The Transfer of Firearms and FA-10s

It is illegal for the federal government to compile a registry of firearms (NFA items notwithstanding) but it is not considered illegal for states to do the same. Firearms registration has a long and oppressive history, as registration has often been a precursor to confiscation. Perhaps because of this few states keep registries; yet Massachusetts is unfortunately part of this small group, and implements what the state refers to as firearms record keeping of transactions, which is otherwise known as registration. The registration is mandatory, and governs many situations in which individuals buy, sell or trade firearms. Failure to comply with these requirements can result in stiff penalties and loss of ones firearms license.

Historically, firearms registration in one form or another has existed in Massachusetts since 1968, when the forms were referred to as “Blue Cards”. Typically, it seems Massachusetts does not like to refer to its registration requirements as registration, probably in large part because of the negative connotation appropriately attached to firearms registration practices. Instead it has been called a policy of recording transactions when firearms are sold, which sounds much nicer, and is why many ill-informed sources state that Massachusetts does not require firearms registration. Make no mistake however, firearms registration is alive and well in Massachusetts, and has recently been escalated to an even more comprehensive level (more on this later). Simply because the state does not require a permit and paid fee per each firearm does not change the fact that the core tenets of registration are in place; name, address, license and serial number of almost every firearm you buy and sell.

The legal authority and regulations for these practices is found in several locations in the Massachusetts General Laws. Under these laws, in Massachusetts, if you do not have a license to sell firearms in Massachusetts (an FFL) and you engage in the business of selling firearms, that stiff penalties such as a fine of $1,000-10,000 or imprisonment for 1-10 years, or both can be levied against you. Firearm here is meant to indicate a gun manufactured after the year 1899.

Under the Massachusetts gun laws, an individual who is not licensed as an FFL dealer and does not have a firearms license may sell an unlimited number of firearms to certain buyers (licensed individual, FFL dealer etc.). However, because the seller does not have a firearms license, the transaction(s) must go through an FFL dealer and cannot be face-to-face (FTF).

If the seller holds a firearms license, but is not an FFL dealer, that they may sell up to 4 firearms per year to someone other than an FFL dealer (typically a FTF sale). There is no limit for how many transactions may be conducted through an FFL dealer. If an individual wished to sell greater than 4 firearms per year they would need to either become an FFL dealer or conduct subsequent transaction through an FFL dealer. Furthermore, the seller is required to report the sale to Mass. Criminal Justice Information Services (CJIS) within 7 days, on an FA-10 form.

G.L. c. 140 § 128B is the law that deals with an out-of-MA purchase of rifles and shotguns (federal law prohibits the purchase of handguns outside of a person’s resident state). It requires that you file an FA-10 if you bring the firearm into Massachusetts. That means that should you buy a shotgun out of state, leave it at your vacation home and never bring it into Massachusetts then you do not need to file an FA-10.

Non-residents cannot purchase firearms and ammunition in Massachusetts, “over the counter.”  They must go through a FLL in their state.

G.L. c. 140 § 129C determines that it is the seller whom must submit the FA-10 form to the government within 7 days of most types of transactions. I say most because as you will read below, it is those two types of transactions that most gun owners are likely to encounter when they purchase a firearm in-state. There is no legal requirement for a seller to submit an FA-10 in these situations. However, it is important to stress that not in all transaction will it be the seller submitting the FA-10. Sometimes the law will require that the buyer register their firearm on an FA-10 in Massachusetts. These situations are discussed below.

You may be wondering at this point what exactly an FA-10 is; especially if you have been reading carefully and noticed that nowhere in the M.G.Ls are FA-10 forms mentioned. That is because the FA-10 form is the Firearm Records Bureau’s answer to the requirement in §§ 128A and 128B that the seller (or purchaser in certain situations) report information pertinent of the transaction to the CJIS within 7 days. It is therefore the FA-10 that fulfills the registration requirement in Massachusetts. You can view a copy of the FA-10 online.

When you buyer a firearm (new or used) from an FFL dealer (i.e. gun shop) it will be the dealer who submits the FA-10 form. This includes FTF sales that are done through an FFL dealer, as well as firearms you order from another state that are shipped to a Massachusetts FFL.

When two individuals do an FTF (face-to-face) private sale it will be the seller who submits the FA-10 form. Remember that an individual can only sell 4 firearms per calendar year, while private purchases are unlimited.

If you bring a firearm into Massachusetts that you bought out of state you (the buyer) must submit an FA-10 within 7 days of it entering the state. In this situation (as in most situations in which the buyer submits an FA-10) you do not fill in the seller information. Instead you simply submit the form as a registration instead of transaction.

If you build a firearm, you as the builder and owner (i.e. buyer) must submit an FA-10. The legality of building firearms can get very technical, so one endeavoring on such a project should be aware of specific laws regarding their build. For instance, Massachusetts does not view an AR15 receiver as a firearm although the federal government does. So while said receivers are often purchased through FFL dealers per federal law, they need not be registered on an FA-10 until they are assembled into an AR15.

District of Columbia v. Heller & the 2nd Amendment

The landmark case,District of Columbia v. Heller, 554 U.S. 570 (2008), marks the first time the Supreme Court addressed the scope the Second Amendment. However the Supreme Court ruled, there would be a major change in how firearms laws were considered nationwide. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Following this highly contentious 5-4 decision, the Second Amendment jurisprudence has been shaped by a wave of court decisions.

Challenged in Heller,was a series of laws that effectively banned handguns in the District of Columbia. The laws made it a crime to carry an unregistered handgun and prohibited the registration of handguns. A separate law made it a crime to carry an unlicensed handgun, allowing that the police chief “may issue” licenses for one year periods. Further the District required resident to keep their lawfully owned firearms inoperable in the home, keeping them either disassembled or to use a trigger-lock. Respondent in Heller, challenged these laws as a denial of an individual’s rights under the Second Amendment.

Justice Scalia wrote the majority opinion, in the 5-4 decision. As the scope of the Second Amendment was one of first impression, the Court had to address all aspects of the Second Amendment. First, the Court stated that through exhaustive analysis, the Second Amendment was an individual right unrelated to serving in the militia. This allowed all Americans to claim the protections of the Second Amendment, regardless of how the Court went on to articulate them. Second, the Court defined the terms of the Second Amendment. The term ‘arms,’ as defined as “weapons that were not specifically designed for military use and were not employed in military capacity.” The court defined the “keep and bear” language to mean the right to possess and carry for the particular purpose of confrontation. Taken altogether, the Second Amendment,“guarantees the individual right to possess and carry weapons in case of confrontation.” Third, the Court further stated this right, like those under the First and Fourteenth Amendments, was a natural right pre-existing the Constitution. In determining the scope of the Second Amendment rights, Justice Scalia looked to a wide array of historical sources from before the Constitution to the 20th century. The Court further stated that, like the First Amendment, the rights guaranteed under the Second Amendment are not unlimited.

In likening the Second Amendment to the First, Justice Scalia stated, “we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the rights of citizens to speak for any purpose.”  Scalia points to the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 179 (1939), which states that the Second Amendment protections extends only to certain types of weapons, those typically possessed by law-abiding citizens for lawful purposes. In Miller, the Court determined that a short-barreled shotgun did not fall within this category, and thus the right to possess it was outside of the scope of the Second Amendment. Justice Scalia clarified, what he deemed a silly argument, that the Second Amendment protections protect an individuals’ right to “keep and bear” weapons that would be necessary to defend against a modern military, such as tanks or bombers.

Further, Justice Scalia explicitly states that the Court’s decision should not be read to challenge long-standing prohibitions on the possession of firearms by certain people, such as felons or the mentally ill. Nor should the decision case doubt on restrictions on carrying firearms in sensitive places, such as government buildings and schools. Finally, the decision should not be read to challenge laws imposing conditions or qualifications on the commercial sale of arms. Justice Scalia states that the examples given in the decision contain an “inexhuastive list” and the Court does not intend to list all arms restrictions that fall outside the scope of the Second Amendment.  The Court states that the rights under the Second Amendment are those that were understood by the people who adopted them, regardless of whether they are deemed too broad or too narrow now.

In applying the clarified understanding of the Second Amendment to the hand-gun ban and trigger lock requirement, the Court ruled that both violate the Second Amendment. The Court recognized, “the inherent right to self-defense has been central to the Second Amendment right,” and prohibition of an entire class of arms that Americans overwhelming choose for self-defense violates that core principle.  The Court stated that prohibiting handguns, but allowing other weapons does not make the ban Constitutional stating that, “the American people have considered the handgun to be the quintessential self-defense weapon.”  The Court ruled the requirements that a handgun kept in the home be inoperable through a trigger lock or being disassembled was also a violation of the Second Amendment. These requirements made it impossible for the handgun to be used, “for the core lawful purpose of self-defense.”  The Court recognized that the standard for protections of Second Amendment rights of self-defense in the home were higher than elsewhere. Overall the court held: “the District’s ban on handgun possession in the home violated the Second Amendment, as does the prohibition against rendering any lawful firearm in the home inoperable for the purpose of immediate self-defense.”

The Court’s decision in Heller, did set forth several explicit limitations to the rights set forth in the Second Amendment. The first was the procedural matter that the challenged laws were federal laws, and applicability of the Second Amendment to the states was not addressed. Second, the Second Amendment protections’ apply only to certain types of weapons, those “typically possessed by law-abiding citizens for lawful purposes.” Third, the Court tacitly allowed for licensing requirements so long as they were not arbitrary and capricious. Fourth, in ruling that the “core lawful purpose” of the Second Amendment was self-defense, the Court left open whether the rights of use and possession or firearms for other purposes should be held to a lower standard. Fifth, the Court left open what level of scrutiny should be used in Second Amendment challenges, only stating it must be a higher scrutiny than rational basis.  Sixth, the Court recognized that left in disarray the extent of the law, welcoming challenges through lower courts to decide it fully.

Transporting Guns in Massachusetts

While the law that deals with transporting firearms in Massachusetts is straightforward, you will probably be thinking to yourself that it in many ways raises more questions than it answers. This is understandable, and is why the FAQ section is exceptionally comprehensive for the Storage & Transport discussion. G.L. c. 140, §§ 131C addresses Transport, specifically in a vehicle, which seems to encompass the transport that most people encounter. Also note, although this statute uses the term “carry” throughout, it’s meaning changes (I will explain where appropriate).

If a person who holds a Class A LTC, unrestricted wishes to carry a loaded handgun (firearm means handgun in this section) in their moving vehicle it must remain under their direct control. If such person is restricted then they may not carry their handgun; unless on their way to an activity for which their restriction allows them to carry.

No mention is made of what is required of Class A LTC holders who aren’t carrying the handgun loaded. A literal reading of the law would seem to indicate that although it must be unloaded, it could be left unlocked in any location in the vehicle. However, this is not generally how gun owners should treat the law, as few authorities would likely read the law the same way.

The law regarding Class B Firearms Licenses states: “No person carrying a firearm under a Class B license… shall possess the same in a vehicle unless such weapon is unloaded and contained within the locked trunk of such vehicle or in a locked case or other secure container.”

The phrase “carry” is again used, however “possess” is how one should understand the term. This is because a Class B LTC never allows for concealed carry (M.G.L. c. 140, §§ 131(b), “a Class B license shall not entitle the holder thereof to carry or possess a loaded firearm in a concealed manner in any public way or place”), and carry of a loaded handgun in a vehicle is always considered concealed carry. Therefore, the only lawful means a Class B holder has of transporting his handgun(s) is a) unloaded and b) in a locked case. In addition, many gun owners who hold Class LTC’s believe this section also pertains to them when transporting a handgun not under their direct control. While this is not true according to the law, one should not expect law enforcement to immediately recognize the difference; therefore it may be prudent to follow the Class B requirements even if you hold a Class A LTC.

Also note that this section performs a rare service for gun owners in that it answers a question rather than leaving it open to interpretation; it specifically tells us that a trunk is considered an adequate “case” in compliance with the law.

Subject to military, law enforcement, and a few other exceptions  the law requires that any large-capacity long gun be a) unloaded and b) in a locked case when transporting in a vehicle.

This article was written by By Marcus Dilloff and posted by Attorney Cohen.

The Massachusetts Firearms Storage Law

G.L. c. 140, §§ 131L is the statute that addresses firearms storage requirements in Massachusetts  It is actually very straightforward in what it requires of gun owners that are not in direct control of their firearm and are not transporting firearms to keep them securely locked. This means that guns which are unattended must be secured in a locked container, or equipped with cable/trigger guard/mechanical lock.

That’s it. There is no requirement that it be in a safe, unloaded, the bolt removed, separate from the ammunition or any of the many other popular myths propagated on the internet. While some of those suggestions may seem logical or even obvious, they are not required by the law.

The Penalties for failing to secure a firearm not under your direct control, that you aren’t transporting, can be severe. And they vary depending on the type of firearm and who may have potentially accessed it, even if such access did not occur. Unsecured storage of non-large capacity rifles, shotguns or firearms is a misdemeanor and improper storage of high capacity (more than 10 rounds) firearms, rifles, or shotguns is a felony.

Note that none of the provisions relating to storage of firearms pertains to guns that are matchlock, flintlock, percussion or other designs that are pre-1899, including replicas, so long as they do not shoot modern ammo. Therefore, pre-1899 firearms that do shoot modern metallic cartridge ammo do need to be secured, despite the law treating them differently in other regards.

Attorney Jesse C. Cohen has been very successful in defending his clients in unsecured storage cases.

This article was written by By Marcus Dilloff and posted by Attorney Cohen.

Firearms Possession in Massachusetts

The concept of “possession” is very important when it comes to Massachusetts Firearms Laws. This is because the degree of possession is not a constant (i.e. it changes); therefore the condition of your firearm required by the law will change. Fortunately, for the purpose of simplicity (a rare thing when discussing gun law!) and firearms possession in Massachusetts, one phrase is almost always referred to; direct possession.

Direct control is important because depending on whether or not your firearm is under your direct control will decide how you must store it. Generally speaking, if a firearm is under your direct control there are fewer regulations that you must comply with.

Unfortunately, there is no definition of what direct control actually means, and like many other areas of firearms law, this term is left open to interpretation. Many people interpret direct control to mean within arms reach. For example, under this belief a firearm next to you on a table would likely be in your direct control, although a firearm in the other room would probably not be. Others use a stricter interpretation and more or less believe that if the firearm is not literally strapped to your hip it is not under your direct control. Still others (usually the minority) use a more liberal interpretation, for instance any firearm in your home is under your direct control. On the extreme end, an argument could probably even be made that if your firearm is not in your hands then it is not under your direct control.

This author does not advocate for one interpretation over another in this section; it will be for the reader to decide which they believe complies with the law after carefully weighing their options. However, I will say this: generally speaking it usually provides more legal protection and a lesser likelihood of encountering trouble when gun owners use a more careful, stricter interpretation of gun laws. This makes it harder, rather than easier for law enforcement and prosecutors to claim that according to their interpretation you were violating the law. The laws were probably intentionally written so as to make it easy to prosecute a gun owner; do not make it any easier.

This article was written by By Marcus Dilloff and posted by Attorney Cohen.

G.L. c. 209A Restraining Orders & Your License to Carry Firearms

Having a restraining order placed against you temporarily suspends your gun rights until the order is removed. To understand fully why your gun rights are suspended due to an active restraining order, you first must understand what a restraining order is.

A restraining order is a legal order issued by a state court that requires one person to stop harming another. The person seeking to stop the harm is acting as a plaintiff and the person being asked to stop the harm is named as a defendant. When a plaintiff files a restraining order complaint against a defendant, the court may enter a temporary order if it deems necessary to protect the person. In Massachusetts, a plaintiff will get a restraining order against someone, if the plaintiff can show that the defendant (1) Caused physical harm to the plaintiff, (2) Attempted to cause physical harm to the plaintiff, Placed plaintiff in fear, of imminent physical harm, or (3) caused the plaintiff to have sexual relations involuntarily by force, threat, or duress.

Further, the court may enter a temporary restraining order without notice to the defendant as it deems necessary to protect the plaintiff from abuse and notify the defendant after the order was issued. In those cases, the plaintiff has demonstrated substantial likelihood of immediate danger of abuse by the defendant. If the court issues a temporary order against the defendant, the defendant must surrender all guns to the appropriate law enforcement officers and cannot buy any guns while the order is in place.

After the temporary order is placed, the defendant can petition the court to review the order no later than 10 court business days after the receipt of the notice. The court also reviews the suspension of the defendant’s license to carry firearms. The court does make an exception to the timing of the review for a defendant who needs a firearm as requirement for employment. In those cases, the defendant would need to file an affidavit and also ask for an expedited hearing which will take within two business days after the receipt of the affidavit.

Another way that a restraining order can affect your gun rights is after a 209A violation.  A violation of a restraining order is considered contempt of a court order and one of the possible penalties includes being charged with a misdemeanor crime. If you are convicted of violating the restraining order as a misdemeanor crime, you will lose your License to Carry Firearms and have to surrender your guns, if you are sentence to more than 2 years in the house of correction.

This article was written by By Marcus Dilloff and posted by Attorney Cohen.

Another Assault Weapons Ban?

Following the re-election of Obama there has been a lot of talk of a renewal of the failed 1994-2004 Federal Assault Weapons Ban. Not that this discussion is anything new; gun owners talked about it from 2008 all the way to 2012. Yet it does seem that this topic has reached a renewed vigor within recent weeks, and if the lack of available, new AR15 lowers, uppers and 30rd mags is any indication many gun owners are seriously concerned (terrified) that the ban may come back from the dead.

Here’s my opinion why that is unlikely at best:

This isn’t 1994 – Attitudes towards guns have changed since the early 1990’s. More people are applying for their carry licenses, taking classes, buying handguns and enjoying their 2nd amendment rights. Also, the factors that influenced the original ’94 ban, such as a staggeringly high violent crime rate and the crack cocaine epidemic have since passed (for the most part). And most importantly, the items that were targeted in 1994 such as mags in excess of 10rds and AR15’s with “evil” features were relatively unpopular in the early 90’s and made easy prey for gun grabbers. Currently however these firearms are perhaps the most popular amongst shooters; nearly every shooter today owns a “wonder nine” or tricked-out AR15.

People don’t support it – Many people realized after the ’94 ban that such measures have no correlation with reduced crime. Yes, there will always be people clamoring to grab every “assault weapon” and “high capacity ammunition clip”, but they are part of a dwindling minority desperately clinging to a dying, ill guided cause. Just login to facebook: the Brady Campaign has about 30,000 likes, the NRA about 1.7 million.

There are more pressing issues – Gun control just isn’t a hot topic right now, despite the media’s attempt to make it seem so. People care much more about the failing economy and how they are going to put food on the table than what gun you take to the range.

For those who base their purchasing decisions on probabilities and likely outcomes the above is probably enough to dissuade them from endeavoring on a buying frenzy. But for those not convinced, consider this. If somehow, on some crazy off chance another ban does get enacted, it’s unlikely the drafters will make the same “mistakes” they did in 1994. The provisions may be much worse, with perhaps no grandfather clause exempting pre-ban items, or perhaps a tax requiring registration if you wish to be exempt. If only for this reason alone, it isn’t worth it to drain your bank account to stock up on PMags and lowers when those may have little relevance to a new ban. So instead of spending your money, spend a little of your time being vigilant and prepared for any gun control legislation on the horizon, as unlikely as it may be.

This article was written by By Marcus Dilloff and posted by Attorney Cohen.

Firearms on College Campuses in Massachusetts

There appears to be a growing national trend towards allowing students to exercise their 2nd Amendment rights on college and university campuses. Unfortunately this trend has not yet reached Massachusetts, and there is a good chance it never will.

Unlike many states,Massachusetts has written it into law that students are essentially barred from possessing firearms on campus. This law, like many other Massachusetts gun laws, likely stems from misunderstanding and irrational fear of firearms. Specifically, Massachusetts General Laws Chapter 269, Section 10J prohibits carrying firearms in school, college, or university property.

There is little evidence that someone responsible enough to carry a firearm elsewhere in the state would suddenly engage in bloodshed upon setting foot on campus. It is also hard to believe that criminals or those dedicated to harming others would be deterred by a sign or law stating “This Campus is a Gun Free Zone”. Indeed, there is much credibility to be given to the argument that college “gun free zones” create a class of disarmed victims vulnerable to criminals who be definition disregard such laws. It seems like almost weekly there are reports of female students being assaulted on campus’ inBoston, and surely no one has forgotten the Virginia Tech massacre. All too often in cases such as these the victims have been systematically disarmed by ill guided laws that pander to anti-gun sentiments.

This article was written by By Marcus Dilloff and posted by Attorney Cohen.

Drug Convictions & Licensing in Massachusetts

 

Drug convictions can have many hidden and unpleasant consequences. For example, any conviction of any law regulating the use, sale, or even possession of drugs or controlled substances, as defined by G.L. c. 94C § 1, will trigger a lifetime prohibition which will prevent you from purchasing a handgun or being issued a License to Carry Firearms in Massachusetts. If you have a LTC and your convicted of a drug crime, your LTC will be automatically revoked.

A Massachusetts drug conviction is also a disqualifier for a Firearms Identification Card for a period of five years after the final date of the conviction’s termination (which means the actual conviction date, suspended sentence term, release from incarceration, or discharge from probation, parole, or court-ordered supervision, whichever of these events is latest.) The FID card will allow the holder to purchase and lawfully possess rifles and shotguns, but not handguns.

If the drug conviction is for a charge was a crime of violence, as defined by G.L. c. 140 § 121 or an offense which involves trafficking of weapons or drugs, the defendant will have a mandatory and lifetime prohibition which will prevent the issuance of any firearms license and the purchasing of any firearms.

In addition to the loss or denial of firearms licenses, a drug conviction will also trigger the automatic suspension of your Massachusetts Driver’s License if you are licensed here or if you are licensed to drive by another state, a Massachusetts drug conviction will result in the suspension of your right to operate in Massachusetts for a period of at least one and up to five years. Fortunately, it may be possible to obtain a hardship driver’s, but not firearms, license.

If a drug offense is interfering with the exercise of your 2nd Amendment rights in Massachusetts, contact Attorney Jesse C. Cohen for assistance.

 

New Resident Exemption Now Permits Firearm to be Brought into Massachusetts by Motor Vehicle

 

In Commonwealth v. Smigielski, 82 Mass.App.Ct. 1107 (2012), the defendant was charged with unlawful possession of a firearm in a motor vehicle in violation of G.L. c. 269, § 10(a ), and unlawful possession of ammunition without a firearm identification (FID) card in violation of G.L. c. 269, § 10(h ). The defendant argued that she is exempt under G.L. c. 140 § 129C(j), which provides a sixty-day grace period in which new or returning residents may register certain firearms. The District Court Judge was of the impression that there was no statutory grace period for an individual driving into the State, either with or without an intent to reside.

The defendant testified at trial that she left the State of Texas, packed her belongings in the car, and intended to move to Massachusetts, where her sister resides, to live in Easthampton and find employment. The Appellate Court, in overruling the decision of the District Court stated that “[t]his evidence, if believed, was sufficient to raise the defense.”

In Commonwealth v. Cornelius, 78 Mass.App.Ct. 413, 419–420 (2010), the Court held that § 129C (j ) provides such a grace period to new residents who drive into the State with certain firearms in an automobile.

The firearm exemptions in G.L. c. 269, § 10(a) , are as follows:

(1) being present in or on his residence or place of business; or
(2) having in effect a license to carry firearms issued under section one hundred and thirty-one of chapter one hundred and forty; or
(3) having in effect a license to carry firearms issued under section one hundred and thirty-one F of chapter one hundred and forty; or
(4) having complied with the provisions of sections one hundred and twenty-nine C or one hundred and thirty-one G of chapter one hundred and forty….

Therefore, compliance with G.L. c. 140 § 129C(j), exempts the person from G.L. c. 269, § 10(a).

General Laws c. 140, § 129C, provides, in pertinent part: “No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.”