Judge says shops can challenge AG’s gun ban

Bay State gun shops challenging Attorney General Maura Healey’s enforcement notice regarding assault weapons have made a case that the directive is unconstitutional and will have their day in court, a federal judge has ruled.

Healey’s July 20, 2016, enforcement notice has been challenged by business owners who argue that it has caused uncertainty as to what constitutes a “copy” or “duplicate” under the state’s assault weapons ban. They say that a “fear of prosecution” has caused them to stop selling certain weapons that they had previously sold.

They argue that the AG’s notice is unconstitutionally vague, violates the Second Amendment and deprives gun shops of property without due process. U.S. District Court Judge Timothy Hillman yesterday ruled that their case has merit and denied a motion to dismiss brought by Healey’s office.

“At this stage, the Court finds that the Complaint is sufficient to establish a plausible claim that the Attorney General’s actions have deprived the Plaintiffs of property without due process,” Hillman wrote.

Healey’s enforcement notice sought to clarify what constitutes a copy or duplicate weapon by outlining two tests.

But attorneys for the gun shops say they asked Healey’s office for guidance after her office issued a clarifying directive on Aug. 18, 2016, but they were told to “use their best judgment,” according to court documents. In turn, they argue that they have not been given fair notice as to what gun sales are barred.

“This Court cannot dismiss the Plaintiffs’ challenge to the Notice because they have raised genuine questions as to whether it gives ‘fair notice of conduct that is forbidden’ with respect to the same of certain weapons,” Hillman wrote.

Healey argued that even if she were required to take down the notice, her office could still prosecute gun shops for selling copies or duplicates of the weapons she listed, rendering the lawsuit useless. But Hillman said there “are a range of potential remedies that would mitigate the harm caused by a lack of clarity in the Attorney General’s communication on this matter.”

Jillian Fennimore, a spokeswoman for Healey’s office, said, “Our Enforcement Notice has effectively ended the illegal sale of assault weapons in Massachusetts, and we will continue to vigorously oppose this challenge.”

Lawrence G. Keane, senior vice president and general counsel for the Connecticut-based National Shooting Sports Foundation Inc., a plaintiff in the lawsuit, said in a statement that Healey “overstepped her authority when she issued the ‘enforcement notice’ banning certain firearms that have been lawfully sold in the state since at least 1998.”