2016-03-21-ATM-Article 34 of 2016 - assault-weapon-ban-town counsel opinion-rpt

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CONFIDENTIAL: ATTORNEY-CLIENT COMMUNICATION ANALYSIS A. Comparison of Relevant Assault Weapons Bans 1. Massachusetts AWB As of September 1994, Massachusetts has banned most assault weapons and large capacity feeding devices: "No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994." G.L. c. 140, § 131M. Massachusetts defines the term "assault weapon" as a rifle,pistol or shogun with certain combinations of specific attributes such as the ability to accept a detachable magazine. In addition, the statute bans specific makes and models of weapons, or copies or duplicates of those weapons. G.L. c. 140, § 121. For a detailed summary of assault weapon definitions under Massachusetts law, see Exhibit A. 2. Proposed Bylaw The proposed bylaw adopts several provisions of the Highland Park ordinance, including its definitions of assault weapon and large capacity magazine. There are only a few differences between the Highland Park ordinance and the proposed bylaw; for example, the proposed bylaw does not include the ordinance's 60-day grace period for citizens to surrender banned weapons. For specific features of the Highland Park ordinance, see Exhibit B. Violation of the proposed bylaw would be a misdemeanor, but punishable only by a flat fine of $1000—the proposed language does not contemplate imprisonment or a range of fines. The prohibitions in the Massachusetts AWB are similar to the proposed bylaw, but slightly less restrictive. The Massachusetts AWB bans only selling, offering to sell, transferring, or possessing assault weapons. The proposed bylaw's language is more expansive: no person shall "manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire or possess" assault weapons. Other than the ban on manufacturing, in practice the banned activities do not differ substantially. The Massachusetts AWB's definition of assault weapons requires a semiautomatic rifle or pistol to meet three requirements: that it has the capacity to accept a detachable magazine, and two additional specified features. The proposed bylaw requires that a rifle or pistol have the capacity to accept a detachable magazine and only one additional specified feature. The requirements for semiautomatic shotguns in the two AWBs are virtually identical. The list of specifically-banned makes and models of weapons in the Massachusetts AWB is different than the proposed bylaw modeled after the Highland Park ordinance—this difference is likely due at least in part to changes in manufacturing over the last 20 years. B. State Preemption & Home Rule Analysis 1. Legal Standard Home rule and state preemption issues are subject to substantively identical analyses. Under the Home Rule Amendment of the Massachusetts Constitution, municipalities retain the {A0339303.I 1 2