The gun-shy commonwealth: self-defense and concealed carry in post-Heller Massachusetts.

• Author: Ruebsamen, Megan

1. INTRODUCTION

   One in three Americans owns a gun, and in 2011 the percentage of adults with a gun in their home or on their property was the highest since 1993. (1) This increase in gun ownership came at the same time as all-time low support for a ban on handguns. (2) Preceding the public support against handgun bans, the Supreme Court ruled in District of Columbia v. Heller' that a ban on handgun ownership by law-abiding residents violated the Second Amendment of the United States Constitution. (4) This landmark decision established that the Second Amendment guarantees the right of individual citizens to own guns independent of service in the militia. (5) Despite this seemingly definitive answer on the meaning of the Second Amendment, a looming question remains: does the right to bear arms extend outside of the home, encompassing the right of law-abiding citizens to carry concealed weapons for self-defense? (6)

   Massachusetts has some of the toughest gun laws in the country, giving local licensing authorities the power to determine who can obtain a concealed carry permit. (7) Despite the Commonwealth's restrictive conceal and carry regulations, defense attorneys are not without ammunition when defending an otherwise law-abiding client accused of violating the conceal and carry statute in Massachusetts. (8) Using the underlying reasoning in Heller, coupled with the original intent of the Framers of the Second and Fourteenth Amendments, defense attorneys can argue the right to bear arms guarantees the right of citizens to protect themselves. (9) This right to self-defense, it can be argued, logically extends outside the confines of a citizen's home, encompassing the right to carry concealed weapons for self-defense. (10)

   Part II(A) of this Note explains the Heller ruling as defining an individual right to bear arms under the Second Amendment. (11) Part II(B) discusses the Framers' intent while drafting the Second and Fourteenth Amendments, emphasizing the Framers' concern about preserving the right to self-defense, as well as early attempts at gun control. (12) Part II(C) explores the reactions and rulings on Second Amendment issues in the lower courts following Heller. (13) Part III(A) describes the use of handguns in self-defense. (14) Part III(B) introduces a national perspective on conceal and carry laws in the United States. (15) Part III(C) examines Massachusetts state court decisions and statutes concerning conceal and carry in the wake of Heller. (16) Part IV(A) examines the need for weapons outside of the home for self-defense. (17) Part IV(B) discusses the improper construction of the language in Heller by Massachusetts courts. (18) Part IV(C) details the methods defense attorneys can use for as applied challenges to the conceal and carry statute in Massachusetts. (19) Finally, Part V states the conclusion. (20) Given the importance of self-defense to the Framers, combined with the reasoning in Heller, Massachusetts conceal and carry permits should be granted to qualified, law-abiding citizens.

2. HISTORY

   1. Heller: An Individual Right to Bear Arms

      Prior to the Supreme Court decision in Heller, academic debate surrounding the Second Amendment centered around two opposing views. (21) In the collective rights camp, scholars interpreted the Second Amendment to mean a right to bear arms only in connection with military service. (22) In contrast, the individual rights camp provided the opposite interpretation and believed the Second Amendment guaranteed citizens an individual right to possess arms unconnected with military service. (23) The Supreme Court was largely silent on the debate, with the few pre-Heller Second Amendment cases addressing the nature of the right merely tangentially. (24)

      The Supreme Court changed course when deciding District of Columbia v. Heller, coming out on the individual rights side of the Second Amendment debate. (25) The appellant in Heller, a Washington, D.C. special policeman, challenged the District of Columbia's prohibition on registering handguns and carrying unregistered firearms, restrictions that amounted to a general prohibition on the possession of handguns. (26) The majority opinion, penned by Justice Scalia, struck down the District of Columbia law as an unconstitutional infringement on Second Amendment rights. (27) Although definitively stating the Second Amendment right to bear arms was an individual right independent of service in the militia, the majority Heller opinion left many unanswered questions for lower courts, one of the largest being the scope of the right to carry arms for self-defense. (28) Rather than a landslide victory for guns-rights advocates, Heller emphasized that the right to keep and bear arms, while an individual right, was not a "right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (29) Instead of clearly defining what was constitutionally permissible in gun control legislation, Heller deliberately set a controlled pace of defining Second Amendment rights. (30)

      Justice Scalia's majority opinion in Heller created further problems by stating in dicta:

      [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (31) Lower courts picked up on what many characterize as "limiting language" in the Heller opinion, with most courts treating Justice Scalia's enumerated firearms restrictions as constitutional limitations of Second Amendment rights. (32) Despite this trend in the lower courts, some scholars have argued that singling out "sensitive places" means Justice Scalia likely did not intend the Heller decision to effectively ban all firearms possession in every place but the home. (33)

      Gun rights activists seemingly scored another victory when the Court extended the Second Amendment to the states in McDonald v. City of Chicago. (24) The appellants in McDonald challenged Chicago-area gun laws that prohibited the registration of most handguns, "effectively banning handgun possession by almost all private citizens" who resided in Chicago and the Chicago suburb of Oak Park. (35) Justice Alito's plurality opinion in McDonald stated that the Second Amendment extended to the states through the Due Process Clause of the Fourteenth Amendment, emphasizing that Heller guaranteed a right to self-defense under the Second Amendment. (36) However, like in Heller, the Court failed to define the scope of the Second Amendment right. (37) Instead, they reinforced the Heller dicta that the individual right to bear arms is not without limits. (38)

   2. Self-Defense: Intent of the Framers and Early Gun Control

      Justice Scalia based the majority opinion in Heller on the original intent of the Framers of the Second Amendment, focusing largely on a "normal meaning" version of originalism. (39) Using this framework, Justice Scalia examined the meaning of the Second Amendment according to what would have been known to ordinary citizens in the founding generation. (40) The Antifederalists crafted the Second Amendment in response to fears of an overly powerful federal government, specifically addressing the fears of a standing army. (41) The Framers of the Second Amendment were aware of the problems of prior monarchs who restricted possession of firearms to Protestants who owned large tracts of land, preventing many from defending themselves and their property. (42) To combat these fears, the Framers sought to allow individual citizens the right to bear arms if the federal government used the army to usurp the rights of citizens or states, which culminated in the drafting of the Second Amendment. (43)

      Exemplifying this wariness of a strong central government, the language of the Second Amendment largely conforms to that of the English Bill of Rights, which included a condemnation of previous kings for disarming the people. (44)

      Even in the Founding Era, gun rights were accompanied by gun control laws. (45) The founding generation denied gun ownership to slaves, free blacks, and law-abiding white men who refused to swear loyalty to the Revolution. (46) Additionally, firearms legislation often involved high taxes and bans on inexpensive guns in southern states to prevent poor black and white citizens from purchasing them. (47)

      The Fourteenth Amendment functioned as its own kind of gun control, expanding the class of people who could own firearms in the wake of the Black Codes common in the defeated post-Civil War South. (48) The Black Codes sought to reestablish white supremacy by disallowing gun ownership by freed slaves. (49) Throughout the South, parties forcibly took firearms from newly freed slaves in a systematic effort to disarm this population. (50) In proposing the Fourteenth Amendment, Senator Jacob Howard of Michigan, a principal sponsor of the Amendment in the Senate, reminded his colleagues that the Amendment guaranteed, among other things, "the right to keep and bear arms." (51) At the time the Fourteenth Amendment was proposed, the use of firearms for self-defense was the only way black citizens in the South could protect themselves from lynchings and mob violence. (52) The legislators behind the Fourteenth Amendment clearly believed the right of individuals to use guns for self-defense was an essential element of citizenship. (53) While Americans did not develop widespread personal use of guns until after the Civil War, when advances in manufacturing made them more available, the founding generation established the right to own and use weapons as a "hallmark of citizenship." (54)

   3. Post-Heller in the Lower Courts: A Need for Clarity

      Justice Scalia stressed in the Heller majority opinion that the individual right to bear arms under the...