Massachusetts Ban on Most Self‐​Defense Firearms Violates Second Amendment

Massachusetts law currently prohibits ownership of “assault weapons,” the statutory definition of which includes the most popular semi-automatic rifles in the country, as well as “copies or duplicates” of any such weapons. As for what that means, your guess is as good as ours. A group of plaintiffs, including two firearm dealers and the Gun Owners’ Action League, challenged the law as an unconstitutional violation of their Second Amendment rights. Unfortunately, both a federal trial judge and appellate court upheld the ban—though they could not agree on why.

The trial judge followed the lead of the Maryland case of Kolbe v. Hogan (in which Cato filed a brief supporting a petition to the Supreme Court), misconstruing from a shred of the landmark 2008 Supreme Court opinion in District of Columbia v. Heller that the test for whether a class of weapons could be banned was whether it was “like an M-16.” Meanwhile, the U.S. Court of Appeals for the First Circuit (in which Cato also filed a brief), conjured up a complex interest-balancing test that boiled down to a much simpler question: is it like a handgun? If not, the weapon is not sufficiently “well-suited” to self-defense in the home and can be banned. Both tests contravene the core holding of Heller that all weapons in common civilian use are constitutionally protected.

The plaintiffs are now asking the Supreme Court to hear their case. Cato, joined by several organizations interested in the protection of our civil liberties, has filed an amicus brief supporting the plaintiffs’ petition. We discuss how the federal circuit courts have, absent further guidance from the Supreme Court, stumbled around in the dark in their attempts to apply Heller’s “common use” test.