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.

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.

 

CWOFs & Massachusetts Firearms Licensing

 

There is considerable confusion regarding whether a criminal case which was continued without a finding can be used to deny issuance of a license to carry firearms in Massachusetts. Some licensing authorities mistakenly believe that a charge which was resolved by a CWOF counts as a conviction. While the facts which underlie a CWOF might be able to be used to show that an applicant is not a suitable person to hold a license to carry firearms, the disposition itself does not render an applicant statutorily disqualified from being issued a LTC. Such is the case because nowhere in the definition of “conviction,” which is set forth in G.L. c. 140 § 121, is there any mention of a case which was continued without a finding (CWOF’ed.) Furthermore, an admission to sufficient facts followed by a continuance without a finding does not constitute substantial evidence that the underlying offense occurred. For example, in Wardell v. Director of Div. of Empl. Sec., 397 Mass. 433, 436-37 (1986), the Supreme Judicial Court held that

An admission to sufficient facts, absent a subsequent finding of guilt, does not constitute substantial evidence from which a finder of fact in a collateral civil proceeding can determine that the alleged misconduct has indeed occurred. Factors other than consciousness of guilt – including expedience or avoidance of publicity – may motivate a defendant to admit to sufficient facts in exchange for a continuance and eventual dismissal. Criminal charges not resulting in conviction do not provide adequate or reliable evidence that the alleged crime was committed.

See Fire Chief of East Bridgewater v. Plymouth Co. Ret. Bd., 47 Mass. App. Ct. 66, 71 N13 (1999), citing Commonwealth v. Jackson, 45 Mass. App. Ct. 666 (1998). (Admission not akin to a guilty plea). See also Burns v. Commonwealth, 430 Mass. 444, 449-451 (1999) (State Police trial board’s discipline based on officer’s admission to sufficient facts and resulting CWOF on the underlying charges was reversed as legal error); Santos v. Director of Div. of Empl. Sec., 398 Mass. 471, 474 (1986) (“The record reflects that the plaintiff claimed he was innocent; for all that is shown in the record, he may have admitted to sufficient facts to avoid the expense, publicity, and notoriety which a full trial might engender.”)

Accordingly, a CWOF is not a conviction for Massachusetts firearms licensing purposes and there are many legitimate reasons why a License to Carry Applicant may have agreed to a CWOF as a sensible means to dispose of a criminal charge.

 

Answering LTC Application Question 10

Conducting some basic “due diligence” prior to applying for a License to Carry Firearms in Massachusetts can make the difference between winning and losing. Indeed, Massachusetts Firearms Attorney Jesse C. Cohen has seen a large number of LTC denials which could have easily been avoided by following some simple steps.

Question 10 of the Mass. LTC Application will ask:

Have you ever appeared in any court as a defendant for any criminal offense (excluding non-criminal traffic offenses)?.

Answering this question untruthfully can result in the denial of your license for providing false information. You can avoid this trap by checking your criminal record ahead of time. However, you must keep in mind that the record which you receive will not contain sealed records, which can be used to deny your application. One of the best ways to avoid answering question 10 incorrectly is to consult with a firearms lawyer before you apply. After a simple consultation and review of your situation, you will be able to answer the question correctly and avoid a denial for giving false information.

Another potential problem involves providing proof of residency or that you have a business located in the jurisdiction where you are applying. The police chief or licensing officer who processes your application is entitled to investigate the information provided to determine whether your are truly a resident or have a place of business where you are applying. Licensing officials conduct “residency” or “place of business” investigations because some applicants make false claim to have residency or a place of businesses in communities where the licensing officer is known as lenient, so as to increase their chances of success. Also, some police departments will not issue unrestricted licenses which allow individuals to carry for “all lawful purposes,” while others will routinely issue licenses of this type. These differences in firearms licensing policies have motivated some pistol permit applicants to apply in jurisdictions other than where the live or have a business. Licensing officials are aware of this and they will check databases such as the Registry of Motor Vehicles to verity information.

Answering each LTC application question truthfully and carefully is critical when it comes to getting a firearms permit in Massachusetts, especially in communities such as Boston and Brookline, were applications are closely scrutinized.

Getting a License to Carry

In Massachusetts, a license to carry firearms is required to carry a handgun outside of your home or place of business. For Massachusetts residents, Licenses to Carry Firearms are issued by local police chiefs. You must apply in the city or town where you reside or have a “place of business.”

The process of obtaining a License to Carry Firearms (LTC), which some refer to as a pistol permit or concealed weapons permit (CWP), begins with the submission of an application to the local chief of police or his or her designee.

Proof of completion of a Basic Firearms Safety Course (BFS) is required for all first-time applications. The purpose of this course is to insure that the applicant has sufficient knowledge of firearms safety, so that he or she can carry and possess firearms in a safe manner.

Upon receipt of your License to Carry Application, the licensing officer will conduct a computerized background investigation which will include a check of your local, state, and federal criminal record as well as a check with the Massachusetts Department of Mental Health, to see if you have been committed for mental illness. The licensing officer may also check to see if you have been committed for alcoholism. The investigation of your application will undoubtedly also include a local check of the police department’s “in-house” records. Police reports which do not result in charges or convictions can be used to deny your application.

Incident to your application, you will be fingerprinted and these prints will be searched against state and federal law enforcement databases to see if you have been arrested. This part of the process is designed to “screen out” those who may have given false names or other information.

If the licensing authority identifies any statutory disqualifers, such as restraining orders, felony or serious misdemeanor convictions, or other mandatory “show stoppers,” you will be denied a firearms license. Incident to the processing of your application for a firearms license, the Firearms Records Bureau of the Department of Criminal Justice Information Systems, (DCJIS), which was formerly known as the Criminal History Systems Board, will check with the Office of the Commissioner of Probation to see if you have any sealed records on file. If you have a sealed record, adult or juvenile, which contains statutory disqualifying offenses, your license will be denied.

Assuming that there is nothing which would disqualify you from being issued a license to carry firearms in Massachusetts, the next step is for the licensing authority to assess your “suitability” to possess a firearms license. The law affords police chiefs and licensing officials wide latitude and discretion when it comes to deciding who gets a License to Carry and who does not. The burden is on you, as the applicant, to prove that you are a suitable person to hold a LTC.

If the Police Chief or his designee determines that you are not legally prohibited from holding a license to carry firearms and that you are suitable to hold such a license, the next step is for the licensing authority to determine whether or not you have a “proper purpose.” Again, the burden is on you as the applicant to satisfy the police that you have a legitimate reason to carry a gun. Often, licenses are restricted for sporting, hunting, or target shooting. In cases such as these, you cannot carry a gun for personal protection. The basis for these restrictions is that many police chiefs do not want citizens walking around their communities with loaded guns.

In some communities, the police will require you to attend a personal interview with the chief or his licensing officer to help the police better assess your suitability and “proper purpose.” Also, the police sometimes require that you pass a practical examination which may involve shooting, to demonstrate that you can safely handle a firearm.

Once you pass the licensing criteria, and pay the required fee, you will be issued your license to carry firearms.