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.