What makes an HBAR an HBAR?

[Lawyer56]

Here is another quote regarding statutory interpretation from a Court of Appeals case (Maryland's highest appellate court) from April 9, 2013:

Our ultimate objective of statutory interpretation is “to ascertain and effectuate the
real and actual intent of the Legislature.” McCloud v. Dep’t of State Police, 426 Md. 473,
479, 44 A.3d 993, 996 (2012) (citation and quotation marks omitted). To do so, we must
“begin[] with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.” Bowen v. City of Annapolis, 402 Md. 587, 613, 937 A.2d 242, 257 (2007) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 563, 576, 870 A.2d 186, 193 (2005)). This plain meaning should be construed “to carry out and effectuate, or aid in, the general purposes and policies” of the statute being interpreted. Johnson v. State, 75 Md. App. 621, 630, 542 A.2d 429, 433 (1988) (citations omitted). When reading the statute, we apply “a common sense perspective” of how the statutory language is generally understood. Huffman v. State, 356 Md. 622, 628, 741 A.2d 1088, 1091 (1999)."

 

[Ab_Normal]

Here is another quote regarding statutory interpretation from a Court of Appeals case (Maryland's highest appellate court) from April 9, 2013:

Our ultimate objective of statutory interpretation is “to ascertain and effectuate the
real and actual intent of the Legislature.” McCloud v. Dep’t of State Police, 426 Md. 473,
479, 44 A.3d 993, 996 (2012) (citation and quotation marks omitted). To do so, we must
“begin[] with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.” Bowen v. City of Annapolis, 402 Md. 587, 613, 937 A.2d 242, 257 (2007) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 563, 576, 870 A.2d 186, 193 (2005)). This plain meaning should be construed “to carry out and effectuate, or aid in, the general purposes and policies” of the statute being interpreted. Johnson v. State, 75 Md. App. 621, 630, 542 A.2d 429, 433 (1988) (citations omitted). When reading the statute, we apply “a common sense perspective” of how the statutory language is generally understood. Huffman v. State, 356 Md. 622, 628, 741 A.2d 1088, 1091 (1999)."

Common sense...

 

[clarkcondor]

aside from the this legislation, it would be a decision for the company to determine what investment to place in certain items when there is some chance the markings may need to be removed. an example, a local high school was using a mascot symbol that was similar to a trademarked university one for over a decade before being informed of the violation and instructed to stop and design a new one.

 

[rwbow1969]

Negative. The 2A is the law of the land as stated in the US Constitution and acknowledged in the Md Constitution.
I believe the person who stated they will stamp HBAR is indeed a SOT manufacturer. If so no thin ice is involved.

Tell that to Chairman Owe'Maolley

 

[jr88]

What all of this will boil down is SB281 will be the law of the land. The way that HBARs' were dealt with prior to SB281 will be out the window. SB281 will supersede previous firearm law.

At the MSP/ATF training session the Major said "The guidelines for an HBAR will most likely be that of the Colt HBAR. Covering a .75" dia barrel or larger and Colts HBAR barrel specs." That's all that I have heard. Until the regulations come out on the 20th it's all guessing. Even what the good Major said cannot be taken as evident.

As far as HBAR being copyrighted by Colt, my Bushmaster has H BAR on the barrel, I guess the space between the H and the B covers that? I have not seen HBAR marked on a lower yet. Not to say they don't exist.

As far as an FFL stamping HBAR onto a regulated lower, that seems like real thin ice there.

-Will an HBAR be required to be sold as a "complete" firearm.

I would not be surprised at all to see the HBAR interpretation go this way after 10-1, after all their agenda is to limit access to ALL firearms.
The other issue that really bothers me is the "retroactive" interpretation being applied to the folks that bought from the Va. Dealer. If they try and apply the new "HBAR Law of the land" to all previous purchases, there would be a lot of good people getting screwed.

 

[Bolts Rock]

I would not be surprised at all to see the HBAR interpretation go this way after 10-1, after all their agenda is to limit access to ALL firearms.
The other issue that really bothers me is the "retroactive" interpretation being applied to the folks that bought from the Va. Dealer. If they try and apply the new "HBAR Law of the land" to all previous purchases, there would be a lot of good people getting screwed.

Doesn't ex post facto come into play here?

 

[dblas]

With due respect to the various opinions regarding "HBAR" stated in this thread, I believe that many of the opinions may be erroneous:

Annotated Code of Maryland, Maryland Public Safety Article, Section 5-101 ("Definitions"), states as follows (in part):

§ 5-101. Definitions


(a) In general. -- In this subtitle the following words have the meanings indicated.

....

(p) Regulated firearm. -- "Regulated firearm" means:

(1) a handgun; or

(2) a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon:

.....

(xv) Colt AR-15, CAR-15, and all imitations except Colt AR-15 Sporter H-BAR rifle;


Since the only explicitly specified "exception" from the definition of "regulated firearm" (with regard to copies or imitations of the Colt AR-15 and CAR-15) is the "Colt AR-15 Sporter H-BAR rifle," the specific wording of the law must be given its ordinary meaning and intent -- it does not appear to be ambiguous (to me).

I note that the 'exception" does not state "H-BAR rifles" generally or use similar generic language; the legislature was very specific in stating what was excepted (I do not know if other H-BAR rifles that were copies or imitations of the Colt AR-15 and/or CAR-15 were in existence at the time the law was written (if so, then that would lead me to believe that H-BARs other than the Colt AR-15 Sporter H-BAR rifle are regulated firearms, by definition), I do not know the legislative history of the law as to why it only and specifically excepted "Colt AR-15 Sporter H-BAR"; I do not know the history of the "Colt AR-15 Sporter H-BAR " when the law was enacted, etc. -- in short, I do not know why a specificly intended exception was made in the law for "Colt AR-15 Sporter H-BAR.")

I further note that the term "H-BAR" does not appear anywhere else in Section 5-101 other than in (p), and '"Regulated firearm" means: .... (2) a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon:"

I could not find a definition of "H-BAR" or "HBAR" in the Maryland statute and therefore I question, under Maryland law, what makes a H-BAR a H-BAR (or if it even matters under Maryland law). If Maryland law intended to exclude all H-BARs, even those that would otherwise be a copy or imitation of a listed regulated firearm, from the definition of regulated firearm, why was "H-BAR" not defined in Section 5-101?

I am not providing a formal legal opinion here and no one should rely on anything stated herein (I might be wrong in my beliefs because I have not exhaustively researched the issue and cannot and will not provide my legal opinion in this regard) but I, personally, seriously question at this time whether H-BARs in general, other than the Colt AR-15 Sporter H-BAR specifically stated (excluded) in the law, that are imitations or copies of the Colt AR-15 and CAR-15, are excluded from the definition of "regulated firearm."

I am also concerned that so many of you are relying on the MSP (or someone who answers the telephone at MSP) for an opinion that all H-BARs sold/transferred in Maryland are non-regulated. Unless someone can point me to authority to the contrary, I am unaware that the interpretation of the law by the MSP is authoritative or would have any effect on the decision to charge and/or prosecute someone for violation of Maryland law.

So how may other manufacturers where making H-BAR Ar rifles in 1989, when the first 29 items where put on the regulated list? My guess is 0, since the Colt Sporter HBAR was the only one used at the time in national matches, it was made exempt by name.

So what happens when other manufacturers start to make an HBAR rifle? Do they have to go to the legislature to ask permission to be added as an exemption to the list? No, they ask MSP since MSP since it would be too bulky to wait for over a year to have a firearm added to the legislation every time a new one comes out. This is evident by the letter, dated August, 1998 from MSP stating that the Bushmaster H-BAR is unregulated. Since then, MSP has moved on to the stance that if a dealer can articulate that it is an HBAR sufficiently, then it is unregulated. If enough dealers articulate it, then MSP makes it so, and that is the end of the issue for that firearm.

I guess the shorter route would be to have a Authorized Rifle Review Board, similar to the Handgun Review Board, with regards to what may and may not be sold in MD.

But do we really want that? Why are we picking apart something that benefits us and giving the other side more ideas and directions on how to further infringe on our rights?

Below is the August 1998 MSP letter.

 

[dblas]

There is nothing left for interpretation here. It says that the only heavy barrel rifle that is exempt/unregulated is the Colt AR-15 Sporter H-BAR rifle specifically.

So you are willing to say "MSP can't tell me I am OK to buy that firearm, because it is not in the legislation?" If you are, then have fun with the limited list of items you look for.

 

[dblas]

For those of you who are interested in how Maryland's appellate courts interpret laws, here are the established principles, as quoted from appellate cases:

"we are guided by the following well-established principles of statutory construction:
When undertaking an exercise in statutory interpretation, as in the present case, the goal is to “ascertain and effectuate the intent of the Legislature.” In attempting to discern the intent of the Legislature, courts “look first to the plain language of the statute, giving it its natural and ordinary meaning.” If the language of the statute is clear
and unambiguous, courts will give effect to the plain meaning of the statute and no further sleuthing of statutory interpretation is needed. If the sense of the statute is either unclear or ambiguous under the plain meaning magnifying glass, courts will look for other clues — e.g., the construction of the statute, the relation of the statute to other
laws in a legislative scheme, the legislative history, and the general purpose and intent of the statute.

It is well-settled that a court must read a statute in the context of its statutory scheme, ensuring that “no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory,” and that any illogical or unreasonable interpretation is avoided."

So, with respect to commercially manufactured items (in this case Colt Sporter HBAR), how would that compare to a law written to state that all trucks are regulated (soon to me banned) with the exception of the Ford 1/2 ton pick-up truck?

Can legislation and law be made to allow only a specific make/manufacturer? Would that not go against the interstate commerce clause and every other law dealing with monopolies and non government manufacturing?

 

[Blaster229]

So you are willing to say "MSP can't tell me I am OK to buy that firearm, because it is not in the legislation?" If you are, then have fun with the limited list of items you look for.

Look. To read the law as it states, it is specific to say that only the Colt HBAR is the exception.
I am not looking for work arounds/ambiguity, etc... because I am not wanting to purchase something specific. Regardless what has been sold and will be sold, to read the law as it is written seems pretty clear cut.

 

[Brooklyn]

Look. To read the law as it states, it is specific to say that only the Colt HBAR is the exception.
I am not looking for work arounds/ambiguity, etc... because I am not wanting to purchase something specific. Regardless what has been sold and will be sold, to read the law as it is written seems pretty clear cut.

I am pretty sure that only a court gets to do this. But don't worry it will happen soon enough.

BTW if want to impune the motives of others, may I ask what what your motive for doing so is? If you ascribe bad faith to others you should expect the same treatment.

Of course the MSP has a different view of the law. Are you offended that the industry has chosen to rely on their expert opinion, rather than rely on 'this is not legal advice' commentary? If so I apologize, but the MSP has made rules and statements which they have not rescinded. When and if they do perhaps you will be vindicated. But it will still represent a change in the law as applied as a matter of published policy.

 

[Ab_Normal]

I am pretty sure that only a court gets to do this. But don't worry it will happen soon enough.

BTW if want to impune the motives of others, may I ask what what your motive for doing so is? If you ascribe bad faith to others you should expect the same treatment.

Of course the MSP has a different view of the law. Are you offended that the industry has chosen to rely on their expert opinion, rather than rely on 'this is not legal advice' commentary? If so I apologize, but the MSP has made rules and statements which they have not rescinded. When and if they do perhaps you will be vindicated. But it will still represent a change in the law as applied as a matter of published policy.

This.

If someone wants to voluntarily restrict themselves of or from something please don't project your restrictions upon others. Remember, this is the same methodology of the gun control crowd.

 

[dblas]

This.

If someone wants to voluntarily restrict themselves of or from something please don't project your restrictions upon others. Remember, this is the same methodology of the gun control crowd.

 

[fabsroman]

This.

If someone wants to voluntarily restrict themselves of or from something please don't project your restrictions upon others. Remember, this is the same methodology of the gun control crowd.

The MSP expert opinion. Now that is laughable. I really have to wonder what makes them qualified as experts on these subjects, and if they are experts why do they have to ask the AG for his opinion. Not only that, but if they are experts on this stuff, why did the regs take so long to come out?

For those of you that want to err on the side of caution regarding this (i.e., not end up being a test case or worse, a test case where you end up spending a ton of money on legal fees and end up being found guilty anyway which results in the loss of your 2nd Amendment Right), then buy a Colt Sporter HBAR. I know that is what I am going to end up doing after October 1, 2013. The risk is just not worth it for me.

Those of you that want to push the envelope slightly, rely on the MSP letter from 1998 wherein it states that the Bushmaster HBAR is unregulated (i.e., cash & carry).

End of the day, the Court of Appeals is the final say on what is exempted from the Colt Sporter HBAR exemption. I hope this never gets that far, but you know how hoping can go.

For those of you taking the position that any brand AR-15 with a heavy barrel is exempted, please don't try to force your opinion on others, because should you be wrong others end up facing dire consequences. It is one thing to advise people to err on the side of caution, but a completely different thing to advise people to push the envelope which could result in possible prison time and loss of their 2nd Amendment Rights.

For those of you debating whether to push the envelope or err on the side of caution, ask yourself if the money saved on a different brand HBAR other than a COLT is worth the risk.

One thing I think we can all agree on is that MSP and the AG are NOT the final authority on what the law is. They can give opinions. Attorneys can give opinions. The laymen out there, which is probably the majority in this thread, can "pretend" to practice law and give their opinions. However, at the end of the day the final say on what is exempted is the Maryland Court of Appeals and regarding Constitutionality it is the Supreme Court of the United States of America.

 

[Brooklyn]

The MSP expert opinion. Now that is laughable. I really have to wonder what makes them qualified as experts on these subjects, and if they are experts why do they have to ask the AG for his opinion. Not only that, but if they are experts on this stuff, why did the regs take so long to come out?

For those of you that want to err on the side of caution regarding this (i.e., not end up being a test case or worse, a test case where you end up spending a ton of money on legal fees and end up being found guilty anyway which results in the loss of your 2nd Amendment Right), then buy a Colt Sporter HBAR. I know that is what I am going to end up doing after October 1, 2013. The risk is just not worth it for me.

Those of you that want to push the envelope slightly, rely on the MSP letter from 1998 wherein it states that the Bushmaster HBAR is unregulated (i.e., cash & carry).

End of the day, the Court of Appeals is the final say on what is exempted from the Colt Sporter HBAR exemption. I hope this never gets that far, but you know how hoping can go.

For those of you taking the position that any brand AR-15 with a heavy barrel is exempted, please don't try to force your opinion on others, because should you be wrong others end up facing dire consequences. It is one thing to advise people to err on the side of caution, but a completely different thing to advise people to push the envelope which could result in possible prison time and loss of their 2nd Amendment Rights.

For those of you debating whether to push the envelope or err on the side of caution, ask yourself if the money saved on a different brand HBAR other than a COLT is worth the risk.

One thing I think we can all agree on is that MSP and the AG are NOT the final authority on what the law is. They can give opinions. Attorneys can give opinions. The laymen out there, which is probably the majority in this thread, can "pretend" to practice law and give their opinions. However, at the end of the day the final say on what is exempted is the Maryland Court of Appeals and regarding Constitutionality it is the Supreme Court of the United States of America.

I believe, the AG said in court that they differ to The MSP when determining the factual question of weather a given firearm is on the regulated list or not.

Maybe you could help us find that reference? After all we are all laymen and lack your knowledge and experience, not to mention a west law subscription

Thanks in advance ...

Edit: You may want to consider that the issue goes far beyond post 1 oct 2013. I am sure that post 1 oct 2013, no sales of any kind will occur without a court finding. But as a laywer you may wonder about all those non colt hbars that have already been sold as non-regulated. ....

 

[Ab_Normal]

I believe, the AG said in court that they differ to The MSP when determining the factual question of weather a given firearm is on the regulated list or not.

Maybe you could help us find that reference? After all we are all laymen and lack your knowledge and experience, not to mention a west law subscription

Thanks in advance ...

Edit: You may want to consider that the issue goes far beyond post 1 oct 2013. I am sure that post 1 oct 2013, no sales of any kind will occur without a court finding. But as a laywer you may wonder about all those non colt hbars that have already been sold as non-regulated. ....

The reference from the AG is on pages 108-109 of the Gansler ruling.

 

[fabsroman]

I believe, the AG said in court that they differ to The MSP when determining the factual question of weather a given firearm is on the regulated list or not.

Maybe you could help us find that reference? After all we are all laymen and lack your knowledge and experience, not to mention a west law subscription

Thanks in advance ...

Edit: You may want to consider that the issue goes far beyond post 1 oct 2013. I am sure that post 1 oct 2013, no sales of any kind will occur without a court finding. But as a laywer you may wonder about all those non colt hbars that have already been sold as non-regulated. ....

If the court case is not an appellate opinion, then it does not get posted to Westlaw, Nexis, Fastcase, etc. I might have read what you are alluding to in the 8 day release/backlog case from May, but am not 100% sure. Those documents are as available to you as they are to me (i.e., AGC website or the actual courthouse).

Regarding the AG deferring to the MSP for factual findings, the AG pretty much has to. The AG or somebody from the AG's office cannot take the stand and testify regarding the facts of the case. It has to be somebody testifying on the State's behalf that is not with the AG's office.

Now, as far as MSP being experts, let's just look at the AG opinion letter regarding copies. The MSP was treating almost all assault weapon look alike .22lr guns as assault weapons. The AG put out an opinion letter in April 2010 regarding the copy issue and then the MSP issued Bulleting 10-1 and 10-2 in November 2010 regarding the .22lr copy and copies in general. Yep, the MSP is indeed the experts in this matter. Maybe the MSP needed some advice from the AG's office as to exactly what a "copy" was before it could start looking at parts and comparing things. Not every expert is created equal and some of these people at the MSP are far from experts. I have some LEO friends that hardly even know anything about guns other than what they specifically own and/or have issued to them.

I also understand the issue in regards to "HBARs" being bought pre October 1, 2013 and being considered cash and carry when sold and then being considered regulated now and BANNED after October 1, 2013. I have a position on the matter, but am not going to put it out there.

How does the saying go, "Caution is the better part of valor". It applies in this case and HBARs. When buying one, take into account the risk factors and be at peace with your decision.

 

[Brooklyn]

If the court case is not an appellate opinion, then it does not get posted to Westlaw, Nexis, Fastcase, etc. I might have read what you are alluding to in the 8 day release/backlog case from May, but am not 100% sure. Those documents are as available to you as they are to me (i.e., AGC website or the actual courthouse).

Regarding the AG deferring to the MSP for factual findings, the AG pretty much has to. The AG or somebody from the AG's office cannot take the stand and testify regarding the facts of the case. It has to be somebody testifying on the State's behalf that is not with the AG's office.

Now, as far as MSP being experts, let's just look at the AG opinion letter regarding copies. The MSP was treating almost all assault weapon look alike .22lr guns as assault weapons. The AG put out an opinion letter in April 2010 regarding the copy issue and then the MSP issued Bulleting 10-1 and 10-2 in November 2010 regarding the .22lr copy and copies in general. Yep, the MSP is indeed the experts in this matter. Maybe the MSP needed some advice from the AG's office as to exactly what a "copy" was before it could start looking at parts and comparing things. Not every expert is created equal and some of these people at the MSP are far from experts. I have some LEO friends that hardly even know anything about guns other than what they specifically own and/or have issued to them.

I also understand the issue in regards to "HBARs" being bought pre October 1, 2013 and being considered cash and carry when sold and then being considered regulated now and BANNED after October 1, 2013. I have a position on the matter, but am not going to put it out there.

How does the saying go, "Caution is the better part of valor". It applies in this case and HBARs. When buying one, take into account the risk factors and be at peace with your decision.

The word expert in the law is always suspect. But it carries weight when the AG says it. The option of the MSP is not law, nor the opinion of the AG, but it goes a long way when impeaching a claim of malfeasance, to rely on expert opinion as designated by the AG. Now if it were me I would wait for clarification post 1 oct 2013. There is nothing that says the MSP can't change its policy( subject to the court ),but the claim that it is not a change is suspect.


In any case it is unwise to do something because you want to push anything. Every dealer I have heard speak to this subject has been comfortable after speaking with MSP on the matter. Unless MSP has been operating in bad faith for nearly 20 years there is change afoot ...

 

[Brooklyn]

The MSP expert opinion. Now that is laughable. I really have to wonder what makes them qualified as experts on these subjects, and if they are experts why do they have to ask the AG for his opinion. Not only that, but if they are experts on this stuff, why did the regs take so long to come out?

For those of you that want to err on the side of caution regarding this (i.e., not end up being a test case or worse, a test case where you end up spending a ton of money on legal fees and end up being found guilty anyway which results in the loss of your 2nd Amendment Right), then buy a Colt Sporter HBAR. I know that is what I am going to end up doing after October 1, 2013. The risk is just not worth it for me.

Those of you that want to push the envelope slightly, rely on the MSP letter from 1998 wherein it states that the Bushmaster HBAR is unregulated (i.e., cash & carry).

End of the day, the Court of Appeals is the final say on what is exempted from the Colt Sporter HBAR exemption. I hope this never gets that far, but you know how hoping can go.

For those of you taking the position that any brand AR-15 with a heavy barrel is exempted, please don't try to force your opinion on others, because should you be wrong others end up facing dire consequences. It is one thing to advise people to err on the side of caution, but a completely different thing to advise people to push the envelope which could result in possible prison time and loss of their 2nd Amendment Rights.

For those of you debating whether to push the envelope or err on the side of caution, ask yourself if the money saved on a different brand HBAR other than a COLT is worth the risk.

One thing I think we can all agree on is that MSP and the AG are NOT the final authority on what the law is. They can give opinions. Attorneys can give opinions. The laymen out there, which is probably the majority in this thread, can "pretend" to practice law and give their opinions. However, at the end of the day the final say on what is exempted is the Maryland Court of Appeals and regarding Constitutionality it is the Supreme Court of the United States of America.

I am not aware that this firearm is in the colt catalog any longer...

I will be at a colt distributor this coming weekend I will ask...

 

[Merlin]

Tell me, which of the following are HBARS? BTW, none of them were transferred on a 77R!

What I do know is I want the name of your gun dealer so I can stat sending all my business their way.