acts of the principal, and, therefore, it is the same as if you had traveled to Ohio (or wherever) and made a retail purchase there -- and I believe that as a matter of federal law, the Massachusetts statute could not be applied, even if it purported to.
Edit:
I should add, to the extent I understand the Attorney General's position, that which is proscribed by the statute is not selling (anywhere) to a Massachusetts resident. After all, no one contends that I can't drive up to New Hampshire and purchase components (I do that twice a year, in fact). Rather, if I understand the issue, the Attorney General's contention is that the statute proscribes sending retail sales of ammunition (as defined) into Massachusetts.
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The specifics I am thinking of is that the "agent" is wearing a brown uniform, has been hired by you to pick something up, and arrives in a brown truck carrying a sticker with a barcode and your address bearing the your address as the destination that other agents you have hired will use to deliver it to you. It's called the "UPS Call Tag Service".
Thank you! I'm tired of reading the legaleze that is going no where. Did anyone speak to the AG?!?
Lawyers must get paid by the word and my guess is that most politicians are lawyers as there are lot of words spoken and absolutely nothing meaningful in this thread! No definitive interpretation that really means anything as the only intrepretation that means anything would be Martha's...and no one got to ask her anything! Boo Hoo 8~(
AG
Let`s face the facts. We live in a anti-gun state that is run by liberal anti-gun Democrats. We`re screwed. This is what happens when the 2 party system doesn`t exist. We have taxation without Representation. Look how long it took just to get somewhat competitive auto insurance. We live in the ultimate nanny state.
All I can say is 10 MORE YEARS!
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Let`s face the facts. We live in a anti-gun state that is run by liberal anti-gun Democrats. We`re screwed. This is what happens when the 2 party system doesn`t exist. We have taxation without Representation. Look how long it took just to get somewhat competitive auto insurance. We live in the ultimate nanny state.
All I can say is 10 MORE YEARS!
Did that for 30+ years; why stop now?
(The notion that Article Two of the Uniform Commercial Code affects the situs or nexus of a transaction for any purpose other than contractual relations between the parties is a common misconception, including amongst lawyers who are not intimate with the Code.
You will recall that this all started when I suggested not propounding a question to the Attorney General that was erroneously premised on the notion that the Code limits the police powers of the Commonwealth. The trouble with that question is that it's premise is so plainly false that the effort of propounding the questions would lose all credibility; particularly when the other question was so well framed. It was not my intent to hijack this thread with a debate in which most folks would have no interest, and I apologize for ultimately doing so.)
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Pssst, RKG is a lawyer too![[wink]](/xen/styles/default/xenforo/smilies.vb/002.gif "Wink [wink]")
Didn't know that. Then we'll just have to decide who's right by the one and only fool proof method.
Which of you lawyers has the most expensive car?
AG
Do we really think she even knows what a Glock is and what`s the difference between a 6lb. and a 10lb. trigger? She`s just going along with her predecessors.
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Do we really think she even knows what a Glock is and what`s the difference between a 6lb. and a 10lb. trigger? She`s just going along with her predecessors.
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