What makes an HBAR an HBAR?

[clarkcondor]

Do we have any actual, written guidance or direction from MSP or legislators as to what qualifies an AR-15 as an HBAR that is exempt from the ban on "Assault Long Guns"? I know that historically, it's been treated as "if the lower is marked HBAR, it's an HBAR".

But what about HBAR-marked lowers sold with non-HBAR uppers? Or non-HBAR-marked lowers sold with HBAR-like uppers? Is threshold of "HBAR-ness" based on what's stamped on the lower, overall configuration, both, or something else?

Moving forward, I feel like we really need a very clear explanation from either legislators or the MSP.

There is the other issue of the registered trademark.

I spoke to Andy from Engage yesterday at the show. Said he's going to stamp HBAR on their lowers after 10/1.

Is he aware that would risk a trademark infringement since "HBAR" is registered to Colt?

 

[occbrian]

Is he aware that would risk a trademark infringement since "HBAR" is registered to Colt?

Proof?

Hbar. Not hbar sporter.

 

[clarkcondor]

Proof?

Hbar. Not hbar sporter.

http://www.uspto.gov/

 

[Lawyer56]

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.

 

[Blaster229]

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.

 

[HumbleEinstein]

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.

With all respect, I find your legal analysis lacking. The reason the new law doesn't entirely make sense is the people who wrote it don't fully comprehend the complexities of the firearms they intended to ban or the exceptions they intended to make. The language of SB281 regarding the Sporter exception is ambiguous at best. You can argue that they intended to include or exclude copies of HBARs, and that is because they didn't seem to know either way. Regardless, the people at MSP Licensing do understand the complexities of these firearms and that is why they are interpreting the the exception to include all HBARs. If the AG decides to recognize only the Colt Sporter, which I doubt it will since they are presumably in close consultation with MSP, then that interpretation will ultimately be struck down by the courts as unconstitutional and it may even take down the rest of SB281 with it. It would be a violation of the 14th Amendment's [substantive] due process protection against arbitrary or capricious government action. The government of Maryland cannot arbitrary decide that a product made by Colt is okay, while a product that is essentially the same in every way that is made by another company is illegal.

THIS IS NOT LEGAL ADVICE

 

[ShallNotInfringe]

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.

Using this logic, all other non-Colt AR-15's are not banned after 10/1.

The problem is they use this clause at the top: "or their copies, regardless of which company produced and manufactured that assault weapon: "

so either it applies to what they ban specifically by brand name or not. If they specifically exclude one brand name all copies, regardless of which company produced and manufactured it are excluded also.

If the state tries to claim they only allow one brand name and model of HBAR to be purchased in the state, rather than its characteristics, they open themselves up to commerce lawsuits.

 

[Mark75H]

If the state tries to claim they only allow one brand name and model of HBAR to be purchased in the state, rather than its characteristics, they open themselves up to commerce lawsuits.

Doesn't the handgun roster already work that way? If a new manufacturer makes a 1911 clone, I'm pretty sure that manufacturer's gun has to be presented for approval, even if the gun is 100% identical to millions of other 1911's.

(As I understand it, even if a current manufacturer changes the model designation of a handgun, the new model has to be presented for approval)

 

[jr88]

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.

I have always felt this to be the case as well. But for years FFL's in this state have been instructed differently while other FFL's simply interpreted it differently. I have never heard of a person being challenged by the state of Md. on this issue until now with the case of the Va. dealer audit.
So the bigger question is; are thousands of Md gun owners who were to the best of their ability following the law in making purchases now suddenly being considered in violation of Md. firearms laws? Are all the FFL's who sold the rifles in question guilty of violations? Why would all of this change now? Suppose a non-Colt rifle was bought/sold several years ago, is there a statue of limitations? This would all be like changing the rules of a football game with 2 minutes left, and nullify earlier plays.
When our governments pass laws like SB281 it is one thing, but IF they try to do things like are being mentioned lately, it can and should cause serious repercussions.

 

[ShallNotInfringe]

Doesn't the handgun roster already work that way? If a new manufacturer makes a 1911 clone, I'm pretty sure that manufacturer's gun has to be presented for approval, even if the gun is 100% identical to millions of other 1911's.

(As I understand it, even if a current manufacturer changes the model designation of a handgun, the new model has to be presented for approval)

Yes it does, but it allows for application to be added, so there is nothing preventing a manufacturer from having a model added. The handgun roster is not codified into law. It is managed by regulations and a board. And a lot less time...

It takes a legislative action to change the list of banned items, there is no ability to have a model added by application. Thus, is different.

 

[Les Gawlik]

I think the best thing we have going for us is the long-standing administrative interpretation of the previous law, from which the language of SB281 was taken.

An analysis of legislative intent always begins, and sometimes ends with, the language of the statute. If it is unambiguous, the analysis is complete. The court does not need to interpret the law, only apply it. However, a statute is to be interpreted in a way that is constitutional if at all possible.

The former law regarding regulated weapons was arguably ambiguous. The MSP is tasked with establishing administrative regulations to implement the legislature's language. They did so, and determined that the HBAR language was generic, and not specific to one manufacturer. That has been the administrative interpretation for nearly as long as the law establishing regulated rifles has been in effect. SB281 used the same language to ban those rifles, with the same exemption that the previous law had. I am familiar with the legislative history of SB281, and I heard nothing indicating that the previous interpretation of the HBAR language was an item with which the legislature disagreed, and wanted to correct.

I, too, think there may be equal protection/due process problems in allowing the sale of one particular manufacturer's item in light of the fact that there is no appreciable difference in form, function or effectiveness between a Colt HBAR and an HBAR from any other manufacturer. Even if the language is not ambiguous, if it may be applied in a way which is constitutionally permissible, the court should apply it as such.

Of course, we all recognize the idiocy of trying to put limits on the sale of a modular firearm by restricting portions of it which are not considered the firearm itself.

 

[clarkcondor]

Using this logic, all other non-Colt AR-15's are not banned after 10/1.

The problem is they use this clause at the top: "or their copies, regardless of which company produced and manufactured that assault weapon: "

so either it applies to what they ban specifically by brand name or not. If they specifically exclude one brand name all copies, regardless of which company produced and manufactured it are excluded also.

If the state tries to claim they only allow one brand name and model of HBAR to be purchased in the state, rather than its characteristics, they open themselves up to commerce lawsuits.

It would be difficult since patent/trademark laws are strongly interpreted in this country. HBAR is registered by Colt. Also historically the MD law was based on the federal ban similar to CA so an exemption went through due process at the time. I would not be surprised by a strict interpretation now due to the current environ.

 

[Ab_Normal]

Using this logic, all other non-Colt AR-15's are not banned after 10/1.

The problem is they use this clause at the top: "or their copies, regardless of which company produced and manufactured that assault weapon: "

so either it applies to what they ban specifically by brand name or not. If they specifically exclude one brand name all copies, regardless of which company produced and manufactured it are excluded also.

If the state tries to claim they only allow one brand name and model of HBAR to be purchased in the state, rather than its characteristics, they open themselves up to commerce lawsuits.

 

[Ab_Normal]

It would be difficult since patent/trademark laws are strongly interpreted in this country. HBAR is registered by Colt. Also historically the MD law was based on the federal ban similar to CA so an exemption went through due process at the time. I would not be surprised by a strict interpretation now due to the current environ.

HBAR has become a generic term since Colt has not vigorously defended the use of such term.

 

[ShallNotInfringe]

HBAR has become a generic term since Colt has not vigorously defended the use of such term.

Uspto does have a live trademark for "HBAR" registered to Colt. Interesting

 

[rwbow1969]

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.

 

[Ab_Normal]

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.

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.

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.

 

[Lawyer56]

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."

 

[Ab_Normal]

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."

Except for the term '..., the right to keep and bear arms shall not be infringed."

 

[Bolts Rock]

AFAIK, Full dia behind the gas block and no M203 cut out ahead of it.

Almost. Add no M203 cuts under the handguard and you have the original H-Bar profile.