Who Is Armed, and by What Authority? an Examination of the Likely Impact of Massachusetts Firearm Regulations after McDonald and Heller

Beginning of article

"States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional. (1)

I. Introduction

Article XVII of the Massachusetts Declaration of Rights guarantees a right to keep and bear arms for the common defense. (2) The Supreme Judicial Court (SJC)--Massachusetts's highest court--has interpreted article XVII as preserving a right to keep and bear arms in connection with service in the militia. (3) Because the SJC's interpretation of article XVII does not protect an individual right to keep or bear arms, the court has granted the Massachusetts General Court--the state's legislative body--wide leeway to craft a broad range of regulations governing gun ownership in Massachusetts. (4) In response, the General Court has enacted a comprehensive regulatory scheme for controlling and licensing firearm ownership in the Commonwealth. (5)

Although many citizens have challenged Massachusetts's gun laws as infringing upon their Second Amendment right to keep and bear arms, the SJC has consistently upheld the laws because, until recently, the Second Amendment did not apply to the states. (6) The United States Supreme Court's reticence to incorporate the Second Amendment to apply to the states, coupled with the SJC's interpretation of article XVII, resulted in the routine failure of challenges to the Massachusetts regulatory scheme. (7) After District of Columbia v. Helle (8) and McDonald v. City of Chicago, (9) however, it appears that "the times they are a changin'." (10) Because of this new definition of the Second Amendment's scope of protection, several Massachusetts firearm laws may not survive constitutional challenges in the post-McDonald world. (11) This Note will analyze the impact that these opinions will likely have on the Massachusetts gun regulation landscape. (12) The Note examines a small sampling of laws, including safe-storage requirements, discretionary licensing, and discretionary license restrictions, all of which will almost certainly be subject to constitutional challenges in the near future. (13)

Part II.A of this Note will outline the history of firearm regulation in Massachusetts, beginning with the Massachusetts Declaration of Rights. (14) Part II.B will highlight the laws most vulnerable to challenges after McDonald. (15) Although discussed at length in Part II.B, a brief introduction to some of these vulnerable regulations may be useful at this point. (16) Massachusetts has a discretionary licensing system. (17) A licensing authority--usually the chief of police in each municipality--has the authority to exercise his or her discretion and deny an otherwise qualified applicant if the licensing authority believes that the applicant is not "suitable." (18) A law allowing the discretionary denial of a fundamental right based on undefined notions of suitability, while passing constitutional muster under article XVII, will not likely survive constitutional scrutiny under the Second Amendment following the amendment's incorporation after McDonald. (19)

The same statute also provides the licensing authority with the power to place restrictions on licenses that limit the right to carry a firearm unless engaged in a particular activity. (20) For example, the restrictions allow the licensee to carry a firearm only for either employment purposes or when target shooting. (21) A licensee who attempts to challenge the license restriction faces a heavy burden, as the reviewing court examines the licensing authority's decision under a deferential abuse of discretion standard. (22) Given the impact these license restrictions have on an individual's right to keep and bear a firearm for self-defense, the law authorizing restrictions will almost certainly be challenged going forward. (23) Furthermore, Massachusetts law currently requires gun owners to secure firearms in a locked container--or with a tamper-proof locking device--whenever the firearm is not under the direct control of a licensed individual. (24) This law will also likely face a challenge on Second Amendment grounds because of the similarities between the Massachusetts safe-storage requirements and the storage law struck down in Heller. (25)

As noted above, the Supreme Court has recently clarified the meaning of the right protected by the Second Amendment in Heller, and further incorporated the Second Amendment within the Fourteenth Amendment's Due Process Clause in McDonald. (26) Part II.C will discuss Heller and McDonald and provide the foundation for a discussion of the likely impact that these landmark rulings will have on Massachusetts gun laws. (27) As a result of these opinions, Massachusetts will likely need to reform its approach to firearm regulation. (28) Part II.D will briefly discuss proposed legislation--particularly a bill labeled House Bill 1568--that could provide a replacement regulatory system capable of surviving heightened constitutional scrutiny. (29)

As a result of the Second Amendment's incorporation under the Fourteenth Amendment, the SJC can no longer restrict analysis of challenges solely to the rights protected by article XVII, and the court will have to determine a new framework for analyzing the Commonwealth's gun laws. (30) Part III.A predicts that the SJC will adopt a strict-scrutiny standard of review when addressing future challenges to Massachusetts's gun laws in light of Heller and McDonald. (31) Part III.B anticipates the likely outcome of challenges to safe-storage requirements, discretionary licensing, and unreviewable license restrictions using this new analytical framework. (32) Part III.B also suggests that many laws currently in force impermissibly infringe on the newly defined Second Amendment right to keep and bear arms. (33) This Note will conclude by suggesting that the General Court take action and adopt legislation, either House Bill 1568 or a similar regulatory system, that removes constitutionally impermissible restrictions on gun ownership while preserving the Commonwealth's ability to reduce crime and preserve the safety of citizens through licensing and other measures. (34)

II. HISTORY

The Second Amendment to the United States Constitution guarantees that, because a well-regulated militia is necessary to the security of the state, the right of the people to bear arms shall not be infringed. (35) This deceptively simple clause has stirred debate and controversy as politicians, lawyers, and scholars have argued over its purpose, its scope, and its place in modern society. (36) Theories regarding the meaning of the Second Amendment can be roughly broken into two camps: the individual-right theory and the collective-right theory. (37) The individual-right theory views the amendment as protecting an individual's right to own and carry firearms regardless of whether the individual is part of the militia. (38) The collective-right theory argues that the amendment was a response to concerns about an overly powerful federal government at the time of its passage, and further argues that the amendment is dependent on service in state-controlled militias. (39) Regardless of the meaning, the Second Amendment, until recently, constrained only the actions of the federal government and left states free to both establish their own protected rights regarding gun ownership and regulate gun ownership and use among their citizens. (40) Forty-four state constitutions contain provisions preserving, to one degree or another, the right to keep and bear arms. (41)

A. Article XVII and Massachusetts Firearm Laws

Article XVII of the Massachusetts Declaration of Rights secures a right to keep and bear arms for the common defense. (42) In Commonwealth v. Davis, the SJC interpreted article XVII to preserve a collective right to gun ownership for the Commonwealth's citizens, rather than an individual right, and stated that article XVII extends protection to gun ownership conditioned upon the owner's connection to the Commonwealth's militia. (43) Based on the SJC's collective right interpretation, article XVII does not protect gun ownership outside the militia, and as a result, the General Court can freely regulate possession of firearms so long as the regulations do not impede militia service. (44) Furthermore, the Davis court suggested that some form of regulatory authority would remain, even if the Second Amendment was applied to the states. (45) Shortly after Davis, the SJC concluded violent-crime statistics provided the General Court with a reasonable basis for concluding that gun control laws were a necessary and legitimate tool to combat the rising violent-crime rate in Massachusetts. (46)

In the interests of reducing violent crime and increasing public safety, the General Court established a comprehensive scheme for regulating firearm ownership in the Commonwealth. (47) Under the scheme, Massachusetts gun owners must be licensed to own firearms; if the owner moves, he or she must provide written notification to the municipality's chief of police within thirty days of arrival. (48) In addition to licensing requirements for purchasing and carrying firearms, (49) Massachusetts law further restricts a licensee's ability to carry firearms, (50) and also establishes safe-storage requirements to prevent unauthorized access to legally owned firearms. (51) Strict penalties exist to ensure that individuals comply with the regulations. (52) There are statutory disqualifications that permanently prevent a person from acquiring a firearms license, including past criminal history, prior firearm or drug offenses, mental health issues, and evidence of drug or alcohol addiction. (53)

The General Court was very thorough in crafting its gun laws; the regulations mentioned above are just a small fraction of the laws regulating gun ownership and use. (54) A person must have received their license before purchasing or possessing firearms, ammunition, ammunition components--such as bullets, casings, primers, and gunpowder--and certain ammunition feeding devices (commonly called magazines or clips). (55) Massachusetts law creates three types of firearm licenses--a Firearms Identification Card (FID), a Class B License to Carry, and a Class A License to Carry--and each license carries its own unique privileges and limitations. (56)

An FID card allows the purchase of non-large-capacity rifles and shotguns, but does not permit the licensee to purchase or possess handguns or rifles capable of accepting large-capacity feeding devices. (57) An FID card is a "shall issue" license that allows an eighteen-year-old to possess rifles, shotguns, and ammunition so long as he or she satisfies the statutory requirements. (58) A Class B License to Carry does not actually permit a person to carry firearms, but rather only allows a person to purchase and possess non-large-capacity handguns and large-capacity rifles and shotguns. (59) The only true license to carry under Massachusetts law is the Class A license. (60) Class A licenses allow a licensee to own large-capacity handguns, rifles, and shotguns in addition to permitting the licensee to carry a concealed handgun. (61) Both the Class A and B licenses are "may issue" licenses that leave the decision of whether to issue a license to the licensing authority in the applicant's municipality. (62) If the licensing authority denies a license application, the applicant can appeal the denial. (63) In order to prevail on appeal, the applicant must show that the licensing authority abused his or her discretion by denying the license, and that the applicant is "a suitable person" having a proper purpose for owning a firearm. (64)

This discretionary structure has created an uneven licensing system, where an applicant's ability to obtain a Class A or B license depends on the town in which the applicant lives. (65) Aside from establishing certain basic procedural requirements for licensing--including fingerprinting, a background check, and a $100 fee--the General Court delegated the decision regarding the suitability of potential firearms owners to the licensing authorities in the Commonwealth's towns and cities. (66) In order to determine whether the applicant is a suitable person with a proper purpose, the licensing authority can require the applicant to provide supplemental information in addition to the standard application materials. (67) For example, one town's licensing authority might supplement the statutory requirements by requiring letters of recommendation, a doctor's note, or a shooting test, while the authority in a neighboring town might only require the applicant's paperwork and a brief telephone interview. (68) Moreover, the policy of the local licensing authority dictates whether the licensing authority will issue a restricted license. (69)

Having satisfied the statutory and suitability requirements, the applicant may receive a license to carry. (70) The licensing authority may, however, restrict the license, because the statute creating Class A and B licenses provides the licensing authority the ability to restrict those licenses to a particular purpose or activity. (71) A person who desires a firearm for employment purposes--such as a security guard, locksmith, or tow-truck driver--might receive an "Employment" restriction, while another licensee might be restricted to "Target and Hunting" activities. (72) Restricted licenses allow the licensee to only carry a firearm when engaged in the activity named in the restriction. (73) For example, a Class A license restricted to "Target and Hunting" permits the licensee to carry a concealed firearm only when engaged in target shooting or hunting activities. (74) As license restrictions are left to the discretion of the licensing authority, licensees have no way to know precisely what the restriction issued permits him or her to do. (75) A licensee with a restricted license cannot know whether a "Target and Hunting"

restriction permits concealed carry when traveling to and from the range or hunting location, or whether the licensee can stop or make a detour along the way, without violating the restriction. (76) These restrictions effectively prohibit the licensee from carrying a concealed firearm because prudent gun owners will most likely choose to not carry a firearm rather than risk the strict penalty for an inadvertent violation of his or her license restriction by carrying a firearm. (77)

In addition to laws governing the possession, transport, carry, and use of firearms, the General Court also established requirements for the storage of firearms when not in use. (78) The General Court established the Commonwealth's gun laws with the intention of preventing irresponsible people from accessing firearms. (79) To that end, Massachusetts law requires firearms be rendered inoperable either by storage in a locked container or through a locking device, such as a trigger lock, whenever the firearm is not under the licensee's control. (80) Violations are punished by a fine of between $1000 and $10,000. (81) Furthermore, if a minor accesses an improperly stored firearm and injury results, the improper storage is evidence of wanton or reckless conduct in any civil or criminal suit. (82)

Although the statute requires a locked container or a tamper-resistant locking device, the statute does not provide clarity regarding what type of container will satisfy the requirement. (83) The statute considers a firearm adequately secured so long as the owner stores it in a manner that will deter unauthorized access, even if the container is not specifically designed for storing firearms. (84) The container itself need not be in a secure location if the firearm within it is properly secured. (85) Proper securement of a firearm for legal purposes is a fact-specific determination made by the factfinder. (86)

B. Challenges to Massachusetts Gun Regulations Under Article XVII and Davis

Many cases have challenged various aspects of Massachusetts's firearm regulatory scheme. (87) Each challenge failed under the holding in Davis for two reasons: first, the SJC interpreted article XVII to not recognize an individual right to arms, and second, because the Second Amendment had not yet been incorporated against the states under the Fourteenth Amendment. (88) In Davis, the superior court convicted the appellant for possession of firearms and ammunition without a license. (89) In his appeal, the defendant claimed that the Commonwealth's license requirement violated his Second Amendment right to keep and bear arms. (90) The SJC deemed the Second Amendment inapplicable to citizens' gun rights in the Commonwealth because it restricted only federal government action. (91) Reading article XVII as preserving a collective right to bear arms for the common defense, the SJC stated that the right to bear arms belonged to the people in the aggregate, and only laws that impede the effectiveness of the militia violate article XVII. (92) Because the statute did not interfere with the common defense provided by the militia--currently, the National Guard--the statute did not violate article XVII. (93) The SJC also held, in Davis, that because the statute in question fell within a larger regulatory scheme intended to promote the public safety, the statute was consistent with previously established firearm regulations. (94)

Shortly thereafter, the SJC upheld the Commonwealth's restrictive licensing scheme, in Commonwealth v. Jackson, as a method of reducing violent crime within the state. (95) Although the SJC in Jackson focused on disproportionate punishment for repeat offenders, the SJC also noted in its opinion the role firearms had played in the rise of violent crime in Massachusetts. (96) Citing violent-crime statistics, the SJC concluded that the General Court had reasonable grounds for establishing restrictive licensing requirements in order to increase public safety by limiting access to firearms. (97) When read together, Davis and Jackson provide a strong foundation for the current firearms regulatory scheme and preclude arguments that challenge restrictions based on article XVII. (98)

1. Discretionary "May Issue" Licensing

Highlighting its concern for public safety, the General Court enacted a regulatory scheme that provided licensing authorities with wide-reaching powers to determine who owns firearms in the Commonwealth. (99) Although the statute did not determine the nature of a licensing authority's discretion, the SJC clarified the scope of that authority in Rzeznik v. Chief of Police of Southampton. (100) The SJC reasoned that public safety justified granting a licensing authority access to the applicant's information, including full criminal history, when determining whether the applicant was a suitable gun owner. (101) The appellant in Rzeznik had been convicted of a felony but had the record of his conviction sealed. (102) After issuing the appellant a restricted license to carry for business purposes only, and not for self-protection, the licensing authority determined that it had the power to take sealed records into account when reviewing gun license applications. (103) The licensing authority then revoked the appellant's gun license based on the contents of the appellant's sealed record. (104) In upholding the use of sealed records, the SJC reasoned that the statute delegated broad authority to the licensing authority to determine whether an applicant is qualified to receive a gun license. (105)

As a result, licensing authorities have a broad reach when assessing an applicant's suitability. (106) Evena full pardon does not prevent the licensing …