Gun & Weapons Law revisited

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Gun & Weapons Law revisited

Postby Alan K » Tue Oct 16, 2001 2:56 pm

By request, I am publishing a post that made made on Van Canna sensei's forum "and so it goes".

Massachusetts has one of the stricktest set of weapons statutes in the US, and it looks like it was created by the same board selected what a coporate elephant should look like.As is common is Massachusetts Staute Draftsmanship, the paragraphs are very long, convoluted, disjunctive, and often contradictory or ambiguous.

If you have trouble reading and absorbing the meaning and interpretation don't feel badly. Most lawyers have the same problem.
The trouble is that violations can result in serious felony charges.

My approach to the problem was to publish in the post, actual statutory language and let the reader see what the law really says.

In the posts were threads relating the opinions of some strong gun advocates, many of whom I respect. I also found some serious errors in their interpretation.

Here is part one concerning the definition of weapons, ammunition and feeding devices, the terminology of which is used countless times in the statutes. I will also publish sections of the licensing act which defines the types and classes of firearms licenses and identification cards.

The weapons statutes and regulations are a complete mess and I do not wonder about the confusion and frustration of enactment’s by the legislature and administrative agencies which create felons out of innocent law abiding citizens.

Whether we can untangle this interweaving and convoluted and often contradictory web of statutes and administrative regulation has to do with politics, politics and more politics.

With people being interested in self protection because of our current situation, there can be a shift in the pendulum if enough voices get involved and write and hound their reps and senators, both state and federal. But loud mouths who champion cradle to grave legislation often prevail.

Lets get into the meat of the situation and welcome to our government system, and my apologies to readers who are already well aware of what I have to say.; I do not intend to be patronizing

For you non-professors and teachers and every day Americans who do not concentrate on government or history let us begin by talking about how these regulations come about.

We have three branches of government:

1. Administrative, 2. Legislative and 3. Judicial

These are the so called checks and balances system advocated by the Constitution.

It is amazing that it works at all and more than amazing that in the majority of cases, it does work quite well.

Relating to our predicament concerning action by the House and Senate of the Commonwealth of Massachusetts, and by the office of the Attorney General, we see an interaction by the Legislative and the Administrative Branches of the Government. The Judicial system then is called upon to reconcile both of the foregoing branches and in effect legislates by interpreting and concluding by decisions which become law by court decision which stands.(“stare decisis”), and the decided case becomes the law in a given set of facts by judicial decision.

To muddle things worse the Legislative Branch often empowers the Administrative Branch to publish regulations, often without defining limits to the Administrative Authority or authorizing very liberal and sometimes autonomous powers to the Administrative Agency.

Of course the Constitution (State and Federal) impose limits which prevent violations of said constitutions, and yes you guessed it, are interpreted by the Judicial.

So gun advocates have the battle of bringing the issues before the Courts for relief and interpretation which can test the state statute for constitutionality and for vagueness or prejudice and the same will apply to the Administrative Agency for the above and whether its acts exceeded its authority.

If you think this is a mess you should have seen the impact a young assistant attorney general had on the finance and business areas of the Commonwealth of Massachusetts a few years ago.
Among many other things, this kid out of law school started to publish regulations which would require Lender’s to send literature to applicants for loans, a notice advising prospective applicants that they should shop around for lower rates, with the required notice that other lenders could offer better terms.

This was only one minor example to how delegation of administrative authority can exceed the powers of the legislature.

In this case the Attorney General seems to have tossed this subject into the Consumer Protection umbrella, and we may all think that the Promulgations of the Attorney General do not fall within the aegis of the Consumer Protection Act and the delegated authority of the attorney general, but only the Legislative Branch can determine this unless the statute is amended.

Let us clear up one area of confusion, namely that of the statutes involved.

The Chapter 180 mentioned in other posts and the www thread relate to Chapter 180 of the Acts of 1998, and not to the Mass General Laws Statute affected thereby. The Massachusetts General Laws applicable is Chapter 140.

Chapter 180 of the Acts of 1998 was indeed the law enacted, but it amended Massachusetts General Laws Chapter 140 and other Chapters in addition to MGL 140.

It is a good idea to read the actual act and try to be honest and reasonable with yourself when you read the act. Many of us are influenced by anger or what we wish the language means.
When reading case law, you read the whole case and not what the reporter said in a summary explanation, or necessarily what you see reported in magazine articles or other reports published by so called “expert” writers.

With that in mind, and for the purposes of this post, I will present some of the definitions included in Chapter 180 of the Acts of 1998.

I can only include some of the definitions because of time restraints. SECTION 8 amends MGL Chapter 140 by inserting some sections and amending and striking out other sections.

Section 121 was added to the statute and Sections 122 to 131P were amended and the new definitions were inserted.

We will take a look at the actual text defining FIREARMS; LARGE CAPACITY LOADING DEVICE; AND LARGE CAPACITY WEAPON.

“Firearm”, a pistol, revolver, or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured; provided, however, that the term firearm shall not include any weapon that is: (I) constructed in a shaped that does not resemble a handgun, short-barreled rifle or short-barreled shotgun including but not limited to, covert weapons that resemble key-chains, pens, cigarette lighters or cigarette packages; or (ii) not detectable as a weapon or potential weapon by x-ray machines commonly used at airports or walk-through metal detectors.”

“Large capacity feeding device”, (I) a fixed or detachable magazine, box, drum, feed strip or similar device as defined in federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C., section 921(a)(31). The term “Large capacity feeding device”, (I) a fixed or detachable ;magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun shells; or (ii) a large capacity ammunition feeding device as defined in the federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. Section 921(a)(31). The term “Large capacity feeding device” shall not include an attached tubular device designed to accept, and capable of operating only with .22 caliber ammunition.

“Large capacity weapon”, any firearm, rifle or shotgun; (I) that is semiautomatic with fixed large capacity feeding device; (ii) that is semiautomatic and capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device; (iii) that employs a rotating cylinder capable of accepting more than ten rounds of ammunition in a rifle or assault weapon. The term “large capacity weapon” shall be a secondary designation and shall apply to a weapon in addition to its primary designation as a firearm designation as a firearm, rifle or shotgun and shall not include: (I) any weapon that was manufactured in or prior to (ii) any weapon that operates by manual bolt, pump, lever or slide action; (iii) an weapon that is a single shot weapon; (iv) any weapon that has been modified so as to render it permanently inoperable or otherwise rendered permanently unable to be designated a large capacity weapon; or (v) any weapon that is an antique or relic, theatrical prop or other weapon that is not capable of firing a projectile and which is not intended for use as a functional weapon and cannot be readily modified through a combination of available parts into an operable large capacity weapon”

What I read in the above statute to this point is quite different than that which is reported.

Note that some of the above sections have included definitions from Title 18 of the United States Code, which I have not read at this point.

I realize the frustration presented by such “catch 22” dilemmas presented by some of you and by Van, sensei’s example of becoming a felon is quite justified since there is no exception for the innocent.

I can only say that there are a few areas of the law which may be protective such as the doctrine of “frustration of the law”. Yes that is a legal doctrine which means (not a legal definition that a criminal law cannot be applied to a person if that law is not clear enough to be fairly administered.

Secondly the courts can limit the application of this law to the innocent by finding that it was not the intent of the legislature to encompass innocent family members, because if it meant to, it would have said so.

Then comes the constitutional provisions of due process of law, and the usual other constitutional defenses.

In any event I thought that we could begin in this post by talking about and publishing here some troublesome definitions of the beginning of the Acts of 1998 Chapter 180.

Later we will discuss the licensing laws and whatever else might be important in these troubled time when self-defense is relevant.

Alan K
Alan K
Posts: 493
Joined: Mon Nov 20, 2000 6:01 am
Location: Framingham, MA USA

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