Definition of "carry"

[milktree]

I was talking with someone recently who claimed that although in MGL there's nothing that specifies anything about open vs. concealed carry, there used to be such a distinction, but it got lost in one of the law re-vamps ('98? He didn't say which one). He also said that there was some other court decision, CMR, judicial opinion, something that "defined" carry as including "concealed" as one of its requirements. Therefore open carry isn't actually legal.

Now, he's usually not full of crap, he's usually pretty well informed on such things, so I'm reluctant to just tell him he's full of crap without having better/more information.

My understanding is that open carry has never been illegal, and concealed carry has never been a requirement, but concealed carry has in nearly every case in Massachusetts, a VERY GOOD IDEA, simply because people freak out and call the police, and when guns are involved the police will arrest you before checking that you're breaking any laws, and then charge you with disturbing the peace.

Can any of you fill in the backstory I'm missing?

 

[one-eyed Jack]

Just don't OC. Not worth the hassle. Jack.

 

[drgrant]

I was talking with someone recently who claimed that although in MGL there's nothing that specifies anything about open vs. concealed carry, there used to be such a distinction, but it got lost in one of the law re-vamps ('98? He didn't say which one). He also said that there was some other court decision, CMR, judicial opinion, something that "defined" carry as including "concealed" as one of its requirements. Therefore open carry isn't actually legal.

Now, he's usually not full of crap, he's usually pretty well informed on such things, so I'm reluctant to just tell him he's full of crap without having better/more information.

My understanding is that open carry has never been illegal, and concealed carry has never been a requirement, but concealed carry has in nearly every case in Massachusetts, a VERY GOOD IDEA, simply because people freak out and call the police, and when guns are involved the police will arrest you before checking that you're breaking any laws, and then charge you with disturbing the peace.

Can any of you fill in the backstory I'm missing?

You're not missing anything, it's never been illegal. An attorney in springfield actually got detained for doing it once, had his LTC and gun taken away, but he bitchslapped them in court and had his gun and LTC given back, but I don't think the action set any kind of a legal precedent. I can't remember the guy's name offhand. He was walking down a street and the wind blew his suit/sport coat or whatever back and revealed his 1911 in a holster to some Springfield cop that had a pole up his ass about it....

-Mike

 

[milktree]

Just don't OC. Not worth the hassle. Jack.

Indeed. But the discussion wasn't about what's *smart*, it was about what's *legal*

It came up because he didn't like my claim that it was legal when I was doing the law review section of an LTC class.

I want to get this shit right if I'm going to tell people stuff.

 

[one-eyed Jack]

Indeed. But the discussion wasn't about what's *smart*, it was about what's *legal*

It came up because he didn't like my claim that it was legal when I was doing the law review section of an LTC class.

I want to get this shit right if I'm going to tell people stuff.

OK. Jack.

 

[JAD]

I was talking with someone recently who claimed that although in MGL there's nothing that specifies anything about open vs. concealed carry, there used to be such a distinction, but it got lost in one of the law re-vamps ('98? He didn't say which one). He also said that there was some other court decision, CMR, judicial opinion, something that "defined" carry as including "concealed" as one of its requirements. Therefore open carry isn't actually legal.

Now, he's usually not full of crap, he's usually pretty well informed on such things, so I'm reluctant to just tell him he's full of crap without having better/more information.

My understanding is that open carry has never been illegal, and concealed carry has never been a requirement, but concealed carry has in nearly every case in Massachusetts, a VERY GOOD IDEA, simply because people freak out and call the police, and when guns are involved the police will arrest you before checking that you're breaking any laws, and then charge you with disturbing the peace.

Can any of you fill in the backstory I'm missing?

What he might be thinking of was a statutory change to c. 269 s. 10(a) which took effect on 2 January 1991, which removed the element of movement from that offense.

 

[milktree]

What he might be thinking of was a statutory change to c. 269 s. 10(a) which took effect on 2 January 1991, which removed the element of movement from that offense.

Now that's interesting....

What did it used to say? That you had to be out-and-about for any of 10(a) to apply?

 

[jd4444]

I see law enforcement officers open carry all the time. Seems pretty legal.

(Being scaristic, kinda)

 

[dcmdon]

The reality is that it all depends on where you live and how your chief feels about guns and OC.

If you live out in the western part of the state in a rural area and have a pro-gun chief, the risk is minimal.

This is because the only real risk is of your chief pulling your LTC if it pisses off one of his cops or a cop in another town.

If your chief will support your right to open carry in compliance with MA law (its not prohibited) then yo ucould carry pretty much anywhere, since your local chief is the one who can pull your LtC.

 

[dgrafton]

He may have a hard time justifying that with the Simkin case

 

[dcmdon]

He can do whatever he wants. He loses in court, but you've spent thousands defending himself and in the mean time the state has stolen your guns. I don't want the hassle of losing my LTC for any reason.

If you have a residence in another state, it makes sense to move all except for your "daily drivers" to that other residence. Provided they can be secured.

 

[drgrant]

The reality is that it all depends on where you live and how your chief feels about guns and OC.

If you live out in the western part of the state in a rural area and have a pro-gun chief, the risk is minimal.

This is because the only real risk is of your chief pulling your LTC if it pisses off one of his cops or a cop in another town.

Well, or more than likely how the "responding officer that pings you" feels about people carrying guns.

I also wouldn't use "western part of the state" as boilerplate either, western mass goes from "churches and banjoes" to full on vaghat-moonbat in a matter of a 10
minute drive in the wrong direction.

-Mike

 

[JAD]

Now that's interesting....

What did it used to say? That you had to be out-and-about for any of 10(a) to apply?

I don't know the exact wording of the entire statute. However, a number of cases from the late 1970s through the mid 1980s reference some relevant excerpts and explanation which contextualize what the situation was in the past. However, at least part of it as derived from caselaw. See the excerpts below from 1978 case, Commonwealth v. Seay (376 MASS 375; from pages 737):

Prior decisions of this court construing G. L. c. 269, Section 10 (a), have established that "carrying" a firearm occurs when the defendant knowingly has more than momentary possession of a working firearm and moves it from one place to another. Commonwealth v. Albano, 373 Mass. 132 , 134-135 (1977). Commonwealth v. Morrissey, 351 Mass. 505 , 512 (1967). Commonwealth v. Fancy, 349 Mass. 196 , 204 (1965). Cf. Commonwealth v. Atencio, 345 Mass. 627 , 631 (1963) (momentary possession during game of Russian roulette not "carrying"). But cf. Commonwealth v. Ballou, 350 Mass. 751 , 756 (1966) ("carrying" found where recited facts showed only stationary possession in public place), cert. denied, 385 U.S. 1031 (1967).

From Seay, Pages 738/739 (There is some of the old statutory language statutory language quoted in this excerpt)

It is helpful in approaching this question of statutory construction to summarize briefly the Massachusetts scheme for handgun control. The revolver involved here is encompassed by the statutory word of art "firearm." G. L. c. 140, Section 121. Except as provided in the firearm licensing laws, anyone who "carries [a firearm] on his person, or carries [one] on his person or under his control

Page 739

in a vehicle" is subject to a one-year jail sentence without possibility of parole or other release except for rigidly prescribed purposes. G. L. c. 269, Section 10 (a).

The major distinction between the old language and the language which the took effect in 1991 is that the old language was premised on "carrying" either on one's person or under his control in a vehicle whereas the current language is written based on a possession based standard:

[ MGL c. 269 s. 10(a), as current to 8 OCT 2018]

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

[MGL c. 269 s.10(a)(5), as current to 8 OCT 2018]

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