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