(CN) — The First Circuit heard arguments Tuesday in one of several suits challenging gun regulations in the wake of a recent U.S. Supreme Court decision creating new tests for such rules, this one seeking to overturn a Massachusetts law that forbids retailers from selling handguns that do not meet a number of safety standards.
A coalition of gun merchants and gun rights advocates filed suit in 2021 to stop Massachusetts from enforcing a regulatory scheme which they claim effectively banned the sale of 18 types of handguns available elsewhere in the country.
The state law requires that handguns sold by gun sellers who make more than five sales a year not be made of “inferior materials,” not be prone to malfunctions like repeated firing from a single trigger pull or exploding, pass “drop tests” to determine that they are not especially prone to accidental discharges, and have safety devices built in, among other requirements. The Massachusetts Executive Office of Public Safety and Security is also required to compile and publish an “approved firearms roster” of guns that meet those requirements.
A federal judge dismissed the suit seeking to overturn these rules in May 2022, but the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen just a month later gave courts a new set of criteria to determine whether firearms regulations violate Second Amendment rights. In Bruen, the high court unseated the two-part test used to evaluate gun regulations after the 2008 District of Columbia v. Heller decision in favor of a new requirement that judges compare gun restrictions to analogues in earlier U.S. history– an analysis the plaintiffs in the Massachusetts case argue should now be required in their case.
“Given the posture of the case, we don’t believe that it could be that the district court could simply be affirmed in light of Bruen,” attorney Bradley Benbrook told the three-judge panel of U.S. Circuit Judges David Barron, Bruce Selya and O. Rogeriee Thompson. “Massachusetts can’t avoid Bruen’s test by calling these restrictions ‘presumptively lawful’ conditions or qualifications for commercial sale.”
Benbrook, arguing for the plaintiffs, said that the restriction on commercial sale functioned as a ban on firearms not on Massachusetts’ approved list, and that whether or not Bruen completely extinguished Heller’s framework, the state’s rules didn’t pass muster. By making the purportedly unsafe guns prohibitively difficult to obtain through regular channels in the state, the attorney said, Massachusetts had effectively banned them.
“If the effect is to significantly suppress speech, it’s a First Amendment violation even if the local government says ‘well, this is a time-place and manner regulation,’” Benbrook said by way of comparison. “If regulations… function to ban guns, then they have to be put to Bruen’s test.”
Arguing for Massachusetts, Assistant Attorney General Tim Casey said the restriction on commercial sale does not prohibit or prevent would-be gun purchasers from obtaining guns not on the state’s list, at least not with sufficient thoroughness to implicate the Second Amendment.
“The Second Amendment right is not the right to keep and carry a weapon with the owner’s preferred finish, or with an ergonomically comfortable grip. It is a right to engage, by law-abiding citizens, to engage in armed self-defense,” Casey said.
As such, he argued, the Bruen test would not apply to the rules. Instead, under the Heller test, the safety regulations were entitled to a presumption of lawfulness as “conditions or qualifications” for the commercial sale of weapons.
Even with the Bruen test applied, Casey said, the state could point to its own colonial-era regulations on gun and gunpowder storage, prohibitions on sales of weapons to minors and bans of gun modifications that made them “unusually dangerous” as satisfying the requirement that judges examine regulatory history when making Second Amendment decisions.
Barron and Thompson, both Barack Obama appointees, paid close attention to the difficulties of bringing firearms into Massachusetts from other states.
“I don’t know much about firearms but I don’t think it’s an easy matter to transport them across state lines by private parties looking to put them into the hands of private sellers,” Barron quipped in his questioning of Casey, who replied that private handgun transport and sales weren’t made more difficult by these rules, and so those difficulties weren’t part of the matter being considered.
Asked by Thompson whether a purchaser could drive to Rhode Island, purchase a gun and bring it back to Massachusetts without triggering legal repercussions, Casey confirmed that they couldn’t.
“It may well be the case that it’s harder to get one of these particular weapons through a private sale than through a commercial transaction,” Casey said, “but we still think that has no bearing on a Second Amendment right.”
On rebuttal, Benbrook argued that not only would Bruen overturn Massachusetts’ rules, but Heller would have, too.
“There are flavors of the argument… that Massachusetts made in its brief that plaintiffs are seeking to have any gun whatsoever,” he said. “Heller went on to say that one of the limitations of the Second Amendment is that whatever the other limitations are, it does protect guns in common use, and handguns are in common use.”
The judges did not indicate when they would issue a ruling.
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