Also, although possession of less than an ounce of marijuana is now a civil infraction in Massachusetts, it is still a violation of federal law. Furthermore, pursuant to 18 U.S.C. § 922(d)(3), it is a federal offense for a person to sell or transfer any firearm or ammunition to a person who the transferor knows or has having reasonable cause to believe that the transferee is an unlawful user of or addicted to a controlled substance.

The Federal Controlled Substances Act of 1970 completely prohibits all medicinal use of marijuana by placing it in the most restrictive category of Schedule 1. The DEA has determined that controlled substances placed in this category 1) have no therapeutic value, 2) are not safe for medical use, and 3) have a high abuse potential. Therefore, under federal law, there are no “lawful users” of marijuana, notwithstanding any state registration, decriminalization, or “legalization.” As such, the possession or use of marijuana still violates federal law.

When it comes to deciding whether or not to issue a LTC, a police chief or licensing officer can still use marijuana use or possession as a reason to determine than the applicant is unsuitable to hold such a license.

There are ways to overcome disqualifying marijuana convictions when seeking a License to Carry Firearms, especially if you have an otherwise clean record and a legitimate need for such a license for employment or other valid purposes.

Massachusetts DUIL program attendance may disqualify a person from holding a Firearms Identification Card or License to Carry Firearms (LTC) in Massachusetts. Competing this program may cause a Chief of Police or Licensing Authority to deny you a firearms license, including a LTC, because G.L. c. 140 § 131 statutorily disqualifies a person who “is or has been under treatment for or confinement for drug addiction or habitual drunkenness.” Some licensing officials have decided that being treated at the DUIL program qualifies as “treatment” or “confinement” for “habitual drunkenness.”

Interpreting completion of the DUIL program as “confinement” is wrong because a person is not “confined” at the program. Attendees are not locked in or incarcerated while attending the DUIL program at Tewksbury State Hospital, which is not a correctional facility.  Attendees are free to leave the program. Of course, leaving the program will likely result in a violation of probation. However, those who participate in the alcohol education program are not “confined” there.

Secondly, all that is required to convict someone of DUI is that the person operated a motor vehicle on a public way or public right of access while they were “under the influence” of alcohol. The law does not require that the person was “drunk.” The law only requires that a person’s ability to drive safely was diminished by alcohol, not that the person was intoxicated or drunk. Therefore, someone could be assigned to complete the DUIL program without ever having been drunk.

Fortunately, for LTC applicants and Mass. Firearms license holders dealing with this issue, Massachusetts Firearms Lawyers such as Attorney Jesse Cohen have been able to overcome this obstacle when it comes to LTC applications, renewals, and suspensions. If you have been denied a firearms license due to confinement or treatment for what some are calling “habitual drunkenness,” you should contact a lawyer to discuss your situation and ways to resolve this issue.

The standard Massachusetts firearms application form must be signed under the penalties and pains of perjury. Also,  knowingly  making false statements in an application for a LTC or FID is a criminal offense which will not only result in the denial of the application, but it carries a fine of at least $500.00 up to $,1000.00 and a jail sentence of at least 6 months up to 2 years in jail.

Question 10 asks, “have you ever appeared in any court as a defendant for any criminal offense (excluding non-criminal traffic offenses)?”  You must answer “yes,” to this question even if you were found not guilty or the charges were dismissed. Also, the Massachusetts Firearms Record Bureau is legally allowed to review and consider sealed records, including sealed juvenile records, when processing a firearms license application.

It is possible to appear as a criminal defendant in Massachusetts without having been arrested. For example, if you appeared in court in response to a criminal citation or summons, you must answer yes to Question 10, even though you’ve never been arrested.

You do not need to answer “yes,” if your only offenses were civil motor vehicle infractions such as speeding. However, if you were charged with a criminal motor vehicle offense such as operating after the suspension of your license or unlicensed operation, you must answer “yes” to Question 10

If you have any question as to how to answer Question 10 on your Mass. LTC or FID application, I strongly suggest that you contact a Massachusetts Firearms Lawyer prior to submitting your application.

A firearm is under the owner’s immediate control when the owner is sufficiently nearby to immediately prevent an unauthorized person from using it.  When the owner is carrying the firearm or he can immediately reach it, the gun is not required to be secured. Therefore, with a License to Carry Firearms (LTC), it is lawful to carry a loaded firearm in your home or to keep unsecured, so long as it is under your immediate control.

Firearms, rifles, shotguns, and machine guns must be securely locked only when not being carried or when the owner does not have immediate control over the firearms, so as to prevent their unauthorized use. It is not enough to simply “store” the firearm. Instead, it must be “securely” stored. This means that the firearm must be placed in a locked container which would physically prevent a child or other unauthorized person from using it. Locking the firearm with a mechanical “trigger lock” or other tamper resistant mechanical device will also satisfy the safe storage law, so long as the weapon is rendered inoperable to anyone but the owner or authorized user.

It might be possible to have a room or closet considered a “locked container.” However, the “contained” must be sufficiently secured. In one case where rifles were stored in a bedroom closet, which was secured only by a privacy lock which could be easily opened with a bobby pin, it was determined that the “container” was not secure enough to satisfy G.L. c. 140, § 131L.

Lawful gun owners should be aware of the secure storage requirements of G.L. c. 140, § 131L and insure that their weapons are properly secured against theft and misuse.

Bill D., one of our readers, asked “Did the District Of Columbia v. Heller decision affect the Mass. law regarding keeping firearms locked up and effectively useless?” The answer is that the Massachusetts secure storage law does not violate the rule announced by the United States Supreme Court in the Heller case. In Heller, the U.S. Supreme Court ruled that the 2nd Amendment guarantees an individual the right to a firearm in the home for self-defense. In McDonald v. Chicago, the U.S. Supreme Court ruled that the Second Amendment is applicable to the States, such as Massachusetts.

Because G.L. c. 140 Sec. 131L “does not require that firearms in the home be rendered and kept inoperable at all times” and “does not make it impossible for those persons licensed to possess firearms to rely on them for lawful self-defense,” there is no violation of the standard announced in Heller. So long as you are carrying the firearm or you have it under your immediate control, you can keep a loaded firearm in your home. Thus, you can use a firearm for self-defense in accordance with your 2nd Amendment right.

On November 13, 2009 the Massachusetts Firearms Records Bureau revoked Simkin’s LTC claiming in part, “On Friday, November 13, 2009 I spoke with the manager *** who confirmed that on Friday employees were alarmed and concerned their safety on November 6, 2009.” On February 5, 2010, the  Firearms Records Bureau refused Simkin’s request to reconsider the decision to revoke his license to carry firearms, on the grounds that he was no longer is a “suitable person” to hold such a license because he was armed during his doctor’s visit.

He has never been arrested and he was a Federally-licensed Firearms dealer who underwent extensive training in proper defensive uses of firearms and other weapons.

The Massachusetts Supreme Judicial Court heard oral arguments in this case earlier this month and a decision is expected in August or September of this year.

The mere possession of a high capacity magazine without a Class A License to Carry Firearms is a crime. Also, for the possession of a high capacity feeding device by a non-law enforcement official to be lawful, it must have been lawfully owned or manufactured prior to September 13, 1994.  In Massachusetts, it is unlawful for a private citizen to own a high capacity magazine which was not lawfully possessed prior to that date.

G.L. c. 140 § 131M makes it a felony to “sell, offer for sale, transfer or possess” a high capacity ammunition feeding device or magazine that was not lawfully possessed on September 13, 1994. There is an exemption for active duty and retired law enforcement officers. These magazines may be referred to as “post ban” magazines, with those being lawfully possessed prior to September 13, 1994 being referred to as pre-ban magazines.

The subsequent activity component of MIRCS receives a nightly download of criminal court activity from courthouses across Massachusetts and it compares that information with the names and dates of birth of those who have been issued Licenses to Carry Firearms or Firearms Identification Cards. When a match between the court activity and firearms license records is found, the system alerts the licensing officer that someone who he or she licenses was involved in court activity, which may result in the suspension or revocation of the person’s firearms license on the grounds of suitability or statutory disqualification.

Under this system, if you are licensed in one community but arrested in another, the Police Chief or his designee who issued your LTC or FID will be electronically notified when you appear in court as a criminal defendant. Your appearance may result in the suspension or revocation of your firearms license. If this happens, you should contact a lawyer such as Attorney Jesse C. Cohen.

Any rifle, shotgun, or handgun left in a motor vehicle, not under the owner’s direct control must be stored in a securely locked container to satisfy the safe storage requirements of G.L. c. 140 § 131L.

A Class A LTC allows the license holder to purchase, rent, lease, borrow, possess and carry: 1) Firearms, including large capacity firearms(semi-automatic handgun or rifle capable of firing more than ten rounds, or a shotgun capable of accepting more than five shotgun shells), ammunition and feeding devices for the ammunition, for any lawful purpose and 2) Rifles and shotguns—including large capacity weapons, ammunition and feed devices for the ammunition. Both forms of firearms can be subject to restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper. If someone violates one of the imposed restrictions, they can be fined between $1,000-$10,000. Class A licenses are also issued to individuals that own and operate a shooting range or gallery where large capacity weapons will be used.

A Class B license allows the person to purchase, rent, lease, borrow, possess and carry non-large capacity firearms and feeding devices for ammunition for the firearm. Class B licenses do not allow a person to carry a large capacity firearm (unless they are in a location that holds a valid Class A license) or carry any loaded firearm in a concealed manner in public. A violation of any Class B restrictions will also result in a fine between $1,000-$10,000.

Both Class A and B licenses allow a person to own, possess, purchase or transfer any non-large capacity rifles and shotguns, and also to purchase or possess chemical mace, pepper spray or any other propelled liquid, gas or powder which is designed to temporarily incapacitate.

In order to obtain a Class A or B license, an applicant must reside or have a place of business within the jurisdiction of the licensing authority and submit the application to the licensing authority or to the colonel of the state police. The license will be granted if the applicant is a suitable person and the person has either a good reason to fear injury to his person or property or for any other reason, including the carrying of firearms for use in sport or target practice only. An applicant must complete a Firearms Safety Course or a Basic Hunter Education course in order to fulfill the training requirement for Massachusetts. The license is valid for 6 years and costs $100.00.

A person’s application will be denied if he or she is an alien, under 21 years of age, or the LTC applicant has any statutory disqualifiers such active warrants, a criminal record containing disqualifying offenses, a record showing confinement or treatment for mental illness drug addiction, or drunkenness.

Seven days after receiving the LTC application, the Chief of Police or his designee is required to conduct a fingerprint check with the Mass. State Police. Within 30 days thereafter, the MSP is required to advice the local police of anything on the applicant’s criminal record which would disqualify the applicant or give the licensing officer a reason to believe that the LTC application should be denied.

The law states that the Chief of Police or licensing official authority is supposed to render a decision on a firearms license application within 40 days from the filing date. If a license is denied, the licensing authority is supposed to provide a written denial notice.

There is a ninety (90) day grace period for Licenses to Carry Firearms (LTCs) and FID cards. This means that a LTC or FID is valid for a period of 90 days after the stated expiration date. For members returning from active military duty, FID cards are valid for 90 days after the military member’s release from active duty.

It is not a crime to carry a rifle, shotgun, or firearm on an expired license, even if the license is expired beyond the 90 day grace period, so long as the holder is not disqualified from renewal of the license. It is a civil infraction and not a violation of G.L. c. 269 § 10. Thus, there is no right of arrest. It is only a violation of G.L. c. 269 § 10 and, therefore, “arrestable” only if:

the license was revoked or suspended, or a revocation or suspension is pending, due to something other than a failure to notify of a change of address;

the renewal of the firearms license (LTC or FID) has been denied;

In all cases of a suspended, revoked, or expired firearms license (LTC or FID), police are required to confiscate the weapons and the firearms license, which must be promptly forwarded to the licensing authority which issued the license. Confiscated firearms, rifles and shotguns must returned to their owner upon license renewal.

Carrying on an expired LTC or FID is a civil infraction punished by a civil fine of $500 – $5000. G.L. c. 269 § 10 is not violated unless the license was suspended, revoked, or denied for something other than failure to report a change of address. Thus, there is usually no right of arrest in these situations.