In a poignant rebuke of the Massachusetts handgun roster, which bans many handguns in common use from commercial sale in Massachusetts, the U.S. Department of Justice (DOJ) Civil Rights Division submitted an amicus brief to the U.S. Court of Appeals for the First Circuit in the case Granata v. Campbell.
In this case, the plaintiffs originally sued Massachusetts officials in June 2021 in U.S. District Court for the District of Massachusetts. The lawsuit is a challenge to Massachusetts’ handgun regulatory scheme—specifically the state’s “Approved Firearms Roster” and Handgun Sales Regulations—as unconstitutional under the Second and Fourteenth Amendments because it prohibits commercial sale of many common modern handguns not on the roster.
The case is now on appeal after it was dismissed in 2022—the lower court had concluded that the handgun safety regulations placed at most a modest burden on the right to keep and bear arms.
The DOJ’s Civil Rights Division opted to weigh in to let the federal appeals court know how the federal government stands on this issue.
The Civil Rights Division’s brief is clear and to the point: “In determining which arms the Second Amendment protects, courts must ask whether the arms are ‘in common use’ among law-abiding citizens for lawful purposes—not rely on their own intuitions about which types of arms are useful for traditionally lawful purposes. Some courts have declined to apply this common-use test, but that approach is erroneous. The common-use test has deep roots in both English and American law, and the Supreme Court has repeatedly invoked it in its Second Amendment cases.”
In its introduction, the Civil Rights Division’s brief states the basic argument simply:
“The Second Amendment guarantees law-abiding citizens the right to acquire, possess and carry arms that are in common use for lawful purposes by law-abiding citizens. That principle is not new. It is settled Supreme Court precedent. In District of Columbia v. Heller, the Court held that arms ‘in common use’ by law-abiding citizens may not be prohibited. The Court has reaffirmed that rule repeatedly, explaining that the Second Amendment protects weapons that are commonly possessed for lawful purposes by law-abiding citizens and forbids governments from banning such arms. This case implicates that basic constitutional guarantee.”
Massachusetts uses a “firearm control advisory board” to approve some models of handguns for its “Approved Firearms Roster.” The criteria for this roster are arbitrary. It results in the banning for sale of many handguns in Massachusetts that are popular with American citizens in other states that do not impose such sales restrictions. According to the U.S. Supreme Court’s Bruen test, this should make this roster unconstitutional.
This DOJ brief puts it this way: “Although the Commonwealth characterizes its regime as a set of safety regulations, the effect of the law is to bar ordinary citizens from acquiring widely owned and commonly used arms. Under Supreme Court precedent, a State may not accomplish indirectly what it is forbidden to do directly: prohibit arms that fall within the Second Amendment’s core protection.”
This brief also tackles the lower-court decision that tossed out this case by saying, “The Court also held that the law did not truly preempt access to arms in common use because the plaintiffs could still purchase them outside the State. In so doing, the district court adopted precisely the approach the Supreme Court warned against in Bruen, subjecting a fundamental right to a preclearance regime that would fail comparable constitutional analysis.”
The Civil Rights Division’s brief notifies the First Circuit as to how it views U.S. Supreme Court precedents with straightforward statements such as: “Because Massachusetts law prohibits the sale of arms that are in common use, it conflicts with the Second Amendment’s text as interpreted by the Supreme Court. The judgment below should therefore be reversed.”
This kind of constitutional clarity from the DOJ may make it difficult for activist courts to develop yet more clever means to deny this basic civil right to citizens.
