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Comm2A Challenges Prohibition Based on Non-Violent Misdemeanor Convictions
- Thread starter Comm2A
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Audio of the oral arguments are now available.
Steve did a really good job. He worked very hard on his presentation including submitting himself to a grueling moot session at the hands of some very good attorneys including an outside we brought it.
For me, I think it went well. We got out the points we wanted to get out. I still think we'll probably lose.
Steve did a really good job. He worked very hard on his presentation including submitting himself to a grueling moot session at the hands of some very good attorneys including an outside we brought it.
For me, I think it went well. We got out the points we wanted to get out. I still think we'll probably lose.
That was interesting. It sounds like in the best case they'll rule in such a way that he has to apply for an FID and be rejected and start the whole thing over again. Because the Commonwealth is playing with the house's money (ours), they can drag it out and make it ridiculously expensive. I didn't hear the judges go down a path of "if there's a chance this could ever end in his favor, we ought to find the fastest path to resolution to minimize the deprivation of this citizen's rights by the state", which was annoying from a "right thing to do" standpoint.
Thank you for providing the link to the audio and for all the hard work to get to this point.
Thank you for providing the link to the audio and for all the hard work to get to this point.
The First Circuit handed down their decision today. Not what we'd hoped for, but not entirely a surprise either.
Never have I seen such a bright-line conflict between what the courts say the law means and what the law actually says.
Compare the statute mgl ch 140 sec 129b:
Never have I seen such a bright-line conflict between what the courts say the law means and what the law actually says.
Compare the statute mgl ch 140 sec 129b:
To today's opinion:
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No, but the logic certainly is a surprise.
If Morin's constitutional argument fails because the FID is sufficient, does that mean his argument would succeed if the FID was not sufficient?
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Of course not. We're talking about the Second Amendment, a disfavored right.
Does anyone know if the Commonwealth has ever issued even a single "permit to purchase"? They are the unicorns as far as I can tell. Maybe Comm2A could obtain a test case where someone tried to obtain said unicorn but was denied?
Individualist
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Any chance of this going to SCOTUS?
No.
Their logic shouldn't have been a surprise either. Wasn't that exactly what they had been (incorrectly) saying the whole time?
Hard to win legal arguments when the courts don't base their rulings on legal stuff.
According to a long-ago discussion I had with Glidden, nobody recalls issuing one since 1998. I do understand that they were issued to aliens with FIDs many years ago (pre-1998 from what I can tell).
I'm not sure that such a form still exists and the criteria (cost, BG check, etc. to get one is the same as for a LTC from what I was told) and they are only good for x days after issuance (for purposes of purchase and transport home).
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The law is clear, and it is unlikely you will find a licensed dealer willing to deliver a handgun to a FID holder with a PTP.
My understanding is that the state had no records of PTPs ever having been issued when we asked.
My understanding is that the state had no records of PTPs ever having been issued when we asked.
Correct we did a public records request for PTPs and there was no record of one being issued for this purpose. Still, a PTP if futile as the requirement for a PTP is identical to that of an LTC.
EJFudd
NES Member
It's amazing that the law can point to a fictitious document that no one has ever seen (and police say doesn't exist) as the basis of their decision to deny the plaintiff his Constitutional right. ![[thinking]](/xen/styles/default/xenforo/smilies.vb/010.gif "Thinking [thinking]")
What is the next step for the plaintiff, assuming is still wants to live in this Godawful prison state? Is he going at apply for an FID despite the challenge of the seemingly nonexistent PTP?![[hmmm]](/xen/styles/default/xenforo/smilies.vb/009.gif "Hmm [hmmm]")
What is the next step for the plaintiff, assuming is still wants to live in this Godawful prison state? Is he going at apply for an FID despite the challenge of the seemingly nonexistent PTP?
Palladin
NES Member
knowing that a PTP hasn't been issued in MA, and knowing that this is one of the points of defense that Morin is going to use....why didn't he apply for a PTP before bringing the appeal??? This would have allowed the case to be decided in a different manner, as a) he would have been refused a PTP, or b) they would have told him a PTP doesn't exist!
In either case, he would have had standing on this portion of his complaint. I would have thought this avenue would have been completely exhausted, before trial or appeal, as this has been the ruling on multiple cases..."lack of standing", for not exhausting every licensing avenue
In either case, he would have had standing on this portion of his complaint. I would have thought this avenue would have been completely exhausted, before trial or appeal, as this has been the ruling on multiple cases..."lack of standing", for not exhausting every licensing avenue
From what I saw/read they basically stuffed this in a procedural loophole. Even through it was clear that he would have been denied an FID he hadn't actually tried to get one so the possibility was there that he could have got one. The court jumped on this.
What next? Apply for the FID, get denied, start all over again citing this ruling as proof that his rights were violated. You'd still have to prove the original claim but at least they wouldn't have this easy out.
Of find someone who has no convictions or other statutory disqualifiers but was denied both as unsuitable and file a 2a case. I think it would would have a much better chance at success.
What next? Apply for the FID, get denied, start all over again citing this ruling as proof that his rights were violated. You'd still have to prove the original claim but at least they wouldn't have this easy out.
Of find someone who has no convictions or other statutory disqualifiers but was denied both as unsuitable and file a 2a case. I think it would would have a much better chance at success.
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Because the law is clear - an LTC is the minimum document required in this state to legally possess a handgun in the home for protection.
We could not anticipate the court would so blatantly ignore the law.
You couldn't?
I mean, surely you couldn't have anticipated they were going to actually uphold the law, so I'm not sure what exactly you were anticipating.
EJFudd
NES Member
In a practical sense, that would certainly appear to be true... but by the actual convoluted letter of the law, an FID plus a unicorn PTP supposedly is still enough, legally speaking, to obtain a handgun and possess it in the home.
I have also argued that a person in MA already in legal possession of a handgun (example: A person downgrading from LTC to FID or possibly obtaining a handgun through death of a spouse or inheritance under the 180 day window) would be legal in his or her home with an FID alone (i.e., without a unicorn PTP)... but I'll admit that I haven't gone through the latest changes to MA law in enough detail to be able to say if that is still true.
I have also argued that a person in MA already in legal possession of a handgun (example: A person downgrading from LTC to FID or possibly obtaining a handgun through death of a spouse or inheritance under the 180 day window) would be legal in his or her home with an FID alone (i.e., without a unicorn PTP)... but I'll admit that I haven't gone through the latest changes to MA law in enough detail to be able to say if that is still true.
180 day window? What's that refer to? Estates frequently take a lot longer than 180 days to sort out.
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We have the FOIA to show they never have since 1998...
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I was expecting the court to say that the prohibition we were challenging was the kind of prohibition that Heller/McDonald states was constitutional; not directly mis-state the law.
In a practical sense, that would certainly appear to be true... but by the actual convoluted letter of the law, an FID plus a unicorn PTP supposedly is still enough, legally speaking, to obtain a handgun and possess it in the home.
I have also argued that a person in MA already in legal possession of a handgun (example: A person downgrading from LTC to FID or possibly obtaining a handgun through death of a spouse or inheritance under the 180 day window) would be legal in his or her home with an FID alone (i.e., without a unicorn PTP)... but I'll admit that I haven't gone through the latest changes to MA law in enough detail to be able to say if that is still true.
Sorry but your arguments and assumptions are very incorrect.
No kidding. As my late Father's estate took too many years to settle, I have some personal expertise here. He's under the misconception that the info on GOAL's website is correct, which it isn't (or at least it is interpreted incorrectly by damn near everyone). I explain all this in my MA Gun Law Seminar.
Rob, you don't give them enough credit . . . they are experts in twisting the law, they would never just settle for a direct ruling wrt gun . . . zzz.
EJFudd
NES Member
I was referring to this (and only in the context of my post):
MGL 140-129C(n)
(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 a license to carry firearms if not otherwise an exempt person who is qualified to receive such or apply to the licensing authority for such further limited period as may be necessary for the disposition of such firearm, rifle or shotgun;
EJFudd
NES Member
![[laugh]](/xen/styles/default/xenforo/smilies.vb/012.gif "Laugh [laugh]")
Guess I'll have to settle for a Len-2A one-line zinger. ![[cheers]](/xen/styles/default/xenforo/smilies.vb/018.gif "Cheers [cheers]")
I have also argued that a person in MA already in legal possession of a handgun (example: A person downgrading from LTC to FID or possibly obtaining a handgun through death of a spouse or inheritance under the 180 day window) would be legal in his or her home with an FID alone (i.e., without a unicorn PTP)... but I'll admit that I haven't gone through the latest changes to MA law in enough detail to be able to say if that is still true.
As a practical matter, no one with an FID is going to get prosecuted for possessing a handgun in their home. At least not unless their attorney is a total dimwit. Near as I can tell, the ADAs follow this rule and the state is basically estopped from this kind of enforcement. That doesn't mean that the police won't seize the handgun based upon what the law actually says and make it very difficult for someone to get it back.
EJFudd
NES Member
Thank you. I now see upon further review that MA law with respect to FID granted privileges changed in 1998 to eliminate possession of a handgun in the home... which makes the decision in the subject case all the more strange and mysterious.
It made very little sense to begin with... and now it makes zero sense. ![[rolleyes]](/xen/styles/default/xenforo/smilies.vb/042.gif "Roll Eyes [rolleyes]")
The interesting thing to me is that at least one MA big city police department I'm aware of was pushing FIDs on elderly folks as their LTCs expired long after 1998, never telling them that they would be required to dispose of their handguns in the home.
You try your very best to stay legal in this crazy, Godforsaken anti-2A state, but even the police weren't aware of (or simply didn't give a damn about) the 1998 change in the FID law. Bizarre but true.
