On Thursday, federal district court judge William Young upheld Massachusetts’ “assault-weapon” ban against a Second Amendment challenge brought by several individual plaintiffs, two firearm dealers, and the Gun Owners’ Action League. Young’s decision in Worman v. Healey represents the first time a court has ruled on the constitutionality of the Massachusetts statute. The Ronald Reagan appointee’s analysis follows the Fourth Circuit Court of Appeals’ approach in Kolbe v. Hogan, in upholding Maryland’s ban of semiautomatic rifles and large-capacity detachable magazines.
Young’s reasoning thus suffers from the same flaws found in Kolbe. As I explained at the time, the Fourth Circuit in Kolbe concluded “that the banned assault weapons and large-capacity magazines are not constitutionally protected arms” based on the majority’s misreading of the Supreme Court’s conclusion in Heller.
Heller said the Second Amendment guarantee “extends only to certain types of weapons” and that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.” The Kolbe majority concluded, therefore, that the AR-15, AK-47, and other banned “assault” weapons are “like” M-16 rifles, so “they are among those arms that the Second Amendment does not shield.”
There’s a Difference Between Auto and Semi-Auto, Judge
Kolbe ignored the rather obvious difference between the AR-15 and AK-47 and the M-16 rifles: The M-16 is an automatic weapon, while the AR-15 and AK-47 are semi-automatic. In contrast, Young acknowledged the difference, but brushed it aside: “[t]he AR-15 design is almost identical to the M16, except for the mode of firing.” But the mode of firing is not some mere trifle. It distinguishes between automatic weapons, which are essentially illegal, and semi-automatic rifles, which are among the most popular weapons in the United States.
Had the Kolbe and Worman courts properly heeded Heller, that latter fact would prove dispositive. The majority in Heller made clear that the question under the Second Amendment was “whether the law bans types of firearms commonly used for a lawful purpose.” “With AR-15 and AK-47-styled rifles accounting for approximately 20 percent of gun sales in the United States, those ‘assault’ weapons definitely qualify as ‘commonly used’ within the meaning of Heller.”
Ignoring the clear mandate of Heller, however, seems to come without consequence. The Supreme Court to date has refused to intervene, rejecting the petition to appeal in the Kolbe case, even though the Fourth Circuit’s analysis not only conflicted with Heller, but judged the constitutionality of laws under the Second Amendment contrary to the tests the Second and D.C. circuits applied, and the yet-different test applied in the Seventh Circuit.
When the Supreme Court’s Away, the Circuits Will Play
The Supreme Court’s indifference seems to have emboldened Young, who added some passive-aggressive pokes in his decision. Young’s decision liberally quoted the late Supreme Court Justice Antonin Scalia, the author of Heller and a hero to conservatives and Second Amendment enthusiasts.
Seemingly to assure his blow landed squarely on the Second Amendment audience, Young praised some of Scalia’s prose from the recently published bestseller, “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived,” before concluding his 47-page opinion with the supposed zinger, “Justice Scalia would be proud.”
Young’s closer missed the mark, though, as the National Rifle Association quickly pointed out: “It is outrageous that Judge Young is taking advantage of the fact that Justice Scalia is unable to refute such a claim. Justice Scalia’s position on the question of whether the AR-15 is protected by the Second Amendment is clear. In the 2015 Friedman v. City of Highland Park case, Justice Scalia joined a dissent which stated that the decision by millions of Americans to own AR-style rifles for lawful purposes ‘is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.’”
Of course, the Friedman dissent came in a Supreme Court order, not addressing the constitutionality of a ban of AR-15s and other similar weapons, but refusing to hear an appeal from the Seventh Circuit’s decision upholding the ban. To date, the justices remain intransigent, as seen last year when they rejected an appeal in Kolbe.
The Worman case may be the next best vehicle to reach the Supreme Court. First, though, the plaintiffs would need to appeal to the First Circuit Court of Appeals, which has never addressed the constitutionality of semi-automatic rifle bans. However, should the federal appellate court prove faithful to Heller, that would create a split in the circuits and likely force the Supreme Court to intervene.
Citizens Have No Idea Which Guns This Actually Bans
Even without a circuit split, though, Worman may provide the ideal scenario to pry open the doors to the Supreme Court because the Massachusetts case involves a statute that the state’s attorney general has interpreted so broadly it would seemingly bar virtually all semi-automatic firearms. The plaintiffs in Worman attempted to challenge this interpretation of the “assault-weapon” ban, which came in the form of a July 20, 2016, “Enforcement Notice.”
In that notice, the attorney general explained that a weapon is a prohibited “copy or duplicate” of an assault weapon, and thus barred by Massachusetts’ law, if it is “a semiautomatic rifle or handgun that was manufactured or subsequently configured with an ability to accept a detachable magazine,” or “a semiautomatic shotgun” and has internal functional components substantially similar to the assault weapons identified in the state statute or “has a receiver that is the same or interchangeable with the receiver” of one of the listed assault weapons.
The Worman plaintiffs argued that this “Enforcement Notice” impermissibly expanded the scope of the Massachusetts’ statute and made the law so vague that citizens could not reasonably understand what weapons are banned. The plaintiffs illustrated this problem by asking a state’s witness whether a Smith and Wesson MP-15 .22 would qualify as a “copy or duplicate,” and thus be a banned assault weapon. The government’s response? That it is not the position of the attorney general to answer questions about whether the Smith and Wesson MP-15 .22 would be considered a “copy or duplicate.”
Young refused to wade into the attorney general’s expansive reading of “assault weapons” in the Enforcement Notice, holding that a government official’s interpretation of clear statutory language cannot make the statute unconstitutionally vague. Rather, he concluded that any challenge to the notice must await concrete enforcement action by the attorney general.
Whether the Supreme Court will finally end the lower-courts’ flouting of Heller is yet to be seen. But, for now, one thing can be surmised from Young’s opinion: Ronald Reagan would be ashamed.
