News Federal District Court Declares AR-15 is Not Protected by the Second Amendment Adam Kraut April 7, 2018 Join the Conversation Yesterday, the United States District Court for the District of Massachusetts issued a 47 page opinion in Worman v. Healey, No. 1:17-10107-WGY, dismissing the Plaintiffs' challenge to the Enforcement Notice issued by Attorney General Maura Healy in July 2016 and granting summary judgment to Defendants on the Plaintiffs' claim that the Massachusetts Assault Weapons Ban violates the Second Amendment and the phrase “copies or duplicates” is unconstitutionally vague. In January 2017, the Plaintiffs filed suit challenging Massachusetts' assault weapons ban that largely mimicked the federal ban which expired in 2004. Notably, the law made it a crime to sell or possess a number of “assault weapons” including Colt AR-15s, duplicates, and copies. It also criminalized the sale or possession of fixed or detachable magazines capable of holding more than ten rounds. Firearms owned prior to September 13, 1994, were grandfathered in. In July 2016, Massachusetts Attorney General Maura Healey issued an “Enforcement Notice” to the public. The Notice was designed to provide a framework for dealers and others to understand how the term “assault weapon” was defined in Massachusetts law. In particular, the Notice specified that a firearm was a duplicate or a copy of a prohibited firearm if the firearm's “internal functional components are substantially similar in construction and configuration to those of an Enumerated Weapon,” or if the firearm “has a receiver that is the same or interchangeable with the receiver of an Enumerated Weapon.” The Notice specified that it would not be applicable to the possession, ownership, or transfer of a firearm owned prior to July 20, 2016. The Plaintiffs claimed that the Notice violated their right to due process due from retroactive enforcement rather than future enforcement. The Court dismissed this claim, finding that the Notice lacked a binding effect, force of law, and did not constitute a “final” agency action. Specifically, the Court rejected the notion that the Notice would have a retroactive effect because the Attorney General had stated that interpretation would not be enforced retroactively against individuals. More concerning is the Court's determination with regard to the Plaintiffs' first claim that the law infringes upon their Second Amendment rights. The Court immediately declared that “Assault weapons and LCMs [large capacity magazines] — the types banned by the Act — are not within the scope of the personal right to ‘bear Arms' under the Second Amendment.” While the law bans a slew of firearms, the Plaintiffs and the Court focused their analysis on the AR-15. The Court found that the undisputed facts in the record “convincingly demonstrate that the AR-15 and LCMs banned by the Act are ‘weapons that are most useful for military service.' In reviewing case law, the Court found that Heller had rejected the proposition that “only those weapons useful in warfare are protected.” It went on to state that “weapons that are most useful in military service…fall outside the scope of the Second Amendment and may be banned.” After engaging in a rather lengthy recap of the AR-15's history, the Court declared that “the AR-15's present day popularity is not constitutionally material.” The opinion then quotes the late Justice Scalia in order to further its purported point. Lastly, the Plaintiffs challenged the vagueness of the phrase “copies or duplicates” within the law. The Court, again, rejected this challenge, finding that the “phrase's plain meaning provides a person of ordinary intelligence fair notice as to what is prohibited…” Moreover, it stated that the “general definition [of semiautomatic assault weapon] contains both a list of enumerated weapons and several features-style tests that citizens may use as a second data point if they are uncertain as to what constitutes a ‘copy or duplicate'.” The opinion concludes with something rather rare and what can only be described as a judge's commentary. The AR-15 and its analogs, along with large capacity magazines, are simply not weapons within the original meaning of the individual constitutional right to “bear Arms.” Both their general acceptance and their regulation, if any, are policy matters not for courts, but left to the people directly through their elected representatives. In the absence of federal legislation, Massachusetts is free to ban these weapons and large capacity magazines. Other states are equally free to leave them unregulated and available to their law-abiding citizens. These policy matters are simply not of constitutional moment. Americans are not afraid of bumptious, raucous, and robust debate about these matters. We call it democracy. Justice Scalia would be proud. I suspect we will see this appealed to the First Circuit. ABOUT THE AUTHOR Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world and The Gun Collective Podcast. He was also the general manager of a gun store in the suburbs of Philadelphia. 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