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

By Driscoll, Brian | Suffolk University Law Review, Winter 2011 | Go to article overview

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


Driscoll, Brian, Suffolk University Law Review


"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. …

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