- The Washington Times - Sunday, April 1, 2018

Amid an 18-month-long court fight, a federal judge recently ruled that a lawsuit accusing Massachusetts Attorney General Maura Healey of improperly tightening the state’s strict assault-style weapons ban on her own can move forward.

Four firearms retailers and the National Shooting Sports Foundation originally brought the suit in September 2016, arguing that Ms. Healey overstepped her bounds in crafting what they called a vague, unenforceable directive two months earlier that cracked down on the sale of certain “copycat” semiautomatic weapons.

Ms. Healey’s office sought to have the case thrown out, arguing that her July 2016 “enforcement notice” was well within her authority and simply reaffirmed the state’s existing ban on so-called assault weapons.

But U.S. District Judge Timothy S. Hillman recently denied the state’s motion to dismiss, saying the plaintiffs have a plausible claim that her actions could have denied them property without due process because of the new restrictions on what they were allowed to sell.

“This court cannot dismiss the plaintiffs’ challenge to the notice because they have raised genuine questions as to whether it gives ‘fair notice of conduct that is forbidden’ with respect to the sale of certain weapons enumerated in the complaint,” Judge Hillman wrote in his order.

The plaintiffs are asking for a permanent injunction blocking Ms. Healey’s office from enforcing the directive, though the judge indicated the potential relief might be more limited, like a better clarification on which weapons they can and can’t sell.

“There are a range of potential remedies that would mitigate the harm caused by a lack of clarity in the attorney general’s communication on this matter,” he said.

The case is moving forward as gun-control activists launch a renewed push for a similar federal assault-weapons ban in the wake of the Feb. 14 Parkland, Florida, school shooting.

Authorities say accused gunman Nikolas Cruz, 19, used an AR-15-style semiautomatic rifle to carry out the attack that claimed the lives of 17 students and faculty at Marjory Stoneman Douglas High School.

Congress passed such a ban in 1994, but it expired in 2004. A handful of states plus the District of Columbia have passed their own bans, which have thus far survived various court challenges.

Ms. Healey issued the order to try to clarify to gun retailers that the state’s 1998 ban on semiautomatic weapons like the AR-15 also extends to “copies or duplicates” of the banned weapons.

She said gun manufacturers had managed to skirt the ban by making minor tweaks to “copycat” weapons and marketing them as “state compliant” guns.

The new guidance said that a weapon is defined as a banned “copy” or “duplicate” if its components are “substantially similar” to those of a banned weapon, or if its receiver is interchangeable with the receiver of a banned weapon.

Dealers wouldn’t be targeted for past weapons transactions, but they were not allowed to sell the guns to Massachusetts buyers going forward.

Ms. Healey’s office said the alert didn’t require hearings or a comment period for the public to weigh in, and that she had already issued a notice to the state’s 350 gun dealers the previous year reminding them of their obligations to obey state law.

But the gun retailers said her office not only had to issue subsequent clarifications on which models the new policy covered, but it also gave conflicting information and on at least two occasions told retailers to use their “best judgment” on which guns they were still allowed to sell.

“The Attorney General’s Office does not even know exactly what the enforcement notice means,” their complaint says, saying her office “is making ad hoc decisions untethered to the statute that constrains her lawful authority.”

Ms. Healey’s “unilateral reinterpretation” of a state statute was also done without input from the affected parties in a move that could ultimately result in criminal penalties, said Lawrence G. Keane, NSSF senior vice president and general counsel.

“Her office exceeded its lawful authority and retailers were deprived of their due process protections under the Fifth and Fourteenth Amendments,” Mr. Keane said.

But Ms. Healey’s office said that since 1998, state law has banned the sale and possession of assault weapons, “including copies and duplicates of AR-15s and AK-47s.”

“Our enforcement notice has effectively ended the illegal sale of assault weapons in Massachusetts, and we will continue to vigorously oppose this challenge,” said Jillian Fennimore, a spokeswoman for Ms. Healey.

Her office argued in court papers that her interpretation is entirely consistent with the legislative history and purpose of the state’s assault-weapons ban, and that she provided a prospective notice of the interpretation instead of immediately launching prosecutions.

“The attorney general plainly had authority, as the chief law enforcement officer of the Commonwealth, to notify the public of her interpretation of a criminal law she is charged with enforcing,” attorneys wrote in their argument to dismiss the case.

The lawsuit also posits that the notice could violate the Second Amendment because it bans a “broad universe” of guns commonly used for self-defense, but Judge Hillman appeared to be more skeptical of that argument.

He said the underlying portion of the case “is limited to the question of whether or not the firearms enumerated by the plaintiffs do or do not fall within the scope of the attorney general’s intent with respect to the definition of banned assault weapons.”

Dan Shores, a Republican candidate for attorney general in the state this year, said he’s encouraged by the ruling and that the Constitution protects basic due process rights and civil liberties. “Attorney General Healey blatantly violated those rights and circumvented the separation of powers by issuing her own ambiguous law,” he said.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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