Who is armed, and by what authority? An examination of the likely impact of Massachusetts firearm regulations after McDonald and Heller.

AuthorDriscoll, Brian

"States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional. (1)

  1. Introduction

    Article XVII of the Massachusetts Declaration of Rights guarantees a right to keep and bear arms for the common defense. (2) The Supreme Judicial Court (SJC)--Massachusetts's highest court--has interpreted article XVII as preserving a right to keep and bear arms in connection with service in the militia. (3) Because the SJC's interpretation of article XVII does not protect an individual right to keep or bear arms, the court has granted the Massachusetts General Court--the state's legislative body--wide leeway to craft a broad range of regulations governing gun ownership in Massachusetts. (4) In response, the General Court has enacted a comprehensive regulatory scheme for controlling and licensing firearm ownership in the Commonwealth. (5)

    Although many citizens have challenged Massachusetts's gun laws as infringing upon their Second Amendment right to keep and bear arms, the SJC has consistently upheld the laws because, until recently, the Second Amendment did not apply to the states. (6) The United States Supreme Court's reticence to incorporate the Second Amendment to apply to the states, coupled with the SJC's interpretation of article XVII, resulted in the routine failure of challenges to the Massachusetts regulatory scheme. (7) After District of Columbia v. Helle (8) and McDonald v. City of Chicago, (9) however, it appears that "the times they are a changin'." (10) Because of this new definition of the Second Amendment's scope of protection, several Massachusetts firearm laws may not survive constitutional challenges in the post-McDonald world. (11) This Note will analyze the impact that these opinions will likely have on the Massachusetts gun regulation landscape. (12) The Note examines a small sampling of laws, including safe-storage requirements, discretionary licensing, and discretionary license restrictions, all of which will almost certainly be subject to constitutional challenges in the near future. (13)

    Part II.A of this Note will outline the history of firearm regulation in Massachusetts, beginning with the Massachusetts Declaration of Rights. (14) Part II.B will highlight the laws most vulnerable to challenges after McDonald. (15) Although discussed at length in Part II.B, a brief introduction to some of these vulnerable regulations may be useful at this point. (16) Massachusetts has a discretionary licensing system. (17) A licensing authority--usually the chief of police in each municipality--has the authority to exercise his or her discretion and deny an otherwise qualified applicant if the licensing authority believes that the applicant is not "suitable." (18) A law allowing the discretionary denial of a fundamental right based on undefined notions of suitability, while passing constitutional muster under article XVII, will not likely survive constitutional scrutiny under the Second Amendment following the amendment's incorporation after McDonald. (19)

    The same statute also provides the licensing authority with the power to place restrictions on licenses that limit the right to carry a firearm unless engaged in a particular activity. (20) For example, the restrictions allow the licensee to carry a firearm only for either employment purposes or when target shooting. (21) A licensee who attempts to challenge the license restriction faces a heavy burden, as the reviewing court examines the licensing authority's decision under a deferential abuse of discretion standard. (22) Given the impact these license restrictions have on an individual's right to keep and bear a firearm for self-defense, the law authorizing restrictions will almost certainly be challenged going forward. (23) Furthermore, Massachusetts law currently requires gun owners to secure firearms in a locked container--or with a tamper-proof locking device--whenever the firearm is not under the direct control of a licensed individual. (24) This law will also likely face a challenge on Second Amendment grounds because of the similarities between the Massachusetts safe-storage requirements and the storage law struck down in Heller. (25)

    As noted above, the Supreme Court has recently clarified the meaning of the right protected by the Second Amendment in Heller, and further incorporated the Second Amendment within the Fourteenth Amendment's Due Process Clause in McDonald. (26) Part II.C will discuss Heller and McDonald and provide the foundation for a discussion of the likely impact that these landmark rulings will have on Massachusetts gun laws. (27) As a result of these opinions, Massachusetts will likely need to reform its approach to firearm regulation. (28) Part II.D will briefly discuss proposed legislation--particularly a bill labeled House Bill 1568--that could provide a replacement regulatory system capable of surviving heightened constitutional scrutiny. (29)

    As a result of the Second Amendment's incorporation under the Fourteenth Amendment, the SJC can no longer restrict analysis of challenges solely to the rights protected by article XVII, and the court will have to determine a new framework for analyzing the Commonwealth's gun laws. (30) Part III.A predicts that the SJC will adopt a strict-scrutiny standard of review when addressing future challenges to Massachusetts's gun laws in light of Heller and McDonald. (31) Part III.B anticipates the likely outcome of challenges to safe-storage requirements, discretionary licensing, and unreviewable license restrictions using this new analytical framework. (32) Part III.B also suggests that many laws currently in force impermissibly infringe on the newly defined Second Amendment right to keep and bear arms. (33) This Note will conclude by suggesting that the General Court take action and adopt legislation, either House Bill 1568 or a similar regulatory system, that removes constitutionally impermissible restrictions on gun ownership while preserving the Commonwealth's ability to reduce crime and preserve the safety of citizens through licensing and other measures. (34)

  2. HISTORY

    The Second Amendment to the United States Constitution guarantees that, because a well-regulated militia is necessary to the security of the state, the right of the people to bear arms shall not be infringed. (35) This deceptively simple clause has stirred debate and controversy as politicians, lawyers, and scholars have argued over its purpose, its scope, and its place in modern society. (36) Theories regarding the meaning of the Second Amendment can be roughly broken into two camps: the individual-right theory and the collective-right theory. (37) The individual-right theory views the amendment as protecting an individual's right to own and carry firearms regardless of whether the individual is part of the militia. (38) The collective-right theory argues that the amendment was a response to concerns about an overly powerful federal government at the time of its passage, and further argues that the amendment is dependent on service in state-controlled militias. (39) Regardless of the meaning, the Second Amendment, until recently, constrained only the actions of the federal government and left states free to both establish their own protected rights regarding gun ownership and regulate gun ownership and use among their citizens. (40) Forty-four state constitutions contain provisions preserving, to one degree or another, the right to keep and bear arms. (41)

    1. Article XVII and Massachusetts Firearm Laws

      Article XVII of the Massachusetts Declaration of Rights secures a right to keep and bear arms for the common defense. (42) In Commonwealth v. Davis, the SJC interpreted article XVII to preserve a collective right to gun ownership for the Commonwealth's citizens, rather than an individual right, and stated that article XVII extends protection to gun ownership conditioned upon the owner's connection to the Commonwealth's militia. (43) Based on the SJC's collective right interpretation, article XVII does not protect gun ownership outside the militia, and as a result, the General Court can freely regulate possession of firearms so long as the regulations do not impede militia service. (44) Furthermore, the Davis court suggested that some form of regulatory authority would remain, even if the Second Amendment was applied to the states. (45) Shortly after Davis, the SJC concluded violent-crime statistics provided the General Court with a reasonable basis for concluding that gun control laws were a necessary and legitimate tool to combat the rising violent-crime rate in Massachusetts. (46)

      In the interests of reducing violent crime and increasing public safety, the General Court established a comprehensive scheme for regulating firearm ownership in the Commonwealth. (47) Under the scheme, Massachusetts gun owners must be licensed to own firearms; if the owner moves, he or she must provide written notification to the municipality's chief of police within thirty days of arrival. (48) In addition to licensing requirements for purchasing and carrying firearms, (49) Massachusetts law further restricts a licensee's ability to carry firearms, (50) and also establishes safe-storage requirements to prevent unauthorized access to legally owned firearms. (51) Strict penalties exist to ensure that individuals comply with the regulations. (52) There are statutory disqualifications that permanently prevent a person from acquiring a firearms license, including past criminal history, prior firearm or drug offenses, mental health issues, and evidence of drug or alcohol addiction. (53)

      The General Court was very thorough in crafting its gun laws; the regulations mentioned above are just a small fraction of the laws regulating gun ownership and use. (54) A person must have received their license before purchasing or possessing firearms...

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