The Mass. Constitution & Firearms Licensing

The Massachusetts State Constitution, which pre-dates the United States Constitution, recognizes our right to bear arms. Specifically, Article XVII of the 1780 Massachusetts Declaration of Rights states, “[t]he people have a right to keep and to bear arms for the common defence . . . and the military power shall al-ways be held in an exact subordination to the civil authority, and be governed by it.” The Second Amendment to the U.S. Constitution is, of course, cited as the primary constitutional authority for an individual’s right to carry and possess firearms, especially in the wake of Heller & McDonald v. City of Chicago, which make it clear that the right to possess firearms is an individual rather than a collective right. But wait, there’s more! Our Declaration of Rights may go even further than the 2nd Amendment.

It has been long held that the Massachusetts State Constitution provides more rights to Massachusetts citizens than its federal counterpart. For example, the protection against self-incrimination found in Article 12 of the Massachusetts Declaration of Rights provides more stringent protections for invoking the right to silence than does the 5th Amendment. Commonwealth v. Clarke, 461 Mass. 336, 346–351, (2012) . Likewise, Article 14 of our State Constitution affords us more protections against unreasonable searches and seizures than does the 4th Amendment. Commonwealth v. Upton, 394 Mass. 363 (1985).

Based on the aforementioned legal principles, it stands to reason to that the Massachusetts Declaration of Rights may provide us with more protection than the 2nd Amendment to the United States Constitution, when it comes to firearms rights. Under this standard, certain restrictions, such as prohibiting felons and intoxicated citizens from possessing firearms are likely to be upheld. However, arbitrary and capricious License to Carry denials based on vague and ambiguous “suitability” determinations many not be constitutional. Likewise, the requirement that an applicant for a License to Carry demonstrate a “good reason to fear injury to his person or property,” might violate his or her “right to keep and to bear arms” under Article XVII of the Declaration of rights. This is an area of law which warrants further exploration and advancement.

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.

 

LTC Constitutional Challenge Fails

On January 23, 2009, around 1:40 A. M., the Fitchburg police department received a 911 call in which the caller reported seeing a person threaten a patron with a silver handgun at the Wine Cellar, a local bar. The caller also stated that the person with the handgun was a black male who got into a white Pontiac, with a partial plate number of “F2D.” Trooper Doyle of the Massachusetts State Police stopped the vehicle and spoke with the operator, Stacy Ford. Also present in the vehicle were the defendant Rhodes, seated in the driver’s side back seat, codefendant Ford, seated in the front passenger seat, and a fourth individual seated in the rear passenger seat. Officers found a shiny silver handle of a gun on the floor of the front passenger compartment and a white handbag on the floor behind the driver’s seat which contained a handgun with one round in the chamber.

The defendants argued that the licensing statute is facially invalid because it (i) fails to provide guidance in the form of statutory language or regulatory mandates to the decision making authority as to who should be granted a license to carry a handgun, (ii) fails to give notice of what conduct the law proscribes and impermissibly delegates basic policy matter to adjudicators for resolution on an ad hoc basis, (iii) impermissibly delegates legislative authority to the executive branch of government, and (iv) fails to utilize the least restrictive means of regulating the right of the individual to bear arms. The Massachusetts Appeals Court was not persuaded.

The Court ruled that neither defendant applied for, nor was denied a license to carry a firearm, and each was arrested on a public street, in an automobile, and in possession of a loaded handgun. Where a defendant does not assert that he or she either applied for, or was improperly denied, a license to carry a firearm under G.L.c. 140, § 131, and instead violated the law, that defendant is precluded from challenging a conviction of carrying a firearm without a license under the Second or Fourteenth Amendments to the United States Constitution.

Commonwealth v. Rhodes, decided March 27, 2012.

“Parking Lot” Firearms Law Moving Forward in TN

A “compromise” bill which would allow firearms license holders to keep guns in their vehicles parked at their employer’s premises, even though the employer bans guns in the workplace, is making headway in Tennessee. Employers are legally allowed to ban firearms and other weapons in the workplace. However, proponents of the “parking lot” legislation believe that such a ban should not apply to an employee’s privately owned automobile, even though the vehicle is parked in the employer’s parking lot.

In addition to denying gun owners the ability to defend themselves, the “parking lot” prohibition, would also prevent those who are going hunting or target shooting before or after work from doing so, without a trip home to pick up or drop off their guns.

Employers claim that allowing guns in the workplace parking lot is dangerous and it provides a “disgruntled employee” with ready access to a firearm.

If this bill passes, Tennessee will join  Florida, Indiana, Kentucky, Louisiana, Minnesota, Oklahoma, Alaska, Arizona, Georgia, Idaho, Kansas, Michigan, Mississippi, Nebraska, Ohio, and Utah, as a state which prohibits employers from restricting an employee’s ability to carry a firearm to or from work.