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.