Stun Gun Challenge (Martel v. Healey)

[milktree]

I think it makes it impossible to sell them.

You're quite right. That was sloppy of me.

The courts might see "impossible to sell" and "impossible to buy" as sufficiently similar, since, "you have to go out of state to get one" is not necessarily a reasonable burden.

Plus, unless you have an unrestricted LTC, you can't actually *carry* one, right?

 

[Waher]

since, "you have to go out of state to get one" is not necessarily a reasonable burden.

Yeah, try that with "abortion" or any other sacred cow (transgender surgery, etc.) and see how quickly a MA court strikes that law down.

 

[CrackPot]

Doesn't ERPO make it impossible to buy new stun guns because they don't have a loaded chamber indicator or magazine disconnect and Maura hasn't blessed them?

MGL chap 140 sec 123 codifies the requirements for a firearm. These are all restrictions on what a dealer can sell.

Also the AG CMR on firearms makes it an unsafe consumer practice for a dealer to sell guns that a 5yr old can fire or that dont have an LCI.

You can own anything that is not otherwise illegal (assault weapon, full auto...)

 

[Pete85]

There's nothing stopping you from buying one now. Some online retailers removed their restrictions on shipping to MA on June 16 when the SJC decision invalidated the previous law.

 

[Al-Jim19]

Honestly, if stun guns become subject to the same manner of nonsense pistols are with “the list” and all that, it may set us up for a nice challenge for all that. It would be reasonable to say that the list is a violation of the 2nd because it completely outlaws something which the courts have already said are constitutionally protected.

 

[CrackPot]

Honestly, if stun guns become subject to the same manner of nonsense pistols are with “the list” and all that, it may set us up for a nice challenge for all that. It would be reasonable to say that the list is a violation of the 2nd because it completely outlaws something which the courts have already said are constitutionally protected.

The list outlaws nothing. You can buy and own almost anything (not AW). The list is all about terms on the dealer's license. That will survive challenges all day, every day.

 

[Al-Jim19]

The list outlaws nothing. You can buy and own almost anything (not AW). The list is all about terms on the dealer's license. That will survive challenges all day, every day.

Maybe I should have said “functionally makes that item unattainable”

 

[CrackPot]

Maybe I should have said “functionally makes that item unattainable”

Again, not accurate. You can effectively already get pretty much any handgun you want independent of the list. I wont explain the myriad of work arounds, but they exist.

 

[Al-Jim19]

Again, not accurate. You can effectively already get pretty much any handgun you want independent of the list. I wont explain the myriad of work arounds, but they exist.

I understand at least one way, but it’s definitely not something that would work for stun guns.

 

[CrackPot]

I understand at least one way, but it’s definitely not something that would work for stun guns.

Stun guns you cross the border and buy. they are not limited like handguns to federal law requiring purchase in your home state.

The laws in MA suck, but lets focus on the ones that actually stop us from doing something.

 

[crispnipz]

Plus, unless you have an unrestricted LTC, you can't actually *carry* one, right?

As far as I know, restrictions only (currently) apply to firearms and not stun guns.

 

[Pete85]

As far as I know, restrictions only (currently) apply to firearms and not stun guns.

Technically, until the governor signs the ERPO bill, there are no restrictions on stun guns. As the bill is written, once he signs it, stun guns would be considered the same as a handgun under state law.

 

[amm5061]

Stun guns you cross the border and buy. they are not limited like handguns to federal law requiring purchase in your home state.

^ This. Take a little drive to NH and pick the one you like best.

 

[Len-2A Training]

I think it makes it impossible to sell them.

Yes, and that was the goal that the legistraitors set and met.

The list outlaws nothing. You can buy and own almost anything (not AW). The list is all about terms on the dealer's license. That will survive challenges all day, every day.

Totally agree.

Sad thing is it is also a setup for charges of illegal storage and transportation once signed into law.

 

[Boston4567]

Technically, until the governor signs the ERPO bill, there are no restrictions on stun guns. As the bill is written, once he signs it, stun guns would be considered the same as a handgun under state law.

I don't think the AG's consumer protection legislation would apply to stun guns, though other gun laws like storage and transportation would apply as Len says. If it did, or she tries to add new CMRs, it would tee up a good opportunity for a challenge.

I still don't understand how the AG's '98 regulations that didn't parallel MGLs weren't struck down as ultra vires when NSSF's predecessor sued in state court back then.

What happened at the time was, all of the regulations were struck down in Superior Court, and the SJC kicked it back, saying that the CMRs that essentially codified the new gun control MGLs as 93A consumer protection regulations were valid, and Superior Court should re-review the regulations with that in mind. After that, as we know all of the regulations were allowed to take effect in their entirety, and the challenge was never appealed beyond Superior Court.

Anyone know the history of what happened, why they lost in Superior Court and why it was never appealed?

 

[Knuckle Dragger]

Here's the bill that Baker will be signing today: https://malegislature.gov/Bills/190/H4670.pdf

Stun guns are NOT 'Firearms' per se, but EOPSS 'shall' regulate:

Section 131J. Sections 131¾, 131K and 131P shall not apply to stun guns. The secretary of public safety and security shall promulgate regulations restricting access or use of stun guns by non-licensed persons and establishing minimum safety and quality standards, safe storage requirements, education and safety training requirements and law enforcement training on the appropriate use of stun guns, which shall require that any stun gun purchased or used by a law enforcement or public safety official include a mechanism for tracking the number of times the stun gun has been fired.

 

[amm5061]

Sad thing is it is also a setup for charges of illegal storage and transportation once signed into law.

That's a good point. How do you store or transport a stun gun not being carried under your direct control? Do you have to triggerlock it or keep it in a safe for storage? How about transport? How do you unload a stun gun? Can the battery be removed? Does it have to be fully discharged before being put in the trunk?

 

[inkdesigner]

Here's the bill that Baker will be signing today: https://malegislature.gov/Bills/190/H4670.pdf

Stun guns are NOT 'Firearms' per se, but EOPSS 'shall' regulate:

How does that jive with the fact that, at least how I read it (and admittedly I'm no lawyer), according to section 4 this ERPO bill will ammend the definition of a "Firearm" in Section 140, Chapter 121 by removing the "a" before pistol and replacing it with "a stun gun or a". To me, that would mean that, at least according to the law, a stun gun is now classified as a firearm.

 

[jasons]

Anyone know the history of what happened, why they lost in Superior Court and why it was never appealed?

The ASSC dropped the ball and failed to file the appeal in time. At least that's the popular version of the story.

 

[Rob Boudrie]

To me, that would mean that, at least according to the law, a stun gun is now classified as a firearm.

The law also tasks the AG with promulgating regulations covering the possession/carry of stun guns by non-licensed persons, which would seem inconsistent with requiring an LTC for such items. Typical of the highly consistent and educated manner in which MA gun laws are written.

 

[kevin9]

That's a good point. How do you store or transport a stun gun not being carried under your direct control? Do you have to triggerlock it or keep it in a safe for storage? How about transport? How do you unload a stun gun? Can the battery be removed? Does it have to be fully discharged before being put in the trunk?

Section 14 of the bill says it must be stored in a locked container:

SECTION 14. Subsection (a) of section 131L of said chapter 140 is hereby amended by
inserting after the first sentence, as appearing in the 2016 Official Edition, the following
sentence:- It shall be unlawful to store or keep any stun gun in any place unless such weapon is
secured in a locked container accessible only to the owner or other lawfully authorized user.

That's apparently a minimum requirement because the preceding section directs EOPS to promulgate regulations for safe storage.

How does that jive with the fact that, at least how I read it (and admittedly I'm no lawyer), according to section 4 this ERPO bill will ammend the definition of a "Firearm" in Section 140, Chapter 121 by removing the "a" before pistol and replacing it with "a stun gun or a". To me, that would mean that, at least according to the law, a stun gun is now classified as a firearm.

I would say it differently than KD: Section 8 of the bill makes stun guns, defined by Section 7 to include direct contact and taser-type devices, firearms (i.e., a handgun). Section 13 then exempts stun gun firearms from the handgun regulations having to do with high capacity and high capacity rosters (S131 3/4) (i.e., high capacity has no meaning for stun guns), safety regulations (aka. the EOPS "list" of safe firearms), and firearm license class requirements for an LTC. But fear not, Section 13 then directs EOPS to establish (different) regulations specific to stun guns in all these areas. All other laws relative to firearms appear to apply.

What will be "interesting" is that the bill says nothing about the AG "consumer protection" regulations WRT handguns. Given the definition of handgun in the regulation:

Handgun: shall mean a weapon, designed to be fired by the use of a single hand, from which may be fired or ejected one or more solid projectiles propelled via a chemical ignition,

the handgun regulations and double-secret AG list should not apply to stun guns, but without specific exemption I am skeptical.

 

[CrackPot]

What will be "interesting" is that the bill says nothing about the AG "consumer protection" regulations WRT handguns. Given the definition of handgun in the regulation:
the handgun regulations and double-secret AG list should not apply to stun guns, but without specific exemption I am skeptical.

Does not change what you can own or purchase out of state. The AG rules would just define what is a deceptive consumer practice for your local dealer.

What I had not thought about until now is FA10. Given how they are defining this, all "firearms" you bring in from out of state you will need to FA10 within 7 days. Your LGS who sells you one will also have to FA10 it. Joy

 

[rep308]

FA10 it, what do you put for caliber? 50,000V. Barrel length, None?

 

[Boston4567]

The ASSC dropped the ball and failed to file the appeal in time. At least that's the popular version of the story.

Interesting. So in theory, we could just file a new case in Superior Court challenging the regs. There's no precedential case law that says they're valid.

I know Comm2a challenged the LCI regs in federal court, but to me going the state court route would be a worthwhile endeavor.

 

[Rob Boudrie]

Interesting. So in theory, we could just file a new case in Superior Court challenging the regs. There's no precedential case law that says they're valid.

I know Comm2a challenged the LCI regs in federal court, but to me going the state court route would be a worthwhile endeavor.

State court? You must be new to this game. There is a reason it's called the Supreme Marsupial Court.

Remember, the state courts have upheld decisions like "an expired RO with no violation thereof may be used as a lifetime ban", "charges you are acquitted of may be used as the basis to deny gun rights" and "exercising your right to remain silent when questioned is a valid reason to revoke an LTC". Then there is the LONG history of deciding that gun rights are collective, not individual, and that the 2A applies only to technologies extant at the time of its writing.

Although it goes back to 1976, the Davis case is a classic example of what the court feels it its role in the gun control issue. There was a ballot initiative to ban handguns, so the SJC took up a case before the vote specifically so they could issue a ruling that the right is collective, not individual. Apparently, they thought the govt needed to give itself permission to arm its militia.

 

[Boston4567]

State court? You must be new to this game. There is a reason it's called the Supreme Marsupial Court.

Remember, the state courts have upheld decisions like "an expired RO with no violation thereof may be used as a lifetime ban", "charges you are acquitted of may be used as the basis to deny gun rights" and "exercising your right to remain silent when questioned is a valid reason to revoke an LTC". Then there is the LONG history of deciding that gun rights are collective, not individual, and that the 2A applies only to technologies extant at the time of its writing.

Although it goes back to 1976, the Davis case is a classic example of what the court feels it its role in the gun control issue. There was a ballot initiative to ban handguns, so the SJC took up a case before the vote specifically so they could issue a ruling that the right is collective, not individual. Apparently, they thought the govt needed to give itself permission to arm its militia.

I agree that MA state courts are hostile towards gun rights. But there's a difference between application of constitutional law, in which it's basically up to the courts to decide what the constitution means, and statutory interpretation. The SJC can (and does) skew constitutional law as they please, but they're pretty good with statutory interpretation.

The ASSC ruling by the SJC seems like a not-unreasonable ruling in terms of interpreting 93A, and it left the door open for blocking the ultra vires regulations. I think it's a mistake not to try to develop state case law as much as possible, and just pray that the federal courts will save us.

 

[Knuckle Dragger]

If it wasn't obvious before, it is now. The AGO plans to move for dismissal due to mootness: Letter/request (non-motion) from the Defendant regarding Suggestion of Mootness.

 

[Waher]

Was this case dismissed? Or is it on hold pending promulgation of CMRs and cities/towns placing carry restrictions on tasers?

 

[Knuckle Dragger]

Was this case dismissed? Or is it on hold pending promulgation of CMRs and cities/towns placing carry restrictions on tasers?

It was dismissed.

 

[Frizzle Fry]

Also the AG CMR on firearms makes it an unsafe consumer practice for a dealer to sell guns that a 5yr old can fire or that dont have an LCI.

Oh no, not "unsafe" - "deceptive" or "misleading" and those are supposed to be in keeping with standards set by federal agencies, who say that they are NOT in keeping with their standards. That statute is designed to crack down on used car dealers lying to people; there's nothing deceptive about telling someone a gun has a 3lb trigger or a pot metal frame when you sell it to them.