AG Healey’s Gun Directive Being Tested In Court

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WORCESTER — A federal judge wants to know whether Massachusetts Attorney General Maura Healey’s July directive banning an array of so-called “copycat” assault weapons constitutes a new state regulation before he decides whether to move a lawsuit forward that challenges Healey’s interpretation.

“You’re saying this became regulation through practice and operation,” Massachusetts U.S. District Court Judge Timothy S. Hillman told attorneys representing a trio of in-state firearms retailers. “Find me a case that shows that.”

David R. Kerrigan, an attorney from Southborough representing Worcester-based Pullman Arms Inc., repeatedly pointed to the state’s own 1998 assault weapons ban, passed by the state Legislature. Kerrigan argued that Healey’s directive is vague and is actually at odds with amendments that failed to pass in 1998 when the original ban was passed. Specifically, the group’s complaint notes that state lawmakers never passed a “features test,” or interchangeability restrictions to define what are and are not banned weapons.

That changed overnight on July 20, the day Healey issued her directive, Kerrigan argued. Since then, Kerrigan pointed out, Healey’s office has had to repeatedly edit its own directive. An example of the shaky legal ground he said gun retailers are standing on involves a firearm known as the semiautomatic IWI Tavor Bullpup, a rifle that had been updated in 2014 to comply with state law by including a lower-capacity magazine and a permanent muzzle break.  

“Shops asked the AG’s office if the Bullpups met their test, but what they got back was that the AG had not yet formed a position on them,” Kerrigan said.

Meanwhile, Hillman insisted that he was “still not convinced” the directive constituted either a new  statute or a regulation — both of which would mean that the lawsuit filed by the three retailers, along with the National Shooting Sports Foundation, can move forward.

Assistant Attorney General William Porter was adamant, however, that Healey’s directive “provided more clarity to what the statute already means.”

“This is not a new regulation, this is a guidance,” Porter added. “The AG wanted the public to be aware of, in her view, what constitutes a copycat assault weapon.”

Complicating matters during Friday’s hearing was the question of whether the case can only truly be decided once a retailer is charged with selling one of the weapons now banned under Healey’s directive. Porter pointed out that there are “no pending prosecutions at this time.”

“Using the enforcement notice as an example is where I’m tangled up,” Hillman told Kerrigan at one point. “I’m sympathetic quite possibly but the only way you can have addressability here is for someone to be charged under the law.”

Porter said such a situation would ultimately land in the hands of the Massachusetts Supreme Judicial Court for a final ruling.

Following the hearing, Kerrigan told a New Boston Post reporter that the next step is to put his plaintiff’s arguments that Healey’s directive constituted a new regulation into writing, and deliver it to Hillman.

“It has all the effects of a new regulation,” he added, referring to Healey’s directive.