Buying Ammo Online (S.1189)

[ChargingCharlie]

It would be nice to see this go through

S.1189 AN ACT RELATIVE TO THE LAWFUL SALE OF AMMUNITION

Ever wish you could purchase ammunition online like the rest of the country? We do too, this bill will address the issue.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 123 of Chapter 140 of the Massachusetts General Laws shall be amended by inserting the following language at the end of the section:
No company located outside of the Commonwealth of Massachusetts shall be required to be licensed under this section. Said companies shall be entitled to sell ammunition to persons properly licensed to possess ammunition under sections 129B or 131 of this chapter, through the internet, U.S. Mail or by any other means common to interstate commerce, provided that the seller must maintain on file a copy of the buyer's FID Card or License to Carry firearms. Said file must be maintained for a period of not less than three years after the completion of the sale. All deliveries of ammunition under this paragraph, whether in person or by common carrier, must require the signature of the licensed buyer.

Nothing in this section shall be deemed to prohibit companies outside of the Commonwealth of Massachusetts from selling ammunition to persons licensed under sections 122 or 122B of this chapter. All deliveries of ammunition under this paragraph, whether in person or by common carrier, must require the signature of the licensee or their adult agent.

 

[GSG]

This is the problem:

No company located outside of the Commonwealth of Massachusetts shall be required to be licensed under this section. Said companies shall be entitled to sell ammunition to persons properly licensed to possess ammunition under sections 129B or 131 of this chapter, through the internet, U.S. Mail or by any other means common to interstate commerce, provided that the seller must maintain on file a copy of the buyer's FID Card or License to Carry firearms. Said file must be maintained for a period of not less than three years after the completion of the sale.

The presupposition of this bill is that Mass. law can be applied to out of state dealers completing sales outside of the jurisdiction of MGL. Gag this one down, and Dearth will be no more beneficial to Mass. gun owners than the release of the new KelTec shotgun. Scriv would say something about tolerate-validate-deserve.

 

[ChargingCharlie]

This is the problem:



The presupposition of this bill is that Mass. law can be applied to out of state dealers completing sales outside of the jurisdiction of MGL. Gag this one down, and Dearth will be no more beneficial to Mass. gun owners than the release of the new KelTec shotgun. Scriv would say something about tolerate-validate-deserve.

I'm not sure I understand. Isn't MA law ALREADY being applied to them in a questionably illegal way? Aren't other state laws applied to online vendors for the sale of product based on local prohibitions? I was told by Larry Potterfield from Midway that they already have a system in place to handle this and do it for other states. He told me that if they could get past the state threats and the requirement to get a license for every town that Midway would want to ship ammo to (this was also explained to me by Jim Wallace) that he'd be happy to do business with MA.

 

[GSG]

Isn't MA law ALREADY being applied to them in a questionably illegal way?

Yes, in the past for sure.

http://www.mass.gov/Cago/docs/ourorganization/fy05_annual_report_final.pdf

• On-Line Sales of Illegal Weapons (Suffolk Superior Court) In August 2004, CPAD filed lawsuits against seven out-of-state online weapons dealers for selling and shipping illegal weapons into Massachusetts. The cases arose from undercover sting operations where investigators from the Investigations Division were able to purchase illegal weapons from these companies over the Internet, and to have them delivered to addresses within Massachusetts. The illegal weapons — many of them popular with young people — included stun guns, switch-blade knives, swords, nunchaku (a/k/a numchucks), throwing stars, sling shots, and dirk knives. Four of the online dealers — Bynoon.com, Discount Martial Arts Supply, Lifestyle Fascination, and Talley Products — agreed to Consent Judgments that ban all future sales of weapons into Massachusetts and order them each to pay civil penalties of $5,000. In September 2004, CPA CPAD obtained preliminary court orders against the remaining online dealers, C&M Enterprises, Copgear.net, and Martial Arts Gear, prohibiting them from selling weapons into Massachusetts.

• On-Line Sales of Ammunition (Suffolk Superior Court) In August 2004, CPAD filed lawsuits against three out-of-state ammunition dealers for illegally selling ammunition over the Internet to Massachusetts residents. The lawsuits resulted from undercover sting operations conducted by the Investigations Division. State law requires dealers be licensed to sell ammunition and prohibits the sale of ammunition to minors or those without a permit. None of the companies held the proper state license or had taken the required steps to verify that purchasers were authorized under state law to buy ammunition.

and

ASSISTING WITH THE ATTORNEY GENERAL’S
GENERAL CONSUMER PROTECTION MISSION

Internet Ammo Dealers Following allegations that certain Internet ammunition dealers had been selling ammunition illegally to Commonwealth residents, the Insurance Division, in conjunction with the Investigations Division, oversaw a sting operation to review Internet ammunition dealer practices. This sting operation and its resulting court cases shut down the illegal ammunition sales channels of four Internet ammunition dealer operations: Dan’s Sporting Goods, C & EJ’s Hunting and Fishing, Marksman’s Mart and the Ammobank. The division’s judgments barred these unlicensed sites from selling ammunition in Massachusetts and imposed penalties against the perpetrators.

Notice in the relase above that no one fought those cases out in court; they didn't have enough of a financial interest in Mass. sales to duke it out. The thing is they could have fought and won. The law requiring a license for ammo sales is 140-122B, which says in part:

No person shall sell ammunition in the commonwealth unless duly licensed...Whoever not being licensed, as hereinbefore provided, sells ammunition within the commonwealth shall be punished by a fine of not less than five hundred nor more than one thousand dollars or by imprisonment for not less than six months nor more than two years.

Let's take a quick look at some other firearms related MGL.

140-127 says in part:

The officials authorized to issue a license under section one hundred and twenty-two may transfer licenses from one location to another within the city or town in which the licenses are in force

140-129C says in part:

(h) Possession of rifles and shotguns and ammunition therefor by nonresidents traveling in or through the commonwealth, providing that any rifles or shotguns are unloaded and enclosed in a case;

...

Any person who, while not being within the limits of his own property or residence, or such person whose property or residence is under lawful search, and who is not exempt under this section, shall on demand of a police officer or other law enforcement officer, exhibit his license to carry firearms, or his firearm identification card...

So we can clearly see here what "within" and "in" mean in relation to firearms. Moving on...

140-129B says in part:

(2) Within seven days of the receipt of a completed application for a card, the licensing authority shall forward one copy of the application and one copy of the applicant's fingerprints to the colonel of state police, who shall, within 30 days, advise the licensing authority, in writing, of any disqualifying criminal record of the applicant arising from within or without the commonwealth and whether there is reason to believe that the applicant is disqualified for any of the foregoing reasons from possessing a card;

140-131 says in part:

(e) Within seven days of the receipt of a completed application for a license to carry or possess firearms, or renewal of same, the licensing authority shall forward one copy of the application and one copy of the applicant's fingerprints to the colonel of state police, who shall within 30 days advise the licensing authority, in writing, of any disqualifying criminal record of the applicant arising from within or without the commonwealth and whether there is reason to believe that the applicant is disqualified for any of the foregoing reasons from possessing a license to carry or possess firearms.

140-128B says in part:

Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within or without the commonwealth, other than from a licensee under section one hundred and twenty-two or a person authorized to sell firearms under section one hundred and twenty-eight A, and any nonresident of the commonwealth who purchases or obtains a firearm, rifle, shotgun or machine gun from any source within or without the commonwealth, other than such a licensee or person, and receives such firearm, rifle, shotgun or machine gun, within the commonwealth shall within seven days

There is a clear distinction in the wording, and because of it out of state sellers are not bound by MGL 140-122B. 140-128B is the real kicker, because it's in reference to the purchase of firearms, and even mentions where they are recieved; there is a distinction between the sale and the receipt of the item. Binding SJC caselaw is clear that differences in wording like this matter. This is only in reference to the laws that the Mass. AG has the ability to enforce, there's some other interesting arguments I've seen regarding federal law and interstate commerce, but we don't even have to get into that here because MGL on the subject is clear. Well, clear as MGL can be.

The wording of this bill is self-castrating, and encourages poor reading of the law.

 

[Len-2A Training]

If one is to take the AG's "ruling" literally:

140-127 says in part:

The officials authorized to issue a license under section one hundred and twenty-two may transfer licenses from one location to another within the city or town in which the licenses are in force

They could make it totally impractical for MA Dealers to sell ammo at gun shows in MA. A literal interpretation of this means that every dealer wishing to sell at a gun show has to buy another ammo license FROM EACH TOWN they are at (keep in mind that dealers frequent shows run by gun clubs maybe once/year, so the number of towns starts to expand considerably). It starts to become a bureaucratic nightmare and very expensive to do business even within the state.

 

[terraformer]

On-Line Sales of Ammunition (Suffolk Superior Court) In August 2004, CPAD filed lawsuits against three out-of-state ammunition dealers for illegally selling ammunition over the Internet to Massachusetts residents. The lawsuits resulted from undercover sting operations conducted by the Investigations Division. State law requires dealers be licensed to sell ammunition and prohibits the sale of ammunition to minors or those without a permit. None of the companies held the proper state license or had taken the required steps to verify that purchasers were authorized under state law to buy ammunition.

Over the years the AGs office have filed against at least 8-10 companies (I have read them all..), not just the 3 Riley talks about in that report. And while they bleat in public about the need for licensing, paying mass sales tax, etc; this is all complete and utter crap designed to suppress other companies from risking the legal battle for the reasons Len stated. MA online sales are minimal compared to the sweetheart settlements they were offered. Those settlements allowed the AG's office effectively shut down deliveries via pure unadulterated fear, uncertainty and doubt by prosecuting the ammo industry in the public square as opposed to in the courtroom.

The AGs filings in these cases are based on a very specific theory and while they mention the sellers weren't licensed, it is immaterial to the actual legal claim. The claims were based solely on the theory that since ammunition possession is illegal in MA, the act of sending ammunition without first checking for a FID/LTC is an unfair and deceptive business practice. It's based on the concept of Unconscionability. In that it is Unconscionable to sell something to someone that may be illegal for them to possess. This is recognized as a legitimate use of the AGs authority under the FTC consumer protection statute. This is a federal statute that once a state enables it's AG to use, they can reach out with civil penalties beyond the states borders impacting "foreign" businesses. This is how they can attack businesses in other states without the feds first allowing it directly.

Here is an analysis from jrank law of the current FTC definition of an unfair and deceptive business practice.

The FTC changed the standard in 1980. Now, substantial injury of consumers is the most heavily weighed element, and it alone may constitute an unfair practice. Such an unfair practice is illegal pursuant to the Federal Trade Commission Act unless the consumer injury is outweighed by benefits to consumers or competition, or consumers could not reasonably have avoided such injury.

In essence:

• Government makes ammo possession illegal
• The government puts consumers in harms way of the government
• Use this to shut down a protected activity

I want to point out something else. One company apparently did not play ball with the AGs office so they never filed a complaint against that company. I can not confirm this, but the complaints the AGs office filed were accompanied on the same day with a notice for settlement. ie; They brow-beated a settlement without first filing a complaint.

If a company or individual acted in this manner they would be prosecuted under the RICO act.

 

[GSG]

Over the years the AGs office have filed against at least 8-10 companies (I have read them all..), not just the 3 Riley talks about in that report.

LenS mentioned page 187 in the other thread, so I edited my original post to include that as well. It expands the number listed by 1-4, depending on your math. So they may have gone after as many as 7 that year, and more later on.

The rest is very interesting, and unusual.

 

[Titan]

It still appears to me that the new law, is to REMOVE the current presumption that vendors outside MA needed to be licensed by MA and to recognize the result.....that they would then naturally be 'entitled' to sell....

It seems to be trying to rectify a bad situation and remove a constraint.

I don't think the proposed law, grants an entitlement....It appears to recognize the natural entitlement that would occur if a restriction is lifted.

Maybe I'm just reading it wrong.

 

[GSG]

It still appears to me that the new law, is to REMOVE the current presumption that vendors outside MA needed to be licensed by MA and to recognize the result.....that they would then naturally be 'entitled' to sell....

It seems to be trying to rectify a bad situation and remove a constraint.

I agree with your views on the intent of such a law. To expand on my earlier posts, I'm going to make up some fancy additions to current laws. Please don't think this is what the law actually says. I'm only doing this to illustrate my point.

MGL 140-131(a) currently says in part:

(a) A Class A license shall entitle a holder thereof to purchase, rent, lease, borrow, possess and carry: (i) firearms, including large capacity firearms, and feeding devices and ammunition therefor, for all lawful purposes, subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper; and (ii) rifles and shotguns, including large capacity weapons, and feeding devices and ammunition therefor, for all lawful purposes; provided, however, that the licensing authority may impose such restrictions relative to the possession, use or carrying of large capacity rifles and shotguns as it deems proper. A violation of a restriction imposed by the licensing authority under the provisions of this paragraph shall be cause for suspension or revocation and shall, unless otherwise provided, be punished by a fine of not less than $1,000 nor more than $10,000; provided, however, that the provisions of section 10 of chapter 269 shall not apply to such violation.

As we all know, open carry is strictly legal, but greatly frowned upon in Mass.

What if a proposed bill modified MGL 140-131(a) by inserting this after the 1st paragraph:

A license ssued under the provisions of this subsection shall allow firearms to be carried openly, provided that it is secured in a proper holster, the licensee has attended appropriate training, and they maintain records of such training for at least 3 years after the date of attendance. Said training records must be maintained for a period of not less than three years after the completion of the training course.

Or what about the assault weapons ban?

MGL 140-131m says:

Section 131M. No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994. Whoever not being licensed under the provisions of section 122 violates the provisions of this section shall be punished, for a first offense, by a fine of not less than $1,000 nor more than $10,000 or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment, and for a second offense, by a fine of not less than $5,000 nor more than $15,000 or by imprisonment for not less than five years nor more than 15 years, or by both such fine and imprisonment.

The provisions of this section shall not apply to: (i) the possession by a law enforcement officer for purposes of law enforcement; or (ii) the possession by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving such a weapon or feeding device from such agency upon retirement.

What if a proposed bill modified MGL 140-131m by inserting this paragraph at the end:

If the original manufacturer cannot certify that a firearm, shotgun, rifle or large capacity feeding device therefor was lawfully possessed on September 13, 1994, then the person possessing it must maintain copies of all sales receipts and transfer records dating back to September 13th, 1994, including 4473's, bills of sale, and other files, that clearly identify the item so possessed. In lieu of these required documents, said person may provide expert witness to testify on their behalf, whose testimony shall provide an affirmative defense to prima facie evidence submitted according to section 121A of chapter 140.

Like the original bill listed, my clearly fake, dreamed up, NOT real legal language does two things incorrectly. They suggest that the laws on the books cannot be taken at face value, and to smooth the way for the legislature to swallow this change in wording, they place a greater legal burden on the people they choose to protect.

Another issue. The 2nd condition of MGL 140-123 says that certain firearm sales records kept by licensees "shall be open at all times to the inspection of the police." If out of state ammo sellers are required to keep records by MGL, isn't it implied that such a law would require that all of their sales records be made available to police from Mass., at all times?

Sure, this law might help a few companies who agree to those terms to sell ammo to people in Mass. through the Internet. But I don't think that gain is worth the price paid.