Gov. Mills’ disingenuous statement on 72-hour waiting periods
Governor Janet Mills has allowed LD 2238, a bill creating a 72-hour waiting period for firearm purchases, to pass into law without her signature. In her statement on the bill, she acknowledged arguments from supporters and opponents and expressed concern about similar bills being challenged in federal courts in other states. In her consideration of the constitutional issues, she cited an ongoing federal court case in Vermont as potentially impacting the future of this law in Maine and asked Attorney General Aaron Frey to provide guidance to the public on what actions are in compliance.
But voicing these concerns doesn’t make a lot of legal sense. Constitutional challenges in district courts don’t have an impact everywhere in the country; there are different levels of courts in different places, and a single district court case in Vermont would have little to no precedential value in Maine. Additionally, asking the Attorney General, an office that Gov. Mills herself once held, to provide legal advice to the general public is arguably a violation of the obligations of the office. AG Aaron Frey serves as the lawyer of the state, not the public. Additionally, his statutory authority to issue opinions on questions of law is strictly limited to those from specific government offices, not to the general public.
Federal court rulings don’t apply everywhere, and that is especially true for district court rulings. Furthermore, it can take over a year for a federal court to begin hearing a case, let alone for it to issue a ruling. For this case to directly impact Maine, a long line of events need to happen, and this chain of events is so attenuated that Gov. Mills’ alleged concerns about this case are clearly just lip service she is giving to gun rights advocates.
For the Vermont case to impact Maine, the district court would have to hear the case, which often takes years to complete. However, district courts don’t have a precedential impact in other jurisdictions, so the case would need to be appealed to the Second Federal Circuit. Then, the Second Federal Circuit might rule that mandatory waiting periods are unconstitutional. But even then, Maine is in a different federal district than Vermont, so that ruling would only be a consideration for Maine courts rather than binding precedent. Lastly, the United States Supreme Court would have to grant a writ of certiorari to the Vermont case and hold that these laws are unconstitutional, which would then, finally, impact this new law in Maine.
The idea that such an extended line of possibilities is a major concern to Gov. Mills is laughable, and appears as an attempt to give Mainers the impression that she takes gun rights seriously. Similarly confusing is her request to AG Frey to outline for the public what is right and wrong behavior under this law and its impact on hunting. If Gov. Mills doesn’t know herself the information she’s requesting of Frey, she clearly isn’t knowledgeable enough about the law to allow it to pass without her signature. If she is instead attempting to order the attorney general to give legal advice to broad swaths of the state’s population without establishing any lawyer-client relationship, she is opening up an entirely different can of worms.
Asking the attorney general to do this is confusing because, when recently given the chance to do the same thing on a separate matter, Frey’s office declined. In a recent Press Herald article about whether lawmakers can consider additional work outside the scope of vetoes when they return to Augusta for the last day of session, a spokesperson from the AG’s office said, “we can’t provide legal advice to the public.” So, while advising other offices of government and publicizing it is within the legal mandate for the Attorney General’s Office, it is not appropriate to expect him to provide direct legal advice to all Mainers on this matter.
To be clear, what the Governor is asking for is legal advice. Legal advice is distinguished from legal information as it can only be given by lawyers to their clients. Legal information is a factual statement of what the law is or does or how it has been historically interpreted. Meanwhile, legal advice is guidance regarding a specific matter or action and the legal consequences of that action. In asking AG Frey to advise Mainers on how they would still legally borrow or rent firearms and how personal protection would be affected, Gov. Mills requests that he take on the general public of Maine as a legal client.
As her statement on the waiting period bill said, she is requesting “guidance” for the public, which is not in AG Frey’s job description. Additionally, he is heavily incentivized against reaching outside his statutory authority, not only because it would be in conflict with his office’s earlier statements but also because any illegal actions performed under his advice would cause his office to have a legal conflict of interest.
Aaron Frey is the attorney general and thus has a legal obligation to represent the state, but he also has a legal obligation to his other clients. This includes clients he advised on how not to violate a specific law and the obligation to protect their interests in such a court case. Therefore, either AG Frey or his entire office may have a serious conflict of interest enforcing this law due to the fact that the state is his current client and anyone violating the law under his advice is a former client. When a private lawyer is in this situation, they are often expected to recuse themselves from a case, which would seriously hinder AG Frey’s ability to ethically represent the state of Maine in the future were he to give guidance in the manner Mills is requesting.
Gov. Mills likely knows this means the attorney general is unlikely to act on this issue, but doesn’t really care. Her emphasis on the vagueness of this law’s future and AG Frey’s role in interpreting it is her attempt to kick the ball into someone else’s court. This law is a hot potato, and she is trying to pass it off to anyone—the attorney general, federal courts, anyone—before she gets burned.