Reilly Admits to Abuse of Regulatory Authority!

J

JellyFish

Unfortunately, that's liable to get him more votes in this ass-backwards state. Sad but true.
 
D

daceman63

so if the regulations were an abuse of power why can they now not be removed?
 
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Good to know...

However, I wonder how GOAL will use this information? Maybe something to get these fraudulent regulations overturned?!
 
D

daceman63

I would expect a judge to do what is right within the confines of the law. If there is no legal basis for the regulation the regulation should automatically be overturned.
 

Len-2A Training

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The Regs themselves are NOT subject to judicial review . . . a judge already has ruled that the AG has the POWER to implement such Regs and that is as far as the Judicial branch can extend themselves in the Executive Branch (AG). Remember your US History of "separation of power" between the 3 branches.

So, the only one who can "overturn" the AG's Regs is a NEW AG! Don't hold your breath waiting for that to happen.
 

M1911

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I would expect a judge to do what is right within the confines of the law. If there is no legal basis for the regulation the regulation should automatically be overturned.
If you ever have the misfortune to be in a MA court, I suspect that you will be quickly disabused of that notion.
 

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The Regs themselves are NOT subject to judicial review . . . a judge already has ruled that the AG has the POWER to implement such...
What did happen with that decision?

I recall something about another pro-gun group (maybe the NSSF?), challenging
the AGs regs and dropping the ball on the case. GOAL wasn't kept abreast of the situation/legal action and because of that GOAL lost out on any potential future court actions WRT the AGs "consumer protection" abuse.
 
J

JellyFish

Yup.

What I can't understand is how we have had sooooooo many republican governors but there seems to have been NO CHANGE at all within the judiciary. Shouldn't some of them lean more toward the right now???


If you ever have the misfortune to be in a MA court, I suspect that you will be quickly disabused of that notion.
 
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The Regs themselves are NOT subject to judicial review . . . a judge already has ruled that the AG has the POWER to implement such Regs and that is as far as the Judicial branch can extend themselves in the Executive Branch (AG). Remember your US History of "separation of power" between the 3 branches.

So, the only one who can "overturn" the AG's Regs is a NEW AG! Don't hold your breath waiting for that to happen.
But...

In 1967 the Massachusetts Legislature created Massachusetts General Law Chapter 93A granting the AG limited authority to promulgate regulations to protect the public from: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce...". The purpose of the law was to grant the AG the authority to promulgate regulations to protect the consumers of Massachusetts from poorly manufactured products or business practices that might harm them. NO PART of Chapter 93A was ever meant to grant authority to the Attorney General to create or impose fraudulent consumer protection regulations in an attempt to reduce crime. To do so is a clear abuse of power!
So, if he wasn't within his rights to impose the regulations he has, why should they even be considered valid?
 

Len-2A Training

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History Lesson:

- GOAL and a gun dealer's assn (don't know which one) sued AG Harshbarger, challenging his "right" to create Consumer Protection Regulations regulating firearms.

- The Courts ruled that GOAL had NO STANDING to bring a lawsuit, since they are NOT in the business of selling guns. Thus GOAL didn't "drop the ball" or wasn't "unaware" at all, but they were right out front of this. Now GOAL was left powerless to do anything but push the dealers assn to follow thru.

- The Courts further ruled against the gun dealers assn. There is a narrow window where you can appeal a court decision and bump it up to a higher level . . . if you miss that window of opportunity, TS you are forever barred from continuing the suit. The gun dealers assn did NOT file an appeal within the time limit allowed by law, therefore the lower court ruling ALLOWING the AG to do as he pleased stands as "law" today.

And that explains where we are today and why.

The AG has the full blessings of the court to use the Ch. 93A sledgehammer over the legal gun industry . . . and the gun industry didn't have the money or the balls (or both) to follow thru on this action when they could have done so!

That's why the only one who can "undo" this damage is a new AG who is pro-gun!
 

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Some background info on the CMR mess...

Massachusetts Attorney General Exceeded His Authority in Regulating Handgun Sales

American Shooting Sports Council Inc. v. Harshbarger, No. 98-0203C (Mass. Super. Ct. July 1, 1998).

Clearinghouse Number 52,126


The court granted plaintiffs’ motion for a preliminary injunction in this action challenging regulations promulgated by defendant state attorney general and establishing design and performance requirements for handguns sold, rented, or leased in Massachusetts. Attorney general promulgated the regulations pursuant to the state’s consumer protection act to address dangers posed to consumers and caused by the sale of handguns that are made of inferior materials, lack safety mechanisms, or are otherwise defective. Plaintiffs—handgun manufacturers and retailers—claimed that the regulations exceeded attorney general’s authority under law. The court found that, in determining the scope of attorney general’s power to regulate unfair and deceptive acts and practices under the statute, the words "acts" and "practices" must be given their ordinary meaning. Applying these principles, the court found that the power granted to attorney general under the statute did not encompass the power to establish design and performance standards for products sold in Massachusetts. The court enjoined attorney general from enforcing the challenged regulations, with the exception of one regulation that required disclosure of available test results as to certain handguns’ accuracy.

http://66.99.232.243/legalresearch/cases/abstract.cfm?id=52126

Mass. AG Imposes New Gun Controls

With sweeping new gun control regulations implemented on April 3 under the guise of safety, Massachusetts became the first state in the country to use consumer product safety laws to regulate guns without legislative action.

No other state has ever used its consumer protection laws, which usually deal with defective cars and charity scams, to regulate guns. The federal Consumer Product Safety Commission, which checks for potentially dangerous consumer items, had been barred from testing guns since its creation in 1973.

Massachusetts Attorney General Thomas Reilly said the state’s rules are mandatory and affect all gunmakers doing business in the state. Investigators were to begin spot checks of gun stores in Massachusetts within 15 days, he added.

The complete text of the regulations is also available on-line at: www.ago.state.ma.us.

The announcement, which made the regulations effective immediately, threw some parts of the firearms industry into confusion as gunmakers scrambled to figure out which, if any, of their products would suddenly be banned. Actually, since the rules were first promulgated by Reilly’s predecessor, several companies have already marked catalogs and price lists "Not Offered or Available in Massachusetts" for the past three years.

Many dealers anticipate regulatory harassment and consumer resentment. Some gun store owners in the Bay State have already moved their shops to New Hampshire. Others are said to be scouting new sites there for their shops. All of which is unlikely to bother anti-gun officials in Massachusetts.

The Massachusetts regulations mean all guns sold in Massachusetts must now include "hidden" tamper-resistant serial numbers and state-approved trigger locks. In addition, semi-automatic pistols must have a visible loaded chamber indicator and a magazine disconnect that prevents the firing of a bullet left in the chamber if the ammunition magazine is removed.

Gun dealers would also have to include a 143-word written safety warning, written by the attorney general’s office, with all new guns sold. The message reads, in part, "failure to take reasonable preventative steps may result in innocent lives being lost, [which] in some circumstances may result in your liability for these deaths." (Full text of the warning is also available on the Massachusetts AG’s web site.)
Violators could face up to $5,000 in civil penalties.

The new regulations also effectively ban the sale of so-called Saturday night specials, which would include small, inexpensive guns that cannot pass state-established melting point, drop and accuracy tests.

Reilly’s predecessor, Scott Harshbarger, issued the regulations in 1997 as part of his unsuccessful bid for the governorship in 1998. However, a lawsuit by the American Shooting Sports Council (ASSC), a group then representing the firearms industry, blocked the rules’ implementation.

The case was eventually heard by the state’s high court, which upheld the regulations last June. Reilly made his announcement only after the ASSC, which was disbanded last year, failed to meet a March 20 deadline to appeal the ruling.

Reilly said the regulations formed the basis of the agreement Smith & Wesson signed in March to avoid a number of lawsuits brought by local governments and suits threatened by the Clinton White House.

The irony is that many handguns manufactured by Smith & Wesson in Massachusetts—including the entire Sigma series as well as other models—cannot be sold in Massachusetts under the new regulations.

Countless other high-quality firearms, many of them also used by federal agents and law enforcement, will also be barred from Massachusetts.

Reilly promised that within 15 days of the April 3 enactment, inspectors from his office would fan out to the state’s 700 gun dealers to make sure they are complying with the new regulations and promised that court proceedings against violators would begin in the next 60 days.
Reilly said he had been in contact with attorneys general in 34 other states who have the same authority he possesses to decide to apply consumer protection laws to handguns. Among the states whose officials have been in talks with Massachusetts are California, Connecticut, Michigan and New York.

Gun Owner’s Action League (GOAL) of Massachusetts depicted the regulations as an unwelcome intrusion into the gun marketplace.
"Our phones have been ringing off the hook with calls from concerned citizens who do not want a gun designed by lawyers," the group said in a statement.

Gunmakers said the regulations were less about public safety and more about the infringement of Second Amendment rights.
"It’s basically to make things more onerous—to make things more difficult for consumers to get firearms, to make it more difficult for manufacturers to sell them," said Paul Januzzo, vice president and general counsel for Glock, a handgun manufacturer based in Smyrna, GA.

"If Harshbarger, the guy who came up with these, had his way, he would have outlawed all guns in Massachusetts in the blink of an eye," Januzzo said.

Indeed, the national political climate may limit today’s regulations to the Bay State. The state had already passed strict gun control laws, establishing both the legal basis and political support for the attorney general’s action. But not every state legislature shares that political sentiment.

"Vermont does have one of the more liberal gun laws, and I guess thus far, we have been fortunate to miss the proliferation of a lot of the violent crimes with firearms that have been seen in other places," said Wallace Malley, Vermont’s deputy attorney general. "The dynamic is very different. At this point, there doesn’t seem any reason to be looking to our consumer fraud law for any initiatives."

Even states that are looking to limit gun sales have chosen different tactics. Eliot Spitzer, New York’s attorney general, is leading a consortium of state and local officials that would buy guns from manufacturers who agree to voluntary safety improvements—but he’s also concerned on a national level.

"It will have an effect in that state, but what about people who travel from out of state and bring guns in?" said Darren Dopp, Spitzer’s spokesman. "What about gun traffic that goes on across state borders? You need a national solution to it. States can and should adopt their own measures, but a national solution is key."

http://www.gunweek.com/2000/mass.html


Why Hasn't This Been Brought to Court?

It has. The Attorney General first proposed these regulations in 1996. At that time, a group representing the industry, the American Shooting Sports Coalition, sought and received an injunction against the regulations, so that they were not allowed to take effect until the court case had been heard. Although the manufacturers won at the lower level courts, they lost at the higher level due to a failure to appeal a certain decision. This was compounded by the fact that the ASSC was dissolving at the time. Their attorney failed to notify other groups, such as GOAL, NRA, or NSSF of the pending appeal, or we most certainly would have picked up on the appeal. Because of this court action, many of the avenues we would have chosen have been closed to us.

http://www.goal.org/misc/faq/handgunsales.html
 
D

daceman63

He won't get elected.....

This is right from his page...."For decades Larry Frisoli has been a member of the Woburn Sportsman Association, Gun Owners Action League and National Rifle Association."

He'll never pull it off in this state, but I'll vote for him.
 

KMaurer

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So I guess we might as well all give up and accept whatever the GFW statists want. Candidates who openly proclaims their support for the 2nd Amendment are judged to be naive bumblers with absolutely no hope of getting elected, so why bother. If they try to keep it quiet and only just support it privately, then they're probably cynical politicians who'll say anything they think you want to hear, but can't be trusted, so why let yourself be fooled.

With all its hopes, dreams, promises, and urban renewal, the world continues to deteriorate. Give up! [sad]

Ken
 
D

daceman63

So I guess we might as well all give up and accept whatever the GFW statists want. Candidates who openly proclaims their support for the 2nd Amendment are judged to be naive bumblers with absolutely no hope of getting elected, so why bother. If they try to keep it quiet and only just support it privately, then they're probably cynical politicians who'll say anything they think you want to hear, but can't be trusted, so why let yourself be fooled.

With all its hopes, dreams, promises, and urban renewal, the world continues to deteriorate. Give up! [sad]

Ken

Yes, exactly my point.
 
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History Lesson:

- GOAL and a gun dealer's assn (don't know which one) sued AG Harshbarger, challenging his "right" to create Consumer Protection Regulations regulating firearms.

- The Courts ruled that GOAL had NO STANDING to bring a lawsuit, since they are NOT in the business of selling guns. Thus GOAL didn't "drop the ball" or wasn't "unaware" at all, but they were right out front of this. Now GOAL was left powerless to do anything but push the dealers assn to follow thru.

- The Courts further ruled against the gun dealers assn. There is a narrow window where you can appeal a court decision and bump it up to a higher level . . . if you miss that window of opportunity, TS you are forever barred from continuing the suit. The gun dealers assn did NOT file an appeal within the time limit allowed by law, therefore the lower court ruling ALLOWING the AG to do as he pleased stands as "law" today.

And that explains where we are today and why.

The AG has the full blessings of the court to use the Ch. 93A sledgehammer over the legal gun industry . . . and the gun industry didn't have the money or the balls (or both) to follow thru on this action when they could have done so!

That's why the only one who can "undo" this damage is a new AG who is pro-gun!
Len, I realize that this is probably a simplistic question, but here it goes;

The consumer regs law under which Reilly is operating appears to pertain to the issue of fraudulent marketing and sales tactics. My reading of the law does not permit him to issue regs concerning the design and manufacture of handguns.

If that were true, and given that most guns sold in Mass are manufactured outside of Mass, other than cost, is there a reason that these regs cannot be challenged in Federal court based on their infringment of Congress's exclusive power to regulate interstate commerce?
 

Len-2A Training

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Most sheeple in MA are scared of guns, thus want to see them restricted/banned.

If they know that a candidate is a gun owner, member of a gun club, active member of a gun rights org . . . they are most likely going to be "afraid" of said candidate and vote for someone else.

Until the "perception of guns are evil" and the "perception that anyone can just order one by mail/buy one with no questions asked at gun shops in all 50 states/etc." are overturned in the sheeple's mind, they will continue to behave that way!

We can each convince a handful of people otherwise perhaps, but it will literally take many 10s of years at that rate before it would show up as a difference in the voting booth.

Sad but I believe to be a true read of the situation. NOT meant to be "oh well, I give up" . . . we need to work on others and convince them of the truth, but we need to understand that this will take a very long time to make a difference.
 

Len-2A Training

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rclarkston,

Yes, they could be challenged in a Fed Court under those grounds by a MFR who WANTS to spend a ton of money to do so . . . nobody has stepped up to the plate as of now.

A Fed Court in MA is not likely to rule as favorably as one in a state that views firearms as a "tool" (not a weapon). Personal perceptions even by judges counts for a lot. So best action would be by a quality mfr that is currently barred from sale in MA and located in a Southern State!

Glock would be a great test case, but they have no further desire to deal with our system and AG! Can't say that I blame them either.
 

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The Regs themselves are NOT subject to judicial review . . . a judge already has ruled that the AG has the POWER to implement such Regs and that is as far as the Judicial branch can extend themselves in the Executive Branch (AG). Remember your US History of "separation of power" between the 3 branches.

So, the only one who can "overturn" the AG's Regs is a NEW AG! Don't hold your breath waiting for that to happen.
Len, most respectfully (and unusually), I must disagree.

The Administrative Procedures Act requires that an agency promulgating legislative-type regulations (as opposed to interpretive-type regulations) must make a finding that the regulations will accomplish the statutory purpose for which the delegation of regulation promulgating authority was made. That finding is judicially reviewable, albeit on an indulgent standard (of "rationality").

If one hypothesized that a statute authorized an agency to makes regs to accomplish X, and the agency promulgated res stating only that they would accomplish Y (and making no mention of X), then a Court neutrally applying ad law would hold the regulations to be ultra vires.

The problem here is that Harshbugger made a blatantly dishonest assertion that the regulations would accomplish consumer protection, and the courts that affirmed these regulations (to the extent that they did) made an equally dishonest finding that this was correct.

Now if anyone really wants to spend the time, effort and money to pursue this, what you do is take the present AG's assertion that the regs accomplish (only) an ultra-statutory objective and make this the major premise of a petition for rulemaking under the APA for repeal of the regs. If the petition is denied, then you take a 30A appeal. Unless the current AG in denying the petition for rulemaking reiterates the dishonest purpose assertion (contrary to the political claim), a Court neutrally applying the APA (if you can find one at the appellate level in this state) would have to reverse the denial of the petition.
 

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RKG, I think from a practical point of view we are saying the same thing. I was referring to the "content" of his Regs being not subject to Judicial Review. A court already reviewed his authority to implement Consumer Safety Regs on guns and gave him the "green light". That would have to be over-ruled at a higher level, possible in another Federal District, but I consider it not probable in the Boston Federal District.

Reilly could throw "plausible deniability" around any assertion that what's on his campaign website is exactly the only reason for the Regs. He could also claim that he only "implemented" that which his predecessor proposed and thus the credibility falls on what his predecessor stated.

Regardless, I don't see any court in the state of Mass (and that includes US District Ct in Boston) overturning what has been implemented.
 
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ArmedMainer

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So I guess we might as well all give up and accept whatever the GFW statists want. Candidates who openly proclaims their support for the 2nd Amendment are judged to be naive bumblers with absolutely no hope of getting elected, so why bother. If they try to keep it quiet and only just support it privately, then they're probably cynical politicians who'll say anything they think you want to hear, but can't be trusted, so why let yourself be fooled.

With all its hopes, dreams, promises, and urban renewal, the world continues to deteriorate. Give up! [sad]

Ken
BINGO !!! We have a W-I-N-N-E-R. [cheers]
 
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Leave

The best thing to do is leave. A lot of folks are doing that. I am a native of
this state and am making plans to leave when i retire or stop working full
time. I think you will find a lot of us (gun owners) leaving....

JimB
 
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The best thing to do is leave. A lot of folks are doing that. I am a native of
this state and am making plans to leave when i retire or stop working full
time. I think you will find a lot of us (gun owners) leaving....

JimB
That hands victory to em! Why make it any easier, we are still ahead of NY.
 
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