***I am not a lawyer, but I posted a link below where you can contact several highly respected Massachusetts attorneys. What I am posting here is based on my understanding of Massachusetts and federal law; I've provided links so that you can do your own research and draw your own conclusions, but if you think that any of this may apply to you, contact a real lawyer...I'm just some guy on the Internet. ***
A sad and scary fact about the Massachusetts gun laws is that there are many people who unknowingly are federally prohibited persons, simply because of the complexity of state law and how it relates to federal law.
If you are a Massachusetts resident who has a misdemeanor conviction where the possible sentence was more than 2 years of incarceration, you are federally prohibited from possessing firearms or ammunition, even if you are eligible for or in possession of an FID card! This bizarre legal issue is the result of the wording of Massachusetts state laws and how the federal courts have interpreted them. (Keep in mind, this only applies to certain misdemeanor convictions; if your local police chief pulls the "suitability" BS on you, if you can't apply for an LTC because you're under the age of 21, or if you're statutorily prohibited from obtaining an LTC for misdemeanor convictions where the maximum possible length of incarceration was less than 2 years, then this does not apply to you).
Massachusetts General Laws Chapter 140 Section 131 lists what convictions will disqualify one from getting a Mass. LTC:
(i) has, in any state or federal jurisdiction, been convicted 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 years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, 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 section 1 of chapter 94C;
Massachusetts General Laws Chapter 140 Section 129B lists what convictions will disqualify one from getting a Mass. FID:
i) has ever, in a court of the commonwealth, been convicted or adjudicated a youthful offender or delinquent child, both as defined in section 52 of chapter 119, for the commission of: (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, 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 section 1 of chapter 94C including, but not limited to, a violation under said chapter 94C; provided, however, that except for the commission of a violent crime or a crime involving the trafficking of controlled substances, if the applicant has been so convicted or adjudicated or released from confinement, probation or parole supervision for such conviction or adjudication, whichever is last occurring, not less than five years immediately preceding such application, such applicant’s right or ability to possess a non-large capacity rifle or shotgun shall be deemed restored in the commonwealth with respect to such conviction or adjudication and such conviction or adjudication shall not disqualify such applicant for a firearm identification card;
The bolded portion of the above paragraph is where the problem begins. Basically, if you have certain convictions, you are barred for life from obtaining an LTC in Massachusetts. But if you wait 5 years from the date of conviction, you are eligable for an FID card. On the surface this seems like if you wait 5 years then you can legally own non-large capacity rifles and shotguns.
The problem is that in a recent federal case, the courts ruled that if someone hasn't had their full firearm rights restored at the state level then they are still federally prohibited from possessing firearms and ammunition. In other words, if you live in Massachusetts have one of those misdemeanor convictions where the possible sentence was more than 2 years incarceration, you cannot legally purchase or possess any firearms or ammunition, even if you were issued an FID card later on. A violation of this is a federal felony.
The federal case was Caron v. United States (1998), which says in part:
The phrase “may not … possess … firearms,” then, must be interpreted under either of what the parties call the two “all-or-nothing” approaches. Either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if state law permits one or more types of firearms, regardless of the one possessed in the particular case.
Under the Government’s approach, a state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all. This is so even if the guns the offender possessed were ones the State permitted him to have. The State has singled out the offender as more dangerous than law-abiding citizens, and federal law uses this determination to impose its own broader stricture.
One of the more common Massachusetts misdemeanors with a maximum penalty of more than two years incarceration is a DUI charge.
On May 27th, 1994 the maximum penalty for a 1st offense Massachusetts DUI was increased to 2.5 years.
The section of law on this is Massachusetts General Laws Chapter 90 Section 24(1)(a)(1), which says in part:
Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.
Because of the maximum possible length of time that you could be incarcerated for if convicted of violating this, if you have a Massachusetts DUI conviction you are statutorily prohibited from getting a Mass. LTC; as I discussed above, you could get an FID if you waited 5 years after the conviction, but you would still be federally prohibited from possessing firearms.
Some people suggest that one just has to move to another state with fewer firearms restrictions, and then it is legal to own guns again. This is not possible with a Massachusetts DUI, because a Massachusetts DUI prohibits you at both the state and federal level from possessing firearms or ammunition. Even though under state law a Massachusetts DUI is a misdemeanor offense, under federal law state misdemeanor convictions where the maximum penalty is more than 2 years will prohibit one from legally possessing firearms.
The federal law on the subject is 18 USC § 922(g), which says:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
<snip>
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The phrase "crime punishable by imprisonment for a term exceeding one year" is defined by 18 U.S.C. § 921(a)(20)(B), which says:
(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
What this means is that unless you get a misdemeanor conviction like this overturned at the state level and have your full firearms rights restored, you are federally prohibited from possessing firearms and ammunition for the rest of your life.
There are several other convictions that are misdemeanors under Mass. state law that will trigger this federal prohibition; I'm listing some of them here as examples, but this is not an all-inclusive list.
Simple Assault/Assault & Battery
MGL 265-13A says in part:
Section 13A. (a) Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000.
(The actor Mark Wahlberg has a conviction for this in Mass., and is a federally prohibited person because of it).
Assault & Battery on public employees
MGL 265-13D says:
Section 13D. Whoever commits an assault and battery upon any public employee when such person is engaged in the performance of his duties at the time of such assault and battery, shall be punished by imprisonment for not less than ninety days nor more than two and one-half years in a house of correction or by a fine of not less than five hundred nor more than five thousand dollars.
Carrying a firearm while under the influence
MGL 269-10H says:
Chapter 269: Section 10H. Carrying loaded firearm while under influence of liquor, marijuana, narcotic drugs, depressants or stimulant substances; punishment
Section 10H. Whoever, having in effect a license to carry firearms issued under section 131 or 131F of chapter 140, carries on his person, or has under his control in a vehicle, a loaded firearm, as defined in section 121 of said chapter 140, while under the influence of intoxicating liquor or marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section 1 of chapter 94C, or the vapors of glue shall be punished by a fine of not more than $5,000 or by imprisonment in the house of correction for not more than two and one-half years, or by both such fine and imprisonment.
Note that there's no BAC requirement for carrying under the influence.
Something else to keep in mind, other states have similar issues with their laws, so if you have gotten in legal trouble in states other than Mass., then you need to find out what the maximum penalty was for the crime at the time of your conviction.
If you do have a disqualifying misdemeanor conviction like this, you can petition the Massachusetts Firearms Licensing Review Board to have your firearms rights restored:
The FLRB has the authority to review only misdemeanor convictions. Further, there may be more than one conviction, but all convictions must arise from a single incident. The FLRB may not review convictions for:
a felony; or
an assault or battery on a family or household member, or person with whom there is/was a substantive dating relationship, as defined by G.L. c. 209A, § 1; or
a crime involving use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or
a crime regulating the use, possession or sale of controlled substances.
In addition, an individual may not apply for review until after the passage of five (5) years since conviction or release from supervision, whichever is last occurring. The FLRB will review criminal histories as part of the petition review process.
People looking for a review have the burden of proof, by clear and convincing evidence, that they are eligible and suitable to possess an FID or LTC. The petitioner will have the opportunity to appear and/or submit documentary evidence. The FLRB will not provide legal advice to petitioners.
If the FLRB determines that the petitioner is a suitable candidate for an LTC relative to the misdemeanor conviction(s), the application process and final decision of whether or not to issue a license remains with the local police chief.
If you are going to petition them, I'd strongly suggest that you contact a Massachusetts firearms attorney to help you with this process. This is a link to a list of several firearms attorneys in Mass.
I would also suggest that if you have any kind of criminal record at all, then you should consult with an attorney before you even consider applying for a Massachusetts LTC or FID. This can save you a lot of time, money and aggravation in the long run.
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