Welcome to Massguns!

Our goal is to become the most comprehensive and authorative source for legal news and information regarding laws impacting Massachusetts firearms owners and those who use firearms for sporting, shooting, collecting, hunting, and self-defense.

Lately, there have been many new and exciting developments in laws which regulate gun ownership.  With the Supreme Court’s decision in Heller, gun owners can finally say with authority that the Second Amendment guarantees individual rights to citizens and not only “a well-regulated militia.” Flowing from this seminal case are other state and federal cases.


The FLRB and Federal Law

The Firearms License Review Board has the legal authority to restore your firearms rights if you have been convicted of certain misdemeanors such as Assault and Battery or Operating Under the Influence. A restoration from the Massachusetts FLRB would previously restore your rights on both the state and federal levels. Now, based on an opinion from the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives, BATFE, FLRB restorations of rights only remove state prohibitions.

At a meeting of the Massachusetts Firearms License Review Board, the Department of Criminal Justice Information Services Manager of Law Enforcement & Justice Services, Michaela Dunne, reported that BATFE has indicated that the agency will no longer recognize FLRB decisions as removing federal firearms prohibitions or disqualifications. Therefore, even if you receive or have received relief from the Mass. FLRB, and were issued a License to Carry Firearms, you will still be considered a “prohibited person” pursuant to 18 U.S.C. 922(g). The rationale for this decision is the United Supreme Court’s ruling in Logan v. US, 552 US 23 (2007). In this case, the court found that an individual whose civil rights were never lost they cannot be restored.

Given the number of individuals potentially impacted by this situation, there is likely to be further litigation in this area.

Firearms Licenses & Marijuana Convictions

Massachusetts Firearms Law statutorily prohibits a Police Chief or licensing official from granting a License to Carry Firearms or Firearms Identification Card to any applicant who has been convicted of a violation of drug laws. This prohibition also applies to juvenile delinquency and youthful offender adjudications. However, in 2008, the voters of Massachusetts overwhelmingly voted to decriminalize the possession of marijuana in quantities less than one ounce. This is treated as a civil offense and it cannot be used to disqualify an individual. Therefore, possession of less than one ounce of marijuana is no longer a disqualifier in Massachusetts for firearms licensing purposes.

On April 18, 2014, Judge Steams of the United States District Court for the District of Massachusetts ruled that two LTC Applicants, who were convicted of possession of marijuana many years before in the states of Maine and Virginia, were not disqualified from being issued LTCs. Judge Steams ruled that the drug disqualification which appears in G.L. c. 140, § 131 could not be relied upon to deny these individuals firearms licenses. He further ruled that the denials based on marijuana convictions deprived the applicants their rights guaranteed by the Second Amendment to the U.S. Constitution.

In another case, which was decided on September 9, 2015, Judge Sorokin of the United States District Court for the District of Massachusetts also ruled that a plaintiff, who convicted of possession of less than one ounce of marijuana in the state of Florida in 1975, was not disqualified from being granted a Massachusetts Firearms Permit.  Judge Sorokin declared that the application of G.L. c. 140, § 131 to the plaintiff to deny him a license to carry on the basis of the Florida conviction would result in a deprivation of rights guaranteed by the Second Amendment to the Constitution of the United States.

Therefore, were an applicant for a Firearms Identification Card (FID) or License to Carry (LTC) has an out of state marijuana possession conviction and there is no evidence to show that the amount of marijuana possessed exceeded one (1) ounce, the drug disqualification provisions of G.L. c. 140, § 131 and 140, § 129B will not prohibit you from being issued a firearms license. This only applies to simple possession cases and it does not apply to trafficking, distribution, possession with intent to distribute, or any other drug crime.

Firearms Licensing and “Medical Marijuana”

My office has received numerous inquiries regarding whether the holder of a Medical Marijuana Card issued by the Massachusetts Department of Public Health can be issued a License to Carry Firearms. As explained below, the answer is yes. Chapter 369 of the Acts of 2012, An Act for the Humanitarian Medical Use of Marijuana,  states that “any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.”

Under federal law, the possession of marijuana is still illegal and there is no exception for “medical marijuana.” Also, when you purchase a firearm, rifle, or shotgun, you will be required to complete a federal form 4473 which asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Under state law, if you have a valid DPH medical marijuana card, you are not considered an “unlawful user” of marijuana. However, under federal law there is no such thing as a “lawful user” of marijuana, which is classified as Schedule 1 controlled substance. 18 USC 44 922 (g)(3) prohibits unlawful marijuana users and addicts from purchasing or possessing firearms, even if the individual has a LTC.

Although Massachusetts law imposes no penalties for the acquisition, cultivation, possession, processing, transfer, transportation, sale, distribution of so-called medical marijuana, because of the above-listed federal prohibition, medical marijuana users should proceed with caution.

90 Days to Appeal a Suspension, Revocation, or Denial

If your application for a Firearms Identification Card or License to Carry Firearms has been denied, you only have ninety (90) days from receipt of the denial letter to appeal to your local District Court. Nothing stops that 90 day clock from running and if you file your appeal even one day late, the District Court will not have jurisdiction to hear your case.

This 90 day filing deadline is absolute and it applies whenever an application is denied or whenever a FID or LTC is suspended or revoked. A Police Chief or Firearms Licensing Official cannot give you any extension regarding this 90 day filing time limit and the Court has no jurisdiction to hear an appeal that is filed late.

The 90 day filing requirement is statutory, meaning that it is absolute. If the deadline falls on a weekend, holiday, or a day when the courthouse is closed, you must file prior to the deadline when the District Court is open.

If you have missed the filing deadline, it may be possible to file a new application and appeal the denial of the new application within the statutory 90 day timeframe. However, some licensing officials have taken the position that it is improper to file a new application to get around the 90 day rule and at least one Massachusetts District Court has agreed and ruled that a new application cannot be filed until the term of a license that would have been issued as a result of the old application would have expired.

A licensing authority cannot “sit” on or otherwise refuse to process an application for a firearms license. There are statutory time frames within which a Police Chief or Licensing Officer must either approve or deny an application. In cases where a licensing official fails to act on an application, the 90 day clock begins to run when the time limit in which the licensing authority is required to respond to the applicant expires.

New Disqualifier for MA Firearms Licenses

The recently amended Massachusetts Firearms Law contains a new statute, G.L. c. 265, § 13N, which disqualifies a person from holding a firearms license upon a conviction for any misdemeanor offense which involves physical force or the threatened use of a deadly weapon when the actual or intended victim was a family or household member, as defined by G.L. c. 209A, § 1, of the person convicted.

For example, those convicted of Assault or Assault and Battery under G.L. c. 265, § 13A, involving a family or household member, and Domestic Assault or Assault and Battery under G.L. c. 265, § 13M will be statutorily disqualified from holding a firearms license or possessing firearms under Massachusetts law.

Judges will be required to make determinations about the relationship of the defendant and victim or intended victim for qualifying offenses, whether the conviction is entered as a result of a trial, or a plea, or conviction entered after a probation violation. As part of the plea procedure in qualifying cases, defendants must be advised in open court that “conviction on this offense, if it involves domestic abuse, may lead to disqualification from possession of firearms.”

Reports of convictions of qualifying offenses will be forwarded to the Department of Criminal Justice Information System for inclusion in the National Instant Criminal Background Check (NICS) System.

Firearms Identification Cards

Recently enacted legislation has expanded the eligibility disqualifications for Massachusetts Firearms Identification Cards and it now allows licensing authorities to petition district courts to deny, suspend, or revoke firearms identification cards on the grounds of unsuitability. Prior to this legislation, licensing authorities were required to issue FID cards unless the applicant was statutorily prohibited. Under the new statute, police may now file a petition in the District Court and seek a judicial determination to deny or revoke an FID where the applicant is “unsuitable,” meaning that the FID applicant or cardholder has exhibited or engaged in behavior to suggest that he or she either is a risk to public safety or could potentially create such a risk.

The determination of unsuitability must be based on a preponderance of the evidence. Under this standard, reliable evidence must demonstrate that the FID applicant “has exhibited or engaged in behavior to suggest the applicant could potentially create a risk to public safety.” The licensing authority has the burden of proof in these FID denial cases. If a district court judge decides that the FID applicant is unsuitable, he or she is required to provide the applicant with written notification of the specific reasons for the unsuitability determination.

There are two types of unsuitability petitions. The first type is a petition to deny an application for or renewal of an FID. For these petitions, once the petition is filed with the court, the filing acts to stay the application or renewal process pending judicial determination. When this petition is filed, the law requires that the matter be heard and decided by a judge within 90 days of the filing date.

If the petition is allowed and the FID ultimately denied by the court, the judge must issue written findings regarding the respondent’s unsuitability within 90 days of the filing. The standard for any determination of unsuitability is by a preponderance of the evidence. If the matter is not heard and findings are not made within 90 days, by default the respondent’s FID issues.

The second type of unsuitability petition is to suspend or revoke an active FID. When the licensing authority files this type of petition, the respondent’s FID is automatically suspended or revoked upon filing. An initial prima facie judicial determination must then be made that the petition sufficiently alleges the respondent is unsuitable. This initial determination must be made within 15 days (not business days) of the petition filing date.

If the court finds the petition sufficient, then the petition must be heard and decided within 75 days of the initial determination. As is true with the first type of unsuitability petition, if the petition is allowed and the FID ultimately denied by the court, the judge must issue written findings regarding the applicant’s unsuitability, this time within 75 days of the initial determination. The standard for the determination of unsuitability is by a preponderance of the evidence. If the matter is not heard and findings are not made within 75 days of the initial determination, by default the respondent’s FID will be reinstated.

If you have been denied a Massachusetts Firearms Identification Card or if your FID has been suspended or revoked, I invite you to contact my office for a free consultation a review of your situation.

New Firearms Law Likely to be Passed

The latest version of the proposed Massachusetts Firearms Legislation will allow police chiefs and licensing authorities to refuse to issue Firearms Identification Cards (FIDs) to individuals who they find are not suitable to hold such licenses.

Currently, if an applicant is not statutorily prohibited from holding a Firearms Identification Card, the law requires that the licensing authority “shall issue” the FID. This means that the police chief cannot deny someone a Firearms Identification Card, which allows the individual to possess rifles, shotguns, and ammunition so long as the person is not legally prohibited from holding such a license.

The proposed legislation would allow police chiefs and firearms licensing officials in Massachusetts to refuse to issue FIDs to those who are determined to be unsuitable, so long as the police obtain approval from a judge within ninety (90) days of the application.

This legislation is a “compromise bill.” Police chiefs wanted to be able to deny FID cards based on suitability without having to obtain judicial approval in advance. Advocates for gun owners wanted to keep the “shall issue” provision, which prevents licensing authorities from considering suitability when it comes to FID cards.

The Bill contains other provisions which creates an internet based web portal to be used for background checks which are to be conducted prior to private sales of firearms, rifles, or shotguns. The legislation also contains a provision which makes Massachusetts part of the National Instant Check (NICS) system.  Finally, the Bill creates a Firearms Tracking Unit within the Massachusetts State Police and increases penalties for certain crimes involving firearms.

The Bill was the product of a conference committee comprised of members of both the House and Senate. By requiring licensing officers to seek judicial approval prior to denying FID cards, the Bill satisfies licensing officials while it satisfies some gun owner advocates by shifting the burden to the Chief of Police to prove that an applicant is not suitable.


90 Days to Appeal LTC & FID Suspension, Revocation, or Denial

If your Massachusetts License to Carry Firearms or Firearms Identification Card has been suspended or revoked, or you were denied such a license, you have ninety (90) days to appeal the adverse action in the District Court having jurisdiction over the Licensing Authority, which is usually the city or town where you reside.

Sometimes Petitions for Judicial Review are not filed in a timely manner, meaning  that they are not filed within the statutory 90 day appeal period. A late filing of a firearms license appeal is fatal to the case and the court has no discretion to grant an extension.  An untimely filing divests the court of subject matter jurisdiction, which means that any order would be unenforceable and the court would not have the power to hear and decide the appeal.

Some aggrieved petitioners and firearms licensing lawyers have attempted to circumvent the 90 day time period by having the petitioner file a new License to Carry Firearms (LTC) or Firearms Identification Card (FID) application, with the goal being to reset the “90 day clock” and allow for the filing of a new appeal.

In a recent case out of Framingham District Court, a license holder failed to file a Petition for Judicial Review within within 90 days of the revocation of his LTC. He applied for a new license and the court ruled as follows: “the Plaintiffs appeal is untimely and the court is without jurisdiction to hear it. The statute provides for no exceptions.” The court further ruled, “It is neither logical or reasonable for an individual who has failed to appeal the denial within the required 90 days to be able to circumvent that requirement by applying for a ‘new’ license prior to the expiration of the period for which his revoked license was to be in effect. This ruling demonstrates the importance of complying with the 90 day filing requirement.

Interestingly, the Judge allowed the petitioner to apply for a new License to Carry Firearms upon the expiration of the prior license, which was revoked. Thus, the court suggests that the LTC revocation is only in effect during the term of the license and thereafter a new application can be filed.

The “Castle” Law in Massachusetts

As a general rule in Massachusetts, the right to use force in defense of oneself or another arises only in circumstances where the person using self-defense avails himself of all proper means to avoid physical combat. However, G.L. c. 278, § 8A represents an exception to this rule. The law provides a defense to the occupant of a dwelling house who is charged with causing injury or death to an intruder. In order to qualify for this affirmative defense, the person charged with injuring or killing the intruder must provide the following three things (1) that he or she reasonably believed that the intruder was unlawfully entering the dwelling, (2) that he or she reasonably believed that the intruder was about to inflict death or serious bodily injury upon the defendant or someone else who is lawfully in the dwelling, and (3) the defendant acted with reasonable means of self-defense or defense of another person who was lawfully present.

When all of the above-listed circumstances are present, under the Massachusetts so-called “castle law,” the homeowner or lawful occupants of the  dwelling have absolutely no duty to retreat prior to resorting to self-defense. In summary, the “castle law” relieves a person, otherwise justified in the use of force in self-defense or defense of another, of the duty to retreat (if possible) before resorting to the use of force.

Outside of one’s dwelling, prior to resorting to force in self-defense or the defense of another, there is a duty to retreat if it can be done safely, meaning that retreating would not increase the danger to the person acting in self-defense or another third party. Also, the “castle defense” can only be invoked in cases involving an intruder. When two people are lawfully present inside a dwelling, one of the occupants cannot use the castle doctrine as justification for using force against another person who is lawfully present. Furthermore, the doctrine only applies inside the home itself. It does not apply to the areas surrounding the home such as the driveway, porch, so-called “common areas,” the sidewalk, or lawn.

Denials Based on Old Marijuana Convictions Overturned

Judge Stearns of the United States District Court for the First District of Massachusetts recently overturned the denial of two “permits to purchase” handguns which were denied based on two out of state simple possession of marijuana convictions, which were 30 and 40-years old at the time the plaintiffs sought their “permits to purchase.”

The police chiefs denied both applicants based on Chapter 180 of the Acts of 1988 which prohibit those convicted of violations of G.L. c. 94C from being licensed to possess firearms.

Judge Stearns ruled that as applied to the two plaintiffs, the prohibition against firearms ownership found in G.L. c. 140 § 131(d)(i)(e) and §131A unconstitutionally infringed on the plaintiff’s Second Amendment rights to possess handguns in their homes for self defense and the right to maintain proficiency with them.

Both plaintiff’s had valid Firearm Identification Cards (FID). They sought, from their respective police chiefs, permits to purchase, which would have allowed them to purchase non-high capacity handguns and keep them in their homes for self-defense.

In Dist. of Columbia v. Heller, our Supreme Court announced that the 2nd Amendment gives us the right to possess and carry weapons in self-defense of  “hearth and home.” In McDonald v. City of Chicago, the Supreme Court held that the Heller decision applies to the states.

Judge Stearns held that the Massachusetts Gun Control Law infringes on their right to possess firearms in their homes for self-defense. They were not given the right to carry firearms outside of their homes, except for target practice.

Read the full text of the decision here. (PDF).