In layman’s terms: The Massachusetts Supreme Court ruled that the state’s old “may issue” gun licensing system for non-residents was unconstitutional, but the current, post-Bruen system is okay as long as officials have solid evidence of danger to deny a license.
Don’t drink and drive, but regardless, Massachusetts’ pre-Bruen, non-resident firearms licensing scheme violates the Second Amendment, according to a ruling this week by the Massachusetts Supreme Court. In a surprising turn, they also made a ruling about the current, post-Bruen licensing scheme.
In a case known as Massachusetts v. Donnell Jr., the court ruled on March 11 in a 22-page decision that the state’s prior “may issue” licensing scheme was unconstitutional and dismissed the charges against Mr. Donnell.
The case stemmed from Mr. Donnell’s arrest for operating a motor vehicle while under the influence of alcohol. During a search of the vehicle, a state trooper found a handgun and ammunition stored inside a duffel bag. Mr. Donnell, a New Hampshire resident, was arrested and charged with unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a) (§ 10 [a]).
In August 2022, he moved to dismiss the unlawful possession charge arguing that the nonresident licensing scheme violated his rights under the Second Amendment, referencing the recently decided Bruen case which ended discretionary “may issue” permitting schemes, like those in New York and New Jersey.
A District Court ruled in favor of Mr. Donnell, and the state appealed.
In its decision, the State Supreme Court writes, “In this case, however, the statutory scheme under which the defendant was charged fails to pass the Constitutional test as laid out in Bruen…”
The court explains how the scheme violates Bruen:
Not only did the version of § 131F in force at the time of the offense contain “may issue” language, but it also allowed the licensing official to deny a temporary license to a nonresident based on “such terms and conditions as [the] colonel may deem proper.” G. L. c. 140, § 131F. These provisions place § 131F squarely into the category of firearm restrictions that the Supreme Court rejected in Bruen.
The court does not toss licensing out the window though; it simply notes that schemes cannot be subjective:
Our holding today does not, as the Commonwealth suggests, preclude it from requiring firearm licenses for persons within its borders….To be consistent with the Second Amendment, the Commonwealth’s nonresident firearm licensing scheme cannot vest an official with the discretion to deny a license to a qualified applicant.
The court ruling also mentions another recently decided case, Commonwealth v. Marquis, that addresses a very similar issue, this time with regard to the state’s post-Bruen licensing scheme.
In a nutshell, the court falls back on Bruen‘s allowance (in general) for firearms licensing schemes, but doesn’t conduct any historical analysis on said schemes, nor whether they date to the founding era (1791), simply stating, “Licensing schemes of one form or another have been used to regulate firearm use and possession in this country at least since the Nineteenth Century.”
The court asserts that the post-Bruen scheme is compatible with the Second Amendment and the nation’s historical tradition of firearm regulation, “To the extent that the Commonwealth restricts the ability of law-abiding citizens to carry firearms within its borders, the justification of so doing is credible, individualized evidence that the person would pose a danger if armed.”
Once again, the footnotes and ambiguities in Bruen open the door for courts to uphold licensing schemes, perhaps the only fatal flaw to the opinion in that every liberal court rushes to note these in defending such schemes.
