Constitutional Concerns Regarding Article 34

The proponent of Article 34 stated that because the Supreme Court refused to hear a challenge to the Highland Park case, that there would be no issue regarding its compliance with the 2nd Amendment.  At the time of the Supreme Court’s inaction on Highland Park, there were no conflicting lower court rulings.  Subsequently, in Kolbe v Maryland, the 4th Circuit applied “strict scrutiny” to Maryland’s assault weapons ban, found that the firearms in question were in “common use” and referred the case back to district court.  So the 2nd Amendment issue is very much alive, as we now have conflicting lower court cases that may soon require the Supreme Court to adjudicate.

Article 34 holds that “Any weapons or magazines deemed illegal in accord with this amended by-law within the Town of Lexington shall be seized and destroyed by the police of the Town of Lexington.” The Fourth Amendment holds that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

If Lexington seizes firearms without a warrant, that would appear to be a 4th Amendment violation. And if it seeks a warrant, on what basis would a Massachusetts judge issue one, seeing that the firearms are legal under Massachusetts law?

Regarding the 5th amendment, it holds that:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Article 34 would deprive firearms owners of their property with no due process.  The police, in their sole judgement, would deem a firearm non-compliant and seize it. This would appear to be a violation of the 5th Amendment.

Lexington has many real issues facing it.  Does the town really want to be distracted by, and squandering resources on, constitutional challenges to a by-law that even its proponent concedes is symbolic?

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