sjc-12607.pdfappeals court for the commonwealth of massachusetts 2018-p-929 commonwealth v. brian k....

APPEALS COURT FOR THE COMMONWEALTH OF MASSACHUSETTS

2018-P-929

COMMONWEALTH

v.

BRIAN K. HARRIS

ON APPEAL FROM A JUDGMENT OF THE LOWELL DISTRICT COURT

BRIEF FOR BRIAN K. HARRIS

Christopher DeMayo (BBO #653481) LAW OFFICE OF CHRISTOPHER DEMAYO 38 Montvale Avenue, Suite 200 Stoneham, MA 02180 (781) 572-3036 [email protected]

JUNE 2018

001

Massachusetts Appeals Court Case: 2018-P-0929 Filed: 6/29/2018 8:30 AM

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................. 4 ISSUES PRESENTED .................................... 10 STATEMENT OF THE CASE ............................... 10 RELEVANT FACTUAL BACKGROUND ......................... 12 SUMMARY OF THE ARGUMENT ............................. 17 ARGUMENT ............................................ 18

I. CHAPTER 269, § 10, AS INTERPRETED BY THE CASE LAW, IS FACIALLY UNCONSTITUTIONAL BECAUSE IT CONCLUSIVELY PRESUMES THAT

ANYONE FOUND IN POSSESSION OF A FIREARM IS UNLICENSED ............................. 18

II. CHAPTER 269, § 10 AND CHAPTER 140, § 129C ARE FACIALLY UNCONSTITUTIONAL INSOFAR AS THEY ACT IN COMBINATION TO EFFECTIVELY BAN NONRESIDENTS FROM TRAVELING THROUGH THE COMMONWEALTH WITH UNLOADED HANDGUNS SECURED IN THEIR VEHICLE TRUNK .................... 25

III. VARIOUS ERRORS IN THE JURY INSTRUCTIONS AND THE PROSECUTOR’S CLOSING ARGUMENT WARRANT A NEW TRIAL ................................. 37

A. Judge Coffey Committed Reversible Error

By Refusing To Give A Instruction On The Firearm Owner’s Protection Act, 18 U.S.C., § 926A ....................... 37

B. The Jury Instructions Erroneously

Omitted The Key Element Of Carrying A Firearm: That The Defendant Possessed The Firearm Outside His Residence Or Place Of Business .................... 44

C. The Jury Instructions Deprived Mr.

Harris Of A Potential Defense Under G.L. c. 140, § 129C(j) To The Possession Charges ................... 49

002


D. The Prosecutor Erred In Eliciting Testimony That Mr. Harris “Had Something Against Massachusetts” Because It Was Prejudicial And Had No

Conceivable Relevance ................ 52 E. During Her Closing Argument The

Prosecutor Materially Misstated The Law, Adding To The Cumulative Risk Of A Miscarriage Of Justice .......... 55

CONCLUSION .......................................... 58 CERTIFICATE OF COMPLIANCE ........................... 59 ADDENDUM ............................................ 60

003


TABLE OF AUTHORITIES Massachusetts Cases Atwood v. Atwood, 297 Mass. 229 (1937) ............................. 53 Bulldog Investors G.P. v. Sec’y of the Commonwealth, 460 Mass. 647 (2011) ............................. 36 Chin v. Merriot, 470 Mass. 527 (2015) ............................. 43 Commonwealth v. Allen, 474 Mass. 162 (2016) ............................. 18 Commonwealth v. Alphas, 430 Mass. 8 (1999) ............................ 47,49 Commonwealth v. Anderson, 445 Mass. 195 (2005) ............................. 19 Commonwealth v. Berry, 431 Mass. 326 (2000) ............................. 49 Commonwealth v. Cancel, 394 Mass. 567 (1985) ............................. 58 Commonwealth v. Cassidy, 479 Mass. 527 (2018) ............................. 19 Commonwealth v. Cruz, 445 Mass. 589 (2005) .......................... 43,44 Commonwealth v. Davis, 369 Mass. 886 (1976) ............................. 23

Commonwealth v. Gomes, 459 Mass. 194 (2011) ............................. 51 Commonwealth v. Gouse, 461 Mass. 787 (2012) ............................. 18 Commonwealth v. Jones, 372 Mass. 403 (1977) ......................... passim Commonwealth v. Leno, 415 Mass. 835 (1993) ............................. 58

004


Commonwealth v. Monico, 373 Mass. 298 (1977) ............................. 38

Commonwealth v. Moore, 54 Mass. App. Ct. 334 (2002) ..................... 48

Commonwealth v. Moreira, 385 Mass. 792 (1983) ............................. 22

Commonwealth v. Munoz, 384 Mass. 503 (1981) .......................... 21,25

Commonwealth v. Okoro, 471 Mass. 51 (2015) .............................. 39

Commonwealth v. Pauley, 368 Mass. 286 (1975) .......................... 23,24

Commonwealth v. Richards, 384 Mass. 396 (1981) ............................. 51

Commonwealth v. Seay, 376 Mass. 735 (1978) ............................. 19

Commonwealth v. Seng, 456 Mass. 490 (2010) ............................. 43

Commonwealth v. Wood, 398 Mass. 135 (1986) .......................... 51,56

Dotson v. Commissioner of Revenue, 82 Mass. App. Ct. 378 (2012) ..................... 53

Firearms Record Bureau v. Simkin, 466 Mass. 168 (2013) ............................. 34

Ramirez v. Commonwealth, 479 Mass. 331 (2018) .......................... 24,36

Shepard v. Finance Assocs. of Auburn, Inc., 366 Mass. 182 (1974) ............................. 53

T & D Video Inc., v. Revere, 423 Mass. 577 (1996) .......................... 28,35

005


Federal Cases

Bailey v. U.S., 516 U.S. 137 (1995) .............................. 41

Barnes v. U.S., 412 U.S. 837 (1973) .............................. 20

Caetano v. Massachusetts, 136 S.Ct. 1027 (2016) ......................... 29,30

Crandall v. Nevada, 6 Wall. 35 (1867) ................................ 32

District of Columbia v. Heller, 554 U.S. 570 (2008) ........................... 18,29

Dred Scott v. Sandford, 60 U.S. 393 (1857) ............................ 30,31

Gould v. O’Leary, 2017 U.S. Dist. LEXIS 199400 (D.Mass. Dec. 5 2017) ............................ 29

Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011) ................ 26,34

Kremer v. Chemical Const. Corp., 456 U.S. 461 (1982) .............................. 32

Leary v. United States, 395 U.S. 6 (1969) ............................. 20,25

Maher v. Roe, 432 U.S. 464 (1977) .............................. 28

McDonald v. City of Chicago, 561 U.S. 742 (2010) .................. 18,23,24,29,30

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) ..................... 29

Muscarello v. U.S., 524 U.S. 125 (1998) ........................... 40,41

Patterson v. N.Y., 432 U.S. 197 (1977) ........................... 20,25

006


Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), rev’d by 824 F.3d 919 (2016) ..................... 30

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) .............................. 28

Powell v. Tompkins, 783 F.2d 332 (1st Cir. 2015) ..................... 21

Saenz v. Roe, 526 U.S. 489 (1999) .............................. 32

Second Amendment Arms v. City of Chicago, 2012 U.S. Dist. LEXIS 136645 (N.D. Ill. Sept. 25, 2012) .................... 33,41

Shapiro v. Thompson, 394 U.S. 618 (1969) .............................. 34

Tot v. United States, 319 U.S. 463 (1943) .............................. 21

Twining v. New Jersey, 211 U.S. 78 (1908) ............................... 31

United States v. Booker, 644 F.3d 12 (1st Cir. 2011) ...................... 34

Massachusetts Statutes and Legislative Documents

G.L. c. 90, § 34J ................................... 21

G.L. c. 140, § 129C(h) .................. 25,26,33,35,36

G.L. c. 140, § 129C(j) .................. 47,49,50,53,56

G.L. c. 269, § l0(a) ............................ passim

G.L. c. 269, § l0(h) ................................ 10

G.L. c. 278, § 7 ................................. 19,21

1968 Acts 737, § 7 .................................. 35

1969 Acts 799, § 8 .................................. 35

007


Federal Statutes and Legislative Documents

18 U.S.C., § 926A ............................... passim

28 U.S.C., § 1738 ................................... 32

Congressional Record, House ......................... 43

“The Right To Keep And Bear Arms,” Report Of The Subcommittee On The Constitution Of The Committee On The Judiciary, United States Senate, Ninety- Seventh Congress (Feb. 1982) ...................... 42

Federal Constitutional Provisions

Second Amendment ................................ passim

Fifth Amendment, Due Process Clause ........... 19,20,23

Fourteenth Amendment, Due Process Clause ...... 19,20,23

Massachusetts Model Jury Instructions

Mass. Dist. Ct. Model Jury Instruction 7.600 ..... 22,45

Mass. Dist. Ct. Model Jury Instruction 7.620 ........ 22

Massachusetts Rules

Mass. Guide Evid., § 403 ............................ 54

Other Materials Cited

Massachusetts Executive Office of Public Safety and Security, APPLICATION FOR NON-RESIDENT TEMPORARY LICENSE TOCARRY FIREARMS (Rev. Dec. 2016) ..................... 27

Michael Jonas, CRIME AND PUNISHMENT: WHAT’S THE RIGHT THING TODO WITH AN 18-YEAR OLD CAUGHT WITH A GUN?, Commonwealth Magazine (Fall 2016) .............................. 57

Seth Kaplan, STUDY SHOWS MASSACHUSETTS GUN LAW HAS LITTLEEFFECT ON CRIME AFTER YEAR, Harvard Crimson

(July 16, 1976) ................................... 57

Assistant Attorney General William A. Moschella, Opinion Letter to Congressman Don Young (Feb. 18, 2005) ............................................. 41

008


Michael Tonry, THE MOSTLY UNINTENDED EFFECTS OF MANDATORYPENALTIES: TWO CENTURIES OF CONSISTENT FINDINGS, 38 Crime & Justice 65 (2009) ................................. 57

009


ISSUES PRESENTED

1. Is it unconstitutional for the Commonwealthto employ a mandatory presumption thatanyone found with a firearm in Massachusettsis unlicensed until that person produces aMassachusetts license?

2. Is an effective ban on nonresidents enteringMassachusetts with handgunsunconstitutional?

3. Do various errors in the jury instructions,notably the judge’s failure to instruct on18 U.S.C., § 926A, and his omission of anelement from the crime of carrying afirearm, warrant a new trial?

STATEMENT OF THE CASE

On September 28, 2015, a complaint issued out of

Lowell District Court (docket no. 1511 CR 5647)

charging Mr. Harris with (i) possessing a firearm

without a firearm ID card in violation of G.L. c. 269,

§ l0(h), (ii) possessing ammunition without a firearm

ID card in violation of G.L. c. 269, § l0(h), and

(iii) possessing a large capacity firearm in violation

of G.L. c.269, § l0(m). RA.016.1 The Commonwealth nol

prossed this last count. RA.004.

On April 26, 2017, a second complaint issued out

of Lowell District Court (docket no. 1711 CR 2275)

1 The following abbreviations are used in thisbrief. “RA.x” refers to page x of the record appendix. “2/14/18 Tr.x” refers to page x of the February 14, 2018 transcript (with the same format used for other transcript dates).

010


charging Mr. Harris with carrying a firearm without a

license in violation of G.L. c.269, § l0(a). RA.017.

The two cases were joined by agreement on May 12,

2017. RA.012. On July 12, 2017 the District Court

(Crane, J.) denied a motion to suppress the firearm

and ammunition retrieved from Mr. Harris’ vehicle.

RA.005, 012. On November 3, 2017 the District Court

(Pearson, J.) denied a motion to dismiss premised

largely on the unconstitutionality of the firearms

statutes at issue. RA.052. Trial was held on February

14, 15, and 16, 2018, presided over by Hon. John

Coffey. RA.004, 011. Mr. Harris’ motions for directed

verdict were denied at the close of the Commonwealth’s

case and again at the close of all the evidence.

2/15/18 Tr. 94-98, 219-19. A jury of six convicted him

on all counts, RA.72-74, and he was sentenced to the

mandatory minimum sentence for the carrying charge: 18

months in the house of correction. RA.011. The

Commonwealth then nol prossed the lesser included

offense of possession of a handgun. RA.075. The

conviction for possession of ammunition was placed on

file. RA.004. Motions for a directed verdict, a stay

pending appeal, and other post-trial relief were

denied. RA.009.

011


Mr. Harris timely noticed his appeal of the

convictions. RA.009, 015, 076.

RELEVANT FACTUAL BACKGROUND

After Mr. Harris got in an argument with his

then-girlfriend, Stacey Ciprich, in the early hours of

September 12, 2015, she called the police, told them

he had a gun, and several Tewksbury police officers

showed up at the apartment with guns drawn. 2/14/18

Tr.153-56; 2/15/18 Tr.30-31. Mr. Harris produced his

New Hampshire firearms license, then led them out to

the parking lot and let them open his vehicle trunk.

2/15/18 Tr.31-33, 47. Inside were an unloaded, locked

Glock handgun and some ammunition. 2/15/18 Tr.47-51.

There is no question that Mr. Harris owned the gun and

ammunition, or that he knew they were in his vehicle.

Nor is there any question that the gun worked. 2/15/18

Tr.81-86; 2/15/18 Tr.213-14.

It is likewise undisputed that, though he held a

valid New Hampshire firearms license, Mr. Harris did

not have a Massachusetts firearms license. RA.053-54;

2/15/18 Tr.213-14.

The key issue which was in dispute at trial was

where Mr. Harris got the handgun on September 11, and

whether he took it out of his vehicle’s trunk in

012


Tewksbury on September 11 or 12. A subsidiary disputed

issue was the amount of time he’d spent at Ciprich’s

Tewksbury apartment between May 25 and September 12,

2015. Relevant testimony on these issues follows.

Where Mr. Harris Got The Handgun

Ms. Ciprich testified that after an argument with

Mr. Harris on the afternoon of September 11, he’d

packed his “clothes and a gun” and said he was leaving

to spend the weekend in New Hampshire. 2/14/18 Tr.152.

Ciprich said she had seen this handgun “many times”

before. 2/14/18 Tr.153. She testified that Mr. Harris

returned to the apartment and woke her around 1:00

a.m. on September 12, “drunk and yelling” and throwing

clothes. 2/14/18 Tr.154, 206. She further testified

that she saw his gun in a closet when he returned to

the apartment on September 12. 2/14/18 Tr.156. He

didn’t threaten her with the gun, 2/14/18 Tr.174, but

she called the police on him, then drove off in her

car. 2/14/18 Tr.155.

Ciprich also testified that she’d first seen Mr.

Harris’ guns in her Tewksbury apartment back in May

2015, and that he’d hidden one in a heating unit with

a magnet, and kept another in a closet by the bed.

2/14/18 Tr.189. Yet she also testified that he left

013


his guns in New Hampshire after Memorial Day 2015 when

(she claimed) he moved in with her. 2/14/18 Tr.169.

She said he rented a storage unit in his name in

Londonderry, New Hampshire where he kept his guns.

2/14/18 Tr.193, 197. She observed his guns there,

secured with cable locks. 2/14/18 Tr.190.

Mr. Harris agreed with Ciprich that they had an

argument on the afternoon of September 11, 2015, that

he may have retrieved some clothes from the apartment,

and that he departed for New Hampshire. 2/15/18

Tr.185. He believes the Glock handgun was probably in

storage in Londonderry, New Hampshire at this time.

2/15/18 Tr.186. He testified that after arguing with

Ciprich, he went and met a friend, John, proceeded to

his Londonderry storage unit to retrieve some guns,

then went to the shooting range at the Londonderry

Fish and Game Club. 2/15/18 Tr.185-87. There, he and

John met up with other friends and they spent two or

three hours shooting. 2/15/18 Tr.187-88.

Mr. Harris testified that afterward he and John

went out for pizza and beer; the Glock was in his

trunk at the time. 2/15/18 Tr.188. After Mr. Harris

texted Ciprich and got no response, he went to see

her. 2/15/18 Tr.190. He arrived around 11:30 p.m.

014


2/15/18 Tr.190. He never took the Glock or ammunition

from the trunk. 2/15/18 Tr.191. He went up to the

apartment and he and Ciprich had an argument about her

not responding to his texts. 2/15/18 Tr.191.

Mr. Harris did not leave the apartment until the

police arrived. 2/15/18 Tr.193. The police took the

Glock and he was brought to the station where he was

held in protective custody until the next day. 2/15/18

Tr.196-98.

To What Extent Mr. Harris “Resided” At The Tewksbury Apartment During The Summer of 2015

Ciprich testified that Mr. Harris moved in with

her at her Tewksbury apartment on Memorial Day [May

25] 2015 and that he lived with her there until they

had the fight and broke up on September 11-12, 2015.

2/14/18 Tr.142, 147, 151-52. She testified that over

Memorial Day weekend he had brought clothes, mugs,

posters, and other items to her apartment, and that

she moved some of her things into a storage unit to

make room for him. 2/14/18 Tr.148, 151. She testified

that Mr. Harris spent over 100 nights at her apartment

in the summer of 2015, and that he slept there every

night except during a work-related trip to Lake

Placid, New York. 2/14/18 Tr.148, 198, 201. The

Comcast bill at the apartment was in his name and he

015


received Guns & Ammo magazines and some other mail

there. 2/14/18 Tr.160, 177-78.

Mr. Harris agreed that he slept over at Ciprich’s

apartment during the summer of 2015, but he denied

that he “moved in” with her. 2/15/18 Tr.181. Rather,

he brought some clothes and “basic stuff” one would

bring when “you stay at your girlfriend’s house.”

2/15/18 Tr.182. He testified he worked out of town

about 15-20 nights, “maybe more,” during the summer of

2015. 2/15/18 Tr.183-84. He kept his mailing address

at his mother’s house in Atkinson, New Hampshire.

2/15/18 Tr.176-77. His uncle, Kevin Kelly, also lived

at the mother’s house (apparently to help care for the

ill mother, though the record is not entirely clear).

2/15/18 Tr.103, 109. Kelly testified how Mr. Harris

would sometimes spend the night at the Atkinson house

depending on where his job was the next morning.

2/15/18 Tr.117. He kept clothing and belongings at the

Atkinson house. 2/15/18 Tr.118.

Various documents pertaining to Mr. Harris’

Atkinson, New Hampshire residency in 2015 were entered

into evidence, including W2 forms and credit card and

insurance bills. RA.055-68.

016


Mr. Harris further testified that he grew up in

New Hampshire and had no interest in moving to

Massachusetts. 2/15/18 Tr.198. Ciprich agreed that Mr.

Harris had often said he didn’t want to live in

Massachusetts. 2/14/18 Tr.165-66.

SUMMARY OF THE ARGUMENT

PART I: A two-element firearms offense

(criminalizing (1) possession of (2) a firearm)

violates the Second Amendment. A three-element

firearms offense (criminalizing (1) possession of (2)

a firearm (3) without a license) violates the Due

Process clause if third element is conclusively

presumed at the outset of every case. [pp. 18-25]

PART II: Requiring a nonresident to acquire a

Massachusetts-issued firearms license just to

temporarily drive into or through Massachusetts with

an unloaded, secured handgun in the vehicle trunk

violates the Second Amendment and the right to travel

because it does not substantially further any

compelling government interest. [pp. 25-36]

PART III: A new trial is required for a variety

of reasons. The trial judge erred by failing to

instruct the jury on the federal protections of 18

U.S.C., § 926A provides firearms owners; by providing

017


instructions for carrying a firearm and possession of

a firearm that were virtually identical; and by giving

confusing instructions on the counts for possession of

a firearm and ammunition. [pp. 36-52] Moreover, the

prosecutor erred by eliciting Ciprich’s opinion that

Mr. Harris “can’t stand” Massachusetts and by

suggesting that the firearms licensing statutes

contain exemptions that do not exist. [pp. 53-58]

ARGUMENT

I. CHAPTER 269, § 10, AS INTERPRETED BY THE CASE LAW, IS FACIALLY UNCONSTITUTIONAL BECAUSE IT CONCLUSIVELY PRESUMES THAT ANYONE FOUND IN POSSESSION OF A FIREARM IS UNLICENSED.

Despite the U.S. Supreme Court’s ruling that the

Second Amendment creates a personal right to firearm

ownership, see District of Columbia v. Heller, 554

U.S. 570 (2008), and that this right is enforceable

against the states, see McDonald v. City of Chicago,

561 U.S. 742 (2010), the Massachusetts courts have

steadfastly held that the Commonwealth may properly

ban all firearms and leave it to defendants to avoid

conviction and imprisonment by their affirmative act

of producing a Massachusetts-issued firearm license or

other proof of exemption. See Commonwealth v. Gouse,

461 Mass. 787, 802-08 (2012); Commonwealth v. Allen,

474 Mass. 162, 174 (2016). While the Appeals Court is

018


bound by these decisions, Mr. Harris wishes to

preserve the argument that this regime is facially

unconstitutional and is therefore appealing the denial

of his motion to dismiss on that ground. RA.021, 052.2

Decades ago, the Supreme Judicial Court held that

a defendant charged under G.L. c. 269, § 10 bears the

burden of producing a firearms license because G.L. c.

278, § 7 makes licensure an “affirmative defense” in

criminal prosecutions. See Commonwealth v. Jones, 372

Mass. 403, 409 (1977). This holding was later extended

(seemingly without analysis) to other exemptions to

the firearms licensing statutes having nothing to do

with licensure or c. 278, § 7. See Commonwealth v.

Seay, 376 Mass. 735 (1978)(“[W]e have held that the

defendant has the burden of producing evidence to show

that he was licensed or otherwise permitted to carry a

firearm.”)(emphasis added); Commonwealth v. Anderson,

445 Mass. 195, 214 (2005)(“Residence also is a

statutory exemption for the charge of illegally

possessing a firearm … As such, it is an affirmative

defense…”).

2 To be clear, Mr. Harris is not challenging the constitutionality of gun licensing in general. Cf. Commonwealth v. Cassidy, 479 Mass. 527, 539-40 (2018).

019


The difficulty with these holdings is that “the

Due Process Clause requires the prosecution to prove

beyond a reasonable doubt all of the elements included

in the definition of the offense of which the

defendant is charged.” Patterson v. N.Y., 432 U.S. 197

(1977). The Commonwealth cannot, consistent with Due

Process, simply foist this burden onto a defendant.

In an effort to meet this objection, the Jones

Court characterized the defendant’s initial burden of

production as the kind of presumption the U.S. Supreme

Court has sometimes permitted in criminal trials. For

instance, it is a longstanding presumption of criminal

law — and one held constitutional — that a person in

possession of stolen goods knows they are stolen. See

Barnes v. U.S., 412 U.S. 837 (1973). But though a few

such presumptions accord with Due Process, “a criminal

statutory presumption must be regarded as ‘irrational’

or ‘arbitrary,’ and hence unconstitutional, unless it

can at least be said with substantial assurance that

the presumed fact is more likely than not to flow from

the proved fact on which it is made to depend.” Leary

v. United States, 395 U.S. 6, 36 (1969). Here, in

Massachusetts, it is presumed that a person found in

possession of a firearm is unlicensed until he or she

020


comes forward with a license. The presumption is

irrational. One’s possession of a firearm does not

make it “more likely than not” one is unlicensed. See

Powell v. Tompkins, 783 F.2d 332, 360 (1st Cir.

2015)(Toruella, J., dissenting).

The Massachusetts cases have sometimes justified

this shifting of the burden of production on

efficiency grounds, noting that a defendant’s firearms

license is peculiarly within his control and easy

enough to produce. See, e.g., Jones, 372 Mass. at 408-

09. But if the presumption is irrational then the

comparative ease of producing evidence is irrelevant.

See Tot v. United States, 319 U.S. 463, 467-68

(1943)(test of “rational connection” between fact

proved and fact presumed is “controlling,” whereas

test of “comparative convenience” of production “but a

corollary”); see also Commonwealth v. Munoz, 384 Mass.

503, 507 (1981)(“Even assuming that it may be

difficult for the Commonwealth to prove noninsurance,

this obstacle does not warrant the application of c.

278, § 7, in view of the fact that noninsurance is an

element, in fact, the central element of a prosecution

under G.L. c. 90, § 34J.”).

021


Aside from its lack of the requisite “rational

connection,” the presumption here fails constitutional

muster for a wholly separate reason: “Conclusive and

mandatory presumptions are constitutionally infirm,

while permissive presumptions, or inferences, are

permissible.” Commonwealth v. Moreira, 385 Mass. 792,

794 (1983). The Commonwealth employs a conclusive and

mandatory presumption that a person found with a

firearm is unlicensed: Until he or she comes forward

with a license, the element of non-licensure is deemed

satisfied as a matter of law and the jury is not even

informed of it.3 See Mass. Dist. Ct. Model Jury

Instructions 7.600 and 7.620.

Perhaps to avoid these difficulties, the Jones

Court construed G.L. c. 269, § 10 so that a

defendant’s lack of a license is not an element of the

crime. See 372 Mass. at 406 (“Absence of a license is

not ‘an element of the crime,’ as that phrase is

commonly used.”). The court, in other words, simply

read the non-licensure element out of the statute —

even though it is plainly there. See G.L. c. 269, § 10

3 Though several prior cases have challenged the constitutionality of a defendant bearing the burden of production on the issue of his or her exemption from criminal liability under G.L. c. 269, § 10, it appears that none have specifically challenged the Commonwealth’s use of a mandatory presumption.

022


(“Whoever … knowingly has in his possession; or

knowingly has under his control in a vehicle; a

firearm, loaded or unloaded … without … having in

effect a license to carry firearms… [shall be

punished].”)(emphasis added). This holding in Jones

may have solved the Due Process issue of mandatory

presumptions — there’s no need for any presumption to

establish the element of non-licensure if non-

licensure isn’t an element of the crime — but it runs

afoul of a different constitutional provision: The

Second Amendment.

The notion that the Commonwealth may declare all

firearms contraband by default, unless and until a

license is produced, originates in a now-defunct pre-

Heller, pre-McDonald understanding of the Second

Amendment. Back in 1977, when Jones was decided, it

was thought that citizens did not have an individual

right to bear arms that was enforceable against the

states. See Commonwealth v. Davis, 369 Mass. 886, 890-

91 (1976). If the states had the greater power to ban

firearms outright, the thinking went, then they had

the lesser power to impose affirmative burdens on

criminal defendants, such as producing a license. See

Commonwealth v. Pauley, 368 Mass. 286, 299 n.7

023


(1975)(noting theory that “where the Legislature has

power to prohibit conduct entirely, and means instead

to regulate it closely, it may in furtherance of the

regulation impose on a defendant the burden of showing

that he has been granted a special privilege”). The

Jones court could thus frankly acknowledge that its

interpretation of chapter 140 created a “general

prohibition against carrying a firearm.” 372 Mass. at

406.

It is abundantly clear now, in 2018, that firearm

ownership is not a “special privilege” which states

may subject to “general prohibitions” or unfettered

regulation. It is, rather, a “fundamental” right.

McDonald, 561 U.S. at 767-69. The premise of the

greater-power-implies-the-lesser theory is thus

incorrect: The states do not have the greater power to

criminalize mere possession of arms. See Heller, 554

U.S. at 628-29; Ramirez v. Commonwealth, 479 Mass. 331

(2018). So it does not follow that states may exercise

the lesser power of banning firearms and placing the

burden on defendants to show they meet an exemption.

No one would suppose that, under the First Amendment,

states could ban books and leave it to defendants to

avoid conviction by showing their books weren’t

024


obscene or defamatory. The analysis is no different

for the Second Amendment. See McDonald, 561 U.S. at

780 (refusing to “treat the right recognized in Heller

as a second-class right”).

If states wish to criminalize the unlicensed

possession of firearms, then they must abide by

Patterson and Leary and the prosecution must prove

non-licensure the same as it would for any other

element of any other crime. See Munoz, 384 Mass. 503

(Commonwealth must prove lack of automobile

insurance). Chapter 269, § 10, as currently construed,

is unconstitutional. The complaint in this case should

have been dismissed.

II. CHAPTER 269, § 10 AND CHAPTER 140, § 129C AREFACIALLY UNCONSTITUTIONAL INSOFAR AS THEY ACT INCOMBINATION TO EFFECTIVELY BAN NONRESIDENTS FROMTRAVELING THROUGH THE COMMONWEALTH WITH UNLOADEDHANDGUNS SECURED IN THEIR VEHICLE TRUNK.

General Laws c. 140, § 129C(h) exempts from

firearms registration those “nonresidents traveling in

or through” Massachusetts with “rifles and shotguns

and ammunition therefor.” With very limited exceptions

not applicable here (e.g., for common carriers) the

Commonwealth does not allow a nonresident to transport

a handgun, lawfully licensed in his or her home state,

through Massachusetts without first obtaining a

025


Massachusetts-issued firearms license. The combined

effect of G.L. c. 269, § 10 and c. 140, § 129C is to

unlawfully infringe on Second Amendment rights, as

well as the right to interstate travel, of

nonresidents wishing to travel briefly in or through

the Commonwealth with their unloaded, secured

handguns. The prohibition is unconstitutional on its

face. The lower court therefore erred in denying Mr.

Harris’ motion to dismiss the complaint on this

ground. RA.022-26, 34, 52.4

There are two questions for the Court to consider

on this point. First, do G.L. c. 269, § 10 and c. 140,

§ 129C in combination burden Second Amendment rights

and the right to travel? Second (assuming the answer

to the first question is “Yes”), can the statutes

survive under the relevant standard of scrutiny given

the Commonwealth’s proffered interest? See Heller v.

D.C., 670 F.3d 1244, 1252 (D.C. Cir. 2011)(adopting

“two-step approach” for review of constitutionality of

firearms regulations).

4 Judge Pearson appears to have been under the mis-impression that the statutes do allow nonresidents to travel in Massachusetts with handguns. See 9/26/17 Tr.30 (“If he’s only going down for a week and you take that at face value and that’s all agreed and he wouldn’t have a requirement to get a license in Massachusetts.”). She did not address the issue in her decision denying the motion to dismiss. RA.052.

026


As to the first question, §§ 10 and 129C(h)

effectively ban the transport of handguns through

Massachusetts by out-of-state residents. While there

is a theoretical possibility of obtaining a

nonresident firearm license, it is completely

impracticable for an out-of-state resident to obtain a

temporary firearm license just to travel briefly in

Massachusetts for the day, much less to spend a couple

of hours driving through the state en route to

somewhere else where they are licensed. Licensure

entails filling out forms, taking a safety course,

paying a $100 fee, an in-person interview in Chelsea,

and in some cases obtaining a letter from one’s

hometown police chief. Executive Office of Public

Safety and Security, APPLICATION FOR NON-RESIDENT TEMPORARY

LICENSE TO CARRY FIREARMS (Rev. Dec. 2016).5 Someone in

Florida, say, who wishes to visit relatives in Maine

and to bring a handgun along for protection on the

trip, is not going to make a preliminary journey to

Massachusetts for firearms courses and an interview in

Chelsea just so he or she can spend a few hours

driving through the state.

5 See https://www.mass.gov/files/documents/2016/12/sl/non-resident-application-revised-05-19-15.pdf.

027


For constitutional purposes, an effective ban on

protected rights must be struck down just as an actual

ban must. “[I]nfringements of fundamental rights are

not limited to outright denials of those rights.”

Maher v. Roe, 432 U.S. 464, 487 (1977); Cf. T & D

Video Inc., v. Revere, 423 Mass. 577, 582

(1996)(enjoining various zoning restrictions that “all

but foreclose the possibility” of plaintiff exercising

First Amendment right to operate adult bookstore).

Therefore, the Court should not give undue weight to

the remote possibility of intrepid out-of-state

travelers obtaining nonresident firearms licenses for

brief journeys into Massachusetts. Nor is it important

that a New Hampshire resident like Mr. Harris may have

a relatively easier time obtaining a nonresident

license, compared to someone in some far-off state.

This is a facial challenge and it is sufficient to

condemn the statute if the great majority of this

country’s citizens cannot practically comply with it.

See Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833, 895 (1992)(“[I]n a large fraction of the

cases in which § 3209 is relevant, it will operate as

a substantial obstacle [to the constitutional right to

an abortion]”)(emphases added).

028


The Commonwealth’s effective ban on residents of

other states traveling through Massachusetts with

their handguns (even if unloaded and securely stowed

in a vehicle trunk) implicates the Second Amendment

right to bear arms. The handgun is “the quintessential

self-defense weapon.” Heller, 554 U.S. at 629. Given

that the Second Amendment protects the right “keep and

bear” arms, it has been widely understood to protect a

right to carry arms outside one’s home. See Gould v.

O’Leary, 2017 U.S. Dist. LEXIS 199400, *28 (D.Mass.

Dec. 5 2017)(“No federal court of appeals has held

that the Second Amendment does not extend beyond the

home.”). While the right to self defense may be “most

acute” at home, Heller, 554 U.S. at 628, nothing in

Heller or McDonald limited the scope of the Second

Amendment to the home; indeed, the Heller Court noted

that the right to bears arms in the English Bill of

Rights, from which the Second Amendment derived,

conferred an individual right “protecting against both

public and private violence.” 554 U.S. at 494

(emphasis added). It is clear that the need for self-

defense can sometimes take on a heightened importance

outside the home. See Moore v. Madigan, 702 F.3d 933,

937 (7th Cir. 2012)(“A woman who is being stalked or

029


has obtained a protective order against a violent ex-

husband is more vulnerable to being attacked while

walking to or from her home than when inside.”); see

also Caetano v. Massachusetts, 136 S.Ct. 1027, 1028

(2016)(owner of stun gun confronted by abusive

boyfriend as she was leaving work)(Alito, J.,

concurring).

The Supreme Court, were it to consider whether

the Second Amendment embraces a right to carry

firearms in public, would likely apply a historical

analysis of the sort it employed in Heller and

McDonald. While it is beyond the scope of this brief

to survey all the early American cases discussing the

right to carry arms in public, the matter is treated

fully in Peruta v. County of San Diego, 742 F.3d 1144

(9th Cir. 2014), rev’d by 824 F.3d 919. In sum, while

there was not complete unanimity on the subject, the

majority of the early American courts of last resort

held that the constitutional right to bear arms in

self-defense extended to carrying firearms in public.

742 F.3d. at 1156-62. Strongly corroborating this

conclusion is the Supreme Court’s infamous Dred Scot

decision. There, Chief Justice Taney expressed the

then-common understanding that full citizenship

030


entailed a right to carry arms in public, and worried

that extending full citizenship to African-Americans

would thereby “give them the full liberty … to keep

and carry arms wherever they went.” Dred Scott v.

Sandford, 60 U.S. 393, 417 (1857).6

The Supreme Court would likely conclude that the

individual right conferred by the Second Amendment

includes a right to carry firearms in public, albeit

subject to some regulation. This Court should

therefore hold that the effective ban on nonresidents

bringing handguns into Massachusetts burdens Second

Amendment rights.

Moreover, this effective ban burdens the

constitutional right to interstate travel, as well as

Equal Protection, since it requires nonresidents

wishing to transport handguns through Massachusetts to

either drive around the state or else forego their

right to bear arms by leaving them at home. “[A]mong

the rights and privileges of National citizenship

recognized by [the U.S. Supreme Court] are the right

6 It is noteworthy the court listed the right to “keep and carry arms” along with other rights we would consider fundamental today: “The right to enter every other State whenever they pleased … to sojourn there as long as they pleased … full liberty of speech in public and in private upon all subjects upon which its [a state’s] own citizens might speak; to hold public meetings upon political affairs …” 60 U.S. at 417.

031


to pass freely from State to State…” Twining v. New

Jersey, 211 U.S. 78, 97 (1908). If mere monetary

exactions to travel through a state are

unconstitutional, see Crandall v. Nevada, 6 Wall. 35

(1867), then surely it is unconstitutional for a state

to condition entry on waiver of a constitutional

(here, Second Amendment) right. If slight reductions

in welfare payments to newly-arrived residents

violates the right to travel, see Saenz v. Roe, 526

U.S. 489 (1999), then surely the denial of a

constitutional right to nonresidents is unlawful.

These Second Amendment and right-to-travel

concerns are closely tied to another constitutional

provision raised in the motion to dismiss: The Full

Faith and Credit Clause. RA.031. Mr. Harris was duly

issued a New Hampshire license which entitles him to

carry handguns and other arms in his home state. The

decisions of state administrative agencies are

entitled to full faith and credit, at least where they

act in a judicial capacity, subject to judicial

review, see Kremer v. Chemical Const. Corp., 456 U.S.

461 (1982); 28 U.S.C., § 1738, and this would seem to

include police department decisions regarding the

suitability of applicants for firearms licenses. Yet,

032


as to handguns, Mr. Harris’ New Hampshire license is

given no faith or credit in Massachusetts. Assuming

the Commonwealth need not give “full” recognition to

out-of-state firearms licenses, the promise of full

faith and credit would be empty if some limited

allowance were not made for nonresidents, licensed in

their home states, to travel briefly in Massachusetts

with handguns. See Second Amendment Arms v. City of

Chicago, 2012 U.S. Dist. LEXIS 136645, *18 (N.D. Ill.

Sept. 25, 2012)(discussing Chicago firearms

regulations including “rebuttable presumption that any

person within the city for more than 24 hours is not

engaged in interstate travel, and is subject to the

provisions of this chapter.”).

In sum, the statutes at issue burden Second

Amendment rights, as well as the related rights to

interstate travel, Equal Protection, and having one’s

home state judgments receive a measure of recognition

in sister states. The next question for the Court is

whether the Commonwealth can justify the imposition of

these burdens.

Before answering, the Court must consider the

appropriate standard of review. The Commonwealth must

show more than just a rational basis for §§ 10(a)’s

033


and 129C(h)’s near-prohibition on nonresident travel

through Massachusetts with handguns. See Heller, 554

U.S. at 628 n.27. Rather, it must make a “strong

showing” of a “substantial relationship” between its

restriction on handguns and an important governmental

objective. United States v. Booker, 644 F.3d 12, 25

(1st Cir. 2011); see also Heller, 670 F.3d at 1256

(applying intermediate scrutiny to firearms licensing

requirements); Shapiro v. Thompson, 394 U.S. 618, 634

(1969)(compelling state interest needed to justify

burden on right to travel).

The Commonwealth cannot meet this burden. The

objective of the Massachusetts gun licensing statutes

is “to limit access to deadly weapons by irresponsible

persons.” Firearms Record Bureau v. Simkin, 466 Mass.

168, 176 (2013)(citation omitted). While this goal is

no doubt important, the Commonwealth cannot show a

substantial relationship between it and an effective

ban on nonresidents traveling in and through

Massachusetts with handguns (even if unloaded and

inaccessibly secured in a vehicle trunk, as the

federal government has deemed adequate under 18 U.S.C.

§ 926A, see pp. 37-44 below). This is particularly so

where such individuals can travel through

034


Massachusetts with rifles and shotguns. Why should

“irresponsible persons” be more likely to get hold of

handguns, rather than rifles or shotguns, from a

traveler’s locked vehicle trunk, hotel room, etcetera?

One will not find an answer to this question

anywhere in the legislative history for c. 140, §

129C(h). The original version of the statute, enacted

in 1968, made an exemption for “[n]onresidents

traveling in or through the commonwealth, providing

that any firearms are unloaded and in a case.” 1968

Acts 737, § 7 (emphasis added). Then, the following

year, this exemption was narrowed from “firearms” to

“rifles and shotguns,” thereby removing handguns from

its purview. See 1969 Acts 799, § 8. No explanation

for this revision is to be found in the record.

Moreover, the record is completely lacking in the sort

of empirical evidence necessary to make a “strong

showing” of a “substantial relationship” between a

restriction of a fundamental right and a governmental

interest. See T & D Video, 423 Mass. at 581 (affirming

injunction of restrictive zoning law where “[t]he

legislative record is barren” of evidence for its

need).

035


Any notion that “irresponsible persons” are more

likely to obtain nonresidents’ handguns, as opposed to

rifles and shotguns, rests on nothing more than

speculation and therefore cannot meet the intermediate

scrutiny standard of review. See Bulldog Investors

G.P. v. Sec’y of the Commonwealth, 460 Mass. 647, 668-

69 (2011)(intermediate scrutiny review as to whether

law “directly advances” “substantial” government

interest “not satisfied by mere speculation or

conjecture”)(citation omitted). It follows that G.L.

c. 269, § 10, even if constitutional in other

respects, is facially unconstitutional insofar as it

acts in concert with G.L. c. 140, § 129C to create an

effective ban on nonresidents entering the

Commonwealth with handguns. Section 10 may not be

enforced against such defendants. See Ramirez, 479

Mass. at 338 (“[A] court may choose to enjoin only the

unconstitutional applications of a statute while

leaving other applications in force…”)(citations and

internal quote marks omitted). The Court should

reverse the conviction and order dismissal of the

complaint.

036


III. VARIOUS ERRORS IN THE JURY INSTRUCTIONS ANDPROSECUTOR’S CLOSING ARGUMENT WARRANT A NEWTRIAL.

Even if the Court rejects the foregoing

constitutional arguments, it should order a new trial

for Mr. Harris for the reasons set forth below.

A. Judge Coffey Committed Reversible Error By Refusing To Give A Instruction On The Firearm Owner’s Protection Act, 18 U.S.C., § 926A.

As discussed in Part II, a nonresident may not

enter Massachusetts with a handgun, lawfully licensed

in his or her home state, without first acquiring a

Massachusetts-issued firearms license. Massachusetts

law is thus preempted by federal law and the

controlling rule is supplied by 18 U.S.C., § 926A:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, that in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. [emphases added]

037


Defense counsel requested a jury instruction on §

926A, but Judge Coffey denied it:

MR. KRASNOO: Secondly, is Your Honor going to instruct them at all on 18 United States Code 926A which I referred to at the sidebar, the interstate transportation of firearms?

THE COURT: No, I'm not. I looked at that. I looked at it again last night and it talks about – the language is that someone who is authorizedin one jurisdiction can bring it into another jurisdiction if he's authorized in the jurisdiction he's going into, so I didn't think it was applicable so I'm not going to instruct on it.

MR. KRASNOO: Okay. Am I able to refer to it and tell them what it (inaudible).

THE COURT: No.

MR. KRASNOO: Okay. Note my objection to that.

THE COURT: I will.

2/16/18 Tr.3-4. This ruling was error; in the context

of the case, it was reversible error.

Based on Mr. Harris’ testimony, when he was taken

into protective custody by the police in the early

hours of September 12, 2015 he was in the midst of a

trip from Londonderry, New Hampshire (where his gun

was stored and where he’d shot it at the range) to

Atkinson, New Hampshire (where he planned to spend the

weekend), by way of Tewksbury. He made the unplanned

excursion to Tewksbury after Ciprich didn’t answer his

texts. His testimony must be taken as true for the

038


purpose of deciding whether a requested defense

instruction is warranted. See Commonwealth v. Monico,

373 Mass. 298, 299 (1977)(“[I]f any view of the

evidence would provide support for an affirmative

defense, a defendant is entitled to such an

instruction.”); see also Commonwealth v. Okoro, 471

Mass. 51, 68 (2015).

The Massachusetts courts have not previously

interpreted § 926A, but the conduct Mr. Harris

described entitled him to an instruction on the

statute. Virtually all gun owners invoking the statute

will be making a round trip, since they will all

return to their home state at the end of their trip

(unless they happen to be permanently moving). Though

§ 926A permits a traveller to cross through multiple

states (e.g., driving from New Hampshire, through

Massachusetts and Rhode Island, for a visit in

Connecticut), the language is general enough to

encompass trips from one’s home state, into another,

then back home; it speaks broadly of travel from

“place” to “place,” e.g., from Londonderry, New

Hampshire to Atkinson, New Hampshire.

As a practical matter, moreover, geography and

the location of freeways sometimes oblige one

039


travelling from a given “place” in a home state to

another such “place” to cross state lines. For

example, one traveling from Providence, Rhode Island

to Newport, Rhode Island may well travel through Fall

River on I-195 (depending on traffic). Countless other

examples could be found throughout the lower 48

states. Section 926A protects gun-owning travelers

making such excursions across state lines.

Indeed, the language is general enough to

encompass trips that occur entirely intrastate, since

some cities and towns (e.g., New York City) have their

own heightened gun control measures. See § 926A

(“Notwithstanding any other provision of any law or

any rule or regulation of a State or any political

subdivision thereof…”). Thus, to continue the example,

a traveler driving from Long Island, through New York

City, and into upstate New York is protected so long

as the gun is stored in accordance with § 926A. The

statute’s language is general, its protections broad.

Mr. Harris did not cease to “transport” his

firearm, within the meaning of the statute, simply

because he admitted to visiting Ciprich briefly in

Tewksbury. Until he returned home to New Hampshire,

and so long as the firearm remained unloaded and

040


secured in the trunk of his vehicle, he was merely

transporting it. See Muscarello v. U.S., 524 U.S. 125,

133-34 (1998)(“transport” is a broad term,

encompassing “carry,” which in turn “applies to a

person who knowingly possesses and conveys firearms in

a vehicle.”); contrast Bailey v. U.S., 516 U.S. 137,

143 (1995)(“use” of a firearm denotes its “active

employment”).7

Furthermore, it is obvious that a statute which

governs interstate transportation of firearms

throughout the U.S. must allow for some stops during

travel. Someone driving from Arizona to Oregon for a

hunting trip, say, could hardly do so without staying

overnight in Nevada or California somewhere along the

way. This is not to mention shorter stops for meals,

refueling, etc. The statute must be construed

reasonably, in accord with its purpose. For this

reason, the Department of Justice has acknowledged

that a traveler may remove a firearm from his

vehicle’s trunk in order to bring it inside an

7 This is not to say the Commonwealth, through legislation or a judicial construction, could not put some temporal limit on § 926A, such as a presumption that one staying over 24 hours in the Commonwealth is not entitled to the statute’s protection. See Second Amendment Arms, 2012 U.S. Dist. LEXIS 136645, *18 (discussing Chicago bylaw to that effect).

041


airport. See February 18, 2005 opinion letter from AAG

William A. Moschella to Congressman Don Young

(attached at pp. 154-55 below)

Although the plain text of the statute should

settle the matter, the history of § 926A corroborates

Mr. Harris’ reading of the statute. Section 926A was

part of a package of 1986 legislation passed following

a U.S. Senate subcommittee’s investigations into the

rights conferred by the Second Amendment and

governmental abridgements of same. See “The Right To

Keep And Bear Arms,” Report Of The Subcommittee On The

Constitution Of The Committee On The Judiciary, United

States Senate, Ninety-Seventh Congress (Feb.

1982)(“Subcommittee Report”)(attached at pp. 99-125

below). The Subcommittee Report lamented “enforcement

efforts [directed] to the apprehension, upon technical

malum prohibitum charges, of individuals who lack all

criminal intent and knowledge.” See p. 123. While this

quoted language was directed at ATF officials, it is

clear that there was also concern with state criminal

laws, with the Subcommittee Report even singling out

the very law at issue in this case:

Samuel Adams, a handgun owner who pressed for an amendment stating that the “Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from

042


keeping their own arms,” would be shocked to hear that his native state today imposes a year's sentence, without probation or parole, for carrying a firearm without a police permit.8

See p. 102. Hence, “the mischief or imperfection to be

remedied and the main object to be accomplished” by

the statute, Chin v. Merriot, 470 Mass. 527 (2015),

was preventing responsible, law-abiding gun owners

from being punished for “technical” violations of

draconian firearms laws such as those in

Massachusetts. To that end, the protections of § 926A

were intended to attach as soon as gun owners “leave

the boundaries of their State or local jurisdiction.”

Congressional Record, House, p. 15227 (June 24,

1986)(statement of Congressman McCollum)(attached at

p. 98 below). Judge Coffey’s narrow reading of the

statute, and his refusal to instruct the jury on it,

were error.

Defense counsel requested the instruction, so

this Court reviews for prejudicial error. Commonwealth

v. Seng, 456 Mass. 490, 502 (2010). The omission was

certainly prejudicial because the § 926A exemption, if

found applicable by the jury, would have resulted in

am acquittal on all counts. Mr. Harris conceded being

8 The one year minimum sentence which disconcerted the Senate subcommittee in 1982 was subsequently increased to 18 months.

043


in Massachusetts with a handgun and no Massachusetts

license, so his only hope of an acquittal was fitting

into one of the exemptions. This Court cannot find

with any “fair assurance” that the trial judge’s

denial of the broadest, most important potential

exemption “did not influence the jury, or had but very

slight effect.” Commonwealth v. Cruz, 445 Mass. 589

(2005). All three convictions should be reversed and a

new trial ordered.

B. The Jury Instructions Erroneously Omitted The Key Element Of Carrying A Firearm: That The Defendant Possessed The Firearm Outside His Residence Or Place Of Business.

The model jury instructions for violation of G.L.

c. 269, §10(a) state:

In order to prove the defendant guilty of this offense, the Commonwealth must prove the following (three) (four) things beyond a reasonable doubt:

First: That the defendant possessed a firearm (or) (that he [she] had a firearm under his [her] control in a vehicle);

Second: That what the defendant (possessed) (or) (had under his [her] control in a vehicle) met the legal definition of a “firearm”; (and)

Third: That the defendant knew that he (she) (possessed a firearm) (or) (had a firearm under his [her] control in a vehicle)

[A. If there is evidence that it was in the defendant’s residence or place of business.]

044


and Fourth: that the defendant possessed the firearm outside of his (her) residence or place of business. A person’s “residence” or “place of business” does not include common areas of an apartment or office building, but only areas that are under that person’s exclusive control.

[B. If there is evidence that the defendant had a license to carry firearms.]

and Fourth: that the defendant did not have a valid license to possess a firearm outside his (her) home or office…

Mass. Dist. Ct. Model Jury Instruction 7.600 (emphasis

added). The instruction the judge actually gave are as

follows:

Now, as to the three charges, the first, the defendant is charged under Section 10A of 269 of our General Laws with knowingly and possessing a firearm unlawfully. In order to prove the defendant guilty of this offense the Commonwealth must prove the following beyond a reasonable doubt; first, that the defendant possessed a firearm or that he had a firearm under his control in a motor vehicle; second, that the defendant -- second is what the defendant possessed or had in his control in a motor vehicle met the legal definition of a firearm; third, that the defendant knew he possessed a firearm or knew he had the firearm under his control in a vehicle, and, fourth, that the defendant -- fourth, that the defendant did not have a valid license to carry firearms issued under General Laws Chapter 140, Section 131 to possess firearms outside his home or office…

2/16/18 Tr.56-57. In short, the jury instructions made

no mention of the requirement that the Commonwealth

prove Mr. Harris possessed the firearms “outside of

his residence,” even though the central theme of the

Commonwealth’s case was that Mr. Harris had resided at

045


the Tewksbury apartments since May 2015, and even

though the Glock was found in a car parked at the

apartment complex. Indeed, the instructions for the

more serious carrying a firearm count were the same as

those for the possession of a firearm count. Compare

2/16/18 Tr.56-57 and 62-63; see also RA.70-71.

Later in the instructions, when possible

exemptions were addressed, the judge did state, “Now,

General Laws Chapter 269, Section 10 exempts a

defendant from having a valid license who was present

in or on his or her residence or place of business…”

2/16/18 Tr.58. But this allusion to being in one’s

residence as an “exemption” to the crime was no

substitute for having the judge instruct the jury that

presence outside one’s residence is an actual element

of the crime. Moreover, any possible benefit this

statement may have conferred on Mr. Harris was negated

a moment later when the judge instructed:

In the law we have the concept of domicile and residence, you can only have one domicile under the law but you can have lots of residences so we use the residence in its common everyday meaning and understanding that a person may have more than one residence at any one given time. Now,the Commonwealth would satisfy its burden of proof on this element if they have proven to you beyond a reasonable doubt that the defendant had a residence in the Commonwealth of Massachusetts at the time of the alleged violation.

046


2/16/18 Tr.59 (emphasis added). In other words, the

jury instructions simultaneously suggested that if Mr.

Harris was present at his residence on September 12,

2015, that fact would exempt him from the “carrying”

charge and at the same time satisfy one of the

supposed elements of the charge. This was, to say the

least, confusing.9 The jury’s question about the

exemptions suggests that it was, in fact, confused.

2/16/18 Tr.84.

Defense counsel did not object to this aspect of

the jury instructions, so the Court reviews for a

substantial risk of a miscarriage of justice.

Commonwealth v. Alphas, 430 Mass. 8, 13-14 (1999).

9 It is not entirely clear what “this element” meant when the judge said, “Now, the Commonwealth would satisfy its burden of proof on this element if they have proven to you beyond a reasonable doubt that the defendant had a residence in the Commonwealth…” Most likely, he meant the element of rebutting a potential exemption under § 129C(j).

Part of confusion here is that the word “residence” or “resident” is used in two different senses by two different statutes. Chapter 269, § 10(a) punishes the possession of a firearm outside a “residence,” which clearly refers to a physical abode. Chapter 140, § 129C(j) exempts a “new resident” from the need to obtain a firearms ID card for 60 days. The judge assumed § 129C(j) referred to one with a physical abode in Massachusetts and instructed accordingly, ignoring the possibility that “new resident” in § 129C(j) means “new domiciliary.” See note 12.

047


There is such a substantial risk. Had the jury been

given the full instructions on carrying a firearm, and

told that the Commonwealth bore the burden of proof

beyond a reasonable doubt that the firearm was found

in a “common area” of an apartment complex, it may

well have questioned the complete absence of evidence

on this point. Was the parking spot where Mr. Harris’

car was parked assigned to Ms. Ciprich’s unit? Could

other tenants park there? Were visitors free to park

there? There was no evidence to answer these

questions. See Commonwealth v. Moore, 54 Mass. App.

Ct. 334, 346 (2002)(“[A] common area is an area

outside the residence to which all of the tenants in a

building have access … an area outside of the

residence will still fall within the exemption if it

is an area over which the defendant maintains

exclusive control”). How could the Commonwealth meet

its burden of proof to “a moral certainty” on this

important matter which it entirely neglected at trial?

The Commonwealth will likely respond that Mr.

Harris had to have “carried” his handgun into

Massachusetts by car to get it to Tewksbury. But the

Commonwealth is in no position to press such an

argument given that it initially charged Mr. Harris

048


solely with possession of a firearm. At trial it

pursued charges for both carrying a firearm (outside a

residence) and the lesser included offense of

possession of a firearm (in a residence). The

Commonwealth’s pursuit of both charges, and the

judge’s allowance of them, shows that a jury might

reasonably have found Mr. Harris guilty of only

possession of a firearm. See Commonwealth v. Berry,

431 Mass. 326, 336-38 (2000)(instruction on lesser

included offense appropriate when “evidence permits a

finding of a lesser included offense”). If the jury

was entitled to convict Mr. Harris of the lesser

included offense of possession of a firearm, then Mr.

Harris was entitled to a correct jury instruction on

the greater crime of carrying a firearm — including

the key, differentiating element that the gun be found

outside his residence. This serious error could well

have materially influenced the guilty verdict. See

Alphas, 430 Mass. at 13-14. Had just a single juror

doubted whether the gun was actually found outside the

residence, or in a “common area,” this could have

changed the outcome on the “carrying” charge, with its

mandatory 18 month sentence.

049


C. The Jury Instructions Deprived Mr. Harris Of A Potential Defense Under G.L. c. 140, § 129C(j) To The Possession Charges.

When instructing the jury on exemptions to the

three charges the judge included language from §

129C(j), which allows new residents 60 days to obtain

a Massachusetts firearms license. 2/16/18 Tr.58, 64,

66-67. The judge first gave the instruction on §

129C(j) in connection with the carrying a firearm

charge, 2/16/18 Tr.58, and it was apparently in

reference to this exemption that the judge gave the

definition of “residence” quoted at p. 46. See note

9.10 That definition, as the Court has seen, concludes,

“Now, the Commonwealth would satisfy its burden of

proof on this element if they have proven to you

beyond a reasonable doubt that the defendant had a

residence in the Commonwealth of Massachusetts at the

time of the alleged violation.” 2/16/18 Tr.59.

This instruction was erroneous, though defense

counsel did not object. To negate the § 129C(j)

exemption the Commonwealth had to prove that at the

time of the alleged violation (September 12, 2015) Mr.

10 “Residence” was never defined again for the counts for possession of a firearm and ammunition, so presumably the jury was expected to refer back to this initial definition of “residence.”

050


Harris had resided in Massachusetts for over 60 days,

not merely that he “had a residence in the

Commonwealth at the time.” Id. This misinstruction on

“residence” negated the § 129C(j) exemption,

contracting the 60-day grace period to a 0-day period.

With regard to the charges for possession of a

firearm and ammunition11 there was a substantial risk

of a miscarriage of justice. One of the issues in

dispute at trial was the relative amounts of time Mr.

Harris had spent at the Tewksbury apartment, in

Atkinson, New Hampshire, and out of state on work-

related trips. The jury may have concluded that Mr.

Harris “resided” in Tewksbury, in some sense of the

word, without believing he had lived there as long as

Ms. Ciprich claimed. See Commonwealth v. Gomes, 459

Mass. 194, 203 (2011)(“The jury could believe all,

some, or none of the testimony of any witness.”). If

so, then the 60 day exemption period could have been a

basis for acquittal. But, while there was reference in

the jury instructions to a 60 day grace period, the

above-quoted instruction on “residence” suggested that

11 Mr. Harris was not entitled to an instruction on a § 129C(j) exemption for the “carrying” charge because new residents do not get to carry firearms, just possess them in residences or businesses. See Commonwealth v. Wood, 398 Mass. 135 (1986).

051


the jury could convict if it found Mr. Harris resided

in Tewksbury on September 12, 2015 (regardless of when

he had moved to Massachusetts). “[W]e cannot know

whether the jury were guided by the correct or

incorrect portion of the instructions,” Commonwealth

v. Richards, 384 Mass. 396, 403 (1981), therefore a

new trial on the possession counts is warranted.

In the same vein, the jury instruction that Mr.

Harris was exempt if he “had in effect a license to

carry issued under General Laws, Chapter 140, Section

131F to a non-resident,” 2/16/18 Tr.58, 64, 66; RA.70,

further confused matters by suggesting he was a

nonresident. (Mr. Harris conceded he had no

Massachusetts firearms license, so this purported

exemption was never really at issue.) Defendants who

possess either a resident or nonresident Massachusetts

firearms license fall outside the scope of the

statute, see G.L. c. 269, § 10(a)(2)&(3), so it’s

unclear why the judge stressed the nonresident

license. Coming as it did just after his instruction

on “residence,” it suggested that the jury was being

instructed to determine whether Mr. Harris was a

Massachusetts resident and simultaneously being told

he was, in fact, a nonresident. This was yet another

052


confusing contradiction, and there is no way to know

what sense the jury made of it.

D. The Prosecutor Erred In Eliciting Testimony That Mr. Harris “Had Something Against Massachusetts,” Because It Was Prejudicial And Had No Conceivable Relevance.

Much of the Commonwealth’s case (including most

all of Ciprich’s testimony) was devoted to trying to

show that Mr. Harris became a Massachusetts resident

on May 25, 2015 and had been one for over 60 days on

September 12, 2015. The Commonwealth argued that Mr.

Harris had been obliged to get a Massachusetts

firearms license after 60 days, but hadn’t done so,

hence he was guilty. The defense, in response,

stressed Mr. Harris’ New Hampshire roots and ties to

that state, and elicited from Ciprich on cross

examination how Mr. Harris had told her he didn’t

intend to live in Massachusetts. 2/15/18 Tr.165. If

the meaning of “resident” in § 129C(j) is “legal

resident” or domiciliary,12 then his intent to continue

12 See Shepard v. Finance Assocs. of Auburn, Inc., 366 Mass. 182, 190 (1974)(“residence” a word of “flexible meaning”); Atwood v. Atwood, 297 Mass. 229, 232 (1937)(construing statutory phrase “residing in” to mean “having a domicile in”); Dotson v. Commissioner of Revenue, 82 Mass. App. Ct. 378, 383 (2012)(domicile is “place of actual residence withintention to remain permanently or for an indefinite time… ”)(emphasis added).

053


living in New Hampshire would be relevant to whether

he was a “new resident” of Massachusetts in 2015.

On redirect the prosecutor elicited from Ciprich,

without objection, that Mr. Harris disliked

Massachusetts. See 2/15/18 Tr.201 (Q. “So he had

something against Massachusetts?” A. Yes.”). Mr.

Harris’ opinion of Massachusetts had no conceivable

relevance to his residence or anything else. That he

did not intend to move to Massachusetts was relevant,

but why he did not intend to move was irrelevant. His

dislike of Massachusetts could only have prejudiced a

Massachusetts jury against him. Since the probative

value of the evidence was nonexistent, its prejudicial

effect had to have predominated, and it should not

have come in. See Mass. G. Evid., § 403. This error,

in concert with the others errors noted above, could

have materially swayed the jury, especially when the

Court considers defense counsel’s later attempts to

neutralize the error with further testimony explaining

how Mr. Harris thought Massachusetts gun laws were

Judge Coffey ultimately concluded that one can be a resident of two states at the same time under § 129C(j), even though the Commonwealth produced no record evidence, and cited no legal authority, to suggest one can obtain a Massachusetts resident firearms permit when already a resident of another state.

054


unfair, 2/15/18 Tr.116-17, 198, the prosecutor’s

further questions on this matter, 2/15/18 Tr.121, and

her flagging of the issue in her closing argument.

2/16/18 Tr.42-43 (“He took exception to the

Massachusetts gun laws but he is not under a class of

exemption from them.”).

E. The Prosecutor Materially Misstated The Law During Her Closing Argument, Adding To The Cumulative Risk Of A Miscarriage Of Justice.

Rather than try to make the straightforward case

that Mr. Harris was guilty because he was found in

Massachusetts with a handgun but no Massachusetts-

issued firearm license, the prosecutor argued as

follows:

Does the defendant fit an exemption? And the judge is going to read you those exemptions but they pretty much boil down to two things; was he a New Hampshire resident that just happened to be passing through with his firearm so, therefore, he didn't need a Massachusetts license to carry. That's one exemption. And the second exemption sort of in layman's terms call it grace period. If he had just moved to the Commonwealth he had 60 days for which his license would have been good and then he had to get one here because he was a resident here. That's the other exemption. Now that's where it gets interesting. That's the question before you. Where did he live? Where did he live? That's the question.

***

I asked Stacey Ciprich that. Fair to say he was living there over 100 days? And she said yes. Well, 100 is more than 60, isn't it, and that would make this a crime because that means he was

055


beyond the grace period, he did not have a license to carry that gun in this Commonwealth where he was living.

2/16/18 Tr.38-39, 41-42. This argument badly

misconstrued the law. There is no exemption for a

nonresident “passing through” Massachusetts with a

handgun, see Part II above, and Judge Coffey did not

give any such instruction.13 Moreover, the 60 day grace

period set forth in G.L. c. 140, § 129C(j) does not

apply to the key charge in this case, carrying a

firearm, because new residents may not take firearms

outside their home or business during that initial 60

day period. See Wood, 398 Mass. 135.14

The effect of these misstatements was to portray

the Commonwealth’s peculiarly harsh gun control laws

in a soft light. Rather than the extreme outlier it

is, G.L. c. 269, § 10(a) was described as part of a

larger system of laws tolerant of out-of-state

13 He did give an instruction on an exemption for nonresidents travelling through the Commonwealth with ammunition — which he strangely included when charging on the elements of carrying a firearm and possession of a firearm. 2/16/18 Tr.58, 64. It was a gratuitous instruction, since the exemption only applies to ammunition for rifles and shotguns, see G.L. c. 140, § 129C(h), yet too muddled to be of any help to Mr. Harris (since ammunition isn’t a firearm).

14 The judge gave the instruction anyway, but in a confused form that did not confer any real benefit on Mr. Harris. See pp. 50-51 above.

056


visitors wishing to exercise their right to self-

defense while briefly in Massachusetts. Had Mr. Harris

not spent so many nights at his girlfriend’s, the

argument suggested, no Massachusetts law would have

been broken, no charges brought.

All this was completely untrue, of course. Such

misdirection could only have benefitted the

Commonwealth given that § 10(a)’s mandatory minimum

sentence is well known to residents, has been

controversial from its inception, see Seth Kaplan,

STUDY SHOWS MASSACHUSETTS GUN LAW HAS LITTLE EFFECT ON CRIME AFTER

YEAR, Harvard Crimson (July 16, 1976), and remains so

today. See Michael Jonas, CRIME AND PUNISHMENT: WHAT’S THE

RIGHT THING TO DO WITH AN 18-YEAR OLD CAUGHT WITH A GUN?,

Commonwealth Magazine (Fall 2016). Juror unease with

this mandatory minimum sentence has apparently led to

lower conviction rates for carrying firearms charges.

See Michael Tonry, THE MOSTLY UNINTENDED EFFECTS OF MANDATORY

PENALTIES: TWO CENTURIES OF CONSISTENT FINDINGS, 38 Crime &

Justice 65, 78 (2009)(noting that outcomes favorable

to defendants “increased significantly” following the

Bartley-Fox Amendment, which implemented § 10(a)’s

mandatory minimum sentence in 1975). The author of

this last study suggests that jury nullification has

057


played a role in reduced conviction rates where

mandatory sentences are involved. Id. at 71.

The issue of nullification surfaced briefly in

Mr. Harris’ case, with defense counsel requesting

leeway to allude to this jury power. 2/15/18 Tr.258-

60; 2/16/18 Tr.9-12. The judge denied this request, as

was his right. See Commonwealth v. Leno, 415 Mass.

835, 842 (1993). But there should be parity between

the parties on the issue of nullification. If defense

counsel may not try to coax a jury into disregarding

the laws, then prosecutors should not be allowed to

dupe a jury into believing that the laws are more

balanced and reasonable than they really are by

alluding to benign but non-existent exemptions. The

jurors were likely either misled about the law (if

they took the prosecutor’s claims at face value) or

else bewildered (if they noticed that Judge Coffey

never gave the promised “passing through” instruction

when charging on the handgun counts). In combination

with the other errors noted above, this closing

argument contributed to the substantial risk of a

miscarriage of justice. See Commonwealth v. Cancel,

394 Mass. 567 (1985)(cumulative effect of errors can

create substantial risk of miscarriage of justice).

058


CONCLUSION

If Mr. Harris’ conviction stands, then anyone

crossing the Massachusetts border will be subject to

arrest and harsh mandatory minimum sentences on

account of unloaded, secured handguns in a vehicle

trunk — even if gun owner is licensed to carry

firearms in his or her home state, the handgun remains

in the trunk in Massachusetts, and the excursion into

the Commonwealth is brief. The Second Amendment and

the Firearm Owners Protection Act forbid this result,

therefore the Court should reverse the convictions and

order dismissal of the complaints. See Parts I and II.

In the alternative, the Court should reverse the

convictions and order a new trial. See Part III.

Respectfully submitted,

Brian K. Harris,

By his counsel,

/s/ Christopher DeMayo ______________________________ CHRISTOPHER DEMAYO (BBO #653481) LAW OFFICE OF CHRISTOPHER DEMAYO 38 Montvale Avenue, Suite 200 Stoneham, MA 02180 (781) 572-3036 [email protected]

059


CERTIFICATE OF COMPLIANCE PURSUANT TO RULE MASS. R. A. P. 16(K)

I, Christopher DeMayo, hereby certify that the

foregoing brief complies with the rules of court that

pertain to the filing of briefs.

/s/ Christopher DeMayo _________________________________ Christopher DeMayo (BBO # 653481) Law Office of Christopher DeMayo 38 Montvale Avenue, Suite 200 Stoneham, MA 02180 781-572-3036 [email protected]

060


ADDENDUM

Table of Contents

Massachusetts Statutes and Legislative Documents

G.L. c. 90, § 34J ................................... 63

G.L. c. 140, § 129C ................................. 66

G.L. c. 269, § l0 ................................... 74

G.L. c. 278, § 7 .................................... 85

1968 Acts 737, § 7 .................................. 86

1969 Acts 799, § 8 .................................. 92

Federal Statutes and Legislative Documents

18 U.S.C., § 926A ................................... 96

28 U.S.C., § 1738 ................................... 97

Congressional Record, House ......................... 98

“The Right To Keep And Bear Arms,” Report Of The Subcommittee On The Constitution Of The Committee On The Judiciary, United States Senate, Ninety- Seventh Congress (Feb. 1982) ...................... 99


Second Amendment ................................... 126

Fifth Amendment, Due Process Clause ................ 126

Fourteenth Amendment, Due Process Clause ........... 126

Massachusetts Model Jury Instructions

Mass. Dist. Ct. Model Jury Instruction 7.600 ....... 127

Mass. Dist. Ct. Model Jury Instruction 7.620 ....... 140

061


Massachusetts Rules

Mass. Guide Evid., § 403 ........................... 146

Other Materials Cited

Massachusetts Executive Office of Public Safety and Security, APPLICATION FOR NON-RESIDENT TEMPORARY LICENSETO CARRY FIREARMS (Rev. Dec. 2016) ................. 147

Assistant Attorney General William A. Moschella, Opinion Letter to Congressman Don Young (Feb. 18, 2005) ............................................ 154

Unpublished Opinions

Gould v. O’Leary, 2017 U.S. Dist. LEXIS 199400 (D.Mass. Dec. 5 2017) ........................... 156

Second Amendment Arms v. City of Chicago, 2012 U.S. Dist. LEXIS 136645 (N.D. Ill. Sept. 25, 2012) ...................... 170

062


Part I ADMINISTRATION OF THE GOVERNMENT

Title XIV PUBLIC WAYS AND WORKS

Chapter 90 MOTOR VEHICLES AND AIRCRAFT

Section 34J OPERATING MOTOR VEHICLE WITHOUT LIABILITY POLICY,BOND OR SECURITY DEPOSIT

Section 34J. Whoever operates or permits to be operated or permits toremain on a public or private way a motor vehicle which is subject to theprovisions of section one A during such time as the motor vehicle liabilitypolicy or bond or deposit required by the provisions of this chapter hasnot been provided and maintained in accordance therewith shall bepunished by a fine of not less than five hundred nor more than fivethousand dollars or by imprisonment for not more than one year in ahouse of correction, or both such fine and imprisonment; provided,however, that any municipality that enforces the provisions of this sectionshall retain such fine. This section shall not apply to a person whooperates a motor vehicle leased under any system referred to in sectionthirtytwo C without knowledge that the lessor thereof has not compliedwith the provisions of section thirtytwo E relative to providingindemnity, protection or security for property damage.

In proceedings under this section, written certification by the registrar ofmotor vehicles that the registry of motor vehicles has no record of amotor vehicle liability policy or bond or deposit in effect at the time of

063


the alleged offense as required by the provisions of this chapter for themotor vehicle alleged to have been operated in violation of this section,shall be admissible as evidence in any court of the commonwealth andshall raise a rebuttable presumption that no such motor vehicle liabilitypolicy or bond or deposit was in effect for said vehicle at the time of thealleged offense. Such presumption may be rebutted and overcome byevidence that a motor vehicle liability policy or bond or deposit was ineffect for such vehicle at the time of the alleged offense.

Any person who is convicted of, or who enters a plea of guilty to aviolation of this section shall be liable to the plan organized pursuant tosection one hundred and thirteen H of chapter one hundred and seventyfive in the amount of the greater of five hundred dollars or one year'spremium for compulsory motor vehicle insurance for the highest ratedterritory and class or risk in effect at the time of the commission of theoffense. Said liability shall be in addition to all other liabilities imposedon the person so convicted or so pleading whether civil or criminal. Thesaid plan shall apply any sums collected hereunder, to defray its costs ofcollection and to defray in whole or in part its expenses for preventingfraud and arson. Furthermore, any person who is convicted of, or enters aplea of guilty to a violation of this section shall have his or her license orright to operate a motor vehicle suspended for sixty days by the registrarof motor vehicles upon the registrar's receipt of notification from theclerk of any court which enters any conviction hereunder or whichaccepts such plea of guilty. The clerk of any court which enters anyconviction hereunder or which accepts such plea shall promptly notify theregistrar of motor vehicles and the Commonwealth Auto Reinsurerspursuant to section one hundred and thirteen of chapter one hundred andseventyfive or any successor thereto of such entry of acceptance of such

064


plea. For any second or subsequent said conviction or plea of guiltywithin a six year period the offender's license or right to operate a motorvehicle shall be suspended for one year by the registrar upon theregistrar's receipt of such notification by the clerk of any such court.

Notwithstanding any general or special law to the contrary, whoeverviolates this section and has not been previously determined responsiblefor or convicted therefor, or against whom a finding of delinquency or afinding of sufficient facts to support a conviction has not previously beenrendered, on a complaint charging a violation of this section shall bepunished by fine of not more than $500.

065


Part I ADMINISTRATION OF THE GOVERNMENT

Title XX PUBLIC SAFETY AND GOOD ORDER

Chapter 140 LICENSES

Section 129C APPLICATION OF SEC. 129B; OWNERSHIP OR POSSESSION OFFIREARMS OR AMMUNITION; TRANSFERS; REPORT TOCOMMISSIONER; EXEMPTIONS; EXHIBITING LICENSE TOCARRY, ETC. ON DEMAND

Section 129C. No person, other than a licensed dealer or one who hasbeen issued a license to carry a pistol or revolver or an exempt person ashereinafter described, shall own or possess any firearm, rifle, shotgun orammunition unless he has been issued a firearm identification card by thelicensing authority pursuant to the provisions of section one hundred andtwentynine B.

No person shall sell, give away, loan or otherwise transfer a rifle orshotgun or ammunition other than (a) by operation of law, or (b) to anexempt person as hereinafter described, or (c) to a licensed dealer, or (d)to a person who displays his firearm identification card, or license tocarry a pistol or revolver.

A seller shall, within seven days, report all such transfers to thecommissioner of the department of criminal justice information servicesaccording to the provisions set forth in section one hundred and twentyeight A, and in the case of loss, theft or recovery of any firearm, rifle,

066


shotgun or machine gun, a similar report shall be made forthwith to boththe commissioner of the department of criminal justice informationservices and the licensing authority in the city or town where the ownerresides. Whoever fails to report the loss or theft of a firearm, rifle,shotgun or machine gun or the recovery of a firearm, rifle, shotgun ormachine gun previously reported lost or stolen to the commissioner of thedepartment of criminal justice information services and the licensingauthority in the city or town where the owner resides shall be punished bya fine of not less than $500 nor more than $1,000 for a first offense, by afine of not less than $2,500 nor more than $7,500 for a second offenseand by a fine of not less than $7,500 nor more than $10,000 orimprisonment for not less than 1 year nor more than 5 years, or by bothsuch fine and imprisonment, for a third or subsequent offense. Failure toso report shall be a cause for suspension or permanent revocation of aperson's firearm identification card or license to carry firearms, or both.Notwithstanding this paragraph or any general or special law to thecontrary, no person, who in good faith, reports a loss or theft under thisparagraph for the first time shall be subject to suspension, revocation orbe considered unsuitable under section 131 for the renewal of a lawfullyheld firearm identification card or license to carry firearms; provided,however, that persons reporting loss or theft under this paragraph orunder section 129B on a second or subsequent occasion may be subject tosuspension, revocation or be considered unsuitable under said section 131for the renewal of a lawfully held firearm identification card or license tocarry firearms.

The provisions of this section shall not apply to the following exemptedpersons and uses:

067


(a) Any device used exclusively for signalling or distress use and requiredor recommended by the United States Coast Guard or the InterstateCommerce Commission, or for the firing of stud cartridges, explosiverivets or similar industrial ammunition;

(b) Federally licensed firearms manufacturers or wholesale dealers, orpersons employed by them or by licensed dealers, or on their behalf,when possession of firearms, rifles or shotguns is necessary formanufacture, display, storage, transport, installation, inspection or testing;

(c) To a person voluntarily surrendering a firearm, rifle or shotgun andammunition therefor to a licensing authority, the colonel of the statepolice or his designee if prior written notice has been given by saidperson to the licensing authority or the colonel of the state police, statingthe place and approximate time of said surrender;

(d) The regular and ordinary transport of firearms, rifles or shotguns asmerchandise by any common carrier;

(e) Possession by retail customers for the purpose of firing at dulylicensed target concessions at amusement parks, piers and similarlocations, provided that the firearms, rifles or shotguns to be so used arefirmly chained or affixed to the counter and that the proprietor is inpossession of a firearm identification card or license to carry firearms;

(f) Possession of rifles and shotguns and ammunition therefor bynonresident hunters with valid nonresident hunting licenses duringhunting season;

(g) Possession of rifles and shotguns and ammunition therefor bynonresidents while on a firing or shooting range;

068


(h) Possession of rifles and shotguns and ammunition therefor bynonresidents traveling in or through the commonwealth, providing thatany rifles or shotguns are unloaded and enclosed in a case;

(i) Possession of rifles and shotguns by nonresidents while at a firearmshowing or display organized by a regularly existing gun collectors' clubor association;

(j) Any resident of the commonwealth returning after having been absentfrom the commonwealth for not less than 180 consecutive days or anynew resident moving into the commonwealth, with respect to any firearm,rifle or shotgun and any ammunition therefor then in his possession, for60 days after such return or entry into the commonwealth;

(k) Any person under the age of fifteen with respect to the use of a rifle orshotgun by such person in hunting or target shooting, provided that suchuse is otherwise permitted by law and is under the immediate supervisionof a person holding a firearm identification card or a license to carryfirearms, or a duly commissioned officer, noncommissioned officer orenlisted member of the United States Army, Navy, Marine Corps, AirForce or Coast Guard, or the National Guard or military service of thecommonwealth or reserve components thereof, while in the performanceof his duty;

(l) The possession or utilization of any rifle or shotgun during the courseof any television, movie, stage or other similar theatrical production, orby a professional photographer or writer for examination purposes in thepursuit of his profession, providing such possession or utilization is underthe immediate supervision of a holder of a firearm identification card or alicense to carry firearms;

069


(m) The temporary holding, handling or firing of a firearm forexamination, trial or instruction in the presence of a holder of a license tocarry firearms, or the temporary holding, handling or firing of a rifle orshotgun for examination, trial or instruction in the presence of a holder ofa firearm identification card, or where such holding, handling or firing isfor a lawful purpose;

(n) The transfer of a firearm, rifle or shotgun upon the death of an ownerto his heir or legatee shall be subject to the provisions of this section,provided that said heir or legatee shall within one hundred and eightydays of such transfer, obtain a firearm identification card or a license tocarry firearms if not otherwise an exempt person who is qualified toreceive such or apply to the licensing authority for such further limitedperiod as may be necessary for the disposition of such firearm, rifle orshotgun;

(o) Persons in the military or other service of any state or of the UnitedStates, and police officers and other peace officers of any jurisdiction, inthe performance of their official duty or when duly authorized to possessthem;

(p) Carrying or possession by residents or nonresidents of socalled blackpowder rifles, shotguns, and ammunition therefor as described in suchparagraphs (A) and (B) of the third paragraph of section 121, and thecarrying or possession of conventional rifles, shotguns, and ammunitiontherefor by nonresidents who meet the requirements for such carrying orpossession in the state in which they reside.

[There is no clause (q).]

070


(r) Possession by a veteran's organization chartered by the Congress ofthe United States, chartered by the commonwealth or recognized as anonprofit taxexempt organization by the Internal Revenue Service andpossession by the members of any such organization when on officialparade duty or ceremonial occasions.

(s) Possession by federal, state and local historical societies, museums,and institutional collections open to the public, provided such firearms,rifles or shotguns are unloaded, properly housed and secured fromunauthorized handling;

(t) the possession of firearms, rifles, shotguns, machine guns andammunition, by banks or institutional lenders, or their agents, servants oremployees, when the same are possessed as collateral for a securedcommercial transaction or as a result of a default under a securedcommercial transaction.

(u) Any nonresident who is eighteen years of age or older at the time ofacquiring a rifle or shotgun from a licensed firearms dealer; provided,however, that such nonresident must hold a valid firearms license fromhis state of residence; provided, further, that the licensing requirements ofsuch nonresident's state of residence are as stringent as the requirementsof the commonwealth for a firearm identification card, as determined bythe colonel of the state police who shall, annually, publish a list of thosestates whose requirements comply with the provisions of this clause.

Any person, exempted by clauses (o), (p) and (q), purchasing a rifle orshotgun or ammunition therefor shall submit to the seller such full andclear proof of identification, including shield number, serial number,

071


military or governmental order or authorization, military or other officialidentification, other state firearms license, or proof of nonresidence, asmay be applicable.

Nothing in this section shall permit the sale of rifles or shotguns orammunition therefor to a minor under the age of eighteen in violation ofsection one hundred and thirty nor may any firearm be sold to a personunder the age of 21 nor to any person who is not licensed to carryfirearms under section one hundred and thirtyone unless he presents avalid firearm identification card and a permit to purchase issued undersection one hundred and thirtyone A, or presents such permit to purchaseand is a properly documented exempt person as hereinbefore described.

[Seventh paragraph effective until January 1, 2021. For text effectiveJanuary 1, 2021, see below.]

Nothing in this section shall permit the sale or transfer of any largecapacity rifle or shotgun or large capacity feeding device therefor to anyperson not in possession of a Class A or Class B license to carry firearmsissued under section 131, or of any large capacity firearm or largecapacity feeding device therefor to any person not in possession of aClass A license to carry firearms issued under section 131.

[Seventh paragraph as amended by 2014, 284, Sec. 41 effective January1, 2021. See 2014, 284, Sec. 112. For text effective until January 1, 2021,see above.]

Nothing in this section shall permit the sale or transfer of a large capacityrifle, shotgun or firearm or large capacity feeding device therefor to aperson not in possession of a license to carry firearms issued pursuant tosection 131.

072


The possession of a firearm identification card issued under section onehundred and twentynine B shall not entitle any person to carry a firearmin violation of section ten of chapter two hundred and sixtynine and, thepossession of a firearm identification card issued under section 129Bshall not entitle any person to possess any large capacity rifle or shotgunor large capacity feeding device therefor in violation of subsection (m) ofsaid section 10 of said chapter 269.

Any person who, while not being within the limits of his own property orresidence, or such person whose property or residence is under lawfulsearch, and who is not exempt under this section, shall on demand of apolice officer or other law enforcement officer, exhibit his license to carryfirearms, or his firearm identification card or receipt for fee paid for suchcard, or, after January first, nineteen hundred and seventy, exhibit a validhunting license issued to him which shall bear the number officiallyinscribed of such license to carry or card if any. Upon failure to do sosuch person may be required to surrender to such officer said firearm,rifle or shotgun which shall be taken into custody as under the provisionsof section one hundred and twentynine D, except that such firearm, rifleor shotgun shall be returned forthwith upon presentation within thirtydays of said license to carry firearms, firearm identification card orreceipt for fee paid for such card or hunting license as hereinbeforedescribed. Any person subject to the conditions of this paragraph may,even though no firearm, rifle or shotgun was surrendered, be required toproduce within thirty days said license to carry firearms, firearmidentification card or receipt for fee paid for such card, or said huntinglicense, failing which the conditions of section one hundred and twentynine D will apply. Nothing in this section shall prevent any person frombeing prosecuted for any violation of this chapter.

073


Part IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL

CASES

Title I CRIMES AND PUNISHMENTS

Chapter 269 CRIMES AGAINST PUBLIC PEACE

Section 10 CARRYING DANGEROUS WEAPONS; POSSESSION OF MACHINEGUN OR SAWEDOFF SHOTGUNS; POSSESSION OF LARGECAPACITY WEAPON OR LARGE CAPACITY FEEDING DEVICE;PUNISHMENT

Section 10. (a) Whoever, except as provided or exempted by statute,knowingly has in his possession; or knowingly has under his control in avehicle; a firearm, loaded or unloaded, as defined in section one hundredand twentyone of chapter one hundred and forty without either:

(1) being present in or on his residence or place of business; or

(2) having in effect a license to carry firearms issued under section onehundred and thirtyone of chapter one hundred and forty; or

(3) having in effect a license to carry firearms issued under section onehundred and thirtyone F of chapter one hundred and forty; or

(4) having complied with the provisions of sections one hundred andtwentynine C and one hundred and thirtyone G of chapter one hundredand forty; or

074


(5) having complied as to possession of an air rifle or BB gun with therequirements imposed by section twelve B; and whoever knowingly hasin his possession; or knowingly has under control in a vehicle; a rifle orshotgun, loaded or unloaded, without either:

(1) being present in or on his residence or place of business; or

(2) having in effect a license to carry firearms issued under section onehundred and thirtyone of chapter one hundred and forty; or

(3) having in effect a license to carry firearms issued under section onehundred and thirtyone F of chapter one hundred and forty; or

(4) having in effect a firearms identification card issued under section onehundred and twentynine B of chapter one hundred and forty; or

(5) having complied with the requirements imposed by section onehundred and twentynine C of chapter one hundred and forty uponownership or possession of rifles and shotguns; or

(6) having complied as to possession of an air rifle or BB gun with therequirements imposed by section twelve B; shall be punished byimprisonment in the state prison for not less than two and onehalf yearsnor more than five years, or for not less than 18 months nor more thantwo and onehalf years in a jail or house of correction. The sentenceimposed on such person shall not be reduced to less than 18 months, norsuspended, nor shall any person convicted under this subsection beeligible for probation, parole, work release, or furlough or receive anydeduction from his sentence for good conduct until he shall have served18 months of such sentence; provided, however, that the commissioner ofcorrection may on the recommendation of the warden, superintendent, orother person in charge of a correctional institution, grant to an offendercommitted under this subsection a temporary release in the custody of an

075


officer of such institution for the following purposes only: to attend thefuneral of a relative; to visit a critically ill relative; or to obtainemergency medical or psychiatric service unavailable at said institution.Prosecutions commenced under this subsection shall neither be continuedwithout a finding nor placed on file.

No person having in effect a license to carry firearms for any purpose,issued under section one hundred and thirtyone or section one hundredand thirtyone F of chapter one hundred and forty shall be deemed to bein violation of this section.

The provisions of section eightyseven of chapter two hundred andseventysix shall not apply to any person 18 years of age or older, chargedwith a violation of this subsection, or to any child between ages fourteenand 18 so charged, if the court is of the opinion that the interests of thepublic require that he should be tried as an adult for such offense insteadof being dealt with as a child.

The provisions of this subsection shall not affect the licensingrequirements of section one hundred and twentynine C of chapter onehundred and forty which require every person not otherwise duly licensedor exempted to have been issued a firearms identification card in order topossess a firearm, rifle or shotgun in his residence or place of business.

(b) Whoever, except as provided by law, carries on his person, or carrieson his person or under his control in a vehicle, any stiletto, dagger or adevice or case which enables a knife with a locking blade to be drawn at alocked position, any ballistic knife, or any knife with a detachable bladecapable of being propelled by any mechanism, dirk knife, any knifehaving a doubleedged blade, or a switch knife, or any knife having anautomatic spring release device by which the blade is released from the

076


handle, having a blade of over one and onehalf inches, or a slung shot,blowgun, blackjack, metallic knuckles or knuckles of any substancewhich could be put to the same use with the same or similar effect asmetallic knuckles, nunchaku, zoobow, also known as klackers or kung fusticks, or any similar weapon consisting of two sticks of wood, plastic ormetal connected at one end by a length of rope, chain, wire or leather, ashuriken or any similar pointed starlike object intended to injure a personwhen thrown, or any armband, made with leather which has metallicspikes, points or studs or any similar device made from any othersubstance or a cestus or similar material weighted with metal or othersubstance and worn on the hand, or a manrikigusari or similar length ofchain having weighted ends; or whoever, when arrested upon a warrantfor an alleged crime, or when arrested while committing a breach ordisturbance of the public peace, is armed with or has on his person, or hason his person or under his control in a vehicle, a billy or other dangerousweapon other than those herein mentioned and those mentioned inparagraph (a), shall be punished by imprisonment for not less than twoand onehalf years nor more than five years in the state prison, or for notless than six months nor more than two and onehalf years in a jail orhouse of correction, except that, if the court finds that the defendant hasnot been previously convicted of a felony, he may be punished by a fineof not more than fifty dollars or by imprisonment for not more than twoand onehalf years in a jail or house of correction.

(c) Whoever, except as provided by law, possesses a machine gun, asdefined in section one hundred and twentyone of chapter one hundredand forty, without permission under section one hundred and thirtyone ofsaid chapter one hundred and forty; or whoever owns, possesses or carrieson his person, or carries on his person or under his control in a vehicle, a

077


sawedoff shotgun, as defined in said section one hundred and twentyoneof said chapter one hundred and forty, shall be punished by imprisonmentin the state prison for life, or for any term of years provided that anysentence imposed under the provisions of this paragraph shall be subjectto the minimum requirements of paragraph (a).

(d) Whoever, after having been convicted of any of the offenses set forthin paragraph (a), (b) or (c) commits a like offense or any other of the saidoffenses, shall be punished by imprisonment in the state prison for notless than five years nor more than seven years; for a third such offense, byimprisonment in the state prison for not less than seven years nor morethan ten years; and for a fourth such offense, by imprisonment in the stateprison for not less than ten years nor more than fifteen years. Thesentence imposed upon a person, who after a conviction of an offenseunder paragraph (a), (b) or (c) commits the same or a like offense, shallnot be suspended, nor shall any person so sentenced be eligible forprobation or receive any deduction from his sentence for good conduct.

(e) Upon conviction of a violation of this section, the firearm or otherarticle shall, unless otherwise ordered by the court, be confiscated by thecommonwealth. The firearm or article so confiscated shall, by theauthority of the written order of the court be forwarded by commoncarrier to the colonel of the state police, who, upon receipt of the same,shall notify said court or justice thereof. Said colonel may sell or destroythe same, except that any firearm which may not be lawfully sold in thecommonwealth shall be destroyed, and in the case of a sale, after payingthe cost of forwarding the article, shall pay over the net proceeds to thecommonwealth.

078


(f) The court shall, if the firearm or other article was lost by or stolenfrom the person lawfully in possession of it, order its return to suchperson.

(g) Whoever, within this commonwealth, produces for sale, delivers orcauses to be delivered, orders for delivery, sells or offers for sale, or failsto keep records regarding, any rifle or shotgun without complying withthe requirement of a serial number, as provided in section one hundredand twentynine B of chapter one hundred and forty, shall for the firstoffense be punished by confinement in a jail or house of correction fornot more than two and onehalf years, or by a fine of not more than fivehundred dollars.

(h)(1) Whoever owns, possesses or transfers a firearm, rifle, shotgun orammunition without complying with the provisions of section 129C ofchapter 140 shall be punished by imprisonment in a jail or house ofcorrection for not more than 2 years or by a fine of not more than $500.Whoever commits a second or subsequent violation of this paragraphshall be punished by imprisonment in a house of correction for not morethan 2 years or by a fine of not more than $1,000, or both. Any officerauthorized to make arrests may arrest without a warrant any person whomthe officer has probable cause to believe has violated this paragraph.

(2) Any person who leaves a firearm, rifle, shotgun or ammunitionunattended with the intent to transfer possession of such firearm, rifle,shotgun or ammunition to any person not licensed under section 129C ofchapter 140 or section 131 of chapter 140 for the purpose of committing acrime or concealing a crime shall be punished by imprisonment in ahouse of correction for not more than 21/2 years or in state prison for notmore than 5 years.

079


(i) Whoever knowingly fails to deliver or surrender a revoked orsuspended license to carry or possess firearms or machine guns issuedunder the provisions of section one hundred and thirtyone or onehundred and thirtyone F of chapter one hundred and forty, or firearmidentification card, or receipt for the fee for such card, or a firearm, rifle,shotgun or machine gun, as provided in section one hundred and twentynine D of chapter one hundred and forty, unless an appeal is pending,shall be punished by imprisonment in a jail or house of correction for notmore than two and onehalf years or by a fine of not more than onethousand dollars.

(j) For the purposes of this paragraph, ''firearm'' shall mean any pistol,revolver, rifle or smoothbore arm from which a shot, bullet or pellet canbe discharged.

Whoever, not being a law enforcement officer and notwithstanding anylicense obtained by the person pursuant to chapter 140, carries on theperson a firearm, loaded or unloaded, or other dangerous weapon in anybuilding or on the grounds of any elementary or secondary school,college or university without the written authorization of the board orofficer in charge of the elementary or secondary school, college oruniversity shall be punished by a fine of not more than $1,000 or byimprisonment for not more than 2 years or both. A law enforcementofficer may arrest without a warrant and detain a person found carrying afirearm in violation of this paragraph.

Any officer in charge of an elementary or secondary school, college oruniversity or any faculty member or administrative officer of anelementary or secondary school, college or university that fails to report a

080


violation of this paragraph shall be guilty of a misdemeanor and punishedby a fine of not more than $500.

[There is no paragraph (k).]

(l) The provisions of this section shall be fully applicable to any personproceeded against under section seventyfive of chapter one hundred andnineteen and convicted under section eightythree of chapter one hundredand nineteen, provided, however, that nothing contained in this sectionshall impair, impede, or affect the power granted any court by chapter onehundred and nineteen to adjudicate a person a delinquent child, includingthe power so granted under section eightythree of said chapter onehundred and nineteen.

[First paragraph of paragraph (m) effective until January 1, 2021. Fortext effective January 1, 2021, see below.]

(m) Notwithstanding the provisions of paragraph (a) or (h), any personnot exempted by statute who knowingly has in his possession, orknowingly has under his control in a vehicle, a large capacity weapon orlarge capacity feeding device therefor who does not possess a valid ClassA or Class B license to carry firearms issued under section 131 or 131F ofchapter 140, except as permitted or otherwise provided under this sectionor chapter 140, shall be punished by imprisonment in a state prison fornot less than two and onehalf years nor more than ten years. Thepossession of a valid firearm identification card issued under section129B shall not be a defense for a violation of this subsection; provided,however, that any such person charged with violating this paragraph andholding a valid firearm identification card shall not be subject to anymandatory minimum sentence imposed by this paragraph. The sentenceimposed upon such person shall not be reduced to less than one year, nor

081


suspended, nor shall any person convicted under this subsection beeligible for probation, parole, furlough, work release or receive anydeduction from his sentence for good conduct until he shall have servedsuch minimum term of such sentence; provided, however, that thecommissioner of correction may, on the recommendation of the warden,superintendent or other person in charge of a correctional institution orthe administrator of a county correctional institution, grant to suchoffender a temporary release in the custody of an officer of suchinstitution for the following purposes only: (i) to attend the funeral of aspouse or next of kin; (ii) to visit a critically ill close relative or spouse;or (iii) to obtain emergency medical services unavailable at suchinstitution. Prosecutions commenced under this subsection shall neitherbe continued without a finding nor placed on file. The provisions ofsection 87 of chapter 276 relative to the power of the court to placecertain offenders on probation shall not apply to any person 18 years ofage or over charged with a violation of this section.

[First paragraph of paragraph (m) as amended by 2014, 284, Sec. 91effective January 1, 2021. See 2014, 284, Sec. 112. For text effective untilJanuary 1, 2021, see above.]

(m) Notwithstanding the provisions of paragraph (a) or (h), any personnot exempted by statute who knowingly has in his possession, orknowingly has under his control in a vehicle, a large capacity weapon orlarge capacity feeding device therefor who does not possess a validlicense to carry firearms issued under section 131 or 131F of chapter 140,except as permitted or otherwise provided under this section or chapter140, shall be punished by imprisonment in a state prison for not less thantwo and onehalf years nor more than ten years. The possession of a validfirearm identification card issued under section 129B shall not be a

082


defense for a violation of this subsection; provided, however, that anysuch person charged with violating this paragraph and holding a validfirearm identification card shall not be subject to any mandatoryminimum sentence imposed by this paragraph. The sentence imposedupon such person shall not be reduced to less than one year, norsuspended, nor shall any person convicted under this subsection beeligible for probation, parole, furlough, work release or receive anydeduction from his sentence for good conduct until he shall have servedsuch minimum term of such sentence; provided, however, that thecommissioner of correction may, on the recommendation of the warden,superintendent or other person in charge of a correctional institution orthe administrator of a county correctional institution, grant to suchoffender a temporary release in the custody of an officer of suchinstitution for the following purposes only: (i) to attend the funeral of aspouse or next of kin; (ii) to visit a critically ill close relative or spouse;or (iii) to obtain emergency medical services unavailable at suchinstitution. Prosecutions commenced under this subsection shall neitherbe continued without a finding nor placed on file. The provisions ofsection 87 of chapter 276 relative to the power of the court to placecertain offenders on probation shall not apply to any person 18 years ofage or over charged with a violation of this section.

The provisions of this paragraph shall not apply to the possession of alarge capacity weapon or large capacity feeding device by (i) any officer,agent or employee of the commonwealth or any other state or the UnitedStates, including any federal, state or local law enforcement personnel;(ii) any member of the military or other service of any state or the UnitedStates; (iii) any duly authorized law enforcement officer, agent oremployee of any municipality of the commonwealth; (iv) any federal,

083


state or local historical society, museum or institutional collection open tothe public; provided, however, that any such person described in clauses(i) to (iii), inclusive, is authorized by a competent authority to acquire,possess or carry a large capacity semiautomatic weapon and is actingwithin the scope of his duties; or (v) any gunsmith duly licensed underthe applicable federal law.

(n) Whoever violates paragraph (a) or paragraph (c), by means of aloaded firearm, loaded sawed off shotgun or loaded machine gun shall befurther punished by imprisonment in the house of correction for not morethan 21/2 years, which sentence shall begin from and after the expirationof the sentence for the violation of paragraph (a) or paragraph (c).

(o) For purposes of this section, ''loaded'' shall mean that ammunition iscontained in the weapon or within a feeding device attached thereto.

For purposes of this section, ''ammunition'' shall mean cartridges orcartridge cases, primers (igniter), bullets or propellant powder designedfor use in any firearm, rifle or shotgun.

084


Part IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL

CASES

Title II PROCEEDINGS IN CRIMINAL CASES

Chapter 278 TRIALS AND PROCEEDINGS BEFORE JUDGMENT

Section 7 BURDEN TO PROVE LICENSE OR ADMISSION TO PRACTICE ASATTORNEY AT LAW

Section 7. A defendant in a criminal prosecution, relying for hisjustification upon a license, appointment, admission to practice as anattorney at law, or authority, shall prove the same; and, until so proved,the presumption shall be that he is not so authorized.

085


086

622 Aors, 1968. - CnAP. 736.

and lc~sec; and,_ (d) adopt, after a public hearing, such .rules and regulat10ns rela ting to such exploration and extraction of mineral resources, and the transportation thereof in or over the coastal waters of the commonwealth, as ·will insure the proper utilization of such resources consistent with the harvesting and propagation of other vall!able natural resources and the general safety, welfare and convemence of the. commonwealth. No license to explore in the coastal waters shall be issued, no lease for extraction of mineral resources shall be granted, no charge or fee for such license or lease shall be establi~hed, no ruJe or regulation relating to such exploration or extraction shall be adopted, amended or rescinded unless and until sai~ directo~ sh~ll firs~, and in each instance, hold a public hearing, no_tice of which, mcludmg a statement of intent, shall be sent at least thirty days prior to said public hearing, to each city a~d town bordering on the coastal waters of the commonwealth. Such rules and regulations mn:y provide _for re~onable exemptions from the requirements of section fifty-six relative t.o leases for the extraction of mineral resources. Any exploration or extraction of materials necessary for ~li~hway an~ oth~r public purposes shall be exempt from the prov1s1ons of this section and section fifty-six.

Section 55. Said director with the approval of the commissioner and the public :''orks c~~issi?n shall cooperate with all departments, boar~s1 ?fficials and m~btut1ons of the commonwealth and its political subd1v1s1ons tbat may m any way be concerned with matters under its sup_ervision; coopel'ate and consult with adjoining states and with the Umted States, or any agency thereof ; enter int.o agreements relative to the federal administration and enforcement of off-shore exploration and extraction beyond the marine jurisdiction of the commonwealth· a~d may apply for, . receive and expend such federal grants o; relillbursements or private grant.s as may be available therefor in carrying out the duties of t he division.

&ction 56. No person shall explore by seismic, electronic or any other method for mineral resources on or in said coastal waters or lands thereunder without a license from said director. No person shall C..\'.Cept for purposes of exploration permitted under a license extract mineral resources from said coasta.l waters or lands thereunder' without a lease issued by said director. Any person violating any provision of this section shall be punished by a fine of not more than ten thousand dollars and, in addition thereto, any equipment, vehicles boats and appurtenances used in said violation shall be liable to ~eizure and forfeiture. Any person violating any rule or r egulation of the director shall ~be punished by a fine of not more than one thousand dollars and his license or lease, if any, shall be subject to revocation o: suspension. Violations committed within the coastal waters may be prosecuted in any district which has venue over coastal wat.ers. The division of law enforcement shall enforce the laws, ruJes and regulations relating to mineral resources.

SECTION 3. Section I of chapter 81 of the General Laws is hereby amended by striking out the fourth sentence and inserting in place thereof the following sentence:-lt shall collect collate and make available, geoscience data of the commonwealth,

1

for the purpose of aiding in the search for and evaluation of reserve sources of water,

Aors, 1968. - CHAP. 737. 623

gas, materials suitable for road building and all other minerals within the land and water boundaries of the commonwealth, the location of which it shall, so far as practicable, designate on maps which shall be open to inspection by the public.

S ECTION 4. The second paragraph of section 4 of chapter 16 of the General Laws, as appearing in section 1 of chapter 821 of the act.s of 1963, is hereby further amended by inserting aiter the word "waterways", in line 6, the words:- , a professional geologist, who shall be the state geologist,-and by striking out, in line 10, the word "t·welve" and inserting in place thereof the word:-thirteen.

SECTION 5. Said section 4 of said chapter 16, as so appearing, is hereby further amended by inserting after the second paragraph the following paragraph:-

The state geologist shall be responsible for the collection and collation of geoscicnce data of the commonwealth and shall upon request, insofar as practicable, aid any department, agency, division, bureau, section, institution and political subdivision of the commonwealth and shall make available t.o them infonnation and data under his control. He shall also advise the director of mineral resources in the control of commercial e,"ploration of mineral resources.

Approved July 20, 1968.

Chap. 737. AN ACT FURTHER REGULATING THE runcIIASE, SALE AXD POSSESSION OF FlllEAR!llS, Ril"'LES A.'\D SHOTGU~S, AND PROVIDDIG FOR THE ISSUA~CE OF FIREAR..\1 .IDENTIFICATION

CARDS.

Be it enacted, etc., as follows: SECTION 1. Section 121 of chapter 140 of the General Laws is hereby

amended by striking out the last sentence, as appearing in section 4 of chapter 688 of the acts of 1957, and inserting in place thereof the following scntence:-Sections one hundred and twenty-two to one hundred and twenty-nine, inclusive, and section one hundred and thirty-one A shall not apply to any firearm made prior to eighteen hundred and ninety-seven, inclucling matchlock, flintlock, percussion cap or similar early type ignition syst~m or a replica thereof, whether actually made before or after the year eighteen hundred and ninetyseven, and also any firearm using fixed ammunition made prior to eighteen hundred and ninety-eight, for which ammunition is no longer made in the United States and is not readily available in the ordinary channels of commercial trade.

SECTION 2. Said chapter 140 is hereby further amended by inserting after section 122A the following section:-

Section 122B. No person shall sell ammunition in the commonwealth unless licensed by the commissioner of public safety. Any person other than an alien, a minor or a. person who bas been convicted of ~ felony, wishing to sell ammunition may make application to the department of public safety upon a form approYed by the conunissi?ner, and_ the commissioner may issue to such person, except an ahen, a mmor or a person who has been convicted of a felony, a license to sell ammunition. Tl1e fee for such license ::;Judi be one dollar. Each license so issued shall be valid for a period not exceeding one

..


087

624 ACTS, 1968. - CHAP. 737.

year and shall expire on the thirtieth day of April next following. Licenses may be renewed during the month of April for the following year upon payment of a fee of one dollar.

In this ~ection the term "ammunition" shall include pistol or revolYer bullets, rifle bullets, shotgun shells, bullets or projectiles suitable for use in rifles, and any twenty-two caliber rim-fire ammunition.

The commissioner of public safety may establish such rules and regulations as he may deem necessary to carry out the provisions of this section.

Any person refused a license under this section may obtain a judicial review of such refusal by filing within ten days of such refusal a petition for review thereof in the district court having jurisdiction in the city or town in which the applicant filed for such license, and a justice of said court, after a hearing, may direct that a license be issued the applicant if satisfied that there was no reasonable ground for refusing such liccn_e and that the applicant was not prohibited by law from holding the same.

Whoever not being licensed, as hereinbcforc pro\'ided, ells ammunition within the commonwealth shall be punished by a fine of not less than one hundred dollars or by imprLonment for not less than six months nor more than two years.

SECTIOX 3. aid chapter 140 is hereby further amended by striking out section 123, as most recently amended by section 4 of chapter 296 of the acts of 1959, and inserting in place thereof the following scction:-

Section 123. A license granted under section one hundred and twenty- two shall be expressed to be and shall be subject to the following conditions:-First, That the provUons in regard to the nature of the license and the building in which the busine may be carried on under it shall be strictly adhered to. Second, That every licen cc shall, before delivery of a firearm, rifle or shotgun, make or cause to be made a true, legible entry in a sales record book to be furnished by the commissioner of public safety and to be kept for that purpo c, specifying the complete description of the firearm, rifle or shotgun, including the make, number, type of firearm, rifle or shotgun, type of ignition, if any, whether sold, rented or leru cd, the date of such sale, the sex, residence and occupation of the purchaser, renter or lessee, and shall before delivery, as aforesaid, require the purchaser, renter, or !es ee personally to write in said sales record book his full name. The said book ~hall be open at all times to the inspection of the police. Third, That the license or a copy thereof, certified b.Y the official issuing the same, shall be displayed on the prcmi~cs · in a po ition where it can easily be read. Fourth, That no firearms, rifles, shotguns or machine guns shall be d isplayed in any outer ";ndow of said premises or in nny other place where they can readily be seen from the outside. Fifth, That the licensee shall, once n week, send a copy of the record of S[\lCR. rentals and leases made by him for the preceding seven days to the commis ioncr of public safety. Sixth That every firearm, rifle or shotgun shall be unloaded wl1cn deli',·cred. Sc,·cnth, That no delivery of a firearm, rifle, shotgun or ammunition therefor hall be made to any person not having a license to carry said firearm issued under the provisions of section one hundred and thirty-

Acrn, 1968. - Cu.AP. 737. 625

one or a firearm identification card issued under the provisions of section one hundred and twenty-nine B . E ighth, That no firearm, rifle or shotgun shall be sold, rented or leased to a person who bas not a permit then in force to purchase, rent or lease the same issued under section one hundred and thirty-one A, except as provided for in section one hundred and thirty-one E and except as provided in section one hundred and t wenty-nine B relative to the firearm identification card and that no machine gun shall be sold, rented or leased to a persod who bas not a license to posses the ame issued under section one hundred and thirty-one. Ninth, That upon the sale, rental or lease of a firearm, rifle or ~hotgun, the liccn~ce under section one hundred and twenty-two shall take up such permit to purchase, and shall endorse upon it the date and place of said sale, rental or lease, and shall forthwith transmit the same to the commissioner of public safety ; and that upon the sale, rental or lease of a machine gun shall endorse upon the license to possess the same the date and place of said sale, rental or lease, and shall forthwith transmit a notice thereof to said commissioner. In case of a sale under the provi ions of section one hundred and thirty-one E or section one hundred and twenty-nine B providing for a firearm identification card the dealer shall write in the sales record book the number of the license to carry issued the purchaser under the provisions of section one hundred and thirty-one. Tenth, That this license shall be subject to forfeiture as provided in section one hundred and twenty-five for breach of any of its conditions, nnd that, ii the licensee hereunder is convicted of a violation of any such conditions, this license shall thereupon become void. Eleventh, That the second, filth, eighth and ninth conditions shall not apply to a gunsmith, unles said gunsmith has manufactured a firearm, rifle or shotgun for the pmchaser, but said ~un~mith shall keep records of the work done by him together with the names and addrcs"es of his cu tomers. Such records shall he kept open for inspection by the police at all times. Twelfth, That any licensee shall keep records of each sale, rent.al or lease of a rifle or shotgun, specifying t he description of said rifle or shotgun, together with the name and addrc. of the purchaser, renter or les cc, :md the date of such tr:m action. No licensee shall sell any rifle or shotgun, contrary to the provi ions of section one hundred and thirty.

SECTION 4. The first sentence of section 128 of said chapter 140, as appearing in the Tercentenary Edition, is hereby amended by inserting after the word "and", in line 5, the words:-, e.\'.Cept a provided in cction one hundred and twenty-eight A.

SECTION 5. aid chapter 140 is hereby further amended by inserting after said cction 128 the following two sections:-

&ction 128A. The provisions of section one hundred and twentyeight shall not apply to any resident of the commonwealth ·who, without being licensed, as provided in section one hundred and twentytwo, sells, expose' for sale, or has in hi. posses ion with intent to sell not more than four firearms including rifles and shotguns, in any one calendar year, if such resident reports forthwith, in "Tiling, to the chief of police or the board or officer having control of the police of the city or town in which the seller and the buyer rcl'ide and to the commissioner of public safety, the name and address of the seller and the purchaser of any such firearm, rifle or shotgun, together with a


088

626 AC'I'S, 1968. - CHAP. 737.

complete description of the firearm, rifie or shotgun including the caliber, make and seria l number. '

Se~tion 1288. ADY_ resident of the commonwealth who purchases or o~ta!ns a ~rearm, rifle or shotgun or machine gun from any source w1t~m or without the commonwealth, other than from a licensee under section one hundred and twenty-two or a person authorized to sell firearn:1s under section one hundred and twenty-eight A, and any nonrC::11dent of the commonwealth who purchases or obtains a firearm rifle, shotgun or machine gun from any source within or without th~ commonwealth, other than such a licensee or person and receives such fi~ea~m, rifle, shotgun or machine gun, within the CC:mmonwealth shall mth~ seven clays a_fter _r~ceiving such fir~:um, rifle, shotgun or machme gun, report, m wr1tmg, to the comnussioncr of public safety the name ~nd address of the s~lle_r or donor and the buyer or donee, toget~er with _a co~plete dcsc~ption of the firearm, rifle, shotgun or machme gun, mcludmg the caliber, make and serial number. Whoever violates any provision of this section shall for the first offense be punished by a fine of n_ot ~ore than one hundred dollars, and for any subsequent offense by imprisonment for not more than two and onehalf years.

SECTJ?N 6. Said chapter 140 is hereby further amended by striking out sect10~ 129,_as !!-mended by section 12 of chapter 688 of the acts of 1957, a?d msertmg m plac~ thereof th.e following section:-. Section 129. Whoe".er m purcbasmg, renting or hiring a firearm

rifle! shotgun or m~c~e ~· or in m~king application for any fo~ of bcense or permit issued m . conn~tion therewith, or in requesting that work be do~e by a gunSIIllt~, gives a false or fictitious name and addre~s or knowm~ly off~rs ?1: giYes_ false information concerning the date or place of birth, his citizenship status, occupation or criminal record, shall for the first offense be punished by a fine 'of not more than five hundred dollnrs or by imprisonment for not more thnn one yea1;-, or bot~; ~d for a second or subsequent offense, shall be pumshed by imprisonment for not less than two and one half years nor more than five years in the state prison.

SECTION _7. Said chapter l~O is hereby further amended by inserting before section 130 the followmg three sections:-

Se~tio~1 1£9B. ADy pe~on u;iay ~ubmit to the licensing authority application for a firearm idcnt1ficat1on card which such person shail be entitled to, unless the applicant '

(a) H as withi~ t~e l~s~ five yea~s been convicted of a felony in any state or federal Junsdiction, or within that period has been released from a state prison or peniteutim·y, or . (b) Ilas been confined to any hospital or institution for mental 1llnes , c.x~ept where ~he applican~ ~hall submit with the application an ~ffida~1t <?f a registered pb~s1c1an that he is familiar with the appl~cant s. history_ of mental illness and that in bis opinion the applicant is not disabled by such illness in a manner which should prevent his po "CS.Sing~ rille or shotgun, or

(c) Has been convicted of a violation of ruiy federal or state narcotic <?r ~armful dr!-lg law, or is under treatment or confinement for drug adchct10n or hab~t.~ml drunkenness, except when he is deemed to be cured o~ su?h cond1t1~n by a competent medical authority, he may make apphcat1on for s::ud bcense after the expiration of five years

AC'I'S, 1968. -CHAP. 737. 627

from the date of such finding and upon the presentation of an affidavit issued by said authority to that effect, or

(d) Is at the time of the application under the age of fifteen, or (e) Is at the time of the application fifteen years of age or over but

under U10 age of eighteen, except where the applicant submits with bis application a cerLificate of his parent or guardian granting the applicant permission to apply for a card.

The licensing authority may not prescribe any other condition for the ii;~uancc of a car<l and he shall within thirty days from the date of application either approve the application an<l issue the card, or deny the applicaLion and notify the applicant of the reason for such denial in writing.

A card may be revoked by the commissioner or suspende<l for such period as he may set, only upon the occurrence of any event which would have disqualified the holder from being issued the card. Any suspension or revocation of a card shall be in writing and shall state the rca. on therefor. Upon revocation or suspension, the commissioner shall take pos, cs ion of said card.

Any applicant or bolder aggrieved by a denial, revocation or suspension of a card may within ninety days after receipt of notice appeal to the district court for a review of such action.

Said card shall be in a form prescribed by the commis,ioner and shall contain an identificalion number, the name and address of the holder, his height, weight, and hair and eye color, and hi signature, and shall be captioned "firearm identification card". The application for a card shall be made in triplicate on a form prescribed by the commissioner which shall require the applicant affirmatively to state that he is not disqualified for any of the foregoing reasons from possession of a card.

Said card shall be valid for five years and shall be subject to automatic renewal upon sworn application, and without investigation unless the licensing authority has reason to believe that the tatus of the applicant bas changed since the previous application. The fee for an application for or a renewal of a card shall be two dollars which shall be payable to the licensing authority. '

Upon receipt of an application for a card, the licensing authority shall forward such information concerning the applicant as is in his ~oss~c:sion to the _commi.:: ioner who sh.all within five days report to the hcensmg authonty whether there 1s reason to believe that the applicant is disqualified for any of the foregoing reasons from posse...c;sing a card. The licensing authority may al~o make inquiries concerning the applicant to the department of mental health and hall receive prompt and full cooperation from such department in any investigation of an applicant.

Section 1£9C. No person, other than a licensed dealer or one who has been issue~ a license ~o carry a pistol or revolver or an exempt person as heremafter described, shall own or po "CSS any firea rm rifle or sh?tgu~ unless he _has been issued a firearm identification ca~d by the hcensmg autbonty pursuant to the proYisiou!'l of section one hundred and twenty-nine B.

No person shall sell, give away, loan or otherwise transfer a firearm rifle or shotgun or ammunition therefor other than, (a) by operation'


089

628 Acrs, 1968. - CHAP. 737.

of law, or (b) to an exempt person as her~inafter ~escribed, '!r (c)_ to a licensed dealer or (d) to a person who displays his firearm identification card, or li~ense to carry a pistol or reYolver.

A seller shall within seven days, report all such transfers ~o the commissioner, ~ith a complete description of th~ firearm, nfl~ or shotgun, including its make, model, serial mu?ber, if any, ':'nd caliber or gauge; and in the case of loss or theft, n~t1ce shall be g1ven to the commis ioner within fourteen days of the discovery by the owner of the los or theft. .

The provisions of this section shall not apply to the followmg exempted persons and uses : . . .

(a) Any rifle, shotgun or device used exclusively,. for signalling or distress use and required or recommended by the Umted States _Coast Guard or the Interstate Commerce Commission, or for the ~~g of stud cartridges, explosive rivets or similar industrial ammumt1on; .

(b) Federally licensed firearms manufacturers or wholesal~ dealeis or persons employed by them or by licensed dealers, or on their ~half, when po ession of firearms is nec~sary for _manufacture, display, storage. tran port, installation, inspectio~ or testing; .

(c To a person vol_untarily surre~d~rmg a fire~rm, ~fie or ~hot~ to a licensing authonty, the comm1ss1one~ or his des1gnee, !f p~1or written notice has been given by the said person to . the hc_ensmg authority, or the commissioner, of the place and approXIIDatc time of said urrender; .

(d) The regular and ordinary transpm:t of firearms, nfles or shotguns as merchandise by any common earner; .

(e) Po ses_ion by retail customers for the purpose _of firing a~ d_uly liceru:cd target concessions at amusell?cnt parks, piers and sumlar locations, provided that the firearms, nfles or shotguns to be ~ us~d are firmly chained or affixed to the counter and that the proprietor IS

in posses ion of a firearm idcnti_ficatio~ card; . . . (/) Nonresident hunters with vahd nonresident huntmg hcenses

during hunting season; . (g Nonresidents while on a firing or shootmg range; (h Nonresidents traveling in or through the COffi!Donwealth, pro

viding that any firearm arc unloaded and e?closed 1;D a case; . (i) Xonrcsidents while at a firearms showmg ~r ~1splay orgamzed

by a regularly exi:;ting gun collectors' club or as ocmhon; . (j Any new resident moving into ~he ~ommon~ealth w1t_h respect

to any firearms, rifle or shotgun then m his posses 10n, for sixty days after the time he mo\·es into the commonwealth;

(k) Any per5on under the age of fifteen wi~h respect to the use ~f a rifle or shotgun by such person in hunting or targe~ shooting; provided, thnt such uc:;e is otherwise penni~ted by Jaw and. IS u~dcr ~he immediate supervi ion of a person holdmg a fire~r~ 1denhfication card or a dulv commissioned officer or a noncomm1s 10ned officer of the United State Army, Navy, :Marine Corps, Air Force or Coast Guard, or the National Guard or military service of the common-wealth; .

(l) The pos c!"c;ion or utilization of any rifle or sh~t~ durmg _the com'l'ie of any television, movie, state or other ~~ar theatric~ production, or by a professional photographer or wnter m the pursmt of his profession;

Acrs, 1968. - CHAP. 737. 629

(m The temporary holding, handling or firing of a rifle or shotgun for examination or trial in the presence of a holder of a firearm identification card or where such holding, handling or firing is for a lawful purpose;

(n The transfer of a firearm, rifle or shotgun upon the death of an owner to his heir or legatee shall be subject to the provisions of this section, provided that said heir or legatee shall within one hundred and eighty days of such transfer, obtain a firearm identification card or apply to the licensing authority or the commissioner for such further limited period as may be necessary for the disposition of such firearm, rifle or shotgun;

(o) Persons in the military or other service of any state or of the United States, and police officers and other peace officers of any jurisdiction, in the performance of their official duties or when duly authorized to possess them;

(p Nonresidents bearing a current license, permit or identification card to possess any firearm, rifle or shotgun in the stat-e in which they reside;

(q) Any nonresident acquiring a rifle or shotgun, provided it is removed from the commonwealth within thirty days of such acquisition.

Aily person, exempted by paragraphs (o, (p), or(q), purchasing a rifle or shotgun shall submit to the seller such full and clear proof of identification, including shield number, serial number, military or governmental order or authorization, military or other official identification, other state firearms license, or proof of nonresidence, as may be applicable.

Section 1!29D. Upon revocation, suspension or denial of an application for any firearms License, or firearm identification card, the person whose application was so denied shall without delay deliver or surrender, to the licensing authority where he lives or resides, all firearms, rifles and shotguns which he then possesses unless an appeal is pending. Such person, or his legal representative, shall have the right, at any time up to one year after said delivery or surrender, to transfer such firearms, rifles and shotguns to any licensed dealer or any other person legally permitted to purchase or take possession of such firearms, rifles and shotguns and upon notification in writing by the purchaser or transferee and the former owner, the licensing authority shall within ten days deliver such fire.arms, rifles and shotguns to the transferee or purcha er and due care shall be observed by the licensing authority in the receipt and holding of any such firearm, rifle or shotgun.

Firearms, rifles or shotguns not disposed of after delivery or surrender according to the provisions of this section shall be sold by the commissioner to the highest bidding licensed dealer and the proceeds shall be remitted to the state treasurer.

The commissioner may make and promulgate such rules and regulations as are necessary to carry out the provisions of this section.

SECTION 8. Said chapter 140 is hereby further amended by striking out section 130, as most recently amended by section 2 of chapter 802 of the acts of 1967, and inserting in place thereof the following section:-


090

630 ACTS, 1968. - CHAP. 737.

Section 130. Whoever sells or furnishes a firearm or machine gun or ammunition therefor to an alien, or whoever sells or furnishes a rifle or shotgun or ammunition therefor to an alien who does not hold a permit issued to him under section one hundred and thirty-one H, or to a minor eighteen years of age or over, except to such minor who displays a firearm identification card, a sporting or hunting license issued to him, and the written consent of his parent or guardian that a rifle or shotgun or ammunition t herefor be sold or furnished to him, or to a minor under eighteen years of age, shall be punished by a fine of not less than one hundred nor more than five hundred dollars. Nothing in this section shall be construed as prohibiting a parent or guardian from furnishing his child or ward with a rifle or shotgun or ammunition therefor provided said child or ward bas a valid firearm identification card issued to him, nor shall it be construed as prohibiting an instructor from furnishing rifles or shotguns or ammunition therefor to pupils provided that said instructor has the consent of the parent or guardian of the minor.

SECTION 9. Said chapter 140 is hereby further amended by striking out section 131E, added by section 20 of chapter 688 of the acts of 1957, and inserting in place thereof the folJowing section:-

Section 1S1E. Any resident of the commonwealth may purchase firearms, rifles or shotguns from any dealer, licensed under section one hundred and twenty-two, upon presentation of a valid license to carry firearms, issued to him under the provisions of section one hundred and thirty-one or a firearm identification card, issued to him under the provisions of section one hundred and twenty-nine B. Any person who uses said license or firearm identification card for the purpose of purchasing a firearm, rifle or shotgun for the use of another, or for the purpose of resale, or giving to an unlicensed person, shall be punished by a fine of not less than fifty nor more than five hundred dollars, or by imprisonment for not less than six months nor more than two years in a ja il or house of correction, or by both such fine or imprisonment. A conviction of a violation of this section shall be reported forthwith by the court to the licensing authority which issued the license or firearm identification card, which shall immediately revoke the license or firearm identification card of such person. No new license or firearm identification card under section one hundred and twenty-nine B or section one hundred and thirty-one shall be issued to any such person within two years after the date of said revocation.

SEcT10N 10. Paragraph (I) of section 30 of chapter 266 of the General Laws, as appearing in section 2 of chapter 282 of the acts of 1945, is hereby amended by inser ting after the word "shall", the second time it occurs in line 7, the words:-if the property stolen is a firearm, as defined in section one hundred and twenty-one of chapter one hundred and forty, or; and by inserting after the word "stolen", in line 12, the following:- , other than a firearm as so defined, .

SECTION IL The first sentence of section 10 o( chapter 269 of the General Laws as appearing in section 23 of chapter 688 of the acts of 1957, is hereby amended by inserting after the word "prison'', in line 32, the words:-, except that whoever is convicted of a second or subsequent offense of carrying a firearm in violation of the provisions of this section shall be punished by imprisonment for not less than two and one half nor more than ten years in the state prison.

ACTS, 1968. -CHA.P. 737. 631

SEcnoN 12. Said section 10 of said chapter 269 is hereby further amended by a?di~g th~ following paragraph:-

Whoever, wit~m this commonwealth, produces for sale, delivers or ca~ses to be delivered, orders for delivery sells or offers for sale or f~1Js to keep r~cords regarding,_ any rifle or 'shotgun without complYmg with the reqwrement c;>f a scn al number, as provided in section one hundred and twcnty-nme 9 of chapter one hundred and forty, shall for the_ first offense be punished by confinement in a jail or house of correction for not more than two and one half years or by a fine of not more than five hundred dollars. '

SECT!ON _13. Th_e first sentence of section 10 of said chapter 269, as appearing m sC<'.h?n 23 of chapter 688 of t he acts of 1957, is hereby amen~ed by st~iking out all a.ftcr the word "correction;" in line 28, and_ msertmg m. place thereof the fo!Jowing:-or whoever, after ~avmg been convicted of any of the aforesaid offenses commits the !1ke <_>ffense or ~ny other of the aforesaid offenses, shall be punished by m~pr1sonment m the ~tate. prison f~r not less than five years, for a thrrd such offense, by 1mpnsonment m the state prison for not less than seven y~ars, and for a fourth such offense, by imprisonment in the state pnson for not less t~an. ten years. The sentence imposed upon a person who, aft.er a conviction of an offense under this paragraph commits the same or a like <_>B;ense, shall not be suspended, nor shad any pe~on so sentenced be eligible for parole or receive any deduction from his sentence for good conduct. SECTio~ 14. Said section 10 of said chapter 269 is hereby further

amended by a?ding the following three paragraphs:-Whoever flllls ~ keep records or report serial numbers, if required

to do so by section one hundred_ and twe~ty-n!ne C of chapter one hundred and fo:ty, shall be pumshed by imprisonment in a jail or house of correction for not more than two and one half years or by a fine of not more than five hundred dollars.

Whoever owns, ~o~esses, or trai;isfers possession of a firearm, rifle, shotgun or ';'IIlIDUDition therefor ~th~ut c~mplying with the requiremen_ts relatmg to the firearm identification card provided for in section one hundred. and twen~y-ni~e C of chapter one hundred and forty ~hall be puDIShed by unpnsonment in a jail or house of correction for not more than one year or by a fine of not more than five. hundred_ doll_ars. A se_cond_ ~olation of this paragraph shall be pumshed by unpr1sonment m a Jail or house of correction for not more than two years or by a fine of not more than one thousand dollars or both.

Whoever knowingly fails to deliver or surrender a revoked or susp~nded_ fircari:i identification card, or a frrearm, rifle or shotgun, as provided m section one hundred and twenty-nine D of chapter one ~und!ed and fc;>rty, .~less an appeal is pending, shall be punished by imprisonment m a Jrul or house of correction for not more than two and one half years or by a fine of not more than one thousand dollars. . SEc;i'ION 15. Sai? chapter 269 is hereby further amended by mserti1_1g before section 12 the following section:-

. Section 11E. No mam_Jfactll!er of firearms shall after April first, runetcen hundred and sixty-mne sell any firearm in the commonwealth, except for military purposes, unless said firearm bas 8 serial


091

632 A a.rs, 1968. - CHAP. 738.

identification number thereon. Whoever violates this section shall be punished by a fine of five hundred dollars. Each such violation shall constitute a separate offense.

SECTION 16. Section 12B of said chapter 269, as appearing in section 31 of chapter 688 of the acts of 1957, is hereby amended by striking out the third sentence and inserting in place thereof the following sentence:-Whoever violates this section shall be punished by a fine of not more than one hundred dollars, and the air rifle or BB gun or other weapon shall be confiscated.

SECTION 17. Section 12D of said chapter 269, added by section 33 of said chapter 688, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:Whoever violates this section shall be punished by a fine of not less than fifty nor more than five hundred dollars, and may be arrested without a warrant.

SECTION 18. The provisions of section one hundred and twenty-nine B of chapter one hundred and forty of the General Laws, inserted by section seven of t his act, of section one hundred and thirty of said chapter one hundred and forty, inserted by section eight of this act, and of section ten of chapter two hundred and sixty-nine of the General Laws, inserted by section twelve of this act, shall not apply until January first, nineteen hundred and sixty-nine; provided, however, that any person may apply for the firearm ide_ntification car~ as provided in said section one. hundr:ed and twenty-nm<: B at a?y time after the effective date of said section seven and, pending the issuance or denial of said firearm identification card, written receipt for the fee paid shall serve as a valid substitute for said firearm identification card. Approved July fO, 1968.

Chap. 738. AN ACT FURTHER REGULATING WIRETAPPING AND EAVESDROPPING.

Be it enacted, etc., as follows: SECTION 1. Chapter 272 of the General Laws is hereby amended by

striking out section 99, as amended by ?hapter.449 of the acts of 1959, and inserting in place thereof the followmg section:-

Section 99. Interception of wire and oral communications.A. Preamble. The general court finds that organized crime exists within the

commonwealth and that the increasing activities of organized crime constitute a grave danger to the public welfare an~ safety. Org~ni~ed crime as it exists in the commonwealth today, conSists of a contmumg conspiracy among highly organized_ and disciplin~ groups to engage in supplying illegal goods and services. In supplymg these goods and services organized crime ?Ommit:B ~la~ful ac!is and. e.mploys b~tal and violent tactics. Orgamzed crime 1s mfiltratmg leg1t1mate busmess activities and depriving honest businessmen of the right to make a living. . .

The general court further finds tb~t beca~se organiz~ crime carries on its activities through layers of msulat1on and behmd a wall of secrecy, government has been unsuccessful in curtailing and eliminat-

Aa.rs, 1968. -CHAP. 738. 633

ing it . Normal investigative Pt?Cedures are _not e~ective in the investigation of illegal acts coIIllllltted by orgamzed crime. Therefore, law enforcement officials must be permitted to use modern methods ~f electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities.

The general court further finds that t~e uncon_trolled dev~lopment and unrestricted use of modern electroruc surveillance deVIces pose grave dangers to the privacy of all citizens of the commonwealth. Therefore the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials mu t be conducted under strict judicial supervision and should be limited to the investigation of organized crime.

B. Definitions. As used in this section- . . 1. The term "wire communication" means any commun1cat1on made

in whole or in part through the use of facilities for the ~ransmisfilon. of communications by the aid of wire, cable, or other hke connection between the point of origin and the point of reception.

2 The term "oral communication" means speech, except such speech as i

0

s transmitted over the public air waves by radio or other similar device.

3. The term "intercepting device" means any device or appll!atus which is capable of transmitting, receiving, ar~plifr1ng, o~ r~ordin~ a wire or oral communication other than a hearmg aid or similar deVIce which is being used to correct subnormal bearing_ to normal .~d other than nny telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a ~bscriber or user. by a ?ommunications common carrier in the ordmary course of its busmess under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term " interception" means to secretly hear, secretly record, or aid another to secretly hear or secretly record t?e conte~ts of a~y wire or om! communication through the use of any mterceptmg dev~ce by any person other than a pe~on given p~ior authority by al_l parties to such communication; provided that it shall not constitute an interception for an investigative or _law ei:iforcement officer, ~s d~fini:d in thi section to record or transnut a wire or oral commun1cation. if the officer is ~ party to such communication or has been given pnor authorization t-0 record or tran..c:mit the communication by such a party and if recorded or transmitted .in the course of an investigation of a designated offense as defined hcrem.

5. The term "contents" when used with respect to any wire or oral communication, means ary information concerning t he identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication. . . .

6. The term "aggrieved person" means any mdiv1dual who was a party to an intercepted. '_Vire or o:al com~unication or who wa nam_ed in t he warrant authonzmg the mterception, or who would otherwise have standing to complain that his personal or property interest or privacy was invaded in the course of an i~terception. .

7. T he term "designated offense" shall include the followmg offenses in connection with organized crime as defined in the preamble: arson,


092

7:lo ACTS, 1969. - CHAPS. 796, 797.

Chap. 796. AN ACT I NCREASlNG THE CHARGE FOR TOWING AND STOR..'\OE BY THE CAPITOL POLICE OF CERTAIN ILLEGALLY

PARKE D VEHICLES.

Be it enacted, elc., as follows: Section 12 of chapter 8 of the General Laws is hereby amend.eel by

s triking out. Lhc second paragraph and inserting in place thereof the following paragraph : -

The capitol police may, through an independent. contractor, remove from any area or way subject to t~eir jurisdiction or co!ltrol and st-0~ in any convenient place any vehicle parked or st.'\.odmg thereon m violation of any Jaw, ordinance, by-law, rule, regulation or order ; provided, however, that. such removal nod storage shall be at ?o expense to and without liability on the part of the conunonwealth. The owner or person in charge of such vehicl~, in addition to any penalty for such violation, shall be liable for the charges for such removal and storage, not exceeding fifteen dollars for removal nor two dollars and a half per clay for storage. Approved Auqust £4, 1969.

Chap. 797. AN ACT CONFmMING THE AUTHORITY OF THE CITY COUNCIL OF THE CITY OF BOSTON TO IMPOSE A BENT

CONTROL LAW L-. THE CITY OF BOSTON.

Whereas, The general court finds and d~clares that a. ser~ous public emergency exi ts with respect to the hol!smg of a substantial num~r of the citizens in the city of Boston, which emergency has resulted 10

a sub!'fantial shortage of rental housing accommodations; that, unless rc,idC'nt ial rents and eviction of tenants are regulated and controlled, such emergency and the inflationary p~essures re ulting therefrom will produce serious threats to the public health, safety and general welfare of the citizens of said city; that such emergency should be. met by the commonwealth immediately and with due regard for the rights and responsibilities of the city of Boston.

Be it enacted, etc., as follows: Notwithstanding nny provision of law to the contrary, when pu~lio

exigency, emergency or distress exists in the city of Bost-On, the city i:ouncil of said city, with the approval of the mayor, may .by ordinance control the rent for the use or occupancy o! ho~g accommodo.tions in structures having four or more dwelling umts, e,"'cluding motels, hotels or inns, ~nd may create a .rent board and empower it to e tablish as t he m~um rent for housmg accommodations in the city of Boston the rent m effect therefor on .the first day of D ecember, nineteen hundred and sixty-eight, or s~ch lu.g~er amount as may be necessary t o remove hardships or correct meqmt1es. ~pon a decision by the official city of B~ston agency co~cemcd mth the rc~ilation of the rents in a hou51Ilg accommodation ~fte.r proper !waring, either party concerned .may appeal to. the district ~urt within the jurisdi<'tion of the location of that housing accommodation.

Approved Attgust ~4, 1969.

Aars, 1969. - CHAPS. 798, 799. 727

Chap. 79Si, AN A~ RELATIVE TO THE COMPENSATION or CE1l.TA!J.~ MEMBERS OF THE ATLANTIC STAT ES MAJllNE ' l i:;UELUES

COMlllSSION.

Be it enacted, etc., as follows: Chapter 489 of the acts of 194:1 is hereby amended by striking out.

section 4 and inserting in place thereof the followiug section: -Sedi.on 4. Each member of the commission designat.ed or appointed

by the governor of the commonwealth who, while such member, neither holds a salaried state office nor is a member of the general court shall, while a member of the commission, be paid by the commonweallh as compensation for his services the sum of ten dollars per day for each day's service performed iu counection with his duties as such mc111ber, but not to excood two hundred dollars in any year. uch compensation shall be paid by the state treasurer to each such member, not more often than every two weeks, out of the Marine Fisheries li'und, upon bills approved by the department of natural resources.

Approued ih1gust 24, 19C9.

Chap. 799. AN ACT MAKING CORRECTIVE CHANGES IN THE LAW REGU

LATL'IG THE PURCHASE, SALE AND POSSESSION OF FIREARMS, RIF~ AND SHOTGUNS.

Be it enacted, etc., as follows: SECTION 1. Chapter 140 of the General Laws is hereby amended by

striking out 11ection 121, as most recently amended by section 1 of chapter 737 of the acts of 1968, and inserting in place thereof the following section:-

Section 121. In sections one hundred and twenty-two t-0 one hundred and t hirty-one F, inclusive, "firearm" shall mean n. pistol, revolver or other weapon of any description loaded or unloaded, from which a shot or bullet can be discharged and of which the length of barrel, not including any revolving, detachable or magazine breech, is less than sixteen inches or eighteen inches in the case of a shotgun. A "machine gl:l.D" is a weapon of any description, by whatever name known, loaded or unloaded, from which a number of shots or bullets may be rapidly or automatically discharged by one continuous pull of the trigger, and includes a submachine gun. T he words "purchase" and "sale" include exchange ; the word "purchaser" shall include exchanger; and the verbs "sell" and "purchase", in their different forms and tenses, shall include the verb exchange in ita appropriate form and tense and the term "gunsmith" as used in this chapter shall mean and inclu

1

de any person who engages in the business of repairing, altering, cleaning, polishing, engraving, blueing or perfo:rm!ng any mechanical operation on any firearm, rifle, shotgun or machme gun. The word "conviction" shall mean a finding or verdict of guilty, or a plea of guilty, whether or not fina l sentence is imposed. "Licens~ng authority" shall mean the chief of police or the board or office~ havmg control of the police in a city or town, or persons authorized by them.

Where the local licensing authority bas the power to issue licenses or cards under this chapter, but no such authority exists, any resident


093

732 ACTS, 1969. -CnAP. 799.

numb~r and identifying number of such documentation as is used to establish , exe_mpt person status in the case of a firearm or the purchasers license to carry number or firearm identification card number or said document identity number, in the case of a rifle or shotgun. ·

SECTIO_N 7. Said c)rnpter 140 is hereby further amended by striking ?Ut s~ct1?n 129B, mserted by section 7 of said chapter 737, and m ertu~g m place thereof the following section:-_Se~t1on 1~9IJ. ('>.-n_y person residing or having a place of business

'Y1thu~ the JUrts~ction ?f t_he licensing authority may submit to the licensmg authority application for a firearm identification card which such person shall be entitled. to, unless the applicant (a) has' within ~he. la~t .five years. b~en convicted of a felony in any state or federal JU~1sd1cbon, ?r ":1tlun that period has been relea ed from a state prison or pe'?1~nbary where such person was serving a sentence for a !elo~y _conv1cL10n, or. (b) has been confined to any ho pita! or m. t1tutton for. mc_ntal illness, except where the applicant shall submit wit~ _the apphcat1on an affidavit of a regi tcred physician that be is fa1;m.har wtth the_ applicant' history of mental illness and that in bis op1!11on the apphcnnt is not disabled by such illness in a manner which _sh?uld prevent his posse sing a firearm, rifle or shotgun, or (c) ha within the last five years been convicted of a violation of any stnte or federal narcotic or harmful drug law, or within that period has been rel ea ed from confinement for such a conviction; or is or bas bee~ under treatment for or confinement for drug addiction or hab1~u.al drunkenn_ess, except when he is deemed to be cured of such cond1t1on by a regJst~red physician, he may make application for said card aft.er the expiration of five years from the date of such confin~ment or. t~eatment and upon presentation of an affidavit issued by ~aid ph?'s1cian to the effect that the physician knows the ~pphcant's lustory of treatment and that in his opinion the applicant ts deemed cured, ~r (d) is at the time of the application under the age of fifteen, or (e) 1s at the time o~ the application fifteen years of age or o':er b1;1t un~er th~ a&e of eighteen, except where the applicant subm~ts with his. appbcat10n a certificate of his parent or guardian grantm~ the ~pphcant ~ennission to apply for a card. T~e bcensmg authority may not prescribe any other condition for

the ~u~nce ?f a card and it shall within thirty days from the date of applica~on ~1ther appr~ve the application and issue the card or deny the application and notify the applicant of the reason for such denial in writing. Pending issuan~e of the card, a receipt for the fee paid shall, after five days from issuance serve as a valid substitute unless t~e .applicant. is disqua~ed. Writt:m notice of denial of the ~pplication shall void the receipt and require its immediate surrender. A card may be revoked by the licensing authority or his delegate or suspended for. such period as he may set, only upon the occurrence of any event which woul~ have disqual~fied the holder from being issued the card. Any suspen 100 or revocation of a card shall be in writing ~nd s~all state t~1e reason therefor. Upon revocation or suspension, the hcensmg authority shall take possession of said card and receipt for fee paid for such card.

A CTS, 1969. - C HAP. 799. 733

A:ny applicant or holder aggrieved by a denial, revocation or suspension of a card may within ninety days after receipt of notice appeal to the district court for a review of such action.

Said card shall be in a form prescribed by the commissioner and shall contain an identification number, the name and address of the holder, bis p lace and date of birth, his height, weight, and hair and eye color, and his signature and shall be captioned "Firearm Identification Card". T he application for a card shall be made in multiple on a form prescribed by the commis.5ioner which shall require the applicant affirmatively to state that he is not disqualified for any of the foregoing reasons from possession of a card.

Said card shall be valid for five years; provided, that the licensing authority may renew such card on the anniversary of the applicant's date of birth occw·ring not .less than four years but. not more than five years from the date of original issue, and shall be subject to automatic renewal upon application and affirmative statement, without investigation, unless the licensing authority has reason to believe that the status of the applicant has changed since the previous application. The fee for an application and card, or for renewal of a card, shall be two dollars, which shall be payable to the licensing authority and shall not be prorated or refunded in case of revocation or denial.

Upon receipt of an application for a card, the licensing authority shall forward a copy of such application to the commissioner of public safety, who shall within twenty-one days advise in writing of any disqualifying criminal record, if any, of the applicant and whether there is reason to believe that the applicant is disqualified for any of the foregoing reasons from possessing a card. The licensing authority may make inquiries concerning the applicant to the department of mental health for the purpose of determining eligibility for the firearm identification card and shall receive prompt and full cooperation from such department for that purpose in any investigation of an applicant.

SECTION 8. Said chapter 140 is hereby further amended by striking out section 129C, as so inserted, and inserting in place thereof t he following section:-

Section 129C. No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle or shotgun unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.

No person shall sell, give away, loan or otherwise transfer a rifle or shotgun or ammunition therefor other than (a) by operation of law, or (b) to an e.xempt person as hereinafter described, or (c) to a licensed dealer, or (d) to a person who displays his firearm identification card, or license to carry a pistol or revolver.

A seller shall, within seven days, report all such transfers to the commissioner of public safety according to the provisions set forth in section one hundred and twenty-eight A, and in the case of loss or theft of any firearm, rifle or shotgun similar report shall be made to both the commissioner and the licensing authority in the city or town


094

734 ACTS, 1969. - CaAP . 799.

where the owner resides within fourteen days of the discovery by the owner of the loss or theft.

The provisions of this section shall not apply oo the following exempted persons and uses:

(a) Any device used exclusively for signalling or distress use and required or recommended by the United States Coast Guard or the Interstate Commerce Commission, or for the firing of stud cartridges, explosive rivets of similar industrial ammunition;

(b) Federally licensed firearms manufacturers or wholesale dealers, or persons e~ployed by them ~r by licensed dealers, or on their behalf, when possession of firearms, rifles or shotguns is necessary for manufacture, display, soorage, transport, installation, inspection or testing;

(c) To a person voluntarily surrendering a firearm, rifle or shotgun oo a licensing authority, the commissioner or his designee if prior written notice bas been given by said person to the licensing authority or the commissioner, stating the place and approximate time of said surrender; ·

(d) The regular and ordinary t ransport of firearms, rifles or shotguns as merchandise by any common carrier ; . (e) Possession by retail customers for the pm-pose of firing at duly

licensed target concessions at amusement parks, piers and similar locations, provided that the firearms, rifles or shotguns to be so used arc firmly chained or affi.."<ed to the counter and that t he proprietor is in posse sion of a firearm indcntification card or license to carry firearms;

(f) Possession of rifles and shotguns by nonresident hunters with valid nonresident hunting licenses during bunting season;

(g) Po ses ion of rifles and shotguns by nonresidents while on a firing or shooting range;

(h) Pos ession of rifles and shotguns by nonresidents traveling in or through the commonwealth, providing that any rifles or shotmm.s are unloaded and enclo ed in a case;

0

(i) Possession of rifles and shotguns by nonresidents while at a firearm showing or display organized by a regularly existing gun collector ' club or association;

(i) Any new resident moving into the commonwealth, or any resident of the commonwealth upon being released from active service with any of the armed services of the United States with respect oo any firearn11 rifle or shotgun then in his possession, for sixty days after such release or after the time he moves into the commonwealth ;

(k) Any per on under the age of fifteen with respect to the use of a rifle or shotgun by such person in hunting or target shooting, provided that uch use is otherwise permitted by law and is under the immediate supervision of a person holding a firearm identification card or a license to carry firearms, or a duly commissioned officer, noncommissioned officer or enlisted member of the United States Army, Navy, Marine Corps, Air Force or Coast Guard, or the National Guard or military service of the commonwealth or reserve components thereof, while in the performance of his duty;

(l) The possession or utilization of any r ifle or shotgun during the course of any television, movie, stage or other similar theatrical production, or by o. professional photographer or writer for examina-

ACTS, 1969. - CHAP. 799. 735

tion purposes in the pursuit of his pr?fession, p~o~iding such possession or utilization is under the immediate supervision of a holder of a firearm identification card or a license to carry firearms ;

(m) The temporary holding, handling or firing of a firearm for examination trial or instruction in the presence of a holder of a license to c:.rry firearms, or the t~mp_orary ~olding,_ handli~g o~ firing of a rifle or shotgun for exammat1on, trial or instruction rn the presence of a holder of a firearm identification card, or where such holding, handling or firing is for a lawful purpose;

(n) The transfer of a firearm, rifle or shotgun upon the. ~eath of 8? owner to his heir or legatee shall be subject to th~ p~ovis1on of this section, provided that said heir or legatee shall w~thm . one !tundred and eighty days of such transfer, obtain a firearm identification car.d or a license oo carry firearms if not otherwise an exempt person who is qualified oo receive such or apply to the licensing a~tho~i~y for such further limited period as may be necessary for t he d1spos1t1on of such firearm, rifle or shotgun;

(o) Persons in the military or other service of any state or of the United States and police officers and other peace officers of any jurisdiction, i~ the performance. of their official duty . or when duly authorized to pos~ess them, prov1ded, however, that pnva~e or sporting use of such firearm , rifles or shotguns shall be subject oo the provi ions applicable lo nonexempt per ons and uses i . .

(p) Pos ession of rifles and shotguns by nonreSidents bearmg a current license, permit or identification card to possess any firearm, rifle or shotgun in the state in which they reside; . .

(q) Any nonresident from a contigu?~ stat~, proVIdcd he IB eighteen years of age or over when acqumng a rifle or shotg~, ?r ammunition, provided it is removed from the commonwealth ~th!n fourteen days of such acquisition, and provided that he _is m compliance with hi own state law and .has the proper fi~earms license if required, and provided, further, that m the case of a rifle ?r shotgun the seller notifies t he chief of police where the purchaser resides of t he transfer, description and i;erial number of the rifle or shotgun and the name, address and license number of the purchaser and seller;

(r) Possession by a veteran's organization clrn.r tcrcd by. the Congress of the United Stn.tcs or included in clause (12) of section. fiv~ of chapter forty and posse~"ion by the members of any !luch orgamzntions when on official parade duty or ceremonial occasions! . . .

(s) Pos cssion by federal, state and local lnstonc~J soCJe?es, museums, and institutional collections open oo lhe pubhc, proVIded such firearms, rifles or shotguns arc unloaded, properly housed and secured from unauthorized handling.

Any person, exempted by clauses (o), (p) and (q), purchasing a rifle or shotgun shall submit oo the seller such full and clea~ proof of identification, including shield number, serial number, '!nh~ary . or governmental order or authorization, military or other official identification, other state firearms license, or proof of nonresidence, as may be applicable. . .

An air rifle, spring gun and BB gun or nflc wh!ch has a .barrel length of sixteen inches or over shall not be cons1dcred a rifte or


095

740 ACTS, 1969. - CHAP. 800.

No licensed dealer shall order for delivery, cause to be delivered, offer for sale or sell within the commonwealth any newly manufactured firearm rifle or shotgun received d irectly from ~ manufacturer, wholesaler or' distributor not so inscribed with a serial n~er nor shall any licensed manufacturer or. distribu~r. of firearms, r~es or shotguns deliver or cause to be dehv~red 'Y1th.in. the ~ommonwealth any firearm, rifle or shotgun not. co_mplymg with this section.

No licensed manufacturer with.in the commonwealth shall produce for sale within the United States, its territories or possessions an_y firearm rifle or shotgun not complying with paragraph one of this section.' Whoever violates this section shall be p~ed by a fine of five hundred dollars. Each such violation shall constitute a separate offense.

SECTION 17 A. The provisions of section eleven E of chapter t_wo hundred and sixty-nine of the General Laws, as amended by .section seventeen of this act, prohibiting a licensed dealer from ordermg for delivery causing to be delivered, offering for sale or selling within the common~ealth any newly manufactured firearm, rifle o~ shotgun n?t permanently inscribed w_ith a serial nl!-111ber, as req~1red by said section shall not be applicable to such licensed dealer m the case of any su~h firearm, rifle or shotgun which was delivered to such dealer prior to the first day of January, nineteen hundred and seventy.

SECTION 18. Section seventeen of this act shall take effect on January first, nineteen hundred and seventy.

Approved August ~4, 1969.

Chap. 800. A ' ACT TO ESTABLISH ·" PROGRAM 01o· MEDICAL CARE A..~ o ASSISTANCE FOR CERTAIN RESIDE.~'l'S OF THE COM~ION

WEA.LTH.

Be u macted, etc., as follows: SECTION I. The General Laws are hereby amended by inserting after

chapter 118D t.he following new chapter: -

CHAPTER 118E.

MEDICAL CARE AND AsslSTANCE.

Section 1. There is hereby established, pursuant to and in conformity with the provisions of Title XIX of the Social Security Act (P.L. 89- 97) , a program of medical cnre and assistance for certain residents of the commonweallh.

The benefits of the program shall be available to all persons eligible for financial assistance under the provisions of chapters one hundred and eighteen one hundred and eighteen A and one hundred and eighteen D; to all olhers who would be eligible for financial ~istance under the same chapters, provided they meet the requirements of financial eligibility under lbo program hereinafter set forth, to all persons under twenty-one years of age whose income and resources are insufficient to meet the costs of their medical care as determined by the financial eligibility requirements of said program, and t? the spouse of a recipient of asfilstance under chapter one hundred and eighteen A or one hundred and eighteen D who is living with and essential to the well-being of said

ACTS, 1969. - CHAP. 800. 741

recipient and whose needs are taken into account in <lelerm.iuing t he amount of assistance provided said recipients; provided, however, that said benefits shall n.Lc:o be available to the blind and ~hall continue to be administered by the commission on the blind in accordance \\ith the provisions of!section one hundred and twenty-nine of chapter ">ix.

Section !!. As used in this chapter the following terms aud phrases shall, unless the context clearly requires otherwise, have the following meanings: -

(a) "Person", any individual who resides in the commonwc:illh, or any imtividual resicling out ide the commonwealth who is deemed to be a resident of the commonwealth under the regulations of the ccret.ary promulgated under the Social Security Act or 1960 with respect to medica l . ervices.

(b) " Department", the department of public welfare. (c) "Reside", to occupy an established place of abode with no present

intent ion of defin ite and early removal, but not ncces.s..·uily with the intention of remaining permanently, but iu no event shall the word "reside" be construed more restrictively or Jess restrictively than as defined by the Secretary under said Title XL"X. Confinement of a person in any nursing home, hospital, or other medical institution in the commonwealth shall not, in and of itself, be sufficient evidence to qualify such person as a resident under this chapter.

(d) "Institution", any licensed hospital, any licensed nursing home, or any public medical in tilution which meel.s the requirements of U1e Secrct!lry.

(e) "Public medical institution", any medical institution supported in whole or in par t by public funds, either federal, t!tLe or municipal staffed by profcs.~ionaJ, meclical and nUl'Sing personnel and providing medical care, in accor<l::mce with standards established through licensing or approval by the department of public health.

(f) "Medical assistance", payment by the department of all or part of the cost of the medical care and services enumerated in section six.

(g) "Provider", any inst itution, agency, person or group qualified under the laws of the commonwealth to perform or provide the medical care or services enumerated i11 section si..~ .

(h) "Secretary" , t he Secretary of the United States Department of Ilealtb, Education and Welfare.

Section S. The department shall, within the limits of Lhe funds which have been approprinted for the purpo~es of this chapter, cooperate with the appropriate federal authorities in the admiuistmlion of suid Title XL'C, under which funds are available to the commonwealth for a 111edicul :u·.:islance program, aud accept for the con11no11\\ c:tlth the benefits thereof. The state treasurer shall be lhe custocliau of such funds allocated l-0 the commonwealth.

Seclion 4. In administering the program the department shall formulate such meU10ds, policies, procedures, standards and criteria, except medical standards nod criteria, as may be nec~y for the proper and efficient operation of Lhe plan in a manner consistent with simplicity of administration nod the best interests of the recipients.

The department may take such further action, consistent with law and within the limits of available fonds appropriated for the pmpo es of this chapter, as may be necessary for carrying out the purposes of this program in conformity with all r equirements gover ning the allowance


18U.S.C.§926A

§926A.InterstatetransportationoffirearmsNotwithstandinganyotherprovisionofanylaworanyruleorregulationofaStateoranypoliticalsubdivisionthereof,anypersonwhoisnototherwiseprohibitedbythischapterfromtransporting,shipping,orreceivingafirearmshallbeentitledtotransportafirearmforanylawfulpurposefromanyplacewherehemaylawfullypossessandcarrysuchfirearmtoanyotherplacewherehemaylawfullypossessandcarrysuchfirearmif,duringsuchtransportationthefirearmisunloaded,andneitherthefirearmnoranyammunitionbeingtransportedisreadilyaccessibleorisdirectlyaccessiblefromthepassengercompartmentofsuchtransportingvehicle:Provided,Thatinthecaseofavehiclewithoutacompartmentseparatefromthedriver’scompartmentthefirearmorammunitionshallbecontainedinalockedcontainerotherthantheglovecompartmentorconsole.(AddedPub.L.99–360,§1(a),July8,1986,100Stat.766.)

096


28U.S.C.§1738§1738.StateandTerritorialstatutesandjudicialproceedings;fullfaithandcreditTheActsofthelegislatureofanyState,Territory,orPossessionoftheUnitedStates,orcopiesthereof,shallbeauthenticatedbyaffixingthesealofsuchState,TerritoryorPossessionthereto.TherecordsandjudicialproceedingsofanycourtofanysuchState,TerritoryorPossession,orcopiesthereof,shallbeprovedoradmittedinothercourtswithintheUnitedStatesanditsTerritoriesandPossessionsbytheattestationoftheclerkandsealofthecourtannexed,ifasealexists,togetherwithacertificateofajudgeofthecourtthatthesaidattestationisinproperform.SuchActs,recordsandjudicialproceedingsorcopiesthereof,soauthenticated,shallhavethesamefullfaithandcreditineverycourtwithintheUnitedStatesanditsTerritoriesandPossessionsastheyhavebylaworusageinthecourtsofsuchState,TerritoryorPossessionfromwhichtheyaretaken.(June25,1948,ch.646,62Stat.947.)

097


098

June 24, 1986 CONGRESSIONAL RECORD-HO USE 15227 On June 5, 1988:

H.J. Rea. 636. Joint resolullon dl'Shrnalln11 June 26. 1986, as " National tntenn.ate Hl11h · way Day,"

On June I!. 1988: H.R . 2672. An act to amend title 5. Unltl'd

Stal~ Codr. to rnabllah a nt'W tttlrement and disability plan for Federal employees. postal employees, and Members of CongTess. and for other purposes.

On June 19. 1981!: H.J. Res. 131. Joint resolution to d!'slrmt.tr

the week IM'atnnlng

June 15. 1986. a:i • Na· lion&! Safety In the Workplace WN'k" ;

H.J . Re$. 382. Joint resolution to authoT· lu the continued use of eertaln land.~ within the Sequoia Nat ional ?ark by p0rtlon11 of an existing hydroel~Lrlc project: and

R.R. 3570. An act to amend Lille 28, United States Code, to rc!onn nnd fmpro\'t> the F~'<leral Justices and Jud11e11 survf\•ors' annuities program. and for other pumoses.

On Junl' 23. 1986: H.J. Re11. 479. Joint resolution to drsli;natc

October 8. 1986. 1\8 "N&llonal Flrr Fighters Day."

AUTHORIZING CHANGES IN THE ENROLLMENT OF S. 2414 RE· LATINO TO INTERSTATE TRANSPORTATION OF FIRE· ARMS Mr. HUGHES. Mr. Speaker. I ask

unanimous consent to Lake from che Speaker's table the Senate concurrenr resolution <S. Con. Res. 152> authorlz· Ing changes In the enrollm<-nt of S .

2414. and ask for Its Immediate consid· era ti on.

The Clerk read the title of the Senate concurrent resolution.

The SPEAKER pro tempore. Is there objection lO the request ol the genlleman from New Jersey?

Mr. McCOLLtTM. Mr. Speaker, I reserve the right to object, but at this time I would not want to entertain an objection. This Is a concurr1•nt resolution which removes some doubt. o.s I understand It. regarding congressional intent of S. 2414 with regard to the errectlve date. ls that correct?

Mr. HUGHES. If the gcnlleman will yield. my request Is that we consider this resolution and then Immediately after Its adoption consider S. 2414. Thls action will complete acLlon on the Firearms Owners Protection Act.

On May 6 of this year. at the time the other body agreed to the House amendments to S. 49. It. passed s. 2414 unanimously to accommodate a few of the most urgent concerns of the law enforcement community. However, the effective date of S. 2414 wo..s not draft· ed to renect the delayed effective date of S. 49. To correct the e ffect ive date. the other body this morning pass~d Senate Concur rent Resolution 152.

I am proposlng that we first con.~lder the technical correction LO the effective date

, senate Congressional Reso

lution 512, and then consider the sub stantive measure. S. 2414.

Mr. McCOLLUM. Mr. Speaker. I have no problem with this resolution. In that case.

Mr. Speaker. this concurrent. resolu· Lion removes any doubt regardln& congressional intent on the effective date or S. 2414. The concurrent. resolution clarifies that the effective date for S. 2414 Is the same as the law which IL amends. S. 2414 amends current law. Public Law 99-308 which President Reagan signed on May 19. 1986. and which becomes effecUve 180 days later.

I believe that this result is essential because without the adoption of this concurrent resolution. S. 2414 ha.~ no scope in which to operate without. the same efCecllve date ns Public Law 99-308. I am grateful to all persons who have worked earnestly lo clarify this Import.ant issue.

Mr. Speaker. I withdraw my reservation of objection.

The SPEAKER pro tempore. Is there objection to the request of the gentleman from New Jersey?

There was no obj~ctlon. The Clerk read lhe Senate concur

rent resoluLion. as follows: S. CON. Rts. 152

Re&olt'ed by the Senate rthe Horue of RepN'sentatire& concurrtngJ. That the Secrt'· tary of the Senate. In lht' enrollment of the bill IS. 24Hl, to amend title 18 of the United Statt's CO<!e. shall m&lt!' the Collov. · Ing change:

At the end or the bill add the Collowlnrr. This Act and the runendml'nts mad4: by

this Act. intended to amend the Firearms 011mers' Protecuon Act. shall becom!' eftect Ive on the date on whlch the aectlon they :ue intended to amend in such Flttanns Owni:rs' Protection Act ~mes effecthe and shall apply to the amendments to ti tle 18. Unlted State; Code. ma.de b>' such Act

The Senate concurrent resolution was concurred in.

A motion to reconsider was laid on the table.

PERMISSION FOR COMMITTEE ON THE JUDICIARY TO SIT ON WEDNESDAY. JUNE 25. 1986, AND THURSDAY. JUNE 26. 1986, DURING 5-MlNUTE RULE Mr. MAZZOLI. Mr. Speaker. I ask

tnat the Committee on the Judiciary be permitted to sit tomorrow, June 25, 1986 and Thursday, June 26. 1986 during proceedlngs of t he House under t he 5-mlnute rule.

The SPEAKER pro temporc. ls there obJection to the request of the gentleman from Kentucky?

There was no objection.

RELATING TO INTERSTATE TRANSPORTATION OF FIRE· ARMS Mr. HUGHES. Mr. Speaker . I ask

unanimous consent to Lake from the Speaker's table the Senate biU <S. 2414> to amend lit.le 18. United States Code. and ask for Its Immediate con· sideration.

The Clerk read the title of the Senate bill.

The SPEAKER pro t.empore. Is there objection to the request of the gentleman from New Jersey?

Mr. McCOLLUM. Mr. Speaker, reserving the right to object, I yle.ld to the gentleman from Montana CMr. MARL£NEE] .

Mr. MARLENEE. Mr. Speaker, I have a series of questions regarding the Interpretation of various provi· slons In this bill. Would a member of the Subcommittee on Crime. which has Jurisdiction over the firearms Issue. be willing to engage ln a colloquy regarding the meanJng of certain terms In S. 2414?

Mr. McCOLLUM. Mr. Speaker. I would be delighted to join with t he gentleman In a colloquy in this important

Issue. As the gentleman from

Montana knows, this measure was proct>ssed swiftly In the other body. and there Is presently a dearth of lnf ormatlon regarding congressional Intent. So what are the genlleman's concerns? I will be glad to t ry to respond.

Mr. MARLENEE. Well. first. I have an tssue that ls relevant to the new Jaw, Public Law 99-308 <S. 49 >. which the President Just signed, as v.·eu as s. 2414. which is before us today. Both S. 2414 and Public Law 99-308 provide for persons wishing to tra\ el v.ith firearms

In Interstate commerce. The new

law. which would be further amended by S. 2414. pro\'ldes that If the firearm Is unloaded and Inaccessible. a person can travel through State and local jurisdictions with more restrictive laws Chan his StaLe of residence, v.ithout. vlolalinir those laws. Is thl' correct?

Mr. MCCOLLUM. That is correct. s. 2414 would modify the new law lo require that the firearm be kept in a locked compartment. such as a trunk. outside of the passenger uea. U there Is no trunk, then the firearm must be In a locked compar tment or In a locked case within the passenger area. but. the glovr compartment or a console will not suffice.

This section . however. Is only available to persons who can legally own and transport firearms under the law of their home Jurisdictions. People I must comply with the laws of their own Slate and can avail themselves of this Interest cranponation pro\ ' lslon, which is section 926A of tllle 18 of the UnJted States Code. only alter they lea\'e the boundaries or their State or local jur1sdlct1on.

Mr. MARLENEE. U the gentleman will yield further. are Interstate travelers required to follow Che procedures In sectio n 926A whene\•er they travel

In Interstate commerce with Hrearms? Mr. McCOLLUM. This provision ls

designed to be a "safe harbor" !or Interstate travelers. No one is required to follow the procedures set forth in

I


97th Congress2d Session COMMITTEE PRINT

THE RIGHT TO KEEP AND BEAR ARMS

————

R E P O R T

OF THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

NINETY-SEVENTH CONGRESS

SECOND SESSION

FEBRUARY 1982

Printed for the use of the Committee on the Judiciary

——

U.S. GOVERNMENT PRINTING OFFICE88-618 O WASHINGTON : 1982

For sale by the Superintendent of Documents, U. S. Government Printing OfficeWashington, D.C. 20402(pg.II)

099


COMMITTEE ON THE JUDICIARY

STROM THURMOND, South Carolina, ChairmanCHARLES MCC. MATHIAS, JR., Maryland JOSEPH R. BIDEN, JR., DelawarePAUL LAXALT, Nevada EDWARD M. KENNEDY,

MassachusettsORRIN G. HATCH, Utah ROBERT C. BYRD, West VirginiaROBERT DOLE, Kansas HOWARD M. METZENBAUM, OhioALAN K. SIMPSON, Wyoming DENNIS DECONCINI, ArizonaJOHN P. EAST, North Carolina PATRICK J. LEAHY, VermontCHARLES E. GRASSLEY, Iowa MAX BAUCUS, MontanaJEREMIAH DENTON, Alabama HOWELL HEFLIN, AlabamaARLEN SPECTER, Pennsylvania

VINTON DE VANE LIDE, Chief CounselQUENTIN CROMMELIN, Jr., Staff Director

———

SUBCOMMITTEE ON THE CONSTITUTION

ORRIN G. HATCH, Utah, ChairmanSTROM THURMOND, South Carolina DENNIS DECONCINI, ArizonaCHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont

STEPHEN J. MARKMAN , Chief Counsel and Staff DirectorRANDALL RADER, General Counsel

PETER E. ORNSBY, CounselROBERT FEIDLER, Minority Counsel(pg.III)

100


C O N T E N T S

—————

Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Com-mittee, Subcommittee on the Constitution, from the State of Utah. . . . . . . . . . . . . . V

Preface, by Senator Dennis DeConcini, ranking minority member, U.S. SenateJudiciary Committee, Subcommittee on the Constitution, from the State of Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX

History: Second amendment right to "keep and bear arms". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Appendix: Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Enforcement of Federal firearms laws from the perspective of the second

amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Other Views of the second amendment:

Does the Second Amendment mean what it says?, by David J. Steinberg,executive director, National Council for a Responsible Firearms Policy. . . 24

National Coalition to ban handguns statement on the Second Amend-ment, by Michael K. Beard, executive director, and Samuel S. Fields,legal affairs coordinator, National Coalition to Ban Handguns. . . . . . . . . . . 27

Historical Bases of the Right to Keep and Bear Arms, by David T.Hardy, partner in the Law Firm Sando & Hardy. . . . . . . . . . . . . . . . . . . . . . 45

The Fourteenth Amendment and the Right To Keep and Bear Arms: TheIntent of the Framers, by Stephen P. Halbrook, Ph.D., attorney andcounselor at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

The Second Amendment to the United States Constitution Guarantees anIndividual Right To Keep and Bear Arms, by James J. Featherstone,Esq., General Counsel, Richard E. Gardner, Esq., and Robert Dowlut,Esq., Office of the General Counsel, National Rifle Association of Amer-ica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

The Right To Bear Arms: The Development of the American Experience,by John Levin, assistant professor, Chicago-Kent College of Law, Illi-nois Institute of Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Standing Armies and Armed Citizens: An Historical Analysis of TheSecond Amendment, by Roy G. Weatherup, J.D., 1972 Stanford Univer-sity; member of the California Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

Gun control legislation, by the Committee on Federal Legislation, theAssociation of the Bar of the city of New York . . . . . . . . . . . . . . . . .171 (pg.V)

101


PREFACE

"To preserve liberty, it is essential that the whole body of the people alwayspossess arms, and be taught alike, especially when young, how to use them."(Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of theDeclaration of Independence, and member of the first Senate, which passed the Billof Rights.)

"The great object is that every man be armed . . . Everyone who is able mayhave a gun." (Patrick Henry, in the Virginia Convention on the ratification of theConstitution.)

"The advantage of being armed . . . the Americans possess over the peopleof all other nations . . . Notwithstanding the military establishments in the severalKingdoms of Europe, which are carried as far as the public resources will bear, thegovernments are afraid to trust the people with arms." (James Madison, author of theBill of Rights, in his Federalist Paper No. 26.)

"A well regulated Militia, being necessary to the security of a free State, theright of the people to keep and bear Arms, shall not be infringed." (SecondAmendment to the Constitution.)

In my studies as an attorney and as a United States Senator, I have constantly been amazedby the indifference or even hostility shown the Second Amendment by courts, legislatures, andcommentators. James Madison would be startled to hear that his recognition of a right to keep andbear arms, which passed the House by a voice vote without objection and hardly a debate, has sincebeen construed in but a single, and most ambiguous, Supreme Court decision, whereas his proposalsfor freedom of religion, which he made reluctantly out of fear that they would be rejected ornarrowed beyond use, and those for freedom of assembly, which passed only after a lengthy andbitter debate, are the subject of scores of detailed and favorable decisions. Thomas Jefferson, whokept a veritable armory of pistols, rifles and shotguns at Monticello, and advised his nephew toforsake other sports in favor of hunting, would be astounded to hear supposed civil libertarians claimfirearm ownership should be restricted. Samuel Adams, a handgun owner who pressed for anamendment stating that the "Constitution shall never be construed . . . to prevent the people of theUnited States who are peaceable citizens from keeping their own arms," would be shocked to hearthat his native state today imposes a year's sentence, without probation or parole, for carrying afirearm without a police permit.(pg.VI)

This is not to imply that courts have totally ignored the impact of the Second Amendmentin the Bill of Rights. No fewer than twenty-one decisions by the courts of our states have recognizedan individual right to keep and bear arms, and a majority of these have not only recognized the rightbut invalidated laws or regulations which abridged it. Yet in all too many instances, courts orcommentators have sought, for reasons only tangentially related to constitutional history, to construethis right out of existence. They argue that the Second Amendment's words "right of the people"mean "a right of the state"—apparently overlooking the impact of those same words when used inthe First and Fourth Amendments. The "right of the people" to assemble or to be free fromunreasonable searches and seizures is not contested as an individual guarantee. Still they ignoreconsistency and claim that the right to "bear arms" relates only to military uses. This not onlyviolates a consistent constitutional reading of "right of the people" but also ignores that the second

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amendment protects a right to "keep" arms. These commentators contend instead that theamendment's preamble regarding the necessity of a "well regulated militia . . . to a free state" meansthat the right to keep and bear arms applies only to a National Guard. Such a reading fails to notethat the Framers used the term "militia" to relate to every citizen capable of bearing arms, and thatCongress has established the present National Guard under its power to raise armies, expresslystating that it was not doing so under its power to organize and arm the militia.

When the first Congress convened for the purpose of drafting a Bill of Rights, it delegatedthe task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained apamphlet listing the State proposals for a bill of rights and sought to produce a briefer versionincorporating all the vital proposals of these. His purpose was to incorporate, not distinguish bytechnical changes, proposals such as that of the Pennsylvania minority, Sam Adams, or the NewHampshire delegates. Madison proposed among other rights that "That right of the people to keepand bear arms shall not be infringed; a well armed and well regulated militia being the best securityof a free country; but no person religiously scrupulous of bearing arms shall be compelled to rendermilitary service in person." In the House, this was initially modified so that the militia clause camebefore the proposal recognizing the right. The proposals for the Bill of Rights were then trimmedin the interests of brevity. The conscientious objector clause was removed following objections byElbridge Gerry, who complained that future Congresses might abuse the exemption to excuseeveryone from military service.

The proposal finally passed the House in its present form: "A well regulated militia, beingnecessary to the security of a free state, the right of the people to keep and bear arms, shall not beinfringed.:" In this form it was submitted into the Senate, which passed it the following day. TheSenate in the process indicated its intent that the right be an individual one, for private purposes, byrejecting an amendment which would have limited the keeping and bearing of arms to bearing "Forthe common defense".

The earliest American constitutional commentators concurred in giving this broad readingto the amendment. When St. George (pg.VII) Tucker, later Chief Justice of the Virginia Supreme Court,in 1803 published an edition of Blackstone annotated to American law, he followed Blackstone'scitation of the right of the subject "of having arms suitable to their condition and degree, and suchas are allowed by law" with a citation to the Second Amendment, "And this without anyqualification as to their condition or degree, as is the case in the British government." WilliamRawle's "View of the Constitution" published in Philadelphia in 1825 noted that under the SecondAmendment: "The prohibition is general. No clause in the Constitution could by a rule ofconstruction be conceived to give to Congress a power to disarm the people. Such a flagitiousattempt could only be made under some general pretense by a state legislature. But if in blind pursuitof inordinate power, either should attempt it, this amendment may be appealed to as a restraint onboth." The Jefferson papers in the Library of Congress show that both Tucker and Rawle werefriends of, and corresponded with, Thomas Jefferson. Their views are those of contemporaries ofJefferson, Madison and others, and are entitled to special weight. A few years later, Joseph Storyin his "Commentaries on the Constitution" considered the right to keep and bear arms as "thepalladium of the liberties of the republic", which deterred tyranny and enabled the citizenry at largeto overthrow it should it come to pass.

Subsequent legislation in the second Congress likewise supports the interpretation of theSecond Amendment that creates an individual right. In the Militia Act of 1792, the second Congressdefined "militia of the United States" to include almost every free adult male in the United States.These persons were obligated by law to possess a firearm and a minimum supply of ammunition and

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military equipment. This statute, incidentally, remained in effect into the early years of the presentcentury as a legal requirement of gun ownership for most of the population of the United States.There can be little doubt from this that when the Congress and the people spoke of a "militia", theyhad reference to the traditional concept of the entire populace capable of bearing arms, and not toany formal group such as what is today called the National Guard. The purpose was to create anarmed citizenry, which the political theorists at the time considered essential to ward off tyranny.From this militia, appropriate measures might create a "well regulated militia" of individuals trainedin their duties and responsibilities as citizens and owners of firearms.

If gun laws in fact worked, the sponsors of this type of legislation should have no difficultydrawing upon long lists of examples of crime rates reduced by such legislation. That they cannot doso after a century and a half of trying—that they must sweep under the rug the southern attempts atgun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attemptsat both Federal and State levels in 1965-1976—establishes the repeated, complete and inevitablefailure of gun laws to control serious crime.

Immediately upon assuming chairmanship of the Subcommittee on the Constitution, Isponsored the report which follows as an effort to study, rather than ignore, the history of thecontroversy over the right to keep and bear arms. Utilizing the research capabilities (pg.VIII) of theSubcommittee on the Constitution, the resources of the Library of Congress, and the assistance ofconstitutional scholars such as Mary Kaaren Jolly, Steven Halbrook, and David T. Hardy, thesubcommittee has managed to uncover information on the right to keep and bear arms whichdocuments quite clearly its status as a major individual right of American citizens. We did not guessat the purpose of the British 1689 Declaration of Rights; we located the Journals of the House ofCommons and private notes of the Declaration's sponsors, now dead for two centuries. We did notmake suppositions as to colonial interpretations of that Declaration's right to keep arms; weexamined colonial newspapers which discussed it. We did not speculate as to the intent of theframers of the second amendment; we examined James Madison's drafts for it, his handwrittenoutlines of speeches upon the Bill of Rights, and discussions of the second amendment by earlyscholars who were personal friends of Madison, Jefferson, and Washington and wrote while thesestill lived. What the Subcommittee on the Constitution uncovered was clear—and long-lost—proofthat the second amendment to our Constitution was intended as an individual right of the Americancitizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and hisfreedoms. The summary of our research and findings forms the first portion of this report.

In the interest of fairness and the presentation of a complete picture, we also invited groupswhich were likely to oppose this recognition of freedoms to submit their views. The statements oftwo associations who replied are reproduced here following the report of the Subcommittee. TheSubcommittee also invited statements by Messrs. Halbrook and Hardy, and by the National RifleAssociation, whose statements likewise follow our report.

When I became chairman of the Subcommittee on the Constitution, I hoped that I would beable to assist in the protection of the constitutional rights of American citizens, rights which havetoo often been eroded in the belief that government could be relied upon for quick solutions todifficult problems.

Both as an American citizen and as a United States Senator I repudiate this view. I likewiserepudiate the approach of those who believe to solve American problems you simply becomesomething other than American. To my mind, the uniqueness of our free institutions, the fact thatan American citizen can boast freedoms unknown in any other land, is all the more reason to resistany erosion of our individual rights. When our ancestors forged a land "conceived in liberty", they

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did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, andestablished their identity as a free nation, they did so as a nation of armed freemen. When theysought to record forever a guarantee of their rights, they devoted one full amendment out of ten tonothing but the protection of their right to keep and bear arms against government interference.Under my chairmanship the Subcommittee on the Constitution will concern itself with a properrecognition of, and respect for, this right most valued by free men.

ORRIN G. HATCH,Chairman,

Subcommittee on the Constitution.JANUARY 20, 1982.(pg.IX)

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The right to bear arms is a tradition with deep roots in American society. Thomas Jeffersonproposed that "no free man shall ever be debarred the use of arms," and Samuel Adams called foran amendment banning any law "to prevent the people of the United States who are peaceablecitizens from keeping their own arms." The Constitution of the State of Arizona, for example,recognizes the "right of an individual citizen to bear arms in defense of himself or the State."

Even though the tradition has deep roots, its application to modern America is the subjectof intense controversy. Indeed, it is a controversy into which the Congress is beginning, once again,to immerse itself. I have personally been disappointed that so important an issue should havegenerally been so thinly researched and so minimally debated both in Congress and the courts. OurSupreme Court has but once touched on its meaning at the Federal level and that decision, nownearly a half-century old, is so ambiguous that any school of thought can find some support in it. AllSupreme Court decisions on the second amendment's application to the States came in the lastcentury, when constitutional law was far different than it is today. As ranking minority member ofthe Subcommittee on the Constitution, I, therefore, welcome the effort which led to this report—areport based not only upon the independent research of the subcommittee staff, but also upon fulland fair presentation of the cases by all interested groups and individual scholars.

I personally believe that it is necessary for the Congress to amend the Gun Control Act of1968. I welcome the opportunity to introduce this discussion of how best these amendments mightbe made.

The Constitution subcommittee staff has prepared this monograph bringing togetherproponents of both sides of the debate over the 1968 Act. I believe that the statements containedherein present the arguments fairly and thoroughly. I commend Senator Hatch, chairman of thesubcommittee, for having this excellent reference work prepared. I am sure that it will be of greatassistance to the Congress as it debates the second amendment and considers legislation to amendthe Gun Control Act.

DENNIS DECONCINI,Ranking Minority Member,

Subcommittee On the Constitution.JANUARY 20, 1982.(pg.1)

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HISTORY: SECOND AMENDMENT RIGHT TO "KEEP AND BEAR ARMS"

The right to keep and bear arms as a part of English and American law antedates not onlythe Constitution, but also the discovery of firearms. Under the laws of Alfred the Great, whose reignbegan in 872 A.D., all English citizens from the nobility to the peasants were obliged to privatelypurchase weapons and be available for military duty.1 This was in sharp contrast to the feudal systemas it evolved in Europe, under which armament and military duties were concentrated in the nobility.The body of armed citizens were known as the "fyrd".

While a great many of the Saxon rights were abridged following the Norman conquest, theright and duty of arms possession was retained. Under the Assize of Arms of 1181, "the wholecommunity of freemen" between the ages of 15 and 40 were required by law to possess certain arms,which were arranged in proportion to their possessions.2 They were required twice a year todemonstrate to Royal Officials that they were appropriately armed. In 1253, another Assize of Armsexpanded the duty of armament to include not only freeman, but also villeins, who were the Englishequivalent of serfs. Now all "citizens, burgesses, free tenants, villeins and others from 15 to 60 yearsof age" were obliged to be armed.3 While on the Continent the villeins were regarded as little morethan animals hungering for rebellion, the English legal system not only permitted, but affirmativelyrequired them, to be armed.

The thirteenth century saw further definitions of this right as the long bow, a formidablearmor-piercing weapon, became increasingly the mainstay of British national policy. In 1285,Edward I commanded that all persons comply with the earlier Assizes and added that "anyone elsewho can afford them shall keep bows and arrows".4 The right of armament was subject only tonarrow limitations. In 1279, it was ordered that those appearing in Parliament or other publicassemblies "shall come without all force and armor, well and peaceably".5 In 1328, the statute ofNorthampton ordered that no one use their arms in "affray of the peace, nor to go nor ride armed byday or by night in fairs, markets, nor in the presence of the justices or other ministers".6 Englishcourts construed this ban consistently with the general right of private armament as applying onlyto wearing of arms "accompanied with such circumstances as are apt to terrify the people".7 In 1369,the King ordered that the sheriffs of London require all citizens "at leisure time on holidays" to "usein their recreation bowes and arrows" and to stop all other games which might distract them fromthis practice.8

The Tudor kings experimented with limits upon specialized weapons—mainly crossbowsand the then-new firearms. These measures were not intended to disarm the citizenry, but on thecontrary, to prevent their being diverted from longbow practice by (pg.2) sport with other weaponswhich were considered less effective. Even these narrow measures were shortlived. In 1503, HenryVII limited shooting (but not possession) of crossbows to those with land worth 200 marks annualrental, but provided an exception for those who "shote owt of a howse for the lawefull defens of thesame".9 In 1511, Henry VIII increased the property requirement to 300 marks. He also expanded therequirement of longbow ownership, requiring all citizens to "use and exercyse shootyng inlongbowes, and also have a bowe and arrowes contynually" in the house.10 Fathers were requiredby law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them inlongbow use.

In 1514 the ban on crossbows was extended to include firearms.11 But in 1533, Henryreduced the property qualification to 100 pounds per year; in 1541 he limited it to possession of

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small firearms ("of the length of one hole yard" for some firearms and "thre quarters of a yarde" forothers)12 and eventually he repealed the entire statute by proclamation.13 The later Tudor monarchscontinued the system and Elizabeth added to it by creating what came to be known as "train bands",selected portions of the citizenry chosen for special training. These trained bands were distinguishedfrom the "militia", which term was first used during the Spanish Armada crisis to designate theentire of the armed citizenry.14

The militia continued to be a pivotal force in the English political system. The Britishhistorian Charles Oman considers the existence of the armed citizenry to be a major reason for themoderation of monarchical rule in Great Britain; "More than once he [Henry VIII] had to restrainhimself, when he discovered that the general feeling of his subjects was against him.... His'gentlemen pensioners' and his yeomen of the guard were but a handful, and bills or bows were inevery farm and cottage".15

When civil war broke out in 1642, the critical issue was whether the King or Parliament hadthe right to control the militia.16 The aftermath of the civil war saw England in temporary controlof a military government, which repeatedly dissolved Parliament and authorized its officers to"search for, and seize all arms" owned by Catholics, opponents of the government, "or any otherperson whom the commissioners had judged dangerous to the peace of this Commonwealth".17

The military government ended with the restoration of Charles II. Charles in turn opened hisreign with a variety of repressive legislation, expanding the definition of treason, establishing presscensorship and ordering his supporters to form their own troops, "the officers to be numerous,disaffected persons watched and not allowed to assemble, and their arms seized".18 In 1662, a MilitiaAct was enacted empowering officials "to search for and seize all arms in the custody or possessionof any person or persons whom the said lieutenants or any two or more of their deputies shall judgedangerous to the peace of the kingdom".19 Gunsmiths were ordered to deliver to the government listsof all purchasers.20 These confiscations were continued under James II, who directed themparticularly against the Irish population: "Although the (pg.3) country was infested by predatory bands,a Protestant gentleman could scarcely obtain permission to keep a brace of pistols."21

In 1668, the government of James was overturned in a peaceful uprising which came to beknown as "The Glorious Revolution". Parliament resolved that James had abdicated andpromulgated a Declaration of Rights, later enacted as the Bill of Rights. Before coronation, hissuccessor William of Orange, was required to swear to respect these rights. The debates in the Houseof Commons over this Declaration of Rights focused largely upon the disarmament under the 1662Militia Act. One member complained that "an act of Parliament was made to disarm all Englishmen,who the lieutenant should suspect, by day or night, by force or otherwise—this was done in Irelandfor the sake of putting arms into Irish hands." The speech of another is summarized as "militiabill—power to disarm all England—now done in Ireland." A third complained "Arbitrary powerexercised by the ministry.... Militia—imprisoning without reason; disarming—himself disarmed."Yet another summarized his complaints "Militia Act—an abominable thing to disarm the nation...."22

The Bill of Rights, as drafted in the House of Commons, simply provided that "the actsconcerning the militia are grievous to the subject" and that "it is necessary for the public Safety thatthe Subjects, which are Protestants, should provide and keep arms for the common defense; And thatthe Arms which have been seized, and taken from them, be restored."23 The House of Lords changedthis to make it a more positive declaration of an individual right under English law: "That thesubjects which are Protestant may have arms for their defense suitable to their conditions and asallowed by law."24 The only limitation was on ownership by Catholics, who at that time composedonly a few percent of the British population and were subject to a wide variety of punitive

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legislation. The Parliament subsequently made clear what it meant by "suitable to their conditionsand as allowed by law". The poorer citizens had been restricted from owning firearms, as well astraps and other commodities useful for hunting, by the 1671 Game Act. Following the Bill of Rights,Parliament reenacted that statute, leaving its operative parts unchanged with one exception—whichremoved the word "guns" from the list of items forbidden to the poorer citizens.25 The right to keepand bear arms would henceforth belong to all English subjects, rich and poor alike.

In the colonies, availability of hunting and need for defense led to armament statuescomparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unlessthey were "well armed"; in 1631 it required colonists to engage in target practice on Sunday and to"bring their peeces to church."26 In 1658 it required every householder to have a functioning firearmwithin his house and in 1673 its laws provided that a citizen who claimed he was too poor topurchase a firearm would have one purchased for him by the government, which would then requirehim to pay a reasonable price when able to do so.27 In Massachusetts, the first session of thelegislature ordered that not only freemen, but also indentured servants own firearms and in 1644 itimposed a stern 6 shilling fine upon any citizen who was not armed.28

(pg.4) When the British government began to increase its military presence in the colonies in the

mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves indefense. One colonial newspaper argued that it was impossible to complain that this act was illegalsince they were "British subjects, to whom the privilege of possessing arms is expressly recognizedby the Bill of Rights" while another argued that this "is a natural right which the people havereserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense".29 Thenewspaper cited Blackstone's commentaries on the laws of England, which had listed the "havingand using arms for self preservation and defense" among the "absolute rights of individuals." Thecolonists felt they had an absolute right at common law to own firearms.

Together with freedom of the press, the right to keep and bear arms became one of theindividual rights most prized by the colonists. When British troops seized a militia arsenal inSeptember, 1774, and incorrect rumors that colonists had been killed spread through Massachusetts,60,000 citizens took up arms.30 A few months later, when Patrick Henry delivered his famed "Giveme liberty or give me death" speech, he spoke in support of a proposition "that a well regulatedmilitia, composed of gentlemen and freemen, is the natural strength and only security of a freegovernment...." Throughout the following revolution, formal and informal units of armed citizensobstructed British communication, cut off foraging parties, and harassed the thinly stretched regularforces. When seven states adopted state "bills of rights" following the Declaration of Independence,each of those bills of rights provided either for protection of the concept of a militia or for an expressright to keep and bear arms.31

Following the revolution but previous to the adoption of the Constitution, debates overmilitia proposals occupied a large part of the political scene. A variety of plans were put forth byfigures ranging from George Washington to Baron von Steuben.32 All of the proposals called for ageneral duty of all citizens to be armed, although some proposals (most notably von Steuben's) alsoemphasized a "select militia" which would be paid for its services and given special training. In thisrespect, this "select militia" was the successor of the "trained bands" and the predecessor of whatis today the "national guard". In the debates over the Constitution, von Steubon's proposals werecriticized as undemocratic. In Connecticut one writer complained of a proposal that "this looks toomuch like Baron von Steubon's militia, by which a standing army was meant and intended."33 InPennsylvania, a delegate argued "Congress may give us a select militia which will, in fact, be astanding army—or Congress, afraid of a general militia, may say there will be no militia at all. When

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a select militia is formed, the people in general may be disarmed."34 Richard Henry Lee, in hiswidely read pamphlet "Letters from the Federal Farmer to the Republican" worried that the peoplemight be disarmed "by modelling the militia. Should one fifth or one eighth part of the peoplecapable of bearing arms be made into a select militia, as has been proposed, and those the young andardent parts of the community, possessed of little or no property, the former will answer all thepurposes of an army, while the latter will be defenseless." He (pg.5) proposed that "the Constitutionought to secure a genuine, and guard against a select militia," adding that "to preserve liberty, it isessential that the whole body of the people always possess arms and be taught alike, especially whenyoung, how to use them."35

The suspicion of select militia units expressed in these passages is a clear indication that theframers of the Constitution did not seek to guarantee a State right to maintain formed groups similarto the National Guard, but rather to protect the right of individual citizens to keep and bear arms.Lee, in particular, sat in the Senate which approved the Bill of Rights. He would hardly have meantthe second amendment to apply only to the select militias he so feared and disliked.

Other figures of the period were of like mind. In the Virginia convention, George Mason,drafter of the Virginia Bill of Rights, accused the British of having plotted "to disarm thepeople—that was the best and most effective way to enslave them", while Patrick Henry observedthat "The great object is that every man be armed" and "everyone who is able may have a gun".36

Nor were the antifederalist, to whom we owe credit for a Bill of Rights, alone on thisaccount. Federalist arguments also provide a source of support for an individual rights view. Theirarguments in favor of the proposed Constitution also relied heavily upon universal armament. Theproposed Constitution had been heavily criticized for its failure to ban or even limit standing armies.Unable to deny this omission, the Constitution's supporters frequently argued to the people that theuniversal armament of Americans made such limitations unnecessary. A pamphlet written by NoahWebster, aimed at swaying Pennsylvania toward ratification, observed

Before a standing army can rule, the people must be disarmed; as they are inalmost every kingdom in Europe. The supreme power in America cannot enforceunjust laws by the sword, because the whole body of the people are armed, andconstitute a force superior to any band of regular troops that can be, on any pretense,raised in the United States.37

In the Massachusetts convention, Sedgwick echoed the same thought, rhetorically asking ifan oppressive army could be formed or "if raised, whether they could subdue a Nation of freemen,who know how to prize liberty, and who have arms in their hands?"38 In Federalist Paper 46,Madison, later author of the Second Amendment, mentioned "The advantage of being armed, whichthe Americans possess over the people of all other countries" and that "notwithstanding the militaryestablishments in the several kingdoms of Europe, which are carried as far as the public resourceswill bear, the governments are afraid to trust the people with arms."

A third and even more compelling case for an individual rights perspective on the SecondAmendment comes from the State demands for a bill of rights. Numerous state ratifications calledfor adoption of a Bill of Rights as a part of the Constitution. The first such call came from a groupof Pennsylvania delegates. Their proposals, which were not adopted but had a critical effect onfuture debates, proposed among other rights that "the people have (pg.6) a right to bear arms for thedefense of themselves and their own state, or the United States, or for the purpose of killing game;and no law shall be passed for disarming the people or any of them, unless for crimes committed,

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or a real danger of public injury from individuals."39 In Massachusetts, Sam Adams unsuccessfullypushed for a ratification conditioned on adoption of a Bill of Rights, beginning with a guarantee"That the said Constitution shall never be construed to authorize Congress to infringe the just libertyof the press or the rights of conscience; or to prevent the people of the United States who arepeaceable citizens from keeping their own arms...."40 When New Hampshire gave the Constitutionthe ninth vote needed for its passing into effect, it called for adoption of a Bill of Rights whichincluded the provision that "Congress shall never disarm any citizen unless such as are or have beenin actual rebellion".41 Virginia and North Carolina thereafter called for a provision "that the peoplehave the right to keep and bear arms; that a well regulated militia composed of the body of thepeople trained to arms is the proper, natural and safe defense of a free state."42

When the first Congress convened for the purpose of drafting a Bill of Rights, it delegatedthe task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained apamphlet listing the State proposals for a Bill of Rights and sought to produce a briefer versionincorporating all the vital proposals of these. His purpose was to incorporate, not distinguish bytechnical changes, proposals such as that of the Pennsylvania minority, Sam Adams, and the NewHampshire delegates. Madison proposed among other rights that:

"The right of the people to keep and bear arms shall not be infringed; a wellarmed and well regulated militia being the best security of a free country; but noperson religiously scrupulous of bearing arms shall be compelled to render militaryservice in person."43

In the House, this was initially modified so that the militia clause came before the proposalrecognizing the right. The proposals for the Bill of Rights were then trimmed in the interests ofbrevity. The conscientious objector clause was removed following objections by Elbridge Gerry,who complained that future Congresses might abuse the exemption for the scrupulous to excuseeveryone from militia service.

The proposal finally passed the House in its present form: "A well regulated militia, beingnecessary to the security of a free state, the right of the people to keep and bear arms, shall not beinfringed." In this form it was submitted into the Senate, which passed it the following day. TheSenate in the process indicated its intent that the right be an individual one, for private purposes, byrejecting an amendment which would have limited the keeping and bearing of arms to bearing "forthe common defense".

The earliest American constitutional commentators concurred in giving this broad readingto the amendment. When St. George Tucker, later Chief Justice of the Virginia Supreme Court, in1803 published an edition of Blackstone annotated to American law, he followed Blackstone'scitation of the right of the subject "of having (pg.7) arms suitable to their condition and degree, andsuch as are allowed by law" with a citation to the Second Amendment, "And this without anyqualification as to their condition or degree, as is the case in the British government".44 WilliamRawle's "View of the Constitution" published in Philadelphia in 1825 noted that under the SecondAmendment

The prohibition is general. No clause in the Constitution could by a rule ofconstruction be conceived to give to Congress a power to disarm the people. Sucha flagitious attempt could only be made under some general pretense by a state

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legislature. But if in blind pursuit of inordinate power, either should attempt it, thisamendment may be appealed to as a restraint on both."45

The Jefferson papers in the Library of Congress show that both Tucker and Rawle werefriends of, and corresponded with Thomas Jefferson. This suggests that their assessment, ascontemporaries of the Constitution's drafters, should be afforded special consideration.

Later commentators agreed with Tucker and Rawle. For instance, Joseph Story in his"Commentaries on the Constitution" considered the right to keep and bear arms as "the palladiumof the liberties of the republic", which deterred tyranny and enabled the citizenry at large tooverthrow it should it come to pass.46

Subsequent legislation in the Second Congress likewise supports the interpretation of thesecond amendment that creates an individual right. In the Militia Act of 1792, the second Congressdefined "militia of the United States" to include almost every free adult male in the United States.These persons were obliged by law to possess a firearm and a minimum supply of ammunition andmilitary equipment.47 This statute, incidentally remained in effect into the early years of the presentcentury as a legal requirement of gun ownership for most of the population of the United States.There can be little doubt from this that when the Congress and the people spoke of a "militia", theyhad reference to the traditional concept of the entire populace capable of bearing arms, and not toany formal group such as what is today called the National Guard. The purpose was to create anarmed citizenry, such as the political theorists at the time considered essential to ward off tyranny.From this militia, appropriate measures might create a "well regulated militia" of individuals trainedin their duties and responsibilities as citizens and owners of firearms.

The Second Amendment as such was rarely litigated prior to the passage of the FourteenthAmendment. Prior to that time, most courts accepted that the commands of the federal Bill of Rightsdid not apply to the states. Since there was no federal firearms legislation at this time, there was nolegislation which was directly subject to the Second Amendment, if the accepted interpretationswere followed. However, a broad variety of state legislation was struck down under state guaranteesof the right to keep and bear arms and even in a few cases, under the Second Amendment, when itcame before courts which considered the federal protections applicable to the states. Kentucky in1813 enacted the first carrying concealed weapon statute in the United States; in 1822 the Kentucky(pg.8) Court of Appeals struck down the law as a violation of the state constitutional protection of theright to keep and bear arms: "And can there be entertained a reasonable doubt but the provisions ofthat act import a restraint on the right of the citizen to bear arms? The court apprehends it not. Theright existed at the adoption of the Constitution; it then had no limit short of the moral power of thecitizens to exercise it, and in fact consisted of nothing else but the liberty of the citizen to beararms."48 On the other hand, a similar measure was sustained in Indiana, not upon the grounds thata right to keep and bear arms did not apply, but rather upon the notion that a statute banning onlyconcealed carrying still permitted the carrying of arms and merely regulated one possible way ofcarrying them.49 A few years later, the Supreme Court of Alabama upheld a similar statute but added"We do not desire to be understood as maintaining, that in regulating the manner of wearing arms,the legislature has no other limit than its own discretion. A statute which, under the pretense ofregulation, amounts to a destruction of that right, or which requires arms to be so borne as to renderthem wholly useless for the purpose of defense, would be clearly unconstitutional."50 When theArkansas Supreme Court in 1842 upheld a carrying concealed weapons statute, the chief justiceexplained that the statute would not "detract anything from the power of the people to defend theirfree state and the established institutions of the country. It prohibits only the wearing of certain arms

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concealed. This is simply a regulation as to the manner of bearing such arms as are specified", whilethe dissenting justice proclaimed "I deny that any just or free government upon earth has the powerto disarm its citizens.51

Sometimes courts went farther. When in 1837, Georgia totally banned the sale of pistols(excepting the larger pistols "known and used as horsemen's pistols") and other weapons, theGeorgia Supreme Court in Nunn v. State held the statute unconstitutional under the SecondAmendment to the federal Constitution. The court held that the Bill of Rights protected natural rightswhich were fully as capable of infringement by states as by the federal government and that theSecond Amendment provided "the right of the whole people, old and young, men, women and boys,and not militia only, to keep and bear arms of every description, and not merely such as are used bythe militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this forthe important end to be attained: the rearing up and qualifying of a well regulated militia, so vitallynecessary to the security of a free state."52 Prior to the Civil War, the Supreme Court of the UnitedStates likewise indicated that the privileges of citizenship included the individual right to own andcarry firearms. In the notorious Dred Scott case, the court held that black Americans were notcitizens and could not be made such by any state. This decision, which by striking down theMissouri Compromise did so much to bring on the Civil War, listed what the Supreme Courtconsidered the rights of American citizens by way of illustrating what rights would have to be givento black Americans if the Court were to recognize them as full fledged citizens:(pg.9)

It would give to persons of the negro race, who are recognized as citizens inany one state of the Union, the right to enter every other state, whenever theypleased.... and it would give them full liberty of speech in public and in private uponall subjects upon which its own citizens might meet; to hold public meetings uponpolitical affairs, and to keep and carry arms wherever they went.53

Following the Civil War, the legislative efforts which gave us three amendments to theConstitution and our earliest civil rights acts likewise recognized the right to keep and bear arms asan existing constitutional right of the individual citizen and as a right specifically singled out as oneprotected by the civil rights acts and by the Fourteenth Amendment to the Constitution, againstinfringement by state authorities. Much of the reconstruction effort in the South had been hingedupon the creation of "black militias" composed of the armed and newly freed blacks, officeredlargely by black veterans of the Union Army. In the months after the Civil War, the existingsouthern governments struck at these units with the enactment of "black codes" which eitheroutlawed gun ownership by blacks entirely, or imposed permit systems for them, and permitted theconfiscation of firearms owned by blacks. When the Civil Rights Act of 1866 was debated membersboth of the Senate and the House referred to the disarmament of blacks as a major consideration.54

Senator Trumbull cited provisions outlawing ownership of arms by blacks as among those whichthe Civil Rights Act would prevent;55 Senator Sulsbury complained on the other hand that if the actwere to be passed it would prevent his own state from enforcing a law banning gun ownership byindividual free blacks.56 Similar arguments were advanced during the debates over the "anti-KKKact"; its sponsor at one point explained that a section making it a federal crime to deprive a personof "arms or weapons he may have in his house or possession for the defense of his person, familyor property" was "intended to enforce the well-known constitutional provisions guaranteeing theright in the citizen to 'keep and bear arms'."57 Likewise, the debates over the Fourteenth Amendment

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Congress frequently referred to the Second Amendment as one of the rights which it intended toguarantee against state action.58

Following adoption of the Fourteenth Amendment, however, the Supreme Court held thatthat Amendment's prohibition against states depriving any persons of their federal "privileges andimmunities" was to be given a narrow construction. In particular, the "privileges and immunities"under the Constitution would refer only to those rights which were not felt to exist as a process ofnatural right, but which were created solely by the Constitution. These might refer to rights such asvoting in federal elections and of interstate travel, which would clearly not exist except by virtue ofthe existence of a federal government and which could not be said to be "natural rights".59 Thisparadoxically meant that the rights which most persons would accept as the most important—thoseflowing from concepts of natural justice—were devalued at the expense of more technical rights.Thus when individuals were charged with having deprived black citizens of their right to freedom(pg.10) of assembly and to keep and bear arms, by violently breaking up a peaceable assembly of blackcitizens, the Supreme Court in United States v. Cruikshank60 held that no indictment could beproperly brought since the right "of bearing arms for a lawful purpose" is "not a right granted by theConstitution. Neither is it in any manner dependent upon that instrument for its existence." Nor, inthe view of the Court, was the right to peacefully assemble a right protected by the FourteenthAmendment: "The right of the people peaceably to assemble for lawful purposes existed long beforethe adoption of the Constitution of the United States. In fact, it is and has always been one of theattributes of citizenship under a free government.... It was not, therefore, a right granted to thepeople by the Constitution." Thus the very importance of the rights protected by the First andSecond Amendment was used as the basis for the argument that they did not apply to the statesunder the Fourteenth Amendment. In later opinions, chiefly Presser v. Illinois61 and Miller v.Texas,62 the Supreme Court adhered to the view. Cruikshank has clearly been superseded bytwentieth century opinions which hold that portions of the Bill of Rights—and in particular the rightto assembly with which Cruikshank dealt in addition to the Second Amendment—are binding uponthe state governments. Given the legislative history of the Civil Rights Acts and the FourteenthAmendment, and the more expanded views of incorporation which have become accepted in ourown century, it is clear that the right to keep and bear arms was meant to be and should be protectedunder the civil rights statutes and the Fourteenth Amendment against infringement by officials actingunder color of state law.

Within our own century, the only occasion upon which the Second Amendment has reachedthe Supreme Court came in United States v. Miller.63 There, a prosecution for carrying a sawed offshotgun was dismissed before trial on Second Amendment grounds. In doing so, the court took noevidence as to the nature of the firearm or indeed any other factual matter. The Supreme Courtreversed on procedural grounds, holding that the trial court could not take judicial notice of therelationship between a firearm and the Second Amendment, but must receive some manner ofevidence. It did not formulate a test nor state precisely what relationship might be required. Thecourt's statement that the amendment was adopted "to assure the continuation and render possiblethe effectiveness of such [militia] forces" and "must be interpreted and applied with that end inview", when combined with the court's statement that all constitutional sources "show plainlyenough that the militia comprised all males physically capable of acting in concert for the commondefense.... these men were expected to appear bearing arms supplied by themselves and of the kindin common use at the time,"64 suggests that at the very least private ownership by a person capableof self defense and using an ordinary privately owned firearm must be protected by the SecondAmendment. What the Court did not do in Miller is even more striking: It did not suggest that the

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lower court take evidence on whether Miller belonged to the National Guard or a similar group. Thehearing was to be on the nature of the (pg.11) firearm, not on the nature of its use; nor is there a singlesuggestion that National Guard status is relevant to the case.

The Second Amendment right to keep and bear arms therefore, is a right of the individualcitizen to privately posses and carry in a peaceful manner firearms and similar arms. Such an"individual rights" interpretation is in full accord with the history of the right to keep and bear arms,as previously discussed. It is moreover in accord with contemporaneous statements and formulationsof the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accuratelyreflects the majority of the proposals which led up to the Bill of Rights itself. A number of stateconstitutions, adopted prior to or contemporaneously with the federal Constitution and Bill ofRights, similarly provided for a right of the people to keep and bear arms. If in fact this languagecreates a right protecting the states only, there might be a reason for it to be inserted in the federalConstitution but no reason for it to be inserted in state constitutions. State bills of rights necessarilyprotect only against action by the state, and by definition a state cannot infringe its own rights; toattempt to protect a right belonging to the state by inserting it in a limitation of the state's ownpowers would create an absurdity. The fact that the contemporaries of the framers did insert thesewords into several state constitutions would indicate clearly that they viewed the right as belongingto the individual citizen, thereby making it a right which could be infringed either by state or federalgovernment and which must be protected against infringement by both.

Finally, the individual rights interpretation gives full meaning to the words chosen by thefirst Congress to reflect the right to keep and bear arms. The framers of the Bill of Rightsconsistently used the words "right of the people" to reflect individual rights—as when these wordswere used to recognize the "right of the people" to peaceably assemble, and the "right of the people"against unreasonable searches and seizures. They distinguished between the rights of the people andof the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a conceptof a universally armed people, not to any specifically organized unit. When the framers referred tothe equivalent of our National Guard, they uniformly used the term "select militia" and distinguishedthis from "militia". Indeed, the debates over the Constitution constantly referred to organized militiaunits as a threat to freedom comparable to that of a standing army, and stressed that such organizedunits did not constitute, and indeed were philosophically opposed to, the concept of a militia.

That the National Guard is not the "Militia" referred to in the second amendment is evenclearer today. Congress has organized the National Guard under its power to "raise and supportarmies" and not its power to "Provide for organizing, arming and disciplining the Militia".65 ThisCongress chose to do in the interests of organizing reserve military units which were not limited indeployment by the strictures of our power over the constitutional militia, which can be called forthonly "to execute the laws of the Union, suppress insurrections and repel invasions." The modernNational Guard was specifically intended to avoid status as the constitutional militia, a distinctionrecognized by 10 U.S.C. Sec 311(a).(pg.12)

The conclusion is thus inescapable that the history, concept, and wording of the secondamendment to the Constitution of the United States, as well as its interpretation by every majorcommentator and court in the first half-century after its ratification, indicates that what is protectedis an individual right of a private citizen to own and carry firearms in a peaceful manner.

REFERENCES

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1. Charles Hollister, Anglo-Saxon Military Institutions 11-42 (Oxford University Press 1962); Francis Grose, MilitaryAntiquities Respecting a History of the British Army, Vol. I at 1-2 (London, 1812).

2. Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal History of Medieval England 273 (2d. ed. New York1980).

3. J. J. Bagley and P. B. Rowley, A Documentary History of England 1066-1540, Vol. 1 at 155-56 (New York 1965).4. Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley, supra at 158.5. 7 Ed. I c. 2 (1279).6. Statute of Northampton (2 Edw. III c. 3).7. Rex v. Knight, 90 Eng. Rep. 330; 87 Eng. Rep. 75 (King's Bench, 1686).8. E. G. Heath, The Grey Goose Wing 109 (London, 1971).9. 19 Hen. VII c. 4 (1503).10. 3 Hen. VIII c. 13 (1511).11. 64 Hen. VIII c. 13 (1514).12. 33 Hen. VIII c. 6 (1514).13. Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979).14. Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).15. Charles Oman, A History of the Art of War in the Sixteenth Century 288 (New York, 1937).16. William Blackstone, Commentaries, Vol. 2 at 412 (St. George Tucker, ed., Philadelphia 1803).17. "An Act for Settling the Militia," Ordinances and Acts of the Interregnum, Vol. 2 1320 (London, HMSO 1911).18. 8 Calendar of State Papers (Domestic), Charles II, No. 188, p. 150.19. 14 Car. II c. 3 (1662).20. Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in Restoration England, at 11 (Mary Ingraham Bunting

Institute, Radcliffe College 1980).21. Thomas Macaulay, The History of England from the Accession of Charles II, Vol. II at 137 (London, 1856).22. Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-1726, vol. 2 at 407-17 (London, 1778).23. J. R. Western, Monarchy and Revolution: The English State in the 1680's, at 339 (Totowa, N.J., 1972).24. Journal of the House of Commons from December 26, 1688, to October 26, 1693, at 29. (London, 1742). The Bill of

Rights was ultimately enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689).25. Joyce Malcolm, supra, at 16.26. William Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia from the First Session of the

Legislature in 1619, at pp. 127, 173-74 (New York, 1823).27. Id.28. William Brigham, The Compact with the Charter and Laws of the Colony of New Plymouth, 31, 76 (Boston, 1836).29. Oliver Dickerson, ed., Boston Under Military Rule, 61, 79, (Boston, 1936).30. Steven Patterson, Political Parties in Revolutionary Massachusetts, at 103 (Univ. of Wisconsin Press, 1973).31. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).32. The most extensive studies of these militia proposals are John McAuley Palmer, Washington, Lincoln, Wilson: Three

War Statesmen (New York, 1930); Frederick Stern, Citizen Army (New York, 1957); John Mahon, The American Militia: Decadeof Decision 1789-1800 (Univ of Florida, 1960).

33. Merrill Jensen, ed., The Documentary of History of the Ratification of the Constitution, vol. 3 at 378 (Madison, Wisc.).34. Id., vol. 2 at 508.(pg.13) 35. Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).36. Debates and other Proceedings of the Convention of Virginia, . . . taken in shorthand by David Robertson of

Petersburg, at 271, 275 (2d ed. Richmond, 1805).37. Noah Webster, "An Examination into the Leading Principles of the Federal Constitution . . .", in Paul Ford, ed.,

Pamphlets on the Constitution of the United States, at 56 (New York, 1888).38. Johnathan Elliott, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 2

at 97 (2d ed., 1888).39. Merrill Jensen, supra, vol. 2 at 597-98.40. Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds.,

Boston, 1850); 2 B. Schwartz, the Bill of Rights 675 (1971).41. Documents Illustrative of the Formation of the Union of the American States, at 1026 (Washington, D.C.: GPO, 1927).42. Id. at 1030.43. Annals of Congress 434 (1789).44. St. George Tucker, ed., Blackstone's Commentaries, Volume 1 at 143 n. 40, 41 (Philadelphia, 1803).45. William Rawle, A View of the Constitution 125-6 (2d ed., Philadelphia, 1803).

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46. Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833).47. Act of May 8, 1792; Second Cong., First Session, ch. 33.48. Bliss v. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822).49. State v. Mitchell, (3 Black.) 229.50. State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).51. State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas Constitutional provision at issue was narrower than the

second amendment, as it protected keeping and bearing arms "for the common defense." Id. at 34.52. Nunn v. State, 1 Ga. 243, 251 (1846).53. Dred Scott v. Sandford, 60 U.S. 691, 705.54. The most comprehensive work in this field of constitutional law is Steven Halbrook, the Jurisprudence of the Second

and Fourteenth Amendments (Institute for Humane Studies, Menlo Park, California, 1979), reprinted in 4 George Mason L. Rev. 1(1981).

55. Cong. Globe, 39th Congress, 1st Sess., pt. 1, p. 474 (Jan. 29, 1866).56. Id. at 478.57. H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871).58. See generally Halbrook, supra, at 42-62.59. Slaughterhouse Cases, 83 U.S. 36 (L873).60. United States v. Cruikshank, 92 U.S. 542 (1876).61. Presser v. Illinois, 116 U.S. 252 (1886).62. Miller v. Texas, 153 U.S. 535 (1894).63. United States v. Miller, 307 U.S. 175 (1939).64. Id. at 178, 179.65. H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).(pg.14)

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APPENDIX

CASE LAW

The United States Supreme Court has only three times commented upon the meaning of thesecond amendment to our constitution. The first comment, in Dred Scott, indicated strongly that theright to keep and bear arms was an individual right; the Court noted that, were it to hold free blacksto be entitled to equality of citizenship, they would be entitled to keep and carry arms wherever theywent. The second, in Miller , indicated that a court cannot take judicial notice that a short-barrelledshotgun is covered by the second amendment—but the Court did not indicate that National Guardstatus is in any way required for protection by that amendment, and indeed defined "militia" toinclude all citizens able to bear arms. The third, a footnote in Lewis v. United States, indicated onlythat "these legislative restrictions on the use of firearms"—a ban on possession by felons—werepermissable. But since felons may constitutionally be deprived of many of the rights of citizens,including that of voting, this dicta reveals little. These three comments constitute all significantexplanations of the scope of the second amendment advanced by our Supreme Court. The case ofAdam v. Williams has been cited as contrary to the principle that the second amendment is anindividual right. In fact, that reading of the opinion comes only in Justice Douglas's dissent from themajority ruling of the Court.

The appendix which follows represents a listing of twenty-one American decisions, spanningthe period from 1822 to 1981, which have analysed right to keep and bear arms provisions in thelight of statutes ranging from complete bans on handgun sales to bans on carrying of weapons toregulation of carrying by permit systems. Those decisions not only explained the nature of such aright, but also struck down legislative restrictions as violative of it, are designated by asterisks.

20th century cases

1. * State v. Blocker, 291 Or. 255, — — — P.2d — — — (1981)."The statute is written as a total proscription of the mere possession of certain weapons, and

that mere possession, insofar as a billy is concerned, is constitutionally protected.""In these circumstances, we conclude that it is proper for us to consider defendant's

'overbreadth' attack to mean that the statute swept so broadly as to infringe rights that it could notreach, which in this setting means the right to possess arms guaranteed by sec 27."

2. * State v. Kessler, 289 Or. 359, 614 P.2d 94, at 95, at 98 (1980)."We are not unmindful that there is current controversy over the wisdom of a right to bear

arms, and that the original motivations for such a provision might not seem compelling if debatedas (pg.15) a new issue. Our task, however, in construing a constitutional provision is to respect theprinciples given the status of constitutional guarantees and limitations by the drafters; it is not toabandon these principles when this fits the needs of the moment."

"Therefore, the term 'arms' as used by the drafters of the constitutions probably was intendedto include those weapons used by settlers for both personal and military defense. The term 'arms' wasnot limited to firearms, but included several handcarried weapons commonly used for defense. Theterm 'arms' would not have included cannon or other heavy ordnance not kept by militia-men orprivate citizens."

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3. Motley v. Kellogg, 409 N.E.2d 1207, at 1210 (Ind. App. 1980) (motion to transfer denied1-27-1981).

"[N]ot making applications available at the chief's office effectively denied members of thecommunity the opportunity to obtain a gun permit and bear arms for their self-defense."

4. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980) (motion to transfer denied8-28-1980).

"We think it clear that our constitution provides our citizenry the right to bear arms for theirself-defense."

5. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975)."The pistols in question are not contraband. * * * Under Art. I, sec 23, Mo. Const. 1945,

V.A.M.S., every citizen has the right to keep and bear arms in defense of his home, person andproperty, with the limitation that this section shall not justify the wearing of concealed arms."

6. * City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745 (en banc 1972)."As an example, we note that this ordinance would prohibit gunsmiths, pawnbrokers and

sporting goods stores from carrying on a substantial part of their business. Also, the ordinanceappears to prohibit individuals from transporting guns to and from such places of business.Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place ofbusiness for the purpose of self-defense. Several of these activities are constitutionally protected.Colo. Const. art. II, sec 13."

7. * City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738 (N.M. App. 1971)."It is our opinion that an ordinance may not deny the people the constitutionally guaranteed

right to bear arms, and to that extent the ordinance under consideration is void."8. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952)."The law of this jurisdiction accords to the defendant the right to keep and bear arms and to

use same in defense of his own home, his person and property."9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950)."The second amendment to the constitution of the United States provides the right of the

people to keep and bear arms shall not be infringed. This of course does not prevent the enactmentof a law against carrying concealed weapons, but it does indicate it should be kept in mind, in theconstruction of a statute of such character, that it is aimed at persons of criminal instincts, and forthe prevention of crime, and not against use in the protection of person or property."(pg.16)

10. * People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en banc 1936)."It is equally clear that the act wholly disarms aliens for all purposes. The state ... cannot

disarm any class of persons or deprive them of the right guaranteed under section 13, article II ofthe Constitution, to bear arms in defense of home, person and property. The guaranty thus extendedis meaningless if any person is denied the right to posses arms for such protection."

11. * Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d 678 (1928)."There is no qualifications of the prohibition against the carrying of a pistol in the city

ordinance before us but it is made unlawful 'to carry on or about the person any pistol,' that is, anysort of pistol in any sort of manner. *** [W]e must accordingly hold the provision of this ordinanceas to the carrying of a pistol invalid."

12. * People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)."The provision in the Constitution granting the right to all persons to bear arms is a limitation

upon the power of the Legislature to enact any law to the contrary. The exercise of a rightguaranteed by the Constitution cannot be made subject to the will of the sheriff."

13 * State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).

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"We are of the opinion, however, that 'pistol' ex vi termini is properly included within theword 'arms,' and that the right to bear such arms cannot be infringed. The historical use of pistolsas 'arms' of offense and defense is beyond controversy."

"The maintenance of the right to bear arms is a most essential one to every free people andshould not be whittled down by technical constructions."

14. * State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903)."The people of the state have a right to bear arms for the defense of themselves and

the state. *** The result is that Ordinance No. 10, so far as it relates to the carrying of a pistol, isinconsistent with and repugnant to the Constitution and the laws of the state, and it is therefore tothat extent, void."

15. * In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902)."The second amendment to the federal constitution is in the following language: 'A

well-regulated militia, being necessary to the security of a free state, the right of the people to keepand bear arms, shall not be infringed.' The language of section 11, article I of the constitution ofIdaho, is as follows: 'The people have the right to bear arms for their security and defense, but thelegislature shall regulate the exercise of this right by law.' Under these constitutional provisions, thelegislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho,whether within or without the corporate limits of cities, towns, and villages."

19th century cases

16. * Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)."If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns,

the evil must be prevented by the (pg.17) penitentiary and gallows, and not by a general deprivationof constitutional privilege."

17. * Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878)."We believe that portion of the act which provides that, in case of conviction, the defendant

shall forfeit to the county the weapon or weapons so found on or about his person is not within thescope of legislative authority. * * * One of his most sacred rights is that of having arms for his owndefence and that of the State. This right is one of the surest safeguards of liberty andself-preservation."

18. * Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871)."The passage from Story shows clearly that this right was intended, as we have maintained

in this opinion, and was guaranteed to and to be exercised and enjoyed by the citizen as such, andnot by him as a soldier, or in defense solely of his political rights."

19. * Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846)."'The right of the people to bear arms shall not be infringed.' The right of the whole people,

old and young, men, women and boys, and not militia only, to keep and bear arms of everydescription, and not such merely as are used by the militia, shall not be infringed, curtailed, orbroken in upon, in the smallest degree; and all this for the important end to be attained: the rearingup and qualifying a well-regulated militia, so vitally necessary to the security of a free State."

20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833)."But suppose it to be assumed on any ground, that our ancestors adopted and brought over

with them this English statute, [the statute of Northampton,] or portion of the common law, ourconstitution has completely abrogated it; it says, 'that the freemen of this State have a right to keepand bear arms for their common defence.' Article II, sec. 26. * * * By this clause of the constitution,

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an express power is given and secured to all the free citizens of the State to keep and bear arms fortheir defence, without any qualification whatever as to their kind or nature; and it is conceived, thatit would be going much too far, to impair by construction or abridgement a constitutional privilege,which is so declared; neither, after so solumn an instrument hath said the people may carry arms,can we be permitted to impute to the acts thus licensed, such a necessarily consequent operation asterror to the people to be incurred thereby; we must attribute to the framers of it, the absence of sucha view."

21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)."For, in principle, there is no difference between a law prohibiting the wearing concealed

arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional,the latter must be so likewise."

"But it should not be forgotten, that it is not only a part of the right that is secured by theconstitution; it is the right entire and complete, as it existed at the adoption of the constitution; andif any portion of that right be impaired, immaterial how small the part may be, and immaterial theorder of time at which it be done, it is equally forbidden by the constitution."(pg.18)

The following represents a list of twelve scholarly articles which have dealt with the subjectof the right to keep and bear arms as reflected in the second amendment to the Constitution of theUnited States. The scholars who have undertaken this research range from professors of law, historyand philosophy to a United States Senator. All have concluded that the second amendment is anindividual right protecting American citizens in their peaceful use of firearms.

BIBLIOGRAPHY

Hays, THE RIGHT TO BEAR ARMS, A STUDY IN JUDICIAL MISINTERPRETATION, 2 Wm.& Mary L. R. 381 (1960)

Sprecher, THE LOST AMENDMENT, 51 Am. Bar Assn. J. 554 & 665 (2 parts) (1965)Comment, THE RIGHT TO KEEP AND BEAR ARMS; A NECESSARY CONSTITUTIONAL

GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF RIGHTS? 31 Albany L. R. 74 (1967)Levine & Saxe, THE SECOND AMENDMENT: THE RIGHT TO BEAR ARMS, 7 Houston L. R.

1 (1969)McClure, FIREARMS AND FEDERALISM, 7 Idaho L. R. 197 (1970)Hardy & Stompoly, OF ARMS AND THE LAW, 51 Chi.-Kent L. R. 62 (1974)Weiss, A REPLY TO ADVOCATES OF GUN CONTROL LAW, 52 Jour. Urban Law 577 (1974)Whisker, HISTORICAL DEVELOPMENT AND SUBSEQUENT EROSION OF THE RIGHT TO

KEEP AND BEAR ARMS, 78 W. Va. L. R. 171 (1976)Caplan, RESTORING THE BALANCE: THE SECOND AMENDMENT REVISITED, 5 Fordham

Urban L. J. 31 (1976)Caplan, HANDGUN CONTROL: CONSTITUTIONAL OR UNCONSTITUTIONAL?, 10 N.C.

Central L. J. 53 (1979)Cantrell, THE RIGHT TO BEAR ARMS, 53 Wis. Bar Bull. 21 (Oct. 1980)Halbrook, THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH AMENDMENTS,

4 Geo. Mason L. Rev. 1 (1981)(pg.19)

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ENFORCEMENT OF FEDERAL FIREARMS LAWS FROM THE

PERSPECTIVE OF THE SECOND AMENDMENT

Federal involvement in firearms possession and transfer was not significant prior to 1934,when the National Firearms Act was adopted. The National Firearms Act as adopted covered onlyfully automatic weapons (machine guns and submachine guns) and rifles and shotguns whose barrellength or overall length fell below certain limits. Since the Act was adopted under the revenuepower, sale of these firearms was not made subject to a ban or permit system. Instead, each transferwas made subject to a $200 excise tax, which must be paid prior to transfer; the identification of theparties to the transfer indirectly accomplished a registration purpose.

The 1934 Act was followed by the Federal Firearms Act of 1938, which placed somelimitations upon sale of ordinary firearms. Persons engaged in the business of selling those firearmsin interstate commerce were required to obtain a Federal Firearms License, at an annual cost of $1,and to maintain records of the name and address of persons to whom they sold firearms. Sales topersons convicted of violent felonies were prohibited, as were interstate shipments to persons wholacked the permits required by the law of their state.

Thirty years after adoption of the Federal Firearms Act, the Gun Control Act of 1968 workeda major revision of federal law. The Gun Control Act was actually a composite of two statutes. Thefirst of these, adopted as portions of the Omnibus Crime and Safe Streets Act, imposed limitationsupon imported firearms, expanded the requirement of dealer licensing to cover anyone "engaged inthe business of dealing" in firearms, whether in interstate or local commerce, and expanded therecordkeeping obligations for dealers. It also imposed a variety of direct limitations upon sales ofhandguns. No transfers were to be permitted between residents of different states (unless therecipient was a federally licensed dealer), even where the transfer was by gift rather than sale andeven where the recipient was subject to no state law which could have been evaded. The categoryof persons to whom dealers could not sell was expanded to cover persons convicted of any felony(other than certain business-related felonies such as antitrust violations), persons subject to a mentalcommitment order or finding of mental incompetence, persons who were users of marijuana andother drugs, and a number of other categories. Another title of the Act defined persons who werebanned from possessing firearms. Paradoxically, these classes were not identical with the list ofclasses prohibited from purchasing or receiving firearms.

The Omnibus Crime and Safe Streets Act was passed on June 5, 1968, and set to take effectin December of that year. Barely two weeks after its passage, Senator Robert F. Kennedy wasassassinated while campaigning for the presidency. Less than a week after (pg.20) his death, the secondbill which would form part of the Gun Control Act of 1968 was introduced in the House. It wasreported out of Judiciary ten days later, out of Rules Committee two weeks after that, and was onthe floor barely a month after its introduction. the second bill worked a variety of changes upon theoriginal Gun Control Act. Most significantly, it extended to rifles and shotguns the controls whichhad been imposed solely on handguns, extended the class of persons prohibited from possessingfirearms to include those who were users of marijuana and certain other drugs, expanded judicialreview of dealer license revocations by mandating a de novo hearing once an appeal was taken, andpermitted interstate sales of rifles and shotguns only where the parties resided in contiguous states,both of which had enacted legislation permitting such sales. Similar legislation was passed by theSenate and a conference of the Houses produced a bill which was essentially a modification of the

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House statute. This became law before the Omnibus Crime Control and Safe Streets Act, and wastherefore set for the same effective date.

Enforcement of the 1968 Act was delegated to the Department of the Treasury, which hadbeen responsible for enforcing the earlier gun legislation. This responsibility was in turn given tothe Alcohol and Tobacco Tax Division of the Internal Revenu Service. This division hadtraditionally devoted itself to the pursuit of illegal producers of alcohol; at the time of enactment ofthe Gun Control Act, only 8.3 percent of its arrests were for firearms violations. Followingenactment of the Gun Control Act the Alcohol and Tobacco Tax Division was retitled the Alcohol,Tobacco and Firearms Division of the IRS. By July, 1972 it had nearly doubled in size and becamea complete Treasury bureau under the name of Bureau of Alcohol, Tobacco and Firearms.

The mid-1970's saw rapid increases in sugar prices, and these in turn drove the bulk of the"moonshiners" out of business. Over 15,000 illegal distilleries had been raided in 1956; but by 1976this had fallen to a mere 609. The BATF thus began to devote the bulk of its efforts to the area offirearms law enforcement.

Complaints regarding the techniques used by the Bureau in an effort to generate firearmscases led to hearings before the Subcommittee on Treasury, Post Office, and General Appropriationsof the Senate Appropriations Committee in July 1979 and April 1980, and before the Subcommitteeon the Constitution of the Senate Judiciary Committee in October 1980. At these hearings evidencewas received from various citizens who had been charged by BATF, from experts who had studiedthe BATF, and from officials of the Bureau itself.

Based upon these hearings, it is apparent that enforcement tactics made possible by currentfederal firearms laws are constitutionally, legally, and practically reprehensible. Although Congressadopted the Gun Control Act with the primary object of limiting access of felons and high-riskgroups to firearms, the overbreadth of the law has led to neglect of precisely this area ofenforcement. For example the Subcommittee on the Constitution received correspondence from twomembers of the Illinois Judiciary, dated in 1980, indicating that they had been totally unable topersuade BATF to accept cases against felons who were in possession of (pg.21) firearms includingsawed-off shotguns. The Bureau's own figures demonstrate that in recent years the percentage of itsarrests devoted to felons in possession and persons knowingly selling to them have dropped from14 percent down to 10 percent of their firearms cases. To be sure, genuine criminals are sometimesprosecuted under other sections of the law. Yet, subsequent to these hearings, BATF stated that 55percent of its gun law prosecutions overall involve persons with no record of a felony conviction,and a third involve citizens with no prior police contact at all.

The Subcommittee received evidence that BATF has primarily devoted its firearmsenforcement efforts to the apprehension, upon technical malum prohibitum charges, of individualswho lack all criminal intent and knowledge. Agents anxious to generate an impressive arrest and gunconfiscation quota have repeatedly enticed gun collectors into making a small number ofsales—often as few as four—from their personal collections. Although each of the sales wascompletely legal under state and federal law, the agents then charged the collector with having"engaged in the business" of dealing in guns without the required license. Since existing law permitsa felony conviction upon these charges even where the individual has no criminal knowledge orintent numerous collectors have been ruined by a felony record carrying a potential sentence of fiveyears in federal prison. Even in cases where the collectors secured acquittal, or grand juries failedto indict, or prosecutors refused to file criminal charges, agents of the Bureau have generallyconfiscated the entire collection of the potential defendant upon the ground that he intended to use

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it in that violation of the law. In several cases, the agents have refused to return the collection evenafter acquittal by jury.

The defendant, under existing law is not entitled to an award of attorney's fees, therefore,should he secure return of his collection, an individual who has already spent thousands of dollarsestablishing his innocence of the criminal charges is required to spend thousands more to civillyprove his innocence of the same acts, without hope of securing any redress. This, of course, hasgiven the enforcing agency enormous bargaining power in refusing to return confiscated firearms.Evidence received by the Subcommittee on the Constitution demonstrated that Bureau agents havetended to concentrate upon collector's items rather than "criminal street guns". One witnessappearing before the Subcommittee related the confiscation of a shotgun valued at $7,000. Even theBureau's own valuations indicate that the value of firearms confiscated by their agents is over twicethe value which the Bureau has claimed is typical of "street guns" used in crime. In recent months,the average value has increased rather than decreased, indicating that the reforms announced by theBureau have not in fact redirected their agents away from collector's items and toward guns used incrime.

The Subcommittee on the Constitution has also obtained evidence of a variety of othermisdirected conduct by agents and supervisors of the Bureau. In several cases, the Bureau has soughtconviction for supposed technical violations based upon policies and interpretations of law whichthe Bureau had not published in the Federal Register, as required by 5 U.S.C. § 552. For instance,beginning in 1975, Bureau officials apparently reached a judgment that (pg.22) a dealer who sells toa legitimate purchaser may nonetheless be subject to prosecution or license revocation if he knowsthat that individual intends to transfer the firearm to a nonresident or other unqualified purchaser.This position was never published in the Federal Register and is indeed contrary to indicationswhich Bureau officials had given Congress, that such sales were not in violation of existing law.Moreover, BATF had informed dealers that an adult purchaser could legally buy for a minor, barredby his age from purchasing a gun on his own. BATF made no effort to suggest that this wasapplicable only where the barrier was one of age. Rather than informing the dealers of thisdistinction, Bureau agents set out to produce mass arrests upon these "straw man" sale charges,sending out undercover agents to entice dealers into transfers of this type. The first major use ofthese charges, in South Carolina in 1975, led to 37 dealers being driven from business, manyconvicted on felony charges. When one of the judges informed Bureau officials that he felt dealershad not been fairly treated and given information of the policies they were expected to follow, andrefused to permit further prosecutions until they were informed, Bureau officials were careful toinform only the dealers in that one state and even then complained in internal memoranda that thiswas interfering with the creation of the cases. When BATF was later requested to place a warningto dealers on the front of the Form 4473, which each dealer executes when a sale is made, it insteadchose to place the warning in fine print upon the back of the form, thus further concealing it fromthe dealer's sight.

The Constitution Subcommittee also received evidence that the Bureau has formulated arequirement, of which dealers were not informed that requires a dealer to keep official records ofsales even from his private collection. BATF has gone farther than merely failing to publish thisrequirement. At one point, even as it was prosecuting a dealer on this charge (admitting that he hadno criminal intent), the Director of the Bureau wrote Senator S. I. Hayakawa to indicate that therewas no such legal requirement and it was completely lawful for a dealer to sell from his collectionwithout recording it. Since that date, the Director of the Bureau has stated that that is not theBureau's position and that such sales are completely illegal; after making that statement, however,

124


he was quoted in an interview for a magazine read primarily by licensed firearms dealers as statingthat such sales were in fact legal and permitted by the Bureau. In these and similar areas, the Bureauhas violated not only the dictates of common sense, but of 5 U.S.C. Sec 552, which was intendedto prevent "secret lawmaking" by administrative bodies.

These practices, amply documented in hearings before this Subcommittee, leave little doubtthat the Bureau has disregarded rights guaranteed by the constitution and laws of the United States.

It has trampled upon the second amendment by chilling exercise of the right to keep and beararms by law-abiding citizens.

It has offended the fourth amendment by unreasonably searching and seizing privateproperty.(pg.23)

It has ignored the Fifth Amendment by taking private property without just compensationand by entrapping honest citizens without regard for their right to due process of law.

The rebuttal presented to the Subcommittee by the Bureau was utterly unconvincing. RichardDavis, speaking on behalf of the Treasury Department, asserted vaguely that the Bureau's prioritieswere aimed at prosecuting willful violators, particularly felons illegally in possession, and atconfiscating only guns actually likely to be used in crime. He also asserted that the Bureau hasrecently made great strides toward achieving these priorities. No documentation was offered foreither of these assertions. In hearings before BATF's Appropriations Subcommittee, however, expertevidence was submitted establishing that approximately 75 percent of BATF gun prosecutions wereaimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed byagents into unknowing technical violations. (In one case, in fact, the individual was being prosecutedfor an act which the Bureau's acting director had stated was perfectly lawful.) In those hearings,moreover, BATF conceded that in fact (1) only 9.8 percent of their firearm arrests were brought onfelons in illicit possession charges; (2) the average value of guns seized was $116, whereas BATFhad claimed that "crime guns" were priced at less than half that figure; (3) in the months followingthe announcement of their new "priorities", the percentage of gun prosecutions aimed at felons hadin fact fallen by a third, and the value of confiscated guns had risen. All this indicates that theBureau's vague claims, both of focus upon gun-using criminals and of recent reforms, are emptywords.

In light of this evidence, reform of federal firearm laws is necessary to protect the most vitalrights of American citizens. Such legislation is embodied in S. 1030. That legislation would requireproof of a willful violation as an element of a federal gun prosecution, forcing enforcing agenciesto ignore the easier technical cases and aim solely at the intentional breaches. It would restrictconfiscation of firearms to those actually used in an offense, and require their return should theowner be acquitted of the charges. By providing for award of attorney's fees in confiscation cases,or in other cases if the judge finds charges were brought without just basis or from impropermotives, this proposal would be largely self-enforcing. S. 1030 would enhance vital protection ofconstitutional and civil liberties of those Americans who choose to exercise their SecondAmendment right to keep and bear arms.

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Second Amendment A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fourteenth Amendment, Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Instruction 7.600

Revised January 2013 CARRYING A FIREARM

POSSESSION OF A FIREARM WITHOUT A LICENSE

OUTSIDE HOME OR BUSINESS

The offense found in G.L. c. 269, § 10(a) is commonly referred to as “carrying” a firearm, to

distinguish it from the offense of “possession” of a firearm without a firearm ID card, found in § 10(h).

The name is no longer really accurate, since St. 1990, c. 511 (effective January 2, 1991) eliminated

movement of the firearm as an element of § 10(a).

I. FIREARM WITH BARREL UNDER 16 INCHES

The defendant is charged under section 10(a) of chapter 269 of our

General Laws with knowingly possessing a firearm unlawfully.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following (three) (four) things beyond a

reasonable doubt:

First: That the defendant possessed a firearm (or) (that he [she] had

a firearm under his [her] control in a vehicle);

Second: That what the defendant (possessed) (or) (had under his

[her] control in a vehicle) met the legal definition of a “firearm”; (and)

Third: That the defendant knew that he (she) (possessed a firearm)

(or) (had a firearm under his [her] control in a vehicle).

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Instruction 7.600 Page 2

CARRYING A FIREARM Revised January 2013

If there is evidence of one of the statutory exceptions, use one of the following:

A. If there is evidence that it was in the defendant’s residence or place of business.

and Fourth: that the defendant possessed the firearm outside

of his (her) residence or place of business. A person’s

“residence” or “place of business” does not include common

areas of an apartment or office building, but only areas that are

under that person’s exclusive control.

B. If there is evidence that the defendant had a license to carry firearms.

and Fourth: that the defendant did not have a valid license to

possess a firearm outside his (her) home or office.

C. If there is evidence that the defendant was exempt from the licensing requirement.

and Fourth: that the defendant did not qualify for one of the

exemptions in the law that are a substitute for having a license

to possess a firearm outside his (her) home or business.

The statute exempts a defendant who:

“(1) [was] present in or on his residence or place of business; or

(2) [had] in effect a license to carry firearms issued under [G.L. c. 140, § 131]; or

(3) [had] in effect a license to carry firearms issued under [G.L. c. 140, § 131F to a

nonresident or alien]; or

(4) [had] complied with the provisions of [G.L. c. 140, §§ 129C and 131G, granting

certain categorical exemptions from the requirement of a license to carry];

or

(5) [had] complied as to possession of an air rifle or BB gun with the requirements

imposed by [G.L. c. 269, § 12B].”

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Instruction 7.600


General Laws c. 278, § 7 places on the defendant the burden of producing evidence

of one of these exemptions; the Commonwealth must then disprove beyond a

reasonable doubt the applicability of the claimed exemption. Until there is such

evidence, the exemptions are not at issue. Commonwealth v. Seay, 376 Mass. 735,

738, 383 N.E.2d 828, 830 (1978) (former statute); Commonwealth v. Jones, 372

Mass. 403, 406-407, 361 N.E.2d 1308, 1310-1311 (1977) (same); Commonwealth

v. Davis, 359 Mass. 758, 270 N.E.2d 925 (1971) (same); Commonwealth v. Baker,

10 Mass. App. Ct. 852, 853, 407 N.E.2d 398, 399 (1980) (lack of license need not

be charged in complaint).

A “firearm” is defined in our law as:

“a pistol, revolver or other weapon . . . loaded or unloaded,

from which a shot or bullet can be discharged

and . . . the length of [whose] barrel

is less than sixteen inches . . . .”

That definition can be broken down into three requirements: First, it

must be a weapon; Second, it must be capable of discharging a shot or

bullet; and Third, it must have a barrel length of less than 16 inches. The

term “barrel length” refers to “that portion of a firearm . . . through which a

shot or bullet is driven, guided or stabilized, and [includes] the chamber.”

G.L. c. 140, § 121. Commonwealth v. Williams, 422 Mass. 111, 120, 661 N.E.2d 617, 624 (1996) (not

necessary that firearm be loaded); Commonwealth v. Bartholomew, 326 Mass. 218, 219, 93 N.E.2d

551, 552 (1950) (same); Commonwealth v. Tuitt, 393 Mass. 801, 810, 473 N.E.2d 1103, 1110 (1985)

(jury can determine from inspection that “firearm”); Commonwealth v. Fancy, 349 Mass. 196, 204,

207 N.E.2d 276, 282 (1965) (same); Commonwealth v. Sampson, 383 Mass. 750, 753, 422 N.E.2d

450, 452 (1981); Commonwealth v. Sperrazza, 372 Mass. 667, 670, 363 N.E.2d 673, 675 (1977)

(testimony about “revolver” or “handgun” will support inference that barrel was under 16 inches).

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ToIf the firearm may have been “under [the defendant’s] control in a vehicle.”

establish that a firearm was under the defendant’s “control” in a

vehicle, it is not enough for the Commonwealth just to prove

that the defendant was present in the same vehicle as the

firearm. The Commonwealth must also prove that the defendant

knew that the firearm was there, and that the defendant had both

the ability and the intention to exercise control over the firearm,

although this did not have to be exclusive control.

See Instruction 3.220 (Possession).

W here the issue is constructive possession rather than actual physical possession,

the Commonwealth must prove that “in addition to knowledge and the ability to

exercise control over the firearm, the defendant must have the intention to do so.”

Commonwealth v. Costa, 65 Mass. App. Ct. 227, 838 N.E.2d 592 (2005);

Commonwealth v. Sann Than, 442 Mass. 755, 748, 817 N.E.2d 705 (2004).

Commonwealth v. Brown, 401 Mass. 745, 519 N.E.2d 1291 (1988); Commonwealth

v. Bailey, 29 Mass. App. Ct. 1007, 563 N.E.2d 1378 (1990); Commonwealth v. Diaz,

15 Mass. App. Ct. 469, 471-472, 446 N.E.2d 415, 416-417 (1983); Commonwealth

v. Gray, 4 Mass. App. Ct. 296, 299, 362 N.E.2d 543, 545 (1977); Commonwealth v.

Mott, 2 Mass. App. Ct. 47, 53-54, 308 N.E.2d 557, 561-562 (1974).

As I mentioned before, the Commonwealth must prove beyond a

reasonable doubt that the defendant knew that he (she) (possessed this

item) (or) (had this item under his [her] control in a vehicle), and also knew

that the item was a “firearm,” within the common meaning of that term. If it

was a conventional firearm, with its obvious dangers, the Commonwealth

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Instruction 7.600


is not required to prove that the defendant knew that the item met the legal

definition of a firearm.

See Instruction 3.140 (Knowledge).

Commonwealth v. Sampson, 383 Mass. 750, 762, 422 N.E.2d 450, 457 (1981); Commonwealth v.

Bacon, 374 Mass. 358, 359, 372 N.E.2d 780, 781 (1978) (knowledge need not be alleged in

complaint); Commonwealth v. Jackson, 369 Mass. 904, 916-917, 344 N.E.2d 166, 174 (1976);

Commonwealth v. Boone, 356 Mass. 85, 87, 248 N.E.2d 279, 280 (1969) (“control” in vehicle requires

knowledge); Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988, 459 N.E.2d 128, 128-129

(1984).

II. RIFLE OR SHOTGUN

The defendant is charged under section 10(a) of chapter 269 of our

General Laws with knowingly possessing a rifle or shotgun unlawfully.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following (three) (four) things beyond a

reasonable doubt:

First: That the defendant possessed a rifle or shotgun (or) (that he

[she] had a rifle or shotgun under his [her] control in a vehicle);

Second: That what the defendant (possessed) (or) (had under his

[her] control in a vehicle) met the legal definition of a “rifle” or a

“shotgun”; (and)

Third: That the defendant knew that he (she) (possessed a rifle or

131




shotgun) (or) (had a rifle or shotgun under his [her] control in a vehicle.


A. If there is evidence that it was in the defendant’s residence or place of business.

and Fourth: that the defendant possessed the rifle or shotgun

outside of his (her) residence or place of business. A person’s

“residence” or “place of business” does not include common

areas of an apartment or office building, but only areas that are

under that person’s exclusive control.

B. If there is evidence that the defendant had a license to carry firearms.

and Fourth: that the defendant did not have a valid license to

carry a firearm.

C. If there is evidence that the defendant was exempt from the licensing requirement.

and Fourth: that the defendant did not qualify for one of the

exemptions in the law that are a substitute for having a license

to carry a firearm.

See notes to I, above.

A “rifle” is defined in our law as:

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Instruction 7.600


“a weapon having a rifled bore

with a barrel length equal to or greater than sixteen inches,

capable of discharging a shot or bullet

for each pull of the trigger.”

A “shotgun” is defined as:

“a weapon having a smooth bore

with a barrel length equal to or greater than eighteen inches

with an overall length equal to or greater than twenty-six inches,

capable of discharging a shot or bullet

for each pull of the trigger.”

The term “barrel length” refers to “that portion of a firearm . . .

through which a shot or bullet is driven, guided or stabilized, and

[includes] the chamber.”

G.L. c. 140, § 121.

If the rifle or shotgun may have been “under [the defendant’s] control in a vehicle.”

To establish that a rifle or shotgun was under the defendant’s

“control” in a vehicle, it is not enough for the Commonwealth

just to prove that the defendant was present in the same vehicle

133




as the rifle or shotgun. The Commonwealth must also prove

that the defendant knew that the rifle or shotgun was there, and

that the defendant had both the ability and the intention to

exercise control over the rifle or shotgun, although this did not

have to be exclusive control.



reasonable doubt that the defendant knew that he (she) (possessed this

item) (or) (had this item under his [her] control in a vehicle), and also knew

that the item was a “rifle” or “shotgun” within the common meaning of that

term. If it was a conventional rifle or shotgun, with its obvious dangers,

the Commonwealth is not required to prove that the defendant knew that

the item met the legal definition of a rifle or shotgun.


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Instruction 7.600


SUPPLEMENTAL INSTRUCTIONS

A weapon that was originally a1. Non-firing firearm, rifle or shotgun.

(firearm) (rifle or shotgun) may become so defective or damaged

that it will no longer fire a projectile, and then the law no longer

considers it to be a (firearm) (rifle or shotgun). But a weapon

remains a (firearm) (rifle or shotgun) within the meaning of the

law when a slight repair, replacement or adjustment will again

make it an effective weapon.

Commonwealth v. Colton, 333 Mass. 607, 608, 132 N.E.2d 398, 398 (1956)

(insertion of ammo clip); Bartholomew, 326 Mass. at 220, 93 N.E.2d at 552 (insertion

of firing pin); Commonwealth v. Raedy, 24 Mass. App. Ct. 648, 652-656, 512 N.E.2d

279, 282-284 (1987) (jury question whether gun that could be fired if inverted was

“firearm”; judge who distinguishes between “major” and “minor” repairs need not

instruct that Commonwealth must prove that this particular defendant had ability and

knowledge to repair gun); Commonwealth v. Rhodes, 21 Mass. App. Ct. 968, 969-

970, 489 N.E.2d 216, 217 (1986) (not a firearm where bent part rendered inoperable

until repaired). See Commonwealth v. Gutierrez, 82 Mass. App. Ct. 1118, 977

N.E.2d 105 (No. 11-P-1612, October 25, 2012) (unpublished opinion under Appeals

Ct. Rule 1:28) (noting objective “slight repair” standard for operability of firearm).

A “firearms identification card” is2. Firearms identification card.

not the same thing as a “license to carry a firearm.” When a

person has a valid firearms identification card, that card gives

him the right to possess a firearm within his residence or place

of business. But it does not give him the right to possess it

135




outside of his (her) home or business, which requires a license

to possess a firearm.

G.L. c. 140, §§ 129B-129D. A firearms identification card is a defense to a charge

of carrying a rifle or shotgun, but not other firearms. G.L. c. 269, § 10(a).

Merely being present in a motor3. Passenger in vehicle.

vehicle in which a (firearm) (rifle or shotgun) is found is not

sufficient by itself to permit an inference that the person knew

about the presence of the (firearm) (rifle or shotgun) without

other indications of knowledge.

Commonwealth v. Albano, 373 Mass. 132, 134-136, 365 N.E.2d 808, 810-811 (1977)

(gun in plain view; defendant acted suspiciously); Commonwealth v. Bailey, 29 Mass.

App. Ct. 1007, 563 N.E.2d 1378 (1990) (gun in plain view near defendant’s feet; car

had been broken into; attempted escape); Commonwealth v. Lucido, 18 Mass. App.

Ct. 941, 943, 467 N.E.2d 478, 480 (1984) (gun in glove compartment with

defendant’s personal letters); Commonwealth v. Montgomery, 23 Mass. App. Ct.

909, 910, 499 N.E.2d 853, 854 (1986) (gun on defendant’s side of auto and

defendant had appropriate ammo clip); Commonwealth v. Donovan, 17 Mass. App.

Ct. 83, 85-86, 455 N.E.2d 1217, 1219 (1983) (gun under seat of borrowed auto

surrounded by defendant’s acknowledged property); Diaz, supra (gun in plain view

on floor in front of defendant). Compare Commonwealth v. Brown, 401 Mass. 745,

519 N.E.2d 1291 (1988) (insufficient to prove defendant drove stolen car, in which

guns were found under passenger seat and both occupants bent forward in unison

when stopped); Commonwealth v. Almeida, 381 Mass. 420, 422-423, 409 N.E.2d

776, 778 (1980) (insufficient to prove gun inside console of borrowed auto);

Commonwealth v. Boone, 356 Mass. 85, 87, 248 N.E.2d 279, 280 (1969)

(insufficient to prove defendant a passenger in an auto with a gun under a seat);

Commonwealth v. Hill, 15 Mass. App. Ct. 93, 94-97, 443 N.E.2d 1339, 1340-1341

(1983) (insufficient to prove gun inside woman’s purse at male passenger’s feet).

You have heard some reference4. Absence of evidence of license.

to (a license to carry a firearm) (a legal exemption from the

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Instruction 7.600


requirement of a license to carry a firearm). There was no

evidence in this case that the defendant had a license to carry a

firearm, and no evidence that the defendant qualified for one of

the legal exemptions that are a substitute for having such a

license. For that reason, the issue of a license or exemption is

not relevant to your deliberations in this case, and therefore you

should put it out of your mind.

This instruction is recommended only when there has been some reference to, but

not evidence of, such a license or exemption in the jury’s presence.

You have heard some5. Knowledge of licensing requirement.

mention that the defendant did not know that he (she) was

required to have a license before carrying a firearm under these

circumstances. The Commonwealth is not required to prove that

the defendant knew that the law required him (her) to have a

license before (possessing a firearm) (or) (having a firearm

under his [her] control in a vehicle) outside of his (her) home or

place of business.

This instruction is recommended only when it is necessary to correct such a

misimpression.

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NOTES:

1. Elements. “To sustain a conviction under G.L. c. 269, § 10(a), the Commonwealth must prove that

the defendant knowingly possessed a firearm without either being present in his residence or place of business or

having in effect a license to carry firearms or [in the case of a rifle or shotgun] a firearm identification card. The

Commonwealth must prove that the gun the defendant possessed met the definition of a working firearm set forth in

G.L. c. 140, § 121, that is, that it had a barrel less than sixteen inches long [or was a rifle or shotgun] and was capable

of discharging a bullet.” Commonwealth v. White, 452 Mass. 133, 136, 891 N.E.2d 675, 678 (2008).

2. Air rifles and BB guns. In decisions under the earlier version of G.L. c. 269, § 10(a), air guns, BB

2guns and CO guns were held to be regulated solely by G.L. c. 269, § 12B and not by § 10(a). Commonwealth v.

Fenton, 395 Mass. 92, 94-95, 478 N.E.2d 949, 950-951 (1985); Commonwealth v. Rhodes, 389 Mass. 641, 644, 451

N.E.2d 1151, 1153 (1983). The current text of § 10(a) applies to anyone who carries “a firearm . . . without . . . having

complied as to possession of an air rifle or BB gun with the requirements imposed by [§ 12B].” Thus, compliance with

§ 12B is a defense to a prosecution under § 10(a), just as the possession of a firearm license would be.

Commonwealth v. Sayers, 438 Mass. 238, 240, 780 N.E.2d 24, 26 (2002).

3. Ballistics certificate. “A certificate by a ballistics expert of the firearms identification section of the

department of public safety or of the city of Boston of the result of an examination made by him of an item furnished

him by any police officer, signed and sworn to by such expert, shall be prima facie evidence of his findings as to

whether or not the item furnished is a firearm, rifle, shotgun, machine gun, sawed off shotgun or ammunition, as

defined by [G.L. c. 140, § 121], provided that in order to qualify as an expert under this section he shall have previously

qualified as an expert in a court proceeding.” G.L. c. 140, § 121A. The certificate’s prima facie effect must be put to

the jury in permissive terms. Commonwealth v. Crawford, 18 Mass. App. Ct. 911, 912, 463 N.E.2d 1193, 1194 (1984).

See Instruction 3.260 (Prima Facie Evidence).

The admission of such a certificate is the "record of a primary fact made by a public officer in the performance

of [an] official duty" that raises no Confrontation Clause problem under Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354 (2004). Commonwealth v. Morales, 71 Mass. App. Ct. 587, 884 N.E.2d 546 (2008).

4. Constitutionality. The one-year mandatory sentencing provision of § 10(a) is constitutional.

Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d 166 (1976).

5. Flare guns. A flare gun is not a “firearm” for purposes of G.L. c. 269, § 10(a). Sampson, 383 Mass.

at 753-761, 422 N.E.2d at 452-456.

6. Necessity defense. The Supreme Judicial Court has assumed that a threat of death or serious injury,

if it is direct and immediate, may excuse momentary carrying of a firearm. Commonwealth v. Lindsey, 396 Mass. 840,

843-845, 489 N.E.2d 666, 668-669 (1986). See Commonwealth v. Iglesia, 403 Mass. 132, 135-136, 525 N.E.2d 1332,

1333-1334 (1988); Commonwealth v. Franklin, 376 Mass. 885, 888 n.2, 385 N.E.2d 227, 230 n.2 (1978). See

Instruction 9.240 (Necessity or Duress).

7. Notice of affirmative defense. Massachusetts R. Crim. P. 14(b)(3) requires a defendant who intends

to rely upon a defense based upon a license, a claim of authority or ownership, or exemption to file an advance notice

of such defense with the prosecutor and the clerk-magistrate. The rule provides that if the defendant does not comply

with that requirement, the defendant may not rely upon such a defense. The judge may allow late filing of the notice,

order a continuance, or make other appropriate orders.

8. Notice of license revocation. See Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767,

773, 774, 716 N.E. 2d 652, 656 (1999) (proving notice of license revocation by certified mail requires proof of receipt);

Commonwealth v. Hampton, 26 Mass. App. Ct. 938, 940, 525 N.E.2d 1341, 1343 (1988) (defendant who purposefully

or wilfully evaded notice of license revocation sent by certified mail had constructive notice of license revocation).

9. Probable cause. Possession of a firearm, standing alone and without indication that the person was

involved in criminal activity, does not provide probable cause to believe that the person was unlicensed to carry that

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Instruction 7.600


firearm. Commonwealth v. Couture, 407 Mass. 178, 552 N.E.2d 538, cert. denied, 498 U.S. 951, 111 S.Ct. 372

(1990). However, additional evidence of criminal activity and flight would provide such probable cause.

Commonwealth v. Brookins, 416 Mass. 97, 104, 617 N.E.2d 621, 625 (1993).

10. “Residence.” See Commonwealth v. Coren, 437 Mass. 723, 734, 774 N.E.2d 623, 632 (2002)

(defining “residence” to include “all areas in and around a defendant’s property, including outside areas, over which

defendant retains exclusive control,” but not including “public streets, sidewalks, and common areas to which

occupants of multiple dwellings have access”); Commonwealth v. Dunphy, 377 Mass. 453, 458-460, 386 N.E.2d 1036,

1039-1040 (1979) (jury issue whether backyard was common area); Commonwealth v. Morales, 14 Mass. App. Ct.

1034, 1035, 442 N.E.2d 740, 741 (1982) (jury issue whether area was a common area to which other occupants or

owner had access); Commonwealth v. Domingue, 18 Mass. App. Ct. 987, 990, 470 N.E.2d 799, 802 (1984) (defendant

privileged to carry at place of business); Commonwealth v. Samaras, 10 Mass. App. Ct. 910, 910, 410 N.E.2d 743,

744 (1980) (no privilege to carry on sidewalk in front of defendant’s house).

139


Instruction 7.620

Revised June 2016 POSSESSION OF A FIREARM

POSSESSION OF A FIREARM

G.L. c. 269, § 10(h)

The defendant is charged with unlawfully possessing a firearm. In

order to prove the defendant guilty of this offense, the Commonwealth

must prove (three) (four) things beyond a reasonable doubt:

First: That the defendant possessed an item;

Second: That the item meets the legal definition of a “firearm”; (and)

Third: That the defendant knew that (he) (she) possessed that

firearm.


And Fourth: A. If there is evidence that the defendant had a firearm ID card.

That the defendant did not have a valid firearm ID card.

And Fourth: ThatB. If there is evidence that the defendant was exempt.

the defendant did not qualify for one of the exemptions in the

law that are a substitute for having a valid firearm ID card.

See Instruction 3.160 (License or Authority).

G.L. c. 278, § 7; Commonwealth v. Jones, 372 Mass. 403, 406-07 (1977). The

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POSSESSION OF A FIREARM Revised June 2016

issuance of firearm identification cards is governed by G.L. c. 140, §§ 129B-129D.

Section 129B also lists a number of exemptions from the requirement of a firearms

identification card. See also Op. A.G. No. 86/87-4 (Oct. 31, 1986) (18 U.S.C. § 926A

provides a defense to a charge under § 10[h] for a non-resident traveling through the

Commonwealth with an unloaded and inaccessible handgun who is in compliance

with the firearms laws of the states of origin and destination).

Here define "possession" (Instruction 3.220).

A “firearm” is defined in our law as:

“a pistol, revolver or other weapon . . .

loaded or unloaded,

from which a shot or bullet can be discharged

and . . . the length of [whose] barrel is less than sixteen inches.”

That definition can be broken down into three requirements: First, it

must be a weapon; Second, it must be capable of discharging a shot or

bullet; and Third, it must have a barrel length of less than 16 inches. The

term “barrel length” refers to “that portion of a firearm . . . through which a

shot or bullet is driven, guided or stabilized, and [includes] the chamber.”

G.L. c. 140, § 121; Commonwealth v. Sampson, 383 Mass. 750, 753 (1981); see Commonwealth v.

Tuitt, 393 Mass. 801, 810 (1985) (jury can determine from inspection that a weapon admitted into

evidence is a “firearm”); Commonwealth v. Fancy, 349 Mass. 196, 204 (1965) (same);

Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977) (testimony about “revolver” or “handgun”

will support inference that barrel was under 16 inches); Commonwealth v. Bartholomew, 326 Mass.

218, 219 (1950) (not necessary that firearm be loaded).

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Instruction 7.620



reasonable doubt that the defendant knew that (he) (she) (possessed this

item) (or) (had this item under [his] [her] control in a vehicle), and also

knew that the item was a “firearm,” within the common meaning of that

term. If it was a conventional firearm, with its obvious dangers, the

Commonwealth is not required to prove that the defendant knew that the

item met the legal definition of a firearm.

See Instruction 3.140 (Knowledge).

General Laws c. 269, § 10(h) punishes “own[ing]” or “transfer[ring]” possession as well as possession,

and is applicable to a “rifle, shotgun or ammunition” as well as a firearm. In cases with such fact

patterns, the model instruction may be adapted accordingly. See G.L. c. 140, § 121 for definitions

of “rifle,” “shotgun,” and “ammunition.”

Commonwealth v. Sampson, 383 Mass. 750, 762 (1981); Commonwealth v. Bacon, 374 Mass. 358,

359 (1978) (knowledge need not be alleged in the charging document); Commonwealth v. Jackson,

369 Mass. 904, 916-17 (1976) (knowledge must be proved); Commonwealth v. Boone, 356 Mass.

85, 87 (1969) (same); see Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-88 (1984) (defendant

need not know that the firearm met the legal definition).

SUPPLEMENTAL INSTRUCTIONS

You have heard some1. Absence of evidence of firearm ID card.

reference to (a firearm ID card) (a legal exemption from the

requirement of a firearm ID card). There was no evidence in this

case that the defendant had a firearm ID, and no evidence that

142




the defendant qualified for one of the legal exemptions that are a

substitute for having a firearm ID card. For that reason, the

issue of a firearm ID card or exemption is not relevant to your

deliberations in this case, and therefore you should put it out of

your mind.

This instruction is recommended only when, in the jury’s presence, there has been

some reference to, but not evidence of, a firearm ID card or exemption.

You have heard some2. Knowledge of firearm ID card requirement.

mention that the defendant did not know that (he) (she) was

required to have a firearm ID card before possessing a firearm.

The Commonwealth is not required to prove that the defendant

knew that the law required (him) (her) to have a firearm ID card

before (possessing a firearm) (or) (having a firearm under [his]

[her] control in a vehicle).

This instruction is recommended only when it is necessary to correct such a

misimpression.

One of the exemptions to the requirement3. Expired licensed.

of a valid firearm ID card provided by law is for certain persons

with an expired firearm ID card. This exemption is intended to

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Instruction 7.620


exempt from criminal punishment persons whose licenses became

invalid inadvertently but who would otherwise not be disqualified

from holding a valid license.

The defendant is entitled to this exemption if (his) (her)

license to carry was expired and (he) (she) had not been notified

of any revocation or suspension of the license, or pending

revocation or suspension of the license, or denial of a renewal

application. The Commonwealth has the burden to establish

beyond a reasonable doubt that the exemption does not apply. To

prove this, the Commonwealth must prove beyond a reasonable

doubt one of the following things:

One, that the defendant never had a valid firearm ID card;

Two, that the defendant had been notified that the license

was revoked or suspended or that revocation or suspension was

pending, and that the revocation or suspension was not because

of failure to provide a change of address; or

Three, that the defendant had been notified of the denial of an

application to renew (his) (her) firearm ID card.

144




G.L. c. 140, § 131(m); Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 716-17

(2015). The mere production of an expired license is insufficient to warrant this

instruction, but testimony that the defendant had never applied to renew the license,

had never received notice of denial, and had never received notice of revocation or

suspension entitles a defendant to the instruction. Indrisano, 87 Mass. App. Ct. at

714.

NOTES:

1. Possession of a firearm (§ 10[h]) as a lesser included offense of carrying a firearm (§ 10[a]). Prior to

1991, possession of a firearm (§ 10[h]) was a lesser included offense of carrying a firearm (§ 10[a]). See

Commonwealth v. Nessolini, 19 Mass. App. Ct. 1016, 1016 (1985). Stat. 1990, c. 511 (effective January 2, 1991)

amended § 10(h) to provide that “[a] violation of this subsection shall not be considered a lesser included offense to

a violation of subsection (a) nor shall any one prosecute as a violation of [§ 10(h)] the mere possession of a firearm,

rifle, or shotgun by an unlicensed person not being present in or on his residence or place of business, nor shall the

court allow an attempt to so prosecute.” However, this provision was deleted when the statute was rewritten by St.

1998, c. 180, § 69 (effective October 21, 1998).

2. Non-firing firearm. See the first supplemental instruction to Instruction 7.600 (Carrying a Firearm).

3. Passenger in vehicle. See the third supplemental instruction to Instruction 7.600 (Carrying a Firearm).

145


Mass. G. Evid., § 403. Excluding relevant evidence for prejudice, confusion, waste of t ime, or other reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

146


12/22/10 Non-Resident Application Cover Letter

RE: Application for Non-resident Temporary License to Carry Firearms Dear Applicant: All new and renewal non-resident temporary licenses to carry firearms (LTC) in Massachusetts are issued through the Massachusetts Instant Record Check System (MIRCS). MIRCS is a computer based application used to manage, process and monitor firearms licensing statewide. To complete the application process, you must appear in person at the following:

Dept. of Criminal Justice Information Services

Firearms Records Bureau 200 Arlington Street

Chelsea, MA 02150 You will receive a notice by mail or email with your scheduled date and time to appear for final LTC processing in Chelsea, MA. Appointments will be scheduled in the order that completed applications are received and are typically scheduled within 60 days from the date of receipt. The FRB recommends that all applicants apply for renewal at least 90 days before their current license expires to allow time for processing. Please pay close attention to the enclosed updated application instructions and complete the application accurately. A mistake on the application will result in a delay in the application process or a denial of the application. Additionally, please take note of the enclosed explanation of applicable license restrictions. Thank you,

Michaela Dunne Director of the Firearms Records Bureau

147


12/22/10 Non-Resident Application Restriction Information

TO: Applicant

RE: Restrictions for Non-resident Temporary License to Carry Firearms The Firearms Records Bureau (FRB) may apply certain restrictions on a non-resident temporary license to carry firearms. These restrictions detail the terms and conditions that govern the possession of a firearm under the license pursuant to G.L. c. 140, §131F. The following restrictions may be applied to a non-resident temporary license to carry firearms:

NONE – the LTC is issued for all lawful purposes with no restrictions. Applicant must show good reason to fear injury to his person or property. EMPLOYMENT – restricts possession to business owner engaged in business activities or to an employee while engaged in work related activities, and maintaining proficiency, where the employer requires carry of a firearm (i.e. armored car, security guard, etc.). Includes travel to and from activity location.

TARGET & HUNTING – restricts possession to the purpose of lawful recreational shooting or competition; for use in the lawful pursuit of game animals and birds; for personal protection in the home; and for the purpose of collecting (other than machine guns). Includes travel to and from activity location SPORTING – restricts possession to the purpose of lawful recreational shooting or competition; for use in the lawful pursuit of game animals and birds; for personal protection in the home; for the purpose of collecting (other than machine guns); and for outdoor recreational activities such as hiking, camping, cross country skiing, or similar activities. Includes travel to and from activity location. NO CARRY OUTSIDE RESTRICTION – allows possession of a firearm in MA provided the firearm is unloaded and locked in a container; licensee may possess and use firearm during restricted activity (employment, target, hunting, sporting) and during travel to and from activity location.

Restrictions are based upon the information provided in the license application. Please ensure that you provide a detailed reason for requesting the issuance of a license in Massachusetts. Include information regarding how and where you intend to possess or use a firearm and your knowledge and training in Massachusetts firearms laws. If you have any further questions please feel free to contact the FRB at (617) 660-4782.

148


12/22/10 Non-Resident Application Instructions

Non-Resident Application Instructions

Non-Refundable Application Fee: $100.00 Valid: 1 year, unless issued for employment (see #8) The following items must be received and applications must be complete before you will contacted by FRB staff to set up an appointment for final LTC processing in Chelsea, MA:

1. Fee: Only bank or postal money orders and certified checks made payable to "Commonwealth of Massachusetts" will be accepted as payment. The non-refundable application fee is one hundred dollars ($100). Cash or personal check(s) are unacceptable and if received, the application package will be returned to you.

2. Photocopy of Home State License to Carry Firearms: All applicants must submit a photocopy of both sides of

their home state license to carry firearms. If your home state does not issue firearms licenses, please submit notarized documentation confirming this fact, along with a letter from their local Police Chief (see below).

a. Letter from the Police Chief: Applicants who reside in states that do not require a resident to obtain a

firearm permit must submit a recent letter from the police chief in the community where he or she resides which either attests to the applicants good character, or states whether or not the police department is aware of any local action that would prevent issuance of a license to carry a firearm. If your community does not have a police chief, a letter from any police authority which has jurisdiction in your community is acceptable.

3. Report of Home State Criminal History Record: All applicants from Louisiana, Washington D.C., and any

American Territory (American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands) must provide a home state record check.

First time applicants from New York must submit an additional fingerprint card and money order that the DCJIS will submit directly to the NY Bureau of Criminal Records (please call FRB to request the additional forms). Residents from all other states are exempt from this requirement.

4. Firearms Safety Course: First time applicants must submit a copy of a recent certificate showing completion of

a basic firearm safety course given in their home state or in Massachusetts. This course must have been taken with an instructor who is certified by the Colonel of the Massachusetts State Police (please ask your instructor prior to taking the course if he is certified in Massachusetts). A certificate issued by the Commonwealth’s Division Fisheries and Wildlife, showing completion of a hunter education course is a valid substitute for the Firearms Safety Certificate. A safety course or certificate is not required if you:

1) Are applying for a chemical propellant only license, or 2) Held a Massachusetts non-resident LTC or Massachusetts resident LTC on or after June 1, 1998, or 3) Are authorized by a competent authority to carry or possess a weapon, and are acting within the scope

of your duties. Specifically this applies to any officer, agent or employee of the Commonwealth or any state of the United States; any member of the military or other service of any state or of the United States; and any duly authorized law enforcement officer, agent or employee of any municipality of the Commonwealth. Note that this exemption does not cover the carrying of a weapon while not on duty.

A current list of acceptable courses may be found on the State Police web site at:

http://www.state.ma.us/msp/firearms/courses.htm.

149


http://www.state.ma.us/msp/firearms/courses.htm

12/22/10 Non-Resident Application Instructions

The following are acceptable courses:

• Massachusetts Chiefs of Police Association Basic Handgun Safety Course • NRA Basic Pistol Course and Personal Protection Course • SIG Arms Academy Handgun Orientation • Smith & Wesson Academy Massachusetts Carry Permit Course

5. Photocopy of Immigration Card: Non-resident aliens and naturalized non-resident citizens only must enclose a

photocopy of their immigration card or visa (containing the alien registration number), or if applicable, a photocopy of other documents allowing lawful entry and residency in the United States. If you have been naturalized, please provide your alien registration number (ARN) and the number on your naturalization certificate.

6. Home Address: All applicants must complete the information for street, city/town, state, and zip code. P.O. Box

numbers will not be accepted for the residential mailing address and, if received, the entire application package may be returned to the applicant.

7. Social Security Number: You are not required to include your social security number. However, providing your

social security number it may expedite the time required to complete your criminal background record check and process your license. The information given on this application is not public information.

8. Applications Submitted for Employment Purposes: Military personnel who are stationed within the territorial

boundaries of the Commonwealth or persons employed by a bank, public utility corporation, a firm engaged in the business of transferring money, or a firm licensed as a private detective agency may apply for a license which may be valid for two years. To qualify:

• Military personnel must submit a photocopy of their military ID, and have written consent from their

commanding officer. • Private detective agencies must be licensed in the Commonwealth under the provisions of MGL c. 147, as

a private detective agency, guard or patrol. A photocopy of the company’s Massachusetts license must accompany the application.

• Persons employed by a bank, public utility corporation, a firm engaged in the business of transferring

money, or a firm licensed in Massachusetts as a private detective agency, must have the application endorsed by his/her employer by submitting a letter from their employer on company letterhead indicating his or her current employment.

9. Self-addressed, stamped envelope: Used to mail the completed license.

*Applications must be complete and accurate; any inaccurate information will result in a denial of the license* The completed package should be mailed to Dept. of Criminal Justice Information Services, Attn: Firearms Records Bureau, 200 Arlington St., Suite 2200, Chelsea, MA 02150. Please note:

• All applications are initially processed through the mail, and walk-in service is not available.

• You will be contacted by mail or email in 2-3 weeks with your scheduled appointment to appear in person at the Firearms Records Bureau to complete your license application.

150


12/22/10 Non-Resident Application 1 of 3

The Commonwealth of Massachusetts Firearms Records Bureau

200 Arlington Street, Suite 2200 Chelsea, MA 02150

NON-RESIDENT APPLICATION FOR TEMPORARY LICENSE TO CARRY FIREARMS (G.L. c. 140, § 131F) Except for signature, please PRINT all requested information:

FIRST TIME APPLICANT ----à Attach a copy of your Basic Firearms Safety Course certificate

RENEWAL APPLICANT ----à Previous permit number: _____________________________

Please indicate if you would like your appointment date emailed:

YES (please include email below)

NO (you will receive a notice in the mail)

Date: ______________________

__________________________________________________________________________________________________ Last Name First Name Middle Initial Maiden Name

__________________________________________________________________________________________________ Residential Address: Street and Number City/Town State Zip Code

__________________________________________________________________________________________________ Mailing Address: Street and Number City/Town State Zip Code

__________________________________________________________________________________________________ Mass. Address: Street and Number City/Town State Zip Code

Home Phone #: __________________________________ Cell Phone #: __________________________________

Business Phone #: __________________________________ Email: __________________________________

Employer’s Name: __________________________________ Occupation: __________________________________

__________________________________________________________________________________________________Business Address: Street and Number City/Town State Zip Code Date of Birth: _______________________ Place of Birth: _________________________________________________

Social Security # (optional): _________________________ Driver’s License #: _____________________________

Mother's Maiden Name: _____________________________ Father's Name: ________________________________

Height: _________ Weight: __________ Build: _________ Complexion: __________ Hair: _________ Eyes: _______

TYPE OF LICENSE APPLYING FOR (check one): CLASS A LTC CLASS B LTC

• A class A LTC may be issued with restrictions. Please refer to the information that accompanied your application. A non-resident LTC issued by Massachusetts will be subject, at a minimum, to the same restrictions as the home state license.

• A class B LTC is issued to applicants requesting to carry chemical propellant (mace) only.

• A LTC may be ONLY be issued to a non-resident, non-citizen (alien) for the purpose of firearms competition.

151



ANSWER THE FOLLOWING QUESTIONS ACCURATELY:

1. Do you hold, or have you ever held a license to carry firearms in this or any other state or country? _______________

If "YES," when, where and license #: _____________________________________________________________

Does/did the license have restrictions, and if so what are/were they? ____________________________________

2. Are you a citizen of the United States? _______________________________________________________________

If naturalized give date, place and naturalization: ___________________________________________________

If “NO,” please provide alien registration number: ___________________________________________________

3. Have you ever used or been known by another name? ______________ If yes, provide name and explain:

______________________________________________________________________________________________ 4. In any state or federal jurisdiction have you ever been convicted as an adult or adjudicated a youthful offender or

delinquent child for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two (2) years; (c) a violent crime as defined in M.G.L. c. 140, § 121; (d) a violation of any law regulating the use, possession, ownership, sale, transfer, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances as defined in M.G.L. c. 94C, § 1? __________

5. Have you ever been arrested, or appeared in any court as a defendant for any criminal offense? (Include non-

conviction information, and exclude non-criminal traffic offenses such as speeding) __________ 6. Are you now under any charges for any offenses against the law? __________ 7. Are you now or have you ever been the subject of a restraining order under M.G.L. c. 209A, or involved in a domestic

violence charge? __________ 8. Have you ever been confined to any hospital or institution for mental illness? ________ 9. Are you or have you ever been under treatment or confinement for drug addiction or habitual drunkenness?_________ 10. Have any license to carry firearms, permit to possess firearms, or firearms identification card issued under the laws of

any state or territory ever been suspended, revoked or denied? __________ 11. Are you currently the subject of any outstanding arrest warrant in any state or federal jurisdiction? __________

IF YOU ANSWERED "YES" TO ANY OF THE QUESTIONS 4 THROUGH 11, PROVIDE DETAILS INCLUDING DATES, CIRCUMSTANCES AND LOCATION (if necessary use separate sheet of paper to complete): __________________________________________________________________________________________________

__________________________________________________________________________________________________

__________________________________________________________________________________________________

__________________________________________________________________________________________________

__________________________________________________________________________________________________

__________________________________________________________________________________________________

12. Other than your home state, what states have you resided in? _____________________________________________

__________________________________________________________________________________________________

152



13. Provide detailed reasons for requesting the issuance of the license. Be specific, as failure to do so will result in the return of your application.

__________________________________________________________________________________________________ __________________________________________________________________________________________________ __________________________________________________________________________________________________ __________________________________________________________________________________________________ __________________________________________________________________________________________________

NOTICE: ANY PERSON WHO KNOWINGLY FILES AN APPLICATION CONTAINING FALSE INFORMATION SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $500 NOR MORE THAN $1,000 OR BY IMPRISIONMENT FOR NOT LESS THAN 6 MONTHS NOR MORE THAN 2 YEARS IN A HOUSE OF CORRECTION, OR BY BOTH SUCH FINE AND IMPRISIONMENT (MGL C140, S.131).

I DECLARE THE ABOVE FACTS ARE TRUE AND COMPLETE TO THE BEST OF MY KNOWLEDGE AND BELIEF AND I UNDERSTAND THAT ANY FALSE ANSWER(S) WILL BE JUST CAUSE FOR DENIAL OR REVOCATION OF MY TEMPORAY LICENSE TO CARRY FIREARMS, AND MAY BE USED IN A CRIMINAL PROCEEDING PURSUANT TO MASSACHUSETTS GENERAL LAW CHAPTER 140, §§ 129 AND 131. Signed under the penalties of perjury on this ____________ day of ______________ in the year ________________

________________________________________________________________ Signature of Applicant

Employment or Military Use Only:

_______________________________________________________________________ Signature/Endorsement of Employer or Commanding Officer

_______________________________________________________________________ Rank or Title

NOTE CHANGE OF ADDRESS REQUIREMENT: FAILURE BY A HOLDER OF A LTC TO NOTIFY THIS OFFICE OF ANY CHANGE IN HIS/HER ADDRESS, BY CERTIFIED MAIL, WITHIN THIRTY (30) DAYS OF ITS OCCURRENCE MAY RESULT IN REVOCATION OR SUSPENSION.

153


154

Office of the Assistant Attorney General

The Honorable Don Young U.S. House of Representatives Washington, DC 20515

Dear Congressman Young:

U.S. Department of Justice

Office of Legislative Affairs

Washington, D. C. 2053 0

February 18, 2005

Thank you for your letter, dated June 18, 2003, to Admiral James M. Loy, thenAdministrator of the Transpo1iation Security Administration (TSA), concerning the applicability of 18 U.S.C. section 926A to persons at airp01is in New York State who are taking flights to destinations outside of New York. Because section 926A is a provision of the Gun Control Act (GCA), which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) enforces, TSA forwarded your letter to the Department of Justice for response. We apologize for the delay in responding.

In your letter you explained that local police officers in New York have threatened several individuals at John F. Kennedy International Airport and Albany International Airport with arrest for firearms possession based on strict State laws, and that in at least one case the firearms were confiscated. You explained that: ( 1) the people carrying the firearms were not prohibited from possessing firearms under Federal law, (2) the people had apparently traveled directly, without any inten-uption in the transp01iation, to the airports from other States where they legally could possess firearms, (3) their firearms and ammunition were secured in accordance with all applicable regulations for airline travel, and ( 4) they wer.e flying. to other States or countries where they could legally -possess firearms.. _

You then asked if TSA agrees that section 926A enables these travelers to possess the firearms legally in the New York airpo1is and if so, if TSA would info1m local police and prosecutors about this provision of the GCA. We appreciate your bringing this issue to our attention. The Depariment of Justice agrees that the provisions of section 926A apply to the situation set forth above assuming: ( 1) the person is traveling from somewhere he lawfully may possess and cany a firearm; (2) en route to the airport the firearm is unloaded and not accessible from the passenger compartment of his car; (3) the person transp01is the firearm directly from his


155

The Honorable Don Young Page Two

vehicle to the airline check-in desk without any inten-uption in the transpo1iation; and ( 4) while carrying the firearm to the check-in desk it is unloaded and in a locked container. This interpretation reflects the apparent congressional intent in enacting this provision, while allowing State and local law enforcement to continue to enforce their firearms laws aggressively to promote public safety. We will infonn the applicable law enforcement authorities of our interpretation of section 926A.

We trust this information responds to your inquiry. If we can be of fmiher assistance, please do not hesitate to contact this office.

Sincerely,

William E. Moschella Assistant Attorney General


No Shepard’s Signal™As of: June 13, 2018 3:09 PM Z

Gould v. O'Leary

United States District Court for the District of Massachusetts

December 5, 2017, Decided; December 5, 2017, Filed

Civil Action No. 16-10181-FDS

Reporter2017 U.S. Dist. LEXIS 199400 *; 2017 WL 6028342

MICHAEL GOULD, CHRISTOPHER HART, DANNY WENG, SARAH ZESCH, JOHN STANTON and COMMONWEALTH SECOND AMENDMENT, INC., Plaintiffs, v. DANIEL O'LEARY, in his official capacity as Chief of the Brookline Police Department, and WILLIAM EVANS, in his official capacity as Commissioner of the Boston Police Department, Defendants, and COMMONWEALTH OF MASSACHUSETTS, Intervenor Defendant.

Core Terms

license, firearm, unrestricted, restrictions, carrying, self-defense, hunting, Target, regulation, licensing authority, applicants, handgun, public safety, intermediate scrutiny, good reason, individuals, sporting, summary judgment, purposes, courts, circuits, gun, requirements, ban, target practice, requesting, weapon, arms, strict scrutiny, special needs

Counsel: For Michael Gould, Christopher Hart, Irwin Cruz, Commonwealth Second Amendment [*1] , Inc., Plaintiffs: David D. Jensen, LEAD ATTORNEY, PRO HAC VICE, David Jensen PLLC, New York, NY; Patrick M. Groulx, Isenberg Groulx LLC, Boston, MA.

For Danny Weng, Markus Vallaster, Sarah Zesch, John R Stanton, Plaintiffs: David D. Jensen, LEAD ATTORNEY, PRO HAC VICE, David Jensen PLLC, New York, NY.

For Daniel C. O'Leary, in his Official Capacity as Chief of the Brookline Police Department, Defendant: John J. Buchheit, LEAD ATTORNEY, Office of Town Counsel-Town of Brookline, Brookline, MA.

For William B. Evans, in his Official Capacity as Commissioner of the Boston Police Department, Defendant: Matthew M. McGarry, City Of Boston Law Department, Boston, MA; Peter M. Geraghty, Boston Police Department, Boston, MA.

For COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL, Intervenor Defendant: Timothy James Casey, LEAD ATTORNEY, Office of the Attorney General, Boston, MA; William W. Porter, LEAD ATTORNEY, Attorney General's Office, Boston, MA.

For Everytown for Gun Safety, Amicus: Nicholas F. Ortiz, Law Office of Nicholas F. Ortiz, P.C., Boston, MA.

Judges: F. Dennis Saylor IV, United States District Judge.

Opinion by: F. Dennis Saylor IV

Opinion

[*2] MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, J.

This is a federal constitutional challenge to the firearm licensing policies of the Town of Brookline and the City of Boston. Plaintiffs Michael Gould, Christopher Hart, Danny Weng, Sarah Zesch, John Stanton, and Commonwealth Second Amendment, Inc. have brought suit under 42 U.S.C. § 1983, contending that policies of the Brookline and Boston Police Departments that restrict the ability of applicants to obtain licenses to carry firearms violate the Second and Fourteenth Amendments. The named defendants are Daniel O'Leary, the chief of the Brookline Police Department, and William Evans, the commissioner of the Boston Police Department. The Commonwealth of Massachusetts has intervened to defend the constitutionality of its state licensing scheme.

The parties have cross-moved for summary judgment. For the following reasons, defendants' motions will be granted, and plaintiffs' motion will be denied.

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I. Background

The facts set forth below are undisputed.

A. Massachusetts Regulatory Framework

In Massachusetts, it is a crime to possess a firearm in public without a valid license to carry. Mass. Gen. Laws ch. 269, § 10(a).1 Licenses to carry ("LTC") firearms may be requested by application pursuant to Mass. Gen. Laws ch. 140, § 131(d). Applications are [*3] made to a "licensing authority," which is defined as either the applicant's local police chief or the board or officer having control of the police in a city or town. Id. §§ 121, 131(d). Massachusetts law specifies the circumstances under which a licensing authority may grant licenses, when licenses may be revoked, and what restrictions licenses may contain. Id. § 131.

Under the statute, a licensing authority "may issue" a license if "it appears" that the applicant satisfies both parts of a two-step inquiry, demonstrating that he or she (1) is not a "prohibited person" and (2) has a "proper purpose" for carrying a firearm. Ruggiero v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 259, 464 N.E.2d 104 (1984) (discussing an earlier, similarly worded version of the statute); Mass. Gen. Laws ch. 140, § 131(d).2

At the first step of the inquiry, the licensing authority examines whether the applicant is a "prohibited person." Mass. Gen. Laws ch. 140, § 131(d). An applicant may

1 With limited exceptions, a "firearm" is defined as "a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured." Mass. Gen. Laws ch. 140 § 121.

2 Prior to 2014, a licensing authority could issue licenses in two forms: Class A or Class B. Mass. Gen. Laws. ch. 140, § 131(a-b). A Class A license permitted an individual to carry a concealed firearm in public and to possess a large-capacity firearm, while a Class B license permitted only open carry of firearms that were not classified as large-capacity. Id. In 2014, the Massachusetts legislature amended the licensing laws, eliminating Class B licenses, effective in 2021. See Mass. Acts ch. 284, § 101. However, effective immediately, licensing authorities were directed to refrain from issuing Class B licenses and to issue new and renewed licenses as Class A licenses. Id.

be categorically prohibited from possessing a firearm (for example, minors). Id. Alternatively, an applicant may be found to be a prohibited person if the licensing authority, in the reasonable exercise of his or her discretion, determines that the applicant is "unsuitable" based on evidence or factors that suggest the applicant would cause a risk to public safety. Id. The [*4] parties agree that plaintiffs here are not categorically prohibited from obtaining a license.

At the second step of the inquiry, the licensing authority is required to consider whether the applicant has a "proper purpose" for carrying a firearm. Ruggiero, 18 Mass. App. Ct. at 259. The statute does not provide an exhaustive list of purposes for which an applicant may properly request a license. Instead, it states that the licensing authority "may issue" a license if the applicant (1) "has good reason to fear injury to the applicant or the applicant's property" or (2) "for any other reason, including the carrying of firearms for use in sport or target practice only, subject to the restrictions expressed or authorized under this section." Mass. Gen. Laws ch. 140, § 131(d). In Ruggiero, the Massachusetts appellate court summarized an earlier version of the statute as follows: "Without excluding other valid reasons for being licensed, the statute identifies two purposes which will furnish adequate cause to issue a license—'good reason to fear injury to person or property' and an intent to carry a firearm for use in target practice." 18 Mass. App. Ct. at 259. When an applicant seeks a license solely for self-protection, the licensing authority may require that the applicant distinguish [*5] his or her own specific need for protection from the needs of members of the general public. Id. at 261 (finding that, under an earlier, similarly worded version of the statute, an applicant's stated purposes to avoid "spend[ing] his entire life behind locked doors [and to prevent becoming] a potential victim of crimes" did not require issuance of a license for self-defense in public).

Even when an applicant otherwise meets the requirements for license approval, the licensing authority may issue the license "subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper." Mass. Gen. Laws ch. 140, § 131(a-b). Pursuant to that provision, the licensing authority may restrict a license to those uses for which the authority determines there to be an appropriate reason. See Ruggiero, 18 Mass. App. Ct. at 260 (upholding issuance of license with target, hunting, and sporting restriction where applicant requested license for self-defense purposes).

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A licensing authority's decision to deny or restrict a license is subject to judicial review. Mass. Gen. Laws ch. 140, § 131(f). An applicant who has been denied a license must challenge the denial within ninety days. Id. By comparison, an applicant who has been granted a license with restrictions [*6] may challenge the restrictions in court at "any time." Id. Upon judicial review, the licensing authority's determination to impose restrictions may be reversed only if the authority had "no reasonable ground for . . . restricting the license" or the determination is "arbitrary, capricious, or an abuse of discretion." Id.; Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546, 453 N.E.2d 461 (1983)).

Unless revoked or suspended, a license "shall be valid" for between five and six years, and shall expire on the licensee's birthday. Mass. Gen. Laws ch. 140, § 131(i). The licensing authority "shall" revoke or suspend a license "upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed." Id. § 131(f). Additionally, a license "may be" revoked or suspended if the licensee is "no longer a suitable person." Id. The determination to revoke or suspend a license is also subject to judicial review. Id.

B. Brookline Firearm Licensing Policy

Daniel O'Leary is the Chief of the Brookline Police Department. (Def. O'Leary's SMF ¶ 1). He and Sergeant Christopher Malinn are the two officials who administer the firearms-licensing process in Brookline. (Id.). Sgt. Malinn is the "contact person and investigator" for firearm-license applicants. [*7] (Id. ¶ 2). However, as Police Chief, O'Leary is the ultimate authority responsible for issuing firearm licenses to Brookline residents pursuant to Mass. Gen. Laws ch. 140, § 131. (Id. ¶ 3). Chief O'Leary states that it is his practice to review personally all the information concerning applicants submitted to Sgt. Malinn. (Id.). He also states that he is always willing to meet with applicants to discuss their applications or licenses. (Id. ¶ 4).

Chief O'Leary will issue unrestricted LTCs to qualified individuals who show "good reason to fear injury to his person or property." (Def. O'Leary's Ans. to Interrog. No. 9). An otherwise-qualified applicant who fails to show "good reason to fear injury" will receive a restricted license. When deciding which restrictions to impose, Chief O'Leary states that he takes into account all information provided in the application, including field of employment and any training or experience with

firearms. (Id. at Nos. 11-12).

Since January 1, 2015, Brookline has imposed seven types of restrictions on firearm licenses: (1) target, (2) hunting, (3) transport, (4) sporting, (5) employment, (6) in home, and (7) collecting. (Def. O'Leary's SMF ¶ 6).3 Descriptions of those restrictions [*8] are as follows:

TARGET — allows firearms to be carried while engaged in firearms target practice at a firearms club or firearms school. Included is reasonable traveling time to and from said club or firearms school, with any weapon(s). The firearm cannot be carried outside the home for another purpose.

HUNTING — allows firearms to be carried while hunting and while going to or coming from a hunting area, when in possession of a valid hunting license. The firearm cannot be carried outside of the home for another purpose.

TRANSPORT — allows one to transport firearms from one home to another. Note that all of the restrictions allow one to transport the firearm to the allowed activity. The firearm cannot be carried outside the home for another purpose.

SPORTING — allows the firearm to be carried for the purpose of target practice, recreational shooting or competition, the lawful pursuit of game animals and birds, and for outdoor recreational activities such as hiking, camping, cross country skiing, and other related activities. The firearm cannot be carried outside of the home for any other purpose.

EMPLOYMENT — allows the firearm to be carried only during the hours one is actually employed [*9] by, and/or operating at their company/employer. This includes reasonable time traveling to and from the company/employer. The firearm cannot be carried outside the home for any other purpose.

IN HOME — allows one to keep the firearm in the home. It cannot be carried outside of the home.

COLLECTING — allows one to carry the firearm for the purpose of firearms collecting. Firearms cannot be carried outside the home for any other purpose.

(Def. O'Leary's Ans. to Interrog. No. 3).

Between January 1, 2015, and July 18, 2017, Chief

3 The in home restriction was created only because one applicant specifically requested it. (Def. O'Leary's SMF ¶ 6).

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O'Leary issued a total of 191 LTCs. (Stipulation at 1). Of those 191 LTCs, 68 (35.6%) were unrestricted and 123 (64.4%) contained at least one restriction. (Id.). However, members of certain professions were more likely to receive unrestricted licenses. (Id.). During that time period, 22 of 24 law enforcement officers (91.7%), 10 of 14 physicians (71.4%), and 4 of 6 attorneys (66.7%) received unrestricted licenses. (Id.).

C. Plaintiff Gould's Application

In 2014, Michael Gould lived in Brookline. (Pls.' SMF ¶ 81). He works as a professional photographer at a fine arts museum and also operates his own photography business. (Id. ¶ 79; Gould Aff. ¶ 1). He previously lived [*10] in Weymouth, Massachusetts, where he had a LTC from the Weymouth Police Department with the restriction of "Target Hunting Employment." (Pls.' SMF ¶ 80). On July 8, 2014, he applied to renew his LTC for "all lawful purposes" with the Brookline Police Department. (Id. ¶ 81). During an interview with Sgt. Malinn, he stated that he wanted an unrestricted LTC for self-defense. (Id. ¶ 82). Sgt. Malinn advised that unrestricted LTCs were difficult to obtain in Brookline and that Gould would need to obtain specific documentation to support his request. (Id.).

On September 29, 2014, Gould mailed a letter to Chief O'Leary detailing his request for an unrestricted LTC. (Id. ¶ 83). In his letter, he stated that he needed an unrestricted LTC because he routinely worked with "valuable photography equipment as well as extremely valuable works of art." (Gould Aff. Ex. 4, at 1). He further emphasized his experience with firearms. (Id.).

Chief O'Leary denied Gould's application for an unrestricted LTC in a letter dated October 16, 2014, but offered to issue an LTC with the "Sporting" and "Employment" restrictions. (Pls.' SMF ¶ 84). On October 23, 2014, Sgt. Malinn explained to Gould that those restrictions [*11] would allow him to carry a firearm on all occasions identified in his letter. (Def. O'Leary's SMF ¶ 13). Gould signed forms accepting a LTC with those two restrictions on November 10, 2014, and received it on November 20, 2014. (Pls.' SMF ¶¶ 86-87). He did not appeal the license restrictions pursuant to Mass. Gen. Laws. ch. 140, § 131(f). (Def. O'Leary's SMF ¶ 14).

D. Boston Firearm Licensing Policy

William Evans is the Commissioner of the Boston Police Department. (Pls.' SMF ¶ 1). He has delegated his

responsibilities as a licensing authority to Lt. Det. John McDonough, the head of the Boston Police Department's Licensing Unit. (Id.).

The Licensing Unit will issue unrestricted LTCs to qualified individuals who "show 'good reason to fear injury' that distinguishes them from the general population," or "are engaged in certain occupations." (Id. ¶ 2). Occupations that typically qualify for unrestricted LTCs include law enforcement officer, medical doctor, and lawyer. (Id. ¶ 3). In addition, the Licensing Unit will issue an unrestricted LTC to an applicant who has already been issued an unrestricted LTC anywhere else in Massachusetts. (Id. ¶ 4). If an individual does not meet one of these requirements, the Licensing Unit [*12] will typically issue the LTC subject to a "Target & Hunting" restriction. (Id. ¶ 5).

The Licensing Unit imposes three varieties of restrictions on firearm licenses: (1) employment, (2) target and hunting, and (3) sporting. A written policy describing those restrictions states as follows:

EMPLOYMENT — restricts possession to a business owner engaged in business activities, or to an employee while engaged in work related activities, and maintaining proficiency, where the employer requires carry of a firearm (i.e. armored car, security guard, etc.). Includes travel to and from the activity location.

TARGET AND HUNTING — restricts possession to the purpose of lawful recreational shooting or competition; for use in the lawful pursuit of game animals and birds; for personal protection in the home; and for the purpose of collecting (other than machine guns). Includes travel to and from activity location.

SPORTING — restricts possession to the purpose of lawful recreational shooting or competition; for use in the lawful pursuit of game animals and birds; for personal protection in the home; for the purpose of collecting (other than machine guns); and for outdoor recreational activities such as [*13] hiking, camping, cross country skiing, or similar activities. Includes travel to and from activity location.

(Def. Evans's SMF, Ex. 4).

The Licensing Unit does not have a formal internal written policy for determining whether an applicant has shown good "reason" or "proper purpose" for obtaining an unrestricted LTC. (Def. Evans's SMF ¶ 5). However, the Licensing Unit does follow general guidelines. (Id. ¶

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6). For example, the Licensing Unit draws a distinction between victims of random crime and victims who were specifically targeted; the latter are more likely to show the "good reason to fear injury" required for an unrestricted LTC. (Id. ¶ 10). The Licensing Unit does not define "good reason to fear injury" with regard to high-crime areas. (Id. ¶ 11). In addition, applicants requesting an unrestricted LTC must submit a letter and supporting documentation to Lt. Det. McDonough. (Id. ¶ 13). Lt. Det. McDonough states that he reviews those documents to determine eligibility for an unrestricted LTC on an individualized, case-by-case basis. (Id. ¶ 14).

Between January 1, 2015, and July 18, 2017, the Licensing Unit issued a total of 3,684 LTCs. (Pls.' SMF ¶ 21). Of those 3,684 LTCs, 1,576 [*14] (42.8%) were unrestricted and 2,108 (57.2%) contained at least one restriction. (Id.).4 During that time period, 842 of 884 law enforcement officers (95.25%), 29 of 40 physicians (72.5%) and 78 of 86 attorneys (90.7%) received unrestricted licenses. (Id. ¶¶ 22-24). Excluding members of those three professions, the Licensing Unit issued 2,674 LTCs, of which 628 (23.5%) were unrestricted. (Id. ¶ 25).

E. Boston Plaintiffs' Applications

Four plaintiffs are residents of the City of Boston: Christopher Hart, Danny Weng, Sarah Zesch, and Josh Stanton.

1. Christopher Hart

Christopher Hart works as the general manager of a restaurant in Boston. (Id. ¶ 48). He previously lived in Connecticut, where he possessed a "State Permit to Carry Pistols and Revolvers." (Id. ¶ 49). He previously possessed handgun carry licenses from Florida, Maine, and New Hampshire. (Id.).

On June 4, 2014, he applied for an LTC with the Licensing Unit. (Id. ¶ 50). On his application, Hart wrote that he was seeking a license for "personal protection both in/out of my home." (Id.). He then had an interview

4 The most common restriction imposed was "Target & Hunting," which was placed on 1,815 LTCs. (Def. Evans's SMF ¶ 26). The Licensing Unit also issued 17 LTCs with "Sporting" restrictions and 34 LTCs with "Employment" restrictions. (Id.). There were 242 LTCs issued with some combination of those three categories of restrictions. (Id.).

with Officer Angela Coleman. (Id. ¶ 51). After the interview, Officer Coleman completed a Massachusetts Instant Record [*15] Check System ("MIRCS") application for Hart and wrote "Target and Hunting" under the section "Reason(s) for requesting the issuance of a card or license." (Id. ¶ 52). Although Hart also submitted a letter to Lt. Det. McDonough requesting an unrestricted LTC for self-defense, he never received a reply. (Id. ¶¶ 54-55).

On July 2, 2014, the Licensing Unit issued a LTC to Hart with the restriction of "Target & Hunting." (Id. ¶ 56). The following month, he visited the Licensing Unit and asked about the possibility of removing the restriction. (Id. ¶ 57). Because his employer declined to provide documentation to justify an additional "Employment" exception, Hart did not appeal the license. (Id.).

2. Danny Weng

Danny Weng is a software engineer who was honorably discharged from the U.S. Army. (Id. ¶ 37). He applied for a LTC with the Licensing Unit on January 13, 2014. (Id. ¶ 38). On his application, he stated that he was seeking a LTC for "all lawful purposes/target shooting." (Id.). He then interviewed with Officer Patricia McGoldrick, who completed a MIRCS application on his behalf. (Id. ¶ 40). Officer McGoldrick wrote "Target and Hunting" on his MIRCS application under the section "Reason(s) [*16] for requesting the issuance of a card or license." (Id. ¶ 42).

On February 18, 2014, the Licensing Unit issued a LTC to Weng with the restriction of "Target & Hunting." (Id. ¶ 44). Nine months later, on November 14, 2014, he wrote a letter to Lt. Det. McDonough reiterating his desire for an unrestricted LTC, emphasizing his military experience and desire for additional protection. (Id. ¶ 45). He followed up with another letter on March 13, 2015, adding that he wanted flexibility to participate in competitive shooting. (Id. ¶ 46). Lt. Det. McDonough replied on April 4, 2015, denying the request for an unrestricted LTC because he "could not show that [he had a] proper purpose to possess [an unrestricted] license." (Id. ¶ 47).

3. Sarah Zesch

Sarah Zesch is a Boston native who recently graduated from college and works for a state agency. (Id. ¶ 58). On January 6, 2015, she applied for a LTC with the Licensing Unit. (Id. ¶ 59). She did not answer the

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question on the application form, "For what purpose do you require a License to Carry Firearms?" (Id.). She then interviewed with Officer Coleman, and indicated she wanted an unrestricted LTC for self-protection. (Id. ¶¶ 60-61).

After the interview, [*17] Officer Coleman wrote "Target and Hunting" on her MIRCS application under the section "Reason(s) for requesting the issuance of a card or license." (Id. ¶ 63). Although she also submitted a letter to Lt. Det. McDonough requesting an unrestricted LTC for personal protection, she never received a reply. (Id. ¶¶ 65, 67). On March 10, 2015, the Licensing Unit issued a LTC to her with the restriction of "Target & Hunting." (Id. ¶ 66).

4. John Stanton

John Stanton is a professional musician. (Id. ¶ 68). On December 15, 2014, he applied for a LTC with the Licensing Unit. (Id. ¶ 69). He listed "self-defense, target shooting, hunting, and all other lawful purposes" as reasons for requiring a LTC. (Id.). He then interviewed with Officer Coleman, who wrote "Target and Hunting" on his MIRCS application under the section "Reason(s) for requesting the issuance of a card or license." (Id. ¶ 72). On January 15, 2015, the Licensing Unit issued a LTC to him with the restriction of "Target & Hunting." (Id. ¶ 74).

On March 13, 2015, Stanton wrote a letter to Lt. Det. McDonough requesting removal of that restriction. (Id. ¶ 75). Lt. Det. McDonough denied the request on June 9, 2015, on the ground that Stanton [*18] "could not show that [he had a] proper purpose to possess [an unrestricted] license." (Id. ¶ 76).

Within the next two months, Stanton was the victim of a theft. (Id. ¶ 77). On July 30, 2015, he again wrote to Lt. Det. McDonough and reiterated his prior request, emphasizing that he wanted an unrestricted LTC for personal protection. (Id.). Lt. Det. McDonough denied the request on August 6, 2015, stating he had still failed to provide justification for an unrestricted LTC. (Id. ¶ 78).

F. Commonwealth Second Amendment, Inc.

Plaintiff Commonwealth Second Amendment, Inc. is a Massachusetts-based non-profit corporation organized for the purpose of education, research, and legal action regarding what it contends is the constitutional right to possess and carry firearms. (Id. ¶¶ 88-89). The

individual plaintiffs were made honorary members of the organization without their knowledge for purposes of this suit. (Def. Evans's SMF ¶ 25). However, since the filing of this suit, the individual plaintiffs have accepted membership offers and are now "knowing" members of the organization. (Pls.' Resp. to Def. Evans's SMF ¶ 25). Because Commonwealth Second Amendment, Inc.'s standing relies on the standing of its members and because its claims appear [*19] to be essentially derivative of the claims of its members, the organization's claims can be decided on the same grounds as those of the individual plaintiffs without separate analysis. See United States v. AVX Corp., 962 F.2d 108, 116 (1st Cir. 1992).

G. Procedural Background

On February 4, 2016, plaintiffs Gould, Hart, and Commonwealth Second Amendment, Inc., brought this lawsuit against defendants O'Leary and Evans.5 Plaintiffs amended the complaint on April 14, 2016, to add individual plaintiffs Weng, Zesch, and Stanton.

On January 27, 2017, defendant Evans filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The Court denied the motion on March 6, 2017, finding that the amended complaint plausibly stated a claim for relief and raised factual issues that required the development of a factual record. After discovery concluded, plaintiffs filed a motion for summary judgment, and defendants O'Leary and Evans filed cross-motions for summary judgment.

II. Analysis

A. Cross-Motions for Summary Judgment

The two-count amended complaint alleges violations of the Second and Fourteenth Amendments under 42 U.S.C. § 1983. To succeed on a claim under 42 U.S.C. § 1983, plaintiffs must prove that (1) the conduct complained of was carried out under color of state law and (2) defendant's actions deprived plaintiffs of rights, privileges, [*20] or immunities secured by the Constitution or laws of the United States. Collins v.

5 The original complaint listed Irwin Cruz as a plaintiff and Chief David Provencher of the New Bedford Police Department as a defendant. Neither individual is a current party to the case.

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Nuzzo, 244 F.3d 246, 250 (1st. Cir. 2001).

There is no dispute that defendants O'Leary and Evans were acting under color of state law in issuing plaintiffs' restricted licenses. The complaint alleges that Massachusetts's firearm licensing scheme and defendants' licensing policies violate the Second Amendment and the Equal Protection Clause by (1) permitting the imposition of restrictions such as "sporting," "target," "hunting," and "employment" on their licenses and (2) allowing issuance of permits to turn on "arbitrary considerations, such as whether an individual resides or previously resided on the correct side of a boundary line, is wealthy and/or has a lot of cash, has a particular occupation, or has a place of business in another locality that issues unrestricted LTC[ ]s." Am. Compl. ¶¶ 62-68. In essence, plaintiffs contend that the Second Amendment, as interpreted by the Supreme Court decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), protect the right of law-abiding citizens to carry handguns in public for the purpose of self-defense.

Defendants contend that neither the municipal policies in question nor the state statutory scheme implicate a Second Amendment right because that right is limited to personal protection within the home.6

1. Standard [*21] of Review

The role of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary judgment is appropriate when the moving party shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue is "one that must be decided at trial because the evidence, viewed in the light most flattering

6 In Batty v. Albertelli, 2017 U.S. Dist. LEXIS 26124, 2017 WL 740989 (D. Mass. Feb. 24, 2017), this Court upheld the constitutionality of the Town of Winchester's firearm licensing scheme against a challenge virtually identical to that made by plaintiffs here. Indeed, plaintiffs concede that the Court's ruling in Batty "ought to be dispositive here—unless revisited." (Pls.' Opp. and Reply at 1).

to the nonmovant . . . would permit a rational fact finder to resolve the issue in favor of either party." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When "a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (quotations omitted). The non-moving party may not simply "rest upon mere allegation or denials of his pleading," but instead must "present affirmative evidence." Id. at 256-57.

2. The Second Amendment

The Second Amendment to the United States Constitution provides as follows: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not [*22] be infringed." U.S. Const. amend. II. In 2008, the Supreme Court struck down a District of Columbia ordinance that prohibited the possession of handguns in the home, declaring that the Amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 635. In 2010, the Court affirmed that the "right to possess a handgun in the home for the purpose of self-defense" is incorporated into the protections against infringement by the states provided by the Fourteenth Amendment. McDonald, 561 U.S. at 791. In Heller, however, the Supreme Court qualified its holding, stating that "[l]ike most rights, the right secured by the Second Amendment is not unlimited. . . . [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." 554 U.S. at 626-27.

As the First Circuit has recognized, several circuits use a two-part framework to evaluate a claim of Second Amendment infringement. Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015). Under that framework, courts

first consider whether the challenged law imposes a

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burden on conduct that falls within the scope [*23] of the Second Amendment's guarantee as historically understood, and if so, . . . next determine the appropriate form of judicial scrutiny to apply (typically, some form of either intermediate scrutiny or strict scrutiny).

Id. (citing Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 962-63 (9th Cir. 2014); Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013); Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252, 399 U.S. App. D.C. 314 (D.C. Cir. 2011) ("Heller II"); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); cf. Kwong v. Bloomberg, 723 F.3d 160, 167 (2d Cir. 2013); United States v. Bena, 664 F.3d 1180, 1182-85 (8th Cir. 2011); United States v. Skoien, 614 F.3d 638, 639-43 (7th Cir. 2010) (en banc)).

Although the First Circuit has not explicitly adopted that two-step approach, the cases in which it has directly analyzed Second Amendment issues appear to fall under either the first or second step of the framework. For example, in United States v. Rene E., the court concluded that the federal statute criminalizing firearm possession by juveniles did not violate the Second Amendment because it was one of the "longstanding prohibitions" that Heller did not call into question. See 583 F.3d 8, 15-16 (1st Cir. 2009). While the court in Rene E. did not specifically hold that the statute only burdened conduct outside the scope of Second Amendment protection, the analysis it followed was almost identical to those of other circuits when conducting the first step in their Second Amendment analysis. Compare, e.g., Rene E., 583 F.3d at 13-16 (surveying nineteenth-century state laws and the founders' attitudes on juvenile handgun possession) with National Rifle Ass'n of Am., 700 F.3d at 200-04 (surveying founding-era attitudes and nineteenth-century opinion on juvenile firearm possession).

In United States v. Booker, 644 F.3d 12 (1st Cir. 2011) and [*24] United States v. Armstrong, 706 F.3d 1 (1st Cir. 2013), the First Circuit upheld a federal statute criminalizing firearm possession by persons convicted of misdemeanor crimes of domestic violence. In doing so, it found that the statute, although falling within one of the "presumptively lawful" categories of firearm

regulation in Heller, required some form of means-ends scrutiny because it was a categorical limit on the Second Amendment right. Booker, 644 F.3d at 25; Armstrong, 706 F.3d at 7-8.

In Hightower v. City of Boston, the First Circuit concluded that revoking an individual's license to carry a concealed weapon based on the fact that her firearm license application contained a false statement did not violate the Second Amendment under any standard of heightened scrutiny. 693 F.3d 61, 74 (1st Cir. 2012). Thus, the analysis in Booker, Armstrong, and Hightower was similar to the analysis performed by other circuits at the second step of the Second Amendment analytical framework. Compare Hightower, 693 F.3d at 73-76 (regulation upheld under any standard of heightened means-ends scrutiny) with Woollard, 712 F.3d at 880-82 (regulation upheld under intermediate scrutiny).

Accordingly, the Court will first analyze the scope of the Second Amendment to determine whether the disputed restrictions impose a burden on the right to keep and bear arms protected by the Second Amendment's guarantee as historically understood. [*25] Next, the Court will analyze what form of means-ends scrutiny the restrictions must satisfy. Finally, the Court will apply the appropriate level of scrutiny to the restrictions at issue.

a. Scope of the Second Amendment

Heller specifically precluded from Second Amendment protection three categories of firearm regulation: "longstanding prohibitions on the possession of firearms by felons and the mentally ill, . . . laws forbidding the carrying of firearms in sensitive places, [and] laws imposing conditions and qualifications on the commercial sale of arms." 554 U.S. at 626-27. The court identified these laws as examples of "presumptively lawful" regulatory measures, while explicitly describing the list as non-exhaustive. Id. at 627 n.26. Courts have interpreted Heller as delimiting the scope of the Second Amendment, placing regulations that are sufficiently rooted in history and tradition as to rise to the level of "presumptively lawful" outside its protection. See, e.g., Rene E., 583 F.3d at 12.

Plaintiffs contend that the restrictions imposed on their licenses do not comport with historical understandings of the Second Amendment right as interpreted by Heller. They contend that the Second Amendment squarely protects the right of law-abiding citizens to carry handguns in public for the purpose of self-defense,

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which defendants [*26] have infringed by requiring them to show a specific "reason to fear" in order to receive unrestricted licenses. Like the Third Circuit in Drake, this Court is "not inclined to address this [issue] by engaging in a round of fullblown historical analysis, given other courts' extensive consideration of the history and tradition of the Second Amendment." 724 F.3d at 431.

It is now well-established "that the possession of operative firearms for use in defense of the home constitutes the 'core' of the Second Amendment." Hightower, 693 F.3d at 72; see also Powell, 783 F.3d at 347. However, Heller and McDonald were not intended to describe the full scope of the Second Amendment right, and neither squarely addresses whether the Second Amendment right extends beyond the home. See Heller, 554 U.S. at 595 (finding that "the Second Amendment conferred an individual right to keep and bear arms," but also that the Second Amendment did not "protect the right of citizens to carry arms for any sort of confrontation"). As a result, the lower federal courts have wrestled with the questions of whether, and to what extent, the right protected by the Second Amendment extends beyond the home. See Hightower, 693 F.3d at 74 (describing the matter as a "vast terra incognita") (quoting United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)). Twice, the First Circuit has declined to reach the issue of "the scope of the Second Amendment as to carrying firearms outside the vicinity of the home." Hightower, 693 F.3d at 72 n.8; Powell, 783 F.3d at 348 (quoting [*27] Hightower, 693 F.3d at 72 n.8).

Decisions from the other courts of appeals offer mixed guidance. The Second, Third, and Fourth Circuits have "assumed for analytical purposes" that the Second Amendment has some application outside the home, without deciding the issue. See Powell, 783 F.3d at 348 n.10; see also Drake, 724 F.3d at 431; Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012); Woollard, 712 F.3d at 876.

In contrast, the Seventh Circuit held that the "Supreme Court has decided that the [Second] [A]mendment confers a right to bear arms for self-defense, which is as important outside the home as inside." Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). The Ninth Circuit originally agreed with the Seventh Circuit's analysis. See Peruta v. County of San Diego, 771 F.3d 570 (9th Cir. 2014). However, it reversed that decision upon rehearing en banc, and determined that although the Second Amendment does not encompass a right to

carry a concealed weapon in public, "[t]here may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public." Peruta v. County of San Diego, 824 F.3d 919, 939 (9th Cir. 2016).

More recently, the District of Columbia Circuit held that the Second Amendment protects an individual's right to carry firearms outside the home for self-defense. See Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017). In Wrenn, the court, in a 2-to-1 decision, found that the "core" of the Second Amendment protected "the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs." Id. at 661.

The [*28] court invalidated the District of Columbia's "good-reason" law as a categorical restriction on a "'core' Second Amendment right." Id. at 657.7 It stated that the historical analysis of the Supreme Court in Heller showed that when the Second Amendment was ratified, the so-called Northampton laws that restricted carrying firearms in crowded areas only barred the carrying of "dangerous and unusual" weaponry. Id. at 660 (citing Heller, 554 U.S. at 627).8 In addition, English "surety laws" requiring firearm carriers to post a bond to cover any potential damage "did not deny a responsible person carrying rights . . . [t]hey only burdened someone reasonably accused of posing a threat." Id. at 661. Because the good-reason law infringed on the "constitutional right to bear common arms for self-defense in any fashion at all," the court found it unnecessary to conduct a means-end analysis. Id. at 665-66 ("It's appropriate to strike down such 'total ban[s]' without bothering to apply tiers of scrutiny because no such analysis could ever sanction obliterations of an enumerated constitutional right.") (alteration in original).9

7 The District of Columbia's "good-reason" law is an "ensemble of [D.C.] Code provisions and police regulations" limiting LTCs to those showing a "good reason to fear injury to [their] person or property" or "any other proper reason for carrying a pistol." Wrenn, 864 F.3d at 655-56.

8 The Statute of Northampton was passed during the early reign of Edward III. The Statute restricted the possession of pistols and other weapons in public locations. 2 Edw. 3, c. 3 (1328). Several colonies (and later, states) adopted similar laws in the 18th and 19th centuries. Wrenn, 864 F.3d at 659.

9 Wrenn appears to conflict, at least to some degree, with First

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No federal court of appeals has held that the Second Amendment does not extend beyond the home. But see Williams v. State, 417 Md. 479, 10 A.3d 1167, 1169, 1177 (Md. 2011) (holding that a statute requiring a permit to [*29] carry a handgun outside the home "is outside of the scope of the Second Amendment" and stating that "[i]f the Supreme Court . . . meant its holding to extend beyond home possession, it will need to say so more plainly").

In Hightower, the First Circuit stated that "[i]t is plain that the interest . . . in carrying concealed weapons outside the home is distinct from [the] core interest emphasized in Heller." 693 F.3d at 72. Although Hightower did not consider the constitutionality of regulating the open carrying of weapons outside the home, the authority it cited did not distinguish between the two, suggesting that the operative distinction was whether the individual asserted his Second Amendment right outside or inside the home. See id. (collecting cases for the proposition that "[c]ourts have consistently recognized that Heller established that the possession of operative firearms for use in defense of the home constitutes the 'core' of the Second Amendment.").

In short, precedent does not clearly dictate whether the Second Amendment extends to protect the right of law-abiding citizens to carry firearms outside the home for the purpose of self-defense. In the face of this conflicting authority, the Court will heed the caution urged by the First Circuit that the [*30] Second Amendment is an area that "courts should enter only upon necessity and only then by small degree." Id. at 74 (quoting Masciandaro, 638 F.3d at 475). Accordingly, the Court will follow the approach taken by the Second, Third, and Fourth Circuits, and assume for analytical purposes that the Second Amendment extends to protect the right of armed self-defense outside the home. The remaining question is whether the restrictions here survive the applicable level of

Circuit precedent. As noted, the First Circuit has stated "that the possession of operative firearms for use in defense of the home constitutes the 'core' of the Second Amendment." Hightower, 693 F.3d at 72. See also Powell, 783 F.3d at 347 ("Together, Heller and McDonald establish that states may not impose legislation that works a complete ban on the possession of operable handguns in the home by law-abiding, responsible citizens for use in immediate self-defense."). In addition, while the First Circuit has consistently declined to explicitly adopt intermediate scrutiny for reviewing Second Amendment challenges, see Armstrong, 706 F.3d at 8, its language has strongly suggested that an analogous level of means-end scrutiny is warranted. See Booker, 644 F.3d at 25.

constitutional scrutiny.

b. Level of Scrutiny

Assuming without deciding that the restrictions at issue burden the Second Amendment right, they must survive some form of means-ends scrutiny to be constitutional. See Hightower, 693 F.3d at 74 (regulation upheld "whatever standard of scrutiny is used, even assuming there is some Second Amendment interest in carrying the concealed weapons at issue.").

In Hightower, the First Circuit explicitly refrained from deciding what standard of scrutiny applied to the concealed-carry regulation. Id. In Booker, however, the court found that "a categorical ban on gun ownership by a class of individuals must be supported by some form of 'strong showing,' necessitating a substantial relationship between the restriction and an important governmental objective." 644 F.3d at 25.

Booker's language has been interpreted as a description [*31] of intermediate scrutiny. See, e.g., Tyler v. Hillsdale Cty. Sheriff's Dep't, 837 F.3d 678, 692 (6th Cir. 2016) (describing Booker as "applying the equivalent of intermediate scrutiny"); Kachalsky, 701 F.3d at 93 n.17; Williams v. Puerto Rico, 910 F. Supp. 2d 386, 396 (D.P.R. 2012). Indeed, the normal definition of "intermediate scrutiny" is a showing that "the challenged classification is 'substantially related to an important government objective.'" Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 47 (1st Cir. 2003) (quoting Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988)). That definition is virtually indistinguishable from the standard used in Booker. In Armstrong, however, the First Circuit stated plainly that "this court has not adopted intermediate scrutiny as the appropriate type of review for a [Second Amendment] challenge such as Armstrong's." 706 F.3d at 8.

The regulation at issue in Booker and Armstrong was substantially different from the ones in this case, perhaps necessitating a different level of scrutiny. However, the Second, Third, and Fourth Circuits have explicitly adopted the intermediate scrutiny standard when examining regulations burdening an alleged Second Amendment right to carry weapons outside the home. Kachalsky, 701 F.3d at 96; Drake, 724 F.3d at 435; Masciandaro, 638 F.3d at 470-71.10 In reaching

10 In addition, other circuits have used the intermediate

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that conclusion, those circuits have carefully parsed the language of Heller and McDonald, noted the longstanding tradition of firearms regulation in this country, and made parallels to situations where different levels of scrutiny are applied in the First Amendment context. [*32]

For example, the Second Circuit in Kachalsky noted that "when analyzing First Amendment claims, content-based restrictions on noncommercial speech are subject to strict scrutiny while laws regulating commercial speech are subject to intermediate scrutiny." 701 F.3d at 94 (citations omitted). Kachalsky concluded that "applying less than strict scrutiny when the regulation does not burden the 'core' protection of self-defense in the home makes eminent sense in this context and is in line with the approach taken by our sister circuits." Id. at 93. The Third Circuit in Drake also analogized the Second Amendment to the First Amendment, concluding that intermediate scrutiny applied because strict scrutiny was only triggered when the core "right to possess usable handguns in the home for self-defense" was implicated. 724 F.3d at 436 (emphasis in original). Finally, the Fourth Circuit in Masciandaro noted that "as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense." 638 F.3d at 470. Because of the longstanding tradition of regulating the carrying of firearms in public, Masciandaro concluded those regulations need only satisfy intermediate scrutiny to survive constitutional [*33] challenge. Id. at 471.

This Court agrees that intermediate scrutiny, or a related analogue, is the appropriate standard to assess the constitutionality of the restrictions in question. The challenged restrictions allow for use of a firearm in defense of the home, and therefore only implicate an individual's ability to carry a firearm in public. Because that interest is not at the "core" of the Second

scrutiny standard when evaluating other types of firearms regulations outside the "core" right of armed self-protection within the home. See, e.g., Nat'l Rifle Ass'n of Am., 700 F.3d at 205 (federal ban on sale of handguns to juveniles); Heller II, 670 F.3d at 1257 (gun registration laws); Reese, 627 F.3d at 802 (prohibition on firearms ownership by individuals subject to a domestic protective order). No court has applied strict scrutiny to regulations burdening Second Amendment restrictions outside the home, although the Seventh Circuit invalidated an Illinois law without applying a particular level of heightened scrutiny. Moore, 702 F.3d at 941. As noted, the D.C. Circuit in Wrenn did not subject the law at issue even to strict scrutiny analysis. 864 F.3d at 664-66.

Amendment right recognized by Heller, analysis at a level of scrutiny lower than the strict scrutiny standard appears to be appropriate. See Hightower, 693 F.3d at 72 ("It is plain that the interest . . . in carrying concealed weapons outside the home is distinct from [the] core interest emphasized in Heller.").

However, because Armstrong plainly stated that the First Circuit has not yet adopted the intermediate scrutiny standard for Second Amendment challenges to firearm regulations, the Court will avoid using that specific label. Instead, the Court's analysis will focus on whether defendant has shown a "substantial relationship between the restriction and an important governmental objective." Booker, 644 F.3d at 25.

c. Application

"In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of [the legislature]." Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195, 117 S. Ct. 1174, 137 L. Ed. 2d 369 (1997) (quotation [*34] marks and citation omitted). "The Supreme Court has long granted deference to legislative findings regarding matters that are beyond the competence of the courts." Kachalsky, 701 F.3d at 97 (citing Holder v. Humanitarian Law Project, 561 U.S. 1, 34, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010)).

As described, the Massachusetts firearm regulatory regime allows, but does not require, a local licensing authority to impose restrictions on firearm licenses that the authority "deems proper." Mass. Gen. Laws ch. 140, § 131(a-b). Massachusetts law further provides that a licensing authority "may issue" a license if the applicant either has a good reason to fear injury or "for any other reason, including the carrying of firearms for use in sport or target practice only, subject to the restrictions expressed or authorized under this section." Id. § 131(d). Pursuant to that broad grant of authority, defendants have policies of imposing various restrictions on applicants who do not show a "good reason to fear injury" that distinguishes them from the general population.

The purpose of the licensing provisions of Mass. Gen. Laws ch. 140, § 131, is "to protect the health, safety, and welfare of [Massachusetts] citizens." Chardin v. Police Comm'r of Boston, 465 Mass. 314, 327, 989 N.E.2d 392 (2013). Massachusetts undoubtedly has a substantial interest in promoting public safety and

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preventing crime. See McCullen v. Coakley, 571 F.3d 167, 178 (1st Cir. 2009) (evaluating whether restriction on free speech was "reasonably [*35] related to the legislature's legitimate public safety objectives"); Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357, 376, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997) (noting "the governmental interest in public safety is clearly a valid interest"); United States v. Salerno, 481 U.S. 739, 750, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987) (describing "the [g]overnment's general interest in preventing crime" as "compelling"). The question is whether defendants' policies of imposing restrictions on the licenses of applicants who fail to show a specific "reason to fear" have a sufficiently substantial relationship to public safety to withstand constitutional scrutiny.

The New York licensing scheme considered by the Second Circuit in Kachalsky is similar to the Massachusetts regulatory regime. New York law generally prohibits citizens from possessing firearms without a valid license to carry. Kachalsky, 701 F.3d at 85. Several types of firearm licenses are available for individuals who work in certain types of employment. Id. at 86. The only license that allows the carrying of a handgun without regard to employment is New York Penal Law § 400.00(2)(f), which requires an applicant to demonstrate "proper cause" in order to receive a license. Id. Thus, individuals "who desire to carry a handgun outside the home and who do not fit within one of the employment categories [allowing handgun possession] must demonstrate proper cause pursuant to [*36] section 400.00(2)(f)." Id.

Although "proper cause" is not defined in the statute, "New York state courts have defined the term to include carrying a handgun for target practice, hunting, or self-defense." Id. Licenses that are issued for the purpose of target practice or hunting can be restricted to those purposes. Id. To establish proper cause to obtain an unrestricted license, an applicant must "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." Id. (quoting Klenosky v. New York City Police Dep't, 75 A.D.2d 793, 428 N.Y.S. 2d 256, 257 (N.Y. App. Div. 1980)).

Three of the plaintiffs in Kachalsky were granted licenses limited to the purpose of target shooting and sought to remove that restriction. Id. at 88 n.7. When the relevant licensing officers refused to do so, the plaintiffs filed suit, contending that the refusal to remove the restriction violated their right to armed self-defense

outside the home and that New York could not force them to demonstrate proper cause to exercise that right. Id. at 88.

After reviewing the legislative history of the New York licensing regime, the Second Circuit found that New York's decision to regulate the number of handguns in public "was premised on the belief that it would have an appreciable [*37] impact on public safety and crime prevention." Id. at 98. It concluded that "[r]estricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York's interests in public safety and crime prevention." Id.

As noted, the licensing regime in New York is substantially similar to the one challenged in this case. In New York, an applicant can receive an unrestricted license if he or she shows a special need for self-protection distinguishable from that of the general public. Id. at 86. By comparison, in Massachusetts, an applicant can receive a license if he or she shows "good reason to fear injury to the applicant or the applicant's property or for any other reason, including the carrying of firearms for use in sport or target practice only, subject to the restrictions expressed or authorized under this section." Mass. Gen. Laws ch. 140, § 131(d). Although no authority directly on point has interpreted the phrase "good reason to fear injury," Massachusetts courts have made clear that without such a showing, restrictions can be placed on a firearm license that limit the holder's ability to carry a firearm. See Ruggiero, 18 Mass. App. Ct. at 261 (plaintiff's request for unrestricted license because [*38] he "is a potential victim of crimes against his person" did not make the decision to deny him an unrestricted license arbitrary, capricious, or an abuse of discretion); Stanley v. Neilen, 2003 U.S. Dist. LEXIS 5400, 2003 WL 1790853, at *2 (D. Mass. Mar. 31, 2003) (restriction on plaintiff's license because he "did not sufficiently demonstrate that he had good reason to fear injury to his person or property—a requirement that has been part of the Massachusetts gun licensing scheme at least since 1936" upheld). In some respects, the Massachusetts law is less restrictive than the New York law, because while in New York an applicant must show a special need to obtain an unrestricted license, Massachusetts law permits, but does not require, a licensing authority to demand applicants demonstrate a special need for self-defense before being issued an unrestricted license.

Massachusetts adopted its licensing requirement "as a first-line measure in the regulatory scheme" as a result

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of the "realization that prevention of harm is often preferable to meting out punishment after an unfortunate event." Ruggiero, 18 Mass. App. Ct. at 258-59. The requirement "was intended 'to have local licensing authorities employ every conceivable means of preventing deadly weapons in the form of firearms [from] coming into the hands of evildoers.'" [*39] Id. at 259 (quoting Rep. A.G., Pub. Doc. No. 12, at 233-34 (1964) (alteration in original)). As in New York, the Massachusetts legislature decided "not to ban handgun possession, but to limit it to those individuals who have an actual reason . . . to carry the weapon." Kachalsky, 701 F.3d at 98.

To the extent that imposing "sporting," "target," "hunting," and "employment" restrictions on applicants who fail to show "good reason to fear injury" burdens conduct protected by the Second Amendment, that requirement is substantially related to the state's important objective in protecting public safety and preventing crime. As other courts have found, "requiring a showing that there is an objective threat to a person's safety—a special need for self-protection—before granting a carry license is entirely consistent with the right to bear arms." Id. at 100 (quotation marks omitted). See also Woollard, 712 F.3d at 880 ("there is a reasonable fit between the good-and-substantial-reason requirement and Maryland's objectives of protecting public safety and preventing crime"); Drake, 724 F.3d at 439-40 (the "justifiable need" standard is a "measured approach [that] neither bans public handgun carrying nor allows public carrying by all firearm owners; instead, the . . . [l]egislature left room for public [*40] carrying by those citizens who can demonstrate a 'justifiable need' to do so."). In making those findings, courts have acknowledged the deference given to the legislature in matters of public policy. See, e.g., Kachalsky, 701 F.3d at 99 ("It is the legislature's job, not ours, to weigh conflicting evidence and make policy judgments."). Although the empirical data may be less than conclusive, the government's regulation need only be "substantially related" to its important objective of promoting public safety and preventing crime in order to pass constitutional muster. Instead of banning the carrying of firearms in public outright, the Massachusetts legislature has balanced the need to reduce the number of firearms in public with the needs of individuals who have a heightened need to carry firearms in public for self-defense.

In short, the policy that requires applicants to show a specific reason to fear in order to be issued unrestricted firearm licenses, and its authorizing statute, are

constitutional. The Court agrees in substance with the Second, Third, and Fourth Circuits, which have upheld similar requirements in other firearm-licensing regimes. See id. at 100-01 (upholding "proper cause" requirement for unrestricted [*41] licenses in New York); Drake, 724 F.3d at 440 (upholding "justifiable need" requirement for licenses in New Jersey); Woollard, 712 F.3d at 881 (upholding "good-and-substantial reason" requirement for licenses in Maryland). Those requirements, although phrased differently, are "essentially the same—the applicant must show a special need for self-defense distinguishable from that of the population at large, often through a specific and particularized threat of harm." Drake, 724 F.3d at 442 (Hardiman, J., dissenting). The courts analyzing these requirements have concluded that they are substantially related to the important governmental objective of promoting public safety and preventing crime. The Court respectfully disagrees with the majority opinion of the D.C. Circuit in Wrenn, principally for the reasons stated by the dissenting judge, 864 F.3d at 668-71, and finds the Seventh Circuit's opinion in Moore to be distinguishable.11

Accordingly, the placing of restrictions such as "sporting," "target," "hunting," and "employment" on the licenses of applicants who do not show good reason to fear injury is substantially related to the important governmental objective of public safety, and therefore

11 In Moore, the court considered a Second Amendment challenge to a "blanket prohibition on carrying [a] gun in public" in Illinois. 702 F.3d at 940. In holding that prohibition unconstitutional, the court noted that "[r]emarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home." Id. (emphasis in original). The Illinois law had no exception for individuals who showed an objective, heightened need for a firearm for self-defense. Id. at 934. Indeed, Moore specifically noted that "[n]ot even Massachusetts has so flat a ban as Illinois." Id. at 940. Ultimately, the Seventh Circuit struck down the law, concluding that Illinois had failed "to justify the most restrictive gun law of any of the 50 states." Id. at 941. Even then, the court stayed its entry of judgment for 180 days to "allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public." Id. at 942. The logical inference is that the Seventh Circuit concluded that some limitation on the carrying of firearms is reasonable. As Moore did not consider a restriction that permitted individuals with a special need for self-defense to obtain unrestricted firearm licenses, it is of limited persuasive value.

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does not violate the Second Amendment.

3. Equal Protection Claim

The amended [*42] complaint alleges a violation of the Equal Protection Clause of the Fourteenth Amendment, contending that the Massachusetts regulatory regime, and in particular Mass. Gen. Laws ch. 140, § 131(a) and (d), restricts the ability of law-abiding citizens to bear arms based on arbitrary considerations. Like the Second Amendment claim, this issue is ripe for disposal on summary judgment. "[E]qual protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). Here, the classification does not impermissibly interfere with the exercise of a fundamental right, and there is no suspect class at issue. Thus, "[g]iven that the Second Amendment challenge fails, the Equal Protection claim is subject to rational basis review." Hightower, 693 F.3d at 83. For the same reasons that the regulatory regime is substantially related to the important governmental objectives of promoting public safety and preventing crime, it also survives rational basis review.

III. Conclusion

For the foregoing reasons, plaintiffs' motion for summary judgment is DENIED. Defendants' motions for summary judgment are GRANTED.

So Ordered.

Dated: December 5, 2017

/s/ F. Dennis Saylor

F. Dennis Saylor IV

United [*43] States District Judge

End of Document

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PositiveAs of: June 13, 2018 3:39 PM Z

Second Amendment Arms v. City of Chicago

United States District Court for the Northern District of Illinois, Eastern Division

September 25, 2012, Decided; September 25, 2012, Filed

CASE NO.: 10-cv-4257

Reporter2012 U.S. Dist. LEXIS 136645 *; 2012-2 Trade Cas. (CCH) P78,064; 2012 WL 4464900

SECOND AMENDMENT ARMS, et al., Plaintiffs, v. CITY OF CHICAGO et al., Defendants.

Subsequent History: Motion granted by, in part, Motion denied by, in part, Dismissed without prejudice by, in part Second Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 2015 U.S. Dist. LEXIS 130454 (N.D. Ill., Sept. 28, 2015)

Summary judgment denied by Second Amendment Arms v. City of Chicago, 2017 U.S. Dist. LEXIS 138581 (N.D. Ill., Aug. 29, 2017)

Core Terms

Ordinance, firearms, motion to dismiss, Counts, allegations, amended complaint, Arms, provisions, Plaintiffs', Municipal, violates, transportation, Commerce, official capacity, state law, requirements, Amends, Gun, restitution, interstate, preemption, rights, declaratory judgment, ammunition, agrees, registration, regulation, preempted, licenses, provides

Counsel: [*1] For Second Amendment Arms, doing business as R. Joseph Franzese, R. Joseph Franzese, individually doing business as Second Amendment Arms, Robert M. Zieman, Sr., Plaintiffs: Walter Peter Maksym, Jr., Attorney at Law, Chicago, IL.

Icarry, doing business as Shaun Kranish, Plaintiff, Pro se.

Shaun Kranish, individually doing business as Icarry, Plaintiff, Pro se.

Tony Kole, Plaintiff, Pro se.

For City Of Chicago, a municipal corporation, Jody P. Weis, Superintendent of Police of the City of Chicago, Miguel del Valle, City Clerk of the City of Chicago, Mara Georges, individually and as Corporation Counsel of the City of Chicago, Defendants: Andrew W

Worseck, William Macy Aguiar, City of Chicago, Department of Law, Chicago, IL.

For Richard M. Daley, individually and as the Mayor of the City of Chicago, Defendant: Walter Peter Maksym, Jr., Attorney at Law, Chicago, IL; William Macy Aguiar, City of Chicago, Department of Law, Chicago, IL.

For Rahm Emanuel, in his official capacity as Mayor of the City of Chicago, Gary McCarthy, Superintendent of Police of the City of Chicago, Susana Mendoza, City Clerk of the City of Chicago, Defendants: William Macy Aguiar, City of Chicago, Department of Law, [*2] Chicago, IL.

Judges: Robert M. Dow, Jr., United States District Judge.

Opinion by: Robert M. Dow, Jr.

Opinion

MEMORANDUM OPINION AND ORDER

Plaintiffs Second Amendment Arms, R. Joseph Franzese, Robert M. Zieman, Sr., ICarry, Shaun A. Kranish, and Tony Kole (collectively "Plaintiffs") filed a Second Amended Complaint [51] alleging various constitutional and other legal infirmities in Chicago's Responsible Gun Owners' Ordinance ("the Ordinance"). Defendants the City of Chicago, Chicago Mayor Rahm Emanuel in his official capacity, Superintendent of the Chicago Police Department Garry McCarthy in his official capacity, and Chicago City Clerk Susana Mendoza in her official capacity (collectively "Defendants") have moved to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [58]. They seek to dismiss all eighteen counts against official capacity defendants Emanuel, McCarthy, and Mendoza, and all or part of thirteen of the eighteen counts against the

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City of Chicago. For the reasons stated below, the motion to dismiss [58] is granted in part and denied in part. Plaintiffs are given 21 days to file a third amended complaint if they believe that they can cure any of the [*3] pleading deficiencies identified below.

I. Background1

In March 1982, the City of Chicago ("the City") enacted an ordinance restricting the possession, ownership, and use of firearms within its borders. [51 at ¶ 12]. The provisions of this 1982 ordinance were codified, as updated and amended, in sections 8-20-010 through 8-20-260 of the Municipal Code of Chicago ("Municipal Code"). See [51 Ex. A]. The Supreme Court held, in McDonald v. City of Chicago, ___ U.S. ___, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (June 28, 2010), that the Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment. [51 at ¶ 13]. The City responded to this ruling on July 2, 2010, by passing the thirty-page Ordinance, [51 ¶ 14], which deleted and replaced sections 8-20-010 to 8-20-260 of the Municipal Code in their entirety. See [51 Ex. B at 4]. The Ordinance also amended several other related provisions of the Municipal Code, see [51 Ex. B at 2-4], including section 4-144-010. [*4] See [51 ¶¶ 17, 33]. The Ordinance became effective on July 12, 2010. [51 ¶ 16; Ex. B at 30.]

Plaintiffs allege that their rights protected by the Second Amendment and other constitutional provisions have been or will be infringed by the Ordinance in a variety of ways. Plaintiff Franzese, a federally licensed firearms dealer and principal of Plaintiff Second Amendment Arms [51 ¶ 1], desires to open two gun shops in the City but has been unable to do so because the City rejected his applications for weapons dealer business licenses. [51 at ¶ 33]. Even if he were able to obtain these licenses, he asserts, the Ordinance would impermissibly burden his businesses because he and his customers would be unable to transport or store firearms, and he would be unable to sell certain types of firearms and firearm accessories. [51 ¶¶ 34, 41]. Plaintiffs Zieman and Kole are Chicago residents who have been unable to purchase and transport firearms

1 On a motion to dismiss, the Court accepts as true all well-pleaded facts alleged by the plaintiffs and all reasonable inferences that can be drawn from them. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

and firearm accessories in the City [51 ¶¶ 35-36, 42-43], and plaintiff Kole has been unable to maintain more than one operable firearm in his home [51 ¶ 38], or possess a firearm within the curtilage of his home or in his rented garage [51 ¶¶ 39-40]. Plaintiff [*5] Kranish, d/b/a Icarry, resides and does business in Rockford, Illinois. [51 ¶ 3]. He and Icarry want to gift handguns to qualified, law-abiding Chicago residents but fear prosecution under the Ordinance. [51 ¶ 37]. Plaintiffs seek a full panoply of relief, including declaratory judgments, preliminary and permanent injunctive relief, damages, costs, and attorneys' fees. See [51 ¶¶ 86, 91, 96, 103, 105, 107, 113, 115, 117].

The Second Amended Complaint presently before the Court represents Plaintiffs' fourth attempt to crystallize their allegations and coherently frame their challenges to the Ordinance. See [1], [4], [6], [51]. 2 On July 27, 2011, with Defendants' Motion to Dismiss and the jumbled allegations set forth in Plaintiffs' First Amended Complaint pending before it, see [6], [18], the Court instructed Plaintiffs to clearly and intelligibly set forth their claims, in individual numbered counts, so as to enable Defendants and the Court to understand and address their allegations. See [41]; see also [73-1 at 12] ("This Court asked Plaintiffs in open court to amend and simplify the Complaint."). It appears that Plaintiffs have made some effort to comply with these instructions in [*6] the Second Amended Complaint. They follow up their more clearly articulated facts and allegations with eighteen numbered counts' worth of claims enumerating dozens of legal theories. Yet several of their claims remain difficult to decipher.

As the Court understands the Second Amended Complaint, all Plaintiffs allege in Counts I-VII that various provisions of the Ordinance violate their rights under the Second Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment. They further allege in Count I that unspecified portions of Chicago's zoning ordinance are construed to restrict the availability of firearms, in Count III that Section 8-20-090 of the Ordinance violates the Supremacy Clause, and in Counts III and VI that certain portions of the Ordinance are unconstitutionally vague. All Plaintiffs seek in Count X relief under 42 U.S.C. § 1983 and Monell v. City of New York Department of

2 Plaintiffs filed an original complaint on July 9, 2010 [1], an "amended" complaint on September 21, 2010 [4], a "first amended" complaint on October 1, 2010 [6], and a "second amended" complaint on September 9, 2011 [51].

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Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); claim in Count [*7] XI that the Defendants violated the Sherman Antitrust Act, 15 U.S.C. § 1; and invoke Illinois state law in Count XIV to seek a declaratory judgment that the Ordinance violates nine clauses of the Illinois Constitution. Plaintiffs Zieman and Kole allege in Count VIII that section 8-20-050 of the Ordinance violates their Second Amendment rights by making it impractical and impossible for them and other Chicagoans to use firearms in self defense. Plaintiff Second Amendment Arms alleges in Count IX that the Ordinance impermissibly burdens interstate commerce; violates the Dormant Commerce Clause; violates the First, Second, Fourth, Fifth, and Fourteenth Amendments; and conflicts with various federal laws in violation of the Supremacy Clause. In Count XV, Second Amendment Arms seeks a writ of mandamus directing Defendants to issue the weapons dealer licenses for which Franzese applied. In Count XVI, Second Amendment Arms asserts a state law claim for tortious interference with prospective economic advantage. In Counts XII and XVII, Plaintiff Kole seeks restitution of the fees that he and a similarly situated class of individuals and entities paid the City to obtain firearms permits and [*8] registration certificates pursuant to the Ordinance. And in Counts XIII and XVIII, Plaintiff Zieman seeks a declaration that the 1982 ordinance was unconstitutional (under the United States and Illinois Constitutions), expungement of his and all others' convictions under the 1982 ordinance, recompense of various fees and expenditures that he and others incurred as a result of the City's enforcement of the 1982 ordinance, and the return of all firearms seized from him and others pursuant to the 1982 ordinance.

Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) all of Plaintiffs' claims against official capacity Defendants Emanuel, McCarthy, and Mendoza. [58]. Defendants also have moved to dismiss, under Rules 12(b)(1) and 12(b)(6), Counts VIII-XVIII of the Second Amended Complaint in their entirety and Counts I and III in part. [58]. 3

II. Legal Standard

The purpose of a Rule 12(b) motion to dismiss is not to

3 After briefing of the motion to dismiss concluded, Plaintiffs filed a motion for leave to cite new supplemental case authorities in opposition to Defendants' motion to dismiss. [79]. The Court grants this motion.

decide the merits of the case. A Rule 12(b)(6) [*9] motion tests the sufficiency of the complaint, Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.1990), while a Rule 12(b)(1) motion tests whether the Court has subject matter jurisdiction. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). In reviewing a motion to dismiss under either rule, the Court takes as true all factual allegations in Plaintiffs' complaint and draws all reasonable inferences in their favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007); Long, 182 F.3d at 554. To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) [*10] (quoting Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original).

III. Analysis

A. Plaintiffs' Representation

The Court notes at the outset that there is some confusion in its records as to which Plaintiffs are represented by counsel and which are not. According to the docket, no attorney appearance form has been filed on behalf of any of the Plaintiffs, notwithstanding Local Rule 83.16's requirement that attorney appearance forms must be filed "prior to or simultaneously with the filing of any motion, brief or other document in a proceeding before a judge or magistrate judge of this Court, or at the attorney's initial appearance before a

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judge or magistrate judge of this Court, whichever occurs first." The Second Amended Complaint was filed by an [*11] attorney, purportedly on behalf of all Plaintiffs, yet all Plaintiffs also signed the Second Amended Complaint in an apparent attempt to comply with Federal Rule of Civil Procedure 11(a), and several are listed as pro se on the docket. In short, the Court is not certain at this time which Plaintiffs are represented and which are not. The Court instructs counsel for Plaintiffs and any Plaintiffs who are not represented by counsel to be prepared to address this issue at the next status hearing.

B. Official Capacity Defendants

Defendants move to dismiss all counts to the extent that they name as Defendants Mayor Emanuel, Chief McCarthy, and Clerk Mendoza in their official capacities. They argue that the claims against these Defendants are duplicative of those against the City of Chicago. [60-1 at 23-24]. Plaintiffs disagree. Rather than refuting Defendants' argument, however, Plaintiffs respond with an ad hominem attack on the official-capacity Defendants. [73-1 at 24.] They also contend that "continued inclusion [of the official-capacity Defendants] is necessary, to hold them accountable, and to render them subject to mandamus and the other relief that may be granted should Plaintiffs [*12] prevail." [73-1 at 24.]

The Court agrees with Defendants to the extent that they seek to dismiss Plaintiffs' § 1983 claims against the official-capacity Defendants. Section 1983 creates a cause of action against "[e]very person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Generally, an official capacity suit is brought against a high-ranking official as a means of challenging an unconstitutional policy, practice, or custom. Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). But suing a government employee in his official capacity is akin to suing the entity that employs him and the standard for liability is the same. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Thus, Defendants are correct that naming the official capacity defendants in addition to the City, the true party in interest, is redundant and fails to state a separate claim for relief. See [*13] Harris v. Denver Health Med. Ctr.,

No. 11-cv-01868, 2012 U.S. Dist. LEXIS 78461, 2012 WL 1676590, at *7 (D. Colo. May 10, 2012) ("A § 1983 claim is properly plead against a municipality either by naming the municipality itself or by naming a municipal official in his or her official capacity. Naming either is sufficient. Naming both is redundant." (quotations and citation omitted)). The Court therefore grants Defendants' motion to dismiss the Counts sounding under § 1983, Counts I-X, XII, and XIII, against official-capacity Defendants Emanuel, McCarthy, and Mendoza. Notwithstanding the lack of reasoned argument from Plaintiffs, the Court denies Defendants' motion to dismiss Counts XI and XIV-XVIII against the official-capacity Defendants. These claims also remain pending against Defendant City of Chicago. Defendants have not pointed to any authority demonstrating that the same rule of party equivalence applies in non-§ 1983 actions brought against official-capacity defendants, so the Court declines to dismiss the claims on this basis at this time. For simplicity's sake, the Court will continue to use the collective term "Defendants" in its discussion of these counts.

C. Count I : "Ban on Gun Stores (U.S. Const. Amends. II [*14] & XIV)"

Plaintiffs raise two conceptually related but legally distinct claims in Count I. First, they allege that section 4-144-010 of the Municipal Code, as amended by the Ordinance, unduly burdens, impedes, and infringes upon their Second and Fourteenth Amendment rights by restricting weapons dealers' ability to "engage in the business of selling, or to sell, give away, or otherwise transfer, any firearm." [51 ¶¶ 46-47]. Second, they allege that, "[t]o the extent that the zoning ordinances of the City are construed to prohibit the reasonable availability of firearms through commercial firearms dealers, said zoning ordinances are also unconstitutional and void ab initio." [51 ¶ 48].

Defendants seek to dismiss under Rule 12(b)(6) only the latter portion of Count I. They assert that the claim does not comply with Federal Rule of Civil Procedure 8(a)(2) because "Plaintiffs fail to identify in their Complaint any provision of the Chicago Zoning Ordinance that would prohibit commercial sales of firearms." [60-1 at 3]. Plaintiffs respond by pointing to ¶ 20 of the Second Amended Complaint, in which they allege that "It is not apparent that Chicago's zoning ordinance specifically allows or [*15] forbids gun shops, except that 'the sale of firearms or ammunition' is forbidden as a 'home occupation' pursuant to § 17-9-

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0202-C (11)(q). On information and belief, Chicago will not issue a zoning permit for any use it deems may violate the penal ordinances of the City."

The Court agrees with Plaintiffs that this allegation, which Plaintiffs incorporated into Count I, adequately places Defendants on notice that Section 17-9-0202-C(11)(q) is being challenged on Second and Fourteenth Amendment grounds to the extent that it may impede Plaintiffs from opening gun stores. The Court therefore denies in part Defendants' motion to dismiss Count I. To the extent that Plaintiffs may take issue with other zoning provisions, however, the Court agrees with Defendants that the Second Amended Complaint in its current state is insufficient to apprise Defendants of any specific zoning provisions that they may be called upon to defend and accordingly grants in part the motion to dismiss Count I as it pertains to all other provisions of the zoning ordinance that Plaintiffs have failed to specifically identify.

D. Count III: "Ban on Possession Outside Home (U.S. Const. Art. VI, cl. 2; Amends. II & XIV)"

Defendants [*16] move to dismiss under Rule 12(b)(6) the portion of Count III alleging that Section 8-20-090 of the Ordinance is invalid under the Supremacy Clause because it adds additional requirements to 18 U.S.C. § 926A that are "contrary to" the federal statute. [51 ¶ 57(c)]. Defendants argue that this Supremacy Clause theory necessarily fails as a matter of law because § 926A does not preempt Section 8-20-090. The Court agrees.

The basic principles of preemption law are both relatively straightforward and well-established. The Supremacy Clause of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land; * * * any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Since McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L. Ed. 579 (1819), it has been settled that state law that conflicts with federal law is "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981). When determining if such a conflict exists, the "purpose of Congress" is the ultimate touchstone. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992).

In general, there are three settings in which a state law conflicts [*17] with, and hence is preempted by, federal

law: (1) express preemption, in which Congress "define[s] explicitly the extent to which its enactments pre-empt state law;" (2) field preemption, in which state law is pre-empted because "it regulates conduct in a field that Congress intended the federal government to occupy exclusively;" and (3) conflict preemption, in which, for example, complying with both federal and state law is a physical impossibility. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 & n. 5 (1990) (explaining that the three categories are not "rigidly distinct"); see also Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 576 (7th Cir. 2012). Defendants argue persuasively that no preemption of any type is present here. See [60-1 at 5-7].

Section 926A, "Interstate transportation of firearms," is part of 18 U.S.C. Chapter 44, which regulates firearms more broadly. Section 926A provides:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose [*18] from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

Section 8-20-090 of the Ordinance, also entitled "Interstate transportation of firearms," provides:

It shall not be a violation of this chapter if a person transporting a firearm or ammunition while engaged in interstate travel is in compliance with 18 U.S.C.A. § 926A. There shall be a rebuttable presumption that any person within the city for more than 24 hours is not engaged in interstate travel, and is subject to the provisions of this chapter.

Nothing in § 926A suggests an intention by Congress to expressly preempt laws such as Section 8-20-090. An

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express preemption must be explicit. See, e.g., 15 U.S.C. § 7707(b)(1); [*19] 29 U.S.C. § 1144(a). Section 926A merely "provide[s] that conflicting state provisions affecting the transportation of firearms will be preempted." City of Camden v. Beretta U.S.A. Corp., 81 F. Supp. 2d 541, 549 (D.N.J. 2000).

There likewise is no field preemption present here. 18 U.S.C. § 927 precludes any such conclusion. It explicitly states that "No provision of this chapter" - including § 926A - "shall be construed as indicating an intent on the part of Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together." See Fletcher v. Haas, 851 F. Supp. 2d 287, 305 (D. Mass. 2012); cf. McDonald v. City of Chi., 130 S. Ct. at 3047 ("[S]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment." (quotation omitted)).

Conflict preemption also is absent. Conflict preemption exists where either "(1) 'it is impossible for a private party to comply with both state and federal requirements,' or (2) 'where state [*20] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Wigod, 673 F.3d at 578 (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S. Ct. 1483, 131 L. Ed. 2d 385 (1995)). Section 8-20-090 presents neither problem. To the contrary, it specifically provides that "[i]t shall not be a violation of this chapter if a person transporting a firearm or ammunition while engaged in interstate travel is in compliance with 18 U.S.C.A. § 926A." Plaintiffs' arguments concerning the "emasculation" [73-1 at 10] of Plaintiff Franzese's federal license to deal firearms and the Commerce and Dormant Commerce Clauses [73-1 at 10-11] cannot overcome the straightforward language of the Ordinance and §§ 926A and 927. Defendant's motion to dismiss in part Count III is therefore granted.

E. Count VIII: "Physical Presence, Security, Trigger Lock & Lock Box Requirements (U.S. Const. Amends. II & XIV)"

In Count VIII, Plaintiffs Zieman and Kole allege that Section 8-20-050 of the Ordinance, which requires persons keeping or possessing a firearm or ammunition in their homes to secure or carry on their person such items when they know or have reason to believe that a

minor under the age [*21] of eighteen is likely to gain access to these items, "makes it impractical and impossible for them or other citizens to use arms for the core lawful purpose of self-defense." [51 ¶ 76]. Defendants move to dismiss Count VIII under Rule 12(b)(1), arguing that Plaintiffs Zieman and Kole lack standing to challenge section 8-20-050 because they have not pleaded facts demonstrating that the section applies to them or that they have suffered or will suffer any redressable injury as a result of it. [60-1 at 8-9 & n.5]. Defendants also move to dismiss Count VIII under Rule 12(b)(6) for essentially the same infirmity: "Plaintiffs also plead no facts supporting their claim that the requirements of section 8-20-050 interfere with their Second Amendment rights." [60-1 at 9].

This Court has jurisdiction over Count VIII only if Plaintiffs demonstrate that (1) they suffered an injury in fact, (2) the Defendants' actions caused the injury, and (3) the remedy they seek would redress the injury. Bell v. Keating, 697 F.3d 445, No. 11-2408, 2012 U.S. App. LEXIS 18952, 2012 WL 3892506, at *2 (7th Cir. Sept. 10, 2012). When a plaintiff seeks prospective relief against a harm not yet suffered, he must establish that he "is immediately in [*22] danger of sustaining some direct injury as the result of the challenged official conduct[,] and [that] the injury or threat of injury [is] both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (internal quotation omitted). Otherwise, he fails to allege an actual case or controversy before the court. See U.S. Const. art. III, § 2, cl. 1.

As a general matter, a plaintiff who wishes to engage in conduct arguably protected by the Constitution, but proscribed by a statute or ordinance, successfully demonstrates an immediate risk of injury. The existence of the ordinance constitutes the government's commitment to prosecute in accordance with it and, thus, a concrete prospect of future harm for anyone who would flout it. Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 590-91 (7th Cir. 2012); Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003). Consequently, when a plaintiff expresses a credible intention to disobey a statute, a sufficient likelihood of injury exists, and a pre-enforcement challenge is appropriate. See Alvarez, 679 F.3d at 591 ("To satisfy the injury-in-fact requirement in a preenforcement action, the plaintiff [*23] must show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder." (quotation omitted)). He need

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not wait to be arrested to bring suit for injunctive relief. Cf. Ezell v. City of Chi., 651 F.3d 684, 695-96 (7th Cir. 2011) (explaining in dicta that plaintiffs' injuries "easily support[ed] Article III standing" where plaintiffs challenging the Ordinance's provisions relating to firing ranges alleged that they owned firearms and wanted to maintain their proficiency or store the firearms within the city but were unable to do so because they feared prosecution under the Ordinance).

Plaintiffs Zieman and Kole fall short of alleging any such "intention to engage in a course of conduct * * * proscribed by" Section 8-20-050. They allege that they both desire to purchase firearms and banned accessories within Chicago [51 ¶¶ 35, 42-43] and travel with these items within Chicago [51 ¶ 36]. They also allege that Plaintiff Kole would like to maintain more than one operable firearm in his home [51 ¶ 38], and exercise his right to use a firearm to defend himself [*24] outside the confines of his home [51 ¶¶ 39-40]. It is reasonable to infer from these allegations that Zieman and Kole desire to maintain firearms and ammunition unsecured in their homes. But it would stretch the bounds of reasonableness to infer, on these allegations alone, that Zieman or Kole knows or has reason to believe that a minor under the age of eighteen is likely to gain access to his firearms or ammunition.

In their brief opposing the motion to dismiss, Plaintiffs assert that Plaintiff Zieman "has five (5) minor children." [73-1 at 11 n.3]. This allegation, which is properly considered at the motion to dismiss stage inasmuch as it is consistent with those contained in the Second Amended Complaint, see Evans v. U.S. Postal Serv., 428 F. Supp. 2d 802, 805 (N.D.Ill. 2006), coupled with all reasonable inferences in Zieman's favor, shows that Plaintiff Zieman faces a probability of future injury under Section 8-20-050. See Alvarez, 679 F.3d at 591. Defendants argue that any injury is not redressable because an Illinois statute, 720 ILCS 5/24-9, subjects Chicago residents to the same requirements to the extent that they know or have reason to believe that a minor under the age of [*25] fourteen is likely to gain access to an unsecured firearm. Because Plaintiffs are not challenging that statute, Defendants reason, "the Court could not fashion relief that would redress their alleged injuries." [60-1 at 9 n.5]. The Court is not persuaded by this argument. The requirements imposed by the state statute are not identical to those imposed by the Ordinance such that a result in Plaintiff Zieman's favor here would not ameliorate his alleged injuries. The Court finds that Plaintiff Zieman has alleged facts sufficient to state a claim and establish his standing to

bring it. The Court therefore denies Defendants' motion to dismiss Count VIII as to Plaintiff Zieman.

The Court grants Defendants' motion to dismiss Count VIII as to Plaintiff Kole, who at this juncture has not alleged facts sufficient to support standing or state a claim for relief. This dismissal is without prejudice; Plaintiffs may amend their complaint to allege facts in support of Plaintiff Kole's standing (and claim) should they be able to do so consistent with Federal Rule of Civil Procedure 11.

F. Count IX: "Second Amendment Arms' Claims — Unlawful Burden on Interstate Commerce (U.S. Const. Art. I, § 8, Cl. 3, [*26] Art. VI & Amends. II & XIV — 18 U.S.C. Ch. 44 & 15 U.S.C. § 7901)"

Plaintiff Second Amendment Arms alleges in Count IX that the Ordinance impermissibly burdens interstate commerce, violates the Dormant Commerce Clause, violates the First, Second, Fourth, Fifth, and Fourteenth Amendments, and conflicts with various federal laws in violation of the Supremacy Clause. [51 ¶¶ 79-82]. Defendants move to dismiss Count IX arguing that it fails to comply with the pleading requirements set forth in Rules 10(b) and 8(a)(2), that the Ordinance is not preempted by 15 U.S.C. § 7901, 18 U.S.C. chapter 44, or the Federal Firearms Act, and that the Ordinance does not violate the Dormant Commerce Clause. [60-1 at 10-15.]

The Court need not go beyond Defendants' Rule 10(b) argument. Federal Rule of Civil Procedure 10(b) provides that "each claim founded a separate transaction or occurrence * * * must be stated in a separate count or defense * * * [i]f doing so would promote clarity." Fed. R. Civ. P. 10(b); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) ("[A] court may require that allegations be grouped into logical counts that are 'founded on' separate transactions or occurrences."). Requiring [*27] separate counts serves two purposes: (1) it gives fair notice to the defendants of the claims against them; and (2) it enables the court to grant relief on an entire count, not just part of a count. See Livingston v. Vill. of Dolton, No. 02 C 6003, 2003 U.S. Dist. LEXIS 4283, 2003 WL 1463635, at *6 (N.D. Ill. Mar. 20, 2003). As another court in this district has recently explained, "The [lode]star of Rule 10 is intelligibility, good organization, and basic coherence." Awalt v. Marketti, No. 11 C 6142, 2012 U.S. Dist. LEXIS 49182, 2012 WL 1161500, at *10 (N.D. Ill. Apr. 9, 2012).

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The Second Amended Complaint currently before the Court is in fact the fourth iteration of Plaintiffs' allegations. See [1], [4], [6], [51]. Before the Second Amended Complaint was filed, the Court explicitly instructed Plaintiffs to clarify their allegations by separating their claims into individual counts. Despite the assertion in their brief that "They have done so," [73-1 at 12], Plaintiffs have failed to heed this instruction with respect to Count IX, which by its caption purports to assert a Commerce Clause claim but in fact includes a litany of unrelated claims. Plaintiffs were specifically instructed to avoid "lumping ostensibly separate claims * * * into [*28] a single claim," Penn. Chiropractic Ass'n v. Blue Cross Blue Shield Ass'n, No. 09 C 5619, 2010 U.S. Dist. LEXIS 107077, 2010 3940694, at *3 (N.D. Ill. Oct. 6, 2010), and their belief that "[p]leading separate claims for each section of the Ordinance * * * would * * * unnecessarily lengthen the Complaint," [73-1 at 12], is an insufficient justification for their disregard of the Court's instruction. As the Seventh Circuit has explained, there is a difference between a lengthy yet intelligible complaint and one whose sprawling nature obfuscates its essence. See United States ex rel Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) ("A concise statement of the claim illustrated by 400 concrete examples of fraud would be one thing, but 400 variations on the kind of paragraph we have quoted are quite another.").

The Court recognizes that there is a fine line separating the rule that "[o]ne set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate," from the practical reality that "two legal theories sufficiently distinct that they call for proof of substantially different facts may be separate 'claims.'" NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992). [*29] The pleading waters have only been muddied further in recent years as a result of Twombly and Iqbal. In light of the Court's previous instructions, however, the proper pleading path for Plaintiffs to take with regard to Count IX—and all others in the Second Amended Complaint—should have been plainly illuminated. The Court therefore grants Defendants' motion to dismiss Count IX in its entirety. Again, Plaintiffs will be given one additional attempt to clarify Count IX if they believe that they can do so.

G. Count X: "Monell Claim (42 U.S.C. § 1983)"

In Count X, Plaintiffs assert the following in addition to incorporating all of their factual allegations: (1) that "the Mayor, City Clerk, and Superintendent were, by

operation of law and as a matter of fact, the final decision makers with regard to actions and decisions that they made and/or participated in by them as hereinabove alleged"; and (2) "That said acts and decisions administering and enforcing sai[d] policies, practices, and customs directly and proximately caused the constitutional violations of Plaintiff's rights, deprivation of Second Amendment Arms' full use of the FFL, lost profits, loss of good will, and other injuries and [*30] damages as hereinabove alleged which are therefore directly chargeable to the City." [51 ¶¶ 85-86]. Defendants move to dismiss Count X under Rule 12(b)(6) on the grounds that Monell does not create an independent cause of action.

Plaintiffs label Count X as "Monell Claim (42 U.S.C. § 1983)." Defendants are correct, however, that Monell does not provide a cause of action but instead provides the theory under which a municipality might be liable for its employees' constitutional violations. Monell v. Department of Social Services of City of New York holds that "a municipality cannot be held liable under § 1983 on a respondeat superior theory." 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Rather, "[a] municipality can be held liable under § 1983 only if its officers acted pursuant to (1) an official policy; (2) a practice or custom that although not officially authorized, was widespread and well settled; or (3) instructions from a city official with final policy-making authority." Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 664 (7th Cir. 2012). Municipal legislation can be considered an official municipal policy. See Benedix v. Vill. of Hanover Park, Ill., 677 F.3d 317, 318 (7th Cir. 2012); see also [*31] Monell, 436 U.S. at 690; Gernetzke v. Kenosha United Sch. Dist. No. 1, 274 F.3d 464, 468-69 (7th Cir. 2001) ("It doesn't matter what form the action of the responsible autority that injures the plaintiff takes. It might be an ordinance, a regulation, an executive policy, or an executive act.").

Here, Plaintiffs have alleged - in other counts - that the City, by way of the Ordinance, has violated their constitutional rights. The Court is thus puzzled by what this separate Monell claim adds to Plaintiffs' case. Count X either duplicates the surviving § 1983 claims brought in Counts I-VIII or states only a theory under which Plaintiffs might recover for other constitutional violations but does not present a viable claim in and of itself. Either way, it does not currently state an independent claim upon which relief may be granted. The Court grants the motion to dismiss Count X but does so without prejudice. Plaintiffs may clarify what independent claims, if any, they assert in Count X by

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filing an amended complaint within 21 days.

H. Count XI: "Plaintiffs' Anti-Trust Restraint of Trade Claim (15 U.S.C. § 1, et. seq.)"

In Count XI, Plaintiffs claim that the Defendants, "by unconstitutional [*32] economic regulation," have unreasonably restrained competition and trade in violation of the Sherman Act, 15 U.S.C. § 1. [51 ¶ 89.] Defendants argue that Count XI should be dismissed both because Plaintiffs failed to identify which provisions of the Ordinance violate the Sherman Act—a Rule 8(a)(2) deficiency—and because Plaintiffs have failed to state a substantive claim under section 1 of the Sherman Act. 4

To state a claim under 15 U.S.C. § 1, Plaintiffs must allege (1) a contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant market; and (3) an accompanying injury. Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 335 (7th Cir. 2012). Defendants argue that Plaintiffs falter at the first step by neglecting to identify [*33] "any 'contract, combination, or conspiracy' or any other agreement entered into or engaged in by Defendants which resulted in an unreasonable restraint of trade." [60-1 at 16]. The Court agrees. Plaintiffs allege only that Defendants "have and continue to unreasonably restrain competition and trade that affects interstate commerce," [51 ¶ 89], and that unspecified "acts and decisions constitute a scheme that through concerted action, combination, and/or conspiracy in restraint of trade and commerce among the several States by produced [sic] and imposing the New Gun Ban Ordinance on the Plaintiffs that constituted and continue to constitute ongoing violations of the Sherman Antitrust Act that directly interfered with and continue to interfere [with] Second Amendment Arms' full lawful FFL rights and privileges and has caused and continues to cause lost profits, loss of good will, loss of freedom and liberty and other injuries and damages as hereinabove alleged and deny the other Plaintiffs herein to engage in trade and commerce as above stated." [51 ¶ 90].

4 The Court notes that although it is not entirely clear from the Second Amended Complaint that Count XI sounds only under Section 1 of the Sherman Act, Plaintiffs' brief opposing the motion to dismiss seems to accept Defendants' assumption that it does. See [73-1 at 17 ("Count XI alleges that the City's Ordinance violates the Sherman Antitrust Act (15 U.S.C. § 1).")]. The Court therefore construes the claim accordingly.

The Court is unable to discern from these allegations which of the Defendants allegedly conspired, or how they did so. The Supreme [*34] Court has made clear that enactment and compliance with a local ordinance does not alone amount to a conspiracy for Sherman Act purposes, see Fisher v. City of Berkeley, Cal., 475 U.S. 260, 267, 106 S. Ct. 1045, 89 L. Ed. 2d 206 (1986), and Plaintiffs have not alleged more here. There can be no liability under Section 1 of the Sherman Act in the absence of a conspiracy, agreement, or other concerted action by separate entities to restrain trade, so the Court grants Defendants' motion to dismiss Count XI.

I. Count XII: "Plaintiff Koles's [sic] Individual and Class Action Claim for Restitution Under the New Gun Ban Ordinance (U.S. Const., Amends. II & XIV, 42 U.S.C. § 1983)" & Count XVII: "Plaintiff Kole's Pendant [sic] Individual and Class Action State Law Claim for Restitution — Unjust Enrichment"

In Counts XII and XVII, Plaintiff Kole (and the putative classes that he seeks to represent) challenges the Ordinance's registration requirements. He contends that by collecting fees from him and other law-abiding Chicagoans who are required to register their firearms, the Defendants under color of law wrongfully deprived them of monies, were unjustly enriched thereby, and violated their Second and Fourteenth Amendment rights, [*35] as well as the rights guaranteed them by various provisions of the Illinois state constitution. [51 ¶¶ 93, 114-15]. Defendants move to dismiss Counts XII and XVII for failure to comply with Federal Rule of Civil Procedure 8(a)(2). They claim that Count XII "fails to identify what provisions of the ordinance are being challenged and what relation those provisions have to the payment of the aforementioned registration fees." [60-1 at 17]. Defendants incorporate this argument into their challenge of Count XVII. [60-1 at 22].

Defendants' own briefing belies their claim. In the very next sentence, they note that the Ordinance provisions governing firearm registration and registration fees are, respectively, sections 8-20-140 and 8-20-150. [60-1 at 17]. Defendants clearly are not "left guessing as to which provision of the Ordinance forms the basis of Kole's claim for restitution of firearm registration fees." [60-1 at 17]. Even if they were, however, Plaintiffs' failure to identify the specific section of the Ordinance would not warrant dismissal of Count XII. "A complaint need not identify legal theories, and specifying an incorrect legal theory is not a fatal error." Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011); [*36] see

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also Smith v. Med. Benefit Adm'rs Group, Inc., 639 F.3d 277, 283 n.2 (7th Cir. 2011) ("The fact that Smith cited section 502(a)(2) alone and not section 502(a)(3) in his complaint is not fatal to his complaint, as the federal rules do not require him to plead legal theories in his complaint."). Plaintiff Kole's failure to precisely map his allegations concerning the registration portions of the Ordinance onto specific provisions of the Illinois Constitution likewise is not fatal to Count XVII; unlike Count IX, Count XVII purports to assert only one legal claim, and its clarity would not be significantly improved by requiring Kole to subdivide it into additional numbered paragraphs or counts. Defendants' motion to dismiss Counts XII and XVII is denied.

J. Count XIII: "Plaintiff Zieman's Individual and Class Action Claim for Restitution Under Unconstitutional Old Gun Ban Ordinance (U.S. Const., Amends. II & XIV, 42 U.S.C. § 1983)" & Count XVIII: "Plaintiff Zieman's Pendant [sic] Individual and Class Action State Law Claim for Restitution - Unjust Enrichment"

Counts XIII and XVIII set forth essentially the same claims, to which Defendants raise virtually identical challenges. In these [*37] counts, Plaintiff Zieman alleges that the Chicago Police, acting pursuant to the 1982 ordinance, raided his home and confiscated "numerous valuable handguns and rifles that he possessed therein and maintained in a safe as FOID Card holder." [51 ¶ 98]. Zieman was "thereafter found guilty and fined for failing to register" the guns. [51 ¶ 98]. Plaintiff Zieman contends that since the 1982 ordinance was unconstitutional, he and the members of the class identified in ¶ 101, are "entitled to the return and restitution of his said firearms in kind or the fair market value thereof, vacation and expungement of his conviction for failure to register his weapons, a refund of any fines, court costs, expenses, legal fees incurred as a result thereof, damages, declaratory and permanent injunctive relief against continued enforcement and maintenance of Defendants' unconstitutional customs, policies, and practices along with his reasonable attorneys fees and costs pursuant to 42 U.S.C. § 1988." [51 ¶ 99]. Defendants argue that Counts XIII and XVIII should be dismissed because Zieman's claims "could be time-barred." [60-1 at 18]. In the alternative, they contend that the claims should be dismissed [*38] because they concern a moot issue. [60-1 at 18]. They also argue that Count XVIII should be dismissed for failure to comply with Rule 10(b). [60-1 at 23].

Defendants' statute of limitations argument is a non-starter. Although they are quite correct that Plaintiff Zieman fails to allege when his firearms were allegedly seized, "[t]he mere presence of a potential affirmative defense does not render the claim for relief invalid." Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). Dismissal on statute of limitations grounds is only appropriate where a plaintiff pleads himself out of court by establishing that a defendant is entitled to a limitations defense. See Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 (7th Cir. 2009) (dismissal appropriate where it is "clear from the face of the amended complaint that it [was] hopelessly time-barred"); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) ("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense."). Had Zieman fully "set forth everything necessary to satisfy the affirmative defense," United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005), [*39] i.e., alleged a date outside the applicable statute of limitations, Defendants' argument could have carried the day. Defendants may find that it eventually does; it just cannot at this juncture.

Defendants' argument regarding mootness fares better. To the extent that Plaintiff Zieman seeks "permanent injunctive relief against continued enforcement and maintenance" of the 1982 ordinance, [51 ¶ 99], or "temporary, preliminary and permanent injunctive relief" from its now defunct provisions, [51 ¶¶ 103(D), 117(D)], the Court agrees that this request has been mooted by the repeal of the 1982 ordinance. See Rembert v. Sheahan, 62 F.3d 937, 940-41 (7th Cir. 1995) ("The complete repeal of a challenged statute naturally renders a request for an injunction against application of that statute moot."). Similarly, "[a] declaratory judgment on the validity of a repealed ordinance is a textbook example of advising what the law would be upon a hypothetical set of facts." Nat'l Advertising Co. v. City and Cnty. of Denver, 912 F.2d 405, 412 (10th Cir. 1990) (quotation omitted). The Court therefore lacks jurisdiction over Counts XIII and XVIII to the extent that they seek injunctive and declaratory relief, [*40] and these claims are accordingly dismissed to that extent.

Yet Plaintiff Zieman also seeks other forms of relief - damages and restitution. And "repeal of a law will not render a claim moot if the plaintiff is seeking relief from alleged past rather than future unconstitutional action." Clarkson v. Town of Florence, 198 F. Supp. 2d 997, 1003 (E.D. Wis. 2002) (citing Mumford v. Basinski, 105 F.3d 264, 273-74 (6th Cir. 1997)). Here, Defendants

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repealed the 1982 ordinance but did not in so doing necessarily rectify Zieman's alleged injuries. The Court therefore denies Defendants' motion to dismiss Counts XIII and XVIII to the extent that Plaintiff Zieman and the putative class seek restitution and damages. 5

K. Count XIV: "Pendant [sic] State Claim for Declaratory Judgment (735 ILCS 5/2-701)"

In Count XIV, Plaintiffs seek a declaratory judgment (under Illinois's declaratory judgment [*41] statute, 735 ILCS 5/2-701) that the Ordinance 6 violates Article I §§ 1, 2, 4, 6, 12, 22, and 24 of the Illinois Constitution, as well as its due process and takings clauses. See [51 ¶ 105]. Defendants seek to dismiss this count for failure to comply with Rule 10(b).

The Court denies Defendants' motion to dismiss Count XIV. The count states one claim—a claim for declaratory relief—and, so far as the parties have interpreted it, rests upon a "single set of circumstances," the Ordinance. Fed. R. Civ. P. 10(b). The Court notes that the federal rather than state declaratory judgment statute governs Count XIV; the Illinois declaratory judgment statute is a procedural rule that creates no substantive rights. Household Fin. Servs., Inc. v. N. Trade Mortg. Corp., No. 99 C 2840, 1999 U.S. Dist. LEXIS 15039, 1999 WL 782072, at *2 (N.D Ill. Sept. 27, 1999). The Court will construe this count accordingly.

L. Count XV: "Second Pendant [sic] State Claim by Second Amendment Arms for Mandamus"

In Count XV, Plaintiff Second Amendment Arms seeks [*42] a writ of mandamus compelling Defendants to issue the weapons dealer licenses that it applied for. Defendants argue that the claim fails as a matter of law and should be dismissed.

5 The Court is not persuaded that Count XVIII should be dismissed for failure to comply with Rule 10(b). Plaintiff Zieman's claim—that the City was unjustly enriched by his guns and the fines and other fees that he paid in connection with their confiscation—is sufficiently clear to survive the motion to dismiss.

6 The plain text of Count XIV refers to "above referenced ordinances." [51 ¶ 105(A)] (emphasis added). The parties confine their arguments to the Ordinance. See [60-1 at 19]; [73-1 at 20-21].

The Court agrees and grants the motion to dismiss Count XV. The Illinois Supreme Court has explained that mandamus, "an extraordinary remedy used to compel a public official to perform a clearly ministerial duty where no exercise of discretion is involved," may be awarded "only when the petitioner establishes a clear right to the relief requested, a clear duty of the public official to act, and clear authority in the public official to comply." People ex rel. Glasgow v. Kinney, 970 N.E.2d 506, 507, 361 Ill. Dec. 140, 2012 IL 113197 (Ill. 2012). Plaintiffs have failed to allege facts supporting any of these elements; they have alleged only that Defendant Mendoza "is responsible for the issuance of business licenses," [51 ¶ 8], and this is simply not enough to show a plausible entitlement to the requested "extraordinary" relief.

M. Count XVI: "Pendant [sic] Claim by Second Amendment Arms or Tortious Interference with Prospective Economic Advantage"

In Count XVI, Second Amendment Arms alleges that Defendants tortiously interfered with its prospective [*43] business relationships and economic advantages. [51 ¶¶ 109-13]. Defendants contend that Count XVI should be dismissed because it fails to state a claim. In the alternative, they argue that they are immune from liability pursuant to 745 ILCS 10/2-103 and 745 ILCS 10/2-205. [60-1 at 21-22].

The Court agrees that Count XVI fails to state a claim for tortuous interference with prospective business advantage. To prevail on a claim for tortious interference with prospective economic advantage, a plaintiff must prove: (1) a reasonable expectation of entering into a valid business relationship; (2) defendant's knowledge of the plaintiff's expectancy; (3) defendant's purposeful interference to defeat the expectancy; and (4) damages resulting from the interference. Douglas Theater Corp. v. Chicago Title & Trust Co., 266 Ill. App. 3d 1037, 641 N.E.2d 584, 590, 204 Ill. Dec. 360 (Ill. App. Ct. 1st Dist.1994) (citing Eisenbach v. Esformes, 221 Ill. App. 3d 440, 582 N.E.2d 196, 199, 163 Ill. Dec. 930 (Ill. 1991)). Furthermore, Illinois courts long have held that the defendant's interference must be directed to a third party. Id.; Eisenbach, 582 N.E.2d at 199. "[T]he gravamen of the charge is interference with an existing relationship." Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358, 370, 230 Ill. Dec. 229 (Ill. 1998).

Here, [*44] Count XVI lacks any allegations of specific

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actions by the Defendants directed at third parties with an existing relationship to Second Amendment Arms - the allegations instead focus on Second Amendment Arms's and Defendants' conduct and assert only that but for the Ordinance, Second Amendment Arms would have entered into business relationships by selling firearms and firearm accessories to "qualified prospective customers in and around the City." [51 ¶ 109]. Accordingly, Second Amendment Arms has failed to satisfy the pleading requirements for tortious interference, and Count XVI of the Second Amended Complaint is dismissed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."); Willcutts v. Galesburg Clinic Ass'n, 201 Ill. App. 3d 847, 560 N.E.2d 1, 4, 147 Ill. Dec. 853 (Ill. App. Ct. 3d Dist. 1990) (upholding trial court's finding that plaintiff's claim of tortious interference failed because the plaintiff "failed to allege specific actions by defendants directed at third parties, but rather has presented broad, conclusory allegations against defendants").

IV. [*45] Conclusion

For the foregoing reasons, the Court grants in part and denies in part Defendants' motion to dismiss [58]. Although Plaintiffs already have had multiple opportunities to frame their claims, the Court will allow one additional opportunity to file an amended complaint within 21 days if Plaintiffs believe that they can cure any of the pleading deficiencies identified above. Whether or not Plaintiffs choose to replead, this case should move forward with discovery immediately. This case is set for further status on October 18, 2012 at 9:30 a.m. The parties are directed to meet and confer and to file a proposed discovery plan no later than October 16.

Dated: September 25, 2012

/s/ Robert M. Dow, Jr.

Robert M. Dow, Jr.

United States District Judge

End of Document

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MASSACHUSETTS APPEALS COURT John Adams Courthouse

One Pemberton Square, Suite 1200 Boston, MA 02108

(617) 725-8106

Docket Number: 2018-P-929

Commonwealth

v.

Brian K. Harris

CERTIFICATE OF SERVICE

Pursuant to Mass.R.A.P. 13(d), I hereby certify, under the penalties of perjury, that on this date of I have made service of a copy of the following document(s):

June 29, 2018

• Brief For Brian K. Harris • Record Appendix

upon the attorney of record for each party, or if the party has no attorney then I made service directly to the self-represented party, by

Email / File & Serve

to the following person(s) and address(es). Attach a separate page if more space is necessary.

_/s/ Christopher DeMayo__________________ Christopher DeMayo (BBO # 653481) Signature Printed name and BBO# (if applicable) Law Office of Christopher DeMayo 38 Montvale Avenue, Suite 200 Stoneham, MA 02176 781-572-3036 Address Telephone

Tom Ralph, ADA Middlesex District Attorney's Office [email protected]
