Gould v O'Leary - Comm2A Carry Case v. Boston / Brookline

[press1280]

I think a lot depends on who the 3 judge panel will be. The 1st Circuit does not go en banc much (unlike the 9th), so the right panel's opinion is likely to stand.
Then the question would be whether Mass or the police chiefs want to try their luck at SCOTUS after DC passed. My guess is there will be a lot of pressure put on them to NOT appeal.

 

[Lip]

Dosent Boston have an ied ban, how's that working out?

 

[Knuckle Dragger]

There's also the FL Supreme Court's Norman case. Although not 100% on point, it very much implied shall-issue was constitutional over may-issue.

Fair point. Because it didn't come up the federal route I tend to overlook it. But it could get counted as part of the split score.

 

[M1911]

There's also the FL Supreme Court's Norman case. Although not 100% on point, it very much implied shall-issue was constitutional over may-issue.

That is state court, not federal.

 

[Boston4567]

I doubt national reciprocity will ever pass. If it does, it would immediately be challenged by the AGs in many states, in a fight that would go all the way to SCOTUS. I would be surprised if such a law would survive SCOTUS review.

You think so? I would've thought it would be squarely within existing jurisprudence. I would think Congress could pass a bill literally preempting all state and local gun laws nationwide and it would be pretty constitutionally bulletproof under the Commerce Clause.

Before McDonald, there would have been a decent argument that carry laws (as opposed to regulations on the guns that pass through interstate commerce) are purely local in nature and preempting them would violate Federalism. But with 2A incorporated against the states, I would think it's pretty cut and dry, there's a strong federal interest there

 

[M1911]

First, there are many on SCOTUS who are simply against guns — they will torture jurisprudence however they have to to provide a reasoned argument against reciprocity. There are some in middle who have already shown no desire to wade back into the gun control battle after Heller and MacDonald. And finally there is the states rights argument.

 

[Knuckle Dragger]

Hearing before a First Circuit Panel will be in three weeks: Gould v. Morgan - Commonwealth Second Amendment, Inc. (comm2a.org)

If Massachusetts enacted a licensing regime requiring citizens to demonstrate a “good reason” before speaking in public, this Court would not allow such a regime to stand on the theory that those denied a license might still receive one “in the future, should circumstances change such that they” develop a good enough reason to speak. Brief of Defendant-Appellee Commonwealth of Massachusetts 32-33 (June 6, 2018) (“Commonwealth’s Br.”). And even if the Government freely granted licenses allowing speech about entertainment or sports— and required a special showing of need only for those citizens who wished to speak for “other unspecified purposes”—this Court would not reason that “[t]he Constitution entitles [them] to no more.”

This is getting serious. We're up to four amici briefs against us.

 

[HorizontalHunter]

Hearing before a First Circuit Panel will be in three weeks: Gould v. Morgan - Commonwealth Second Amendment, Inc. (comm2a.org)



This is getting serious. We're up to four amici briefs against us.

You do great work on our behalf.

Thank you,

Bob

 

[Coyote33]

Hearing before a First Circuit Panel will be in three weeks: Gould v. Morgan - Commonwealth Second Amendment, Inc. (comm2a.org)

This is getting serious. We're up to four amici briefs against us.

I'm a little slow tonight. Can you explain what you are telling us in this statement? Is this sarcasm, or serious? I have read and reread this, but am failing to see what we're supposed to be looking for here.

 

[42!]

I'm a little slow tonight. Can you explain what you are telling us in this statement? Is this sarcasm, or serious? I have read and reread this, but am failing to see what we're supposed to be looking for here.

To me it means they are concerned their argument won't stand on it's own, so they are getting others to say how their are right and Comm2a is wrong. Comm2A's argument is simple, and simple arguments are the hardest to twist and find holes in them. It's a long way from a victory but it could have some very long reaching implications if they do win. I'm watching this one closely.

 

[Knuckle Dragger]

This is getting serious because the First Circuit is the only affected federal circuit that has NOT ruled in a right-to-carry case. The other affected circuits are split with DC and the CA7 going our way and CA2, CA3, CA4 and CA9 (plus the Florida Supreme Court) going against us. Once the 1st Circuit rules in this case, the appellate scorecard will be complete.

Both sides have gotten more serious. Brookline has brought in a DC law firm with a significant Supreme Court 'public interest' practice. We have four amici briefs against us. And with a new SCOTUS justice that should be amenable to our view of the Second Amendment, there will be fewer reasons then ever for SCOTUS not to take this issue.

 

[Boston4567]

A ruling in our favor would also immediately affect permitting policies of Puerto Rico, and Rhode Island AG, not just MA. CA7 just affected Illinois, and DC obviously just affected DC

 

[Waher]

Do you think the Amici Briefs will attract more briefs to our side because of the attention?

 

[Aaron[MA]]

Must one really pluralize amicus when one has already pluralized brief?

 

[VetteGirlMA]

Nothing good. It's almost a foregone conclusion that the First Circuit will rule against us. The only questions is how hard are they willing to work in order to pollute the case enough so that we won't want to petition the Supreme Court. They're pretty crafty and I don't think there's a single judge in this circuit that is even remotely open to the idea the Supreme Court might have gotten Heller correct.

The good news is that the district court treated us reasonable fairly. We didn't get the decision we wanted, but the record is solid. The court followed the pack take any shortcuts. There's a circuit split on right-to-carry. The First Circuit is the only one that hasn't reached an opinion yet and the district court judge basically followed the majority.

Except for the First Circuit, the other circuits have either ruled on this issue or won't have the opportunity because the lack restrictive carry laws. The circuits that have ruled against us have either held that the Second Amendment is a homebound right or that the challenged regulations are 'reasonable' and do not constitute an infringement.

The current circuit scoreboard is:

• Against us - 4: (2nd, 3rd, 4th, 9th)
• For us - 2: (7th, DC)
• Undecided - 1: (1st)
• Not voting - 5: (5th, 6th, 8th, 10th, 11th)

One would think that once the First Circuit weighs in the voting would be complete and the Supreme Court might finally take this issue on. Maybe. But given the court's recent reluctance to do anything controversial, they may just be content to let different standards apply for a few decades.

ETA: It's also interesting to note that the defendants have hired on a big DC law firm with a significant Supreme Court practice.

I don't understand how a lower court can simply ignore or thumb their nose at the Heller decision. If you ask me this case sounds an awful lot like Heller all over again (a Boston citizen cannot concealed carry but a citizen anywhere else including out of state can carry). Those LTC restrictions can carry over to another state that recognizes a MA LTC so anyone unfortunate enough to have a Boston address is at an immediate disadvantage. How does a court true this up in their minds?

Lastly if the Supreme Court refuses to take this on and kicks it down the road for a few decades then what happens to civil rights in the next few decades? The people who are pushing this kind of civil rights abuse are certainly going to feel emboldened to continue their legal abuse of it's citizens.

 

[firestorm]

I don't understand how a lower court can simply ignore or thumb their nose at the Heller decision. If you ask me this case sounds an awful lot like Heller all over again (a Boston citizen cannot concealed carry but a citizen anywhere else including out of state can carry). Those LTC restrictions can carry over to another state that recognizes a MA LTC so anyone unfortunate enough to have a Boston address is at an immediate disadvantage. How does a court true this up in their minds?

Lastly if the Supreme Court refuses to take this on and kicks it down the road for a few decades then what happens to civil rights in the next few decades? The people who are pushing this kind of civil rights abuse are certainly going to feel emboldened to continue their legal abuse of it's citizens.

The thing I wonder is how they square MA requiring a license for mere possession of a handgun in the home, and having that license be subject to the whim of a government official with the Heller decision. I would hope that that is an angle someone is working, because it seems like a slam dunk when there is no way to have a handgun without a license that you can be denied for any or no reason.

 

[soam]

The thing I wonder is how they square MA requiring a license for mere possession of a handgun in the home, and having that license be subject to the whim of a government official with the Heller decision. I would hope that that is an angle someone is working, because it seems like a slam dunk when there is no way to have a handgun without a license that you can be denied for any or no reason.

That angle has already been worked, and failed because of a little-known portion of the law that allows a licensing authority to issue a "permit to purchase" to someone to purchase a handgun even if they do not have an LTC. As far as I'm aware this portion of the law is essentially meaningless because no licensing authority would ever issue such a permit, but because it exists and because the plaintiff in the case didn't try to buy a handgun using that provision, the case was thrown out by the judge.

Here's the portion of the law regarding a "permit to purchase": General Law - Part I, Title XX, Chapter 140, Section 131A

The case where the judge ruled that an LTC isn't a right covered by Heller due to the existence of a "permit to purchase": Morin v. Leahy - Commonwealth Second Amendment, Inc. (comm2a.org)

Here's the PDF of the specific decision. Search for the phrase "permit to purchase": http://comm2a.org/images/Morin_Decision.pdf

 

[Al458]

That angle has already been worked, and failed because of a little-known portion of the law that allows a licensing authority to issue a "permit to purchase" to someone to purchase a handgun even if they do not have an LTC. As far as I'm aware this portion of the law is essentially meaningless because no licensing authority would ever issue such a permit, but because it exists and because the plaintiff in the case didn't try to buy a handgun using that provision, the case was thrown out by the judge.

Here's the portion of the law regarding a "permit to purchase": General Law - Part I, Title XX, Chapter 140, Section 131A

The case where the judge ruled that an LTC isn't a right covered by Heller due to the existence of a "permit to purchase": Morin v. Leahy - Commonwealth Second Amendment, Inc. (comm2a.org)

Here's the PDF of the specific decision. Search for the phrase "permit to purchase": http://comm2a.org/images/Morin_Decision.pdf

I know it's not cheap to bring lawsuits, and I am certainly not a lawyer, but if all future carry cases can be denied based on the "existence" of a permit to purchase, why havent they found someone to attempt to get a permit to purchase then inevitably when they are denied one file suit? I would think that would be the absolute first thing you try and discredit before everything else, I'm still sure the court would screw you and throw it out but still

 

[Boston4567]

I know it's not cheap to bring lawsuits, and I am certainly not a lawyer, but if all future carry cases can be denied based on the "existence" of a permit to purchase, why havent they found someone to attempt to get a permit to purchase then inevitably when they are denied one file suit? I would think that would be the absolute first thing you try and discredit before everything else, I'm still sure the court would screw you and throw it out but still

My understanding is, the Pro-2A lawyer was simply outargued in that case. "Permit to purchase" does not exist. Despite whatever archaic vestiges are left in the law, if I recall correctly research has been done with the FRB and they were unable to find any records of one ever having been issued, and they don't even have any sort of application to do it.

Another test case needs to be put forth with that evidence in the record. I can't speak for Comm2a or anyone else, but generally speaking in these sorts of test cases it's important to find a sufficiently sympathetic plaintiff who's both properly situated for an as-applied challenge and willing to go through the long and public process of a lawsuit. My guess is, when they find someone like that, they'll go for it.

 

[Knuckle Dragger]

I know it's not cheap to bring lawsuits, and I am certainly not a lawyer, but if all future carry cases can be denied based on the "existence" of a permit to purchase, why havent they found someone to attempt to get a permit to purchase then inevitably when they are denied one file suit? I would think that would be the absolute first thing you try and discredit before everything else, I'm still sure the court would screw you and throw it out but still

You're conflating 'carry' with possession. They're two different issues entirely - at least for now. Some of the Commonwealth's positions with respect to the Second Amendment are as follows:

• The Second Amendment is a 'homebound' right and only protects the right to possess a handgun in the home.
• Massachusetts residents can possess a handgun in the home if they have an FID and a PTP, thus satisfying whatever Second Amendment obligations the Commonwealth has.
• There is no right to an LTC because it is a license to 'carry' firearms in public, conduct which is outside the scope of the Second Amendment.

We all know this is the State's Second Amendment version of three card monte.

While the state contends that the Second Amendment is a homebound right, the other circuits that have ruled against carry have determined the opposite: that the Second Amendment does extend beyond the home, but that the challenged regulations were 'reasonable'.

 

[Mesatchornug]

You're conflating 'carry' with possession. They're two different issues entirely - at least for now. Some of the Commonwealth's positions with respect to the Second Amendment are as follows:

• The Second Amendment is a 'homebound' right and only protects the right to possess a handgun in the home.
• Massachusetts residents can possess a handgun in the home if they have an FID and a PTP, thus satisfying whatever Second Amendment obligations the Commonwealth has.
• There is no right to an LTC because it is a license to 'carry' firearms in public, conduct which is outside the scope of the Second Amendment.

We all know this is the State's Second Amendment version of three card monte.

While the state contends that the Second Amendment is a homebound right, the other circuits that have ruled against carry have determined the opposite: that the Second Amendment does extend beyond the home, but that the challenged regulations were 'reasonable'.

Wasn't part of the underlying assumption of the second part based on the shall-issue nature of the FID? If I recall correctly, the FID became may-issue in 2014 - does that make this ripe for revisit? You know, assuming a perfect applicant, etc.

 

[Rob Boudrie]

My understanding is, the Pro-2A lawyer was simply outargued in that case. "Permit to purchase" does not exist. Despite whatever archaic vestiges are left in the law, if I recall correctly research has been done with the FRB and they were unable to find any records of one ever having been issued, and they don't even have any sort of application to do it.

No, we were out-lied. The opposition stated that an FID allowed one to own a handgun, and that an FID+P2P would allow purchase. The court accepted that argument because it led to the desired conclusion.

As to Gould, there are two arguments being made:

1. 2A
2. Equal protection under the law

While #2 has failed in some other circuits, it is a very valid argument. Two people get treated vastly different depending only on the side of a city/town border they live on, or because one owns a business in a green town and the other does not.

It will be easy for the court to dismiss all 2A arguments out of hand (because they are very used to doing so), but harder to provide an intellectually consistent argument as to the unequal treatment. And that's before you get into the unequal treatment of people in Boston/Brookline (ordinary, unconnected people vs. the special ones).

 

[Rob Boudrie]

You're conflating 'carry' with possession.

Many things that are considered "carry" under MA law would be "possession" under most states laws, as well as common English usage.

It is important to note that this case is about "carry" in the plain English sense of the word, not the MGL technical definition.

If I recall correctly, the FID became may-issue in 2014 - does that make this ripe for revisit?

Probably not, because an FID is still "Shall issue" and refusing one to a qualified applicant takes a judicial finding of fact that the person should be stripped of his/her 2A rights, and the person is afforded dues process (yeah, right) at a hearing.

 

[firestorm]

Many things that are considered "carry" under MA law would be "possession" under most states laws, as well as common English usage.

It is important to note that this case is about "carry" in the plain English sense of the word, not the MGL technical definition.

Probably not, because an FID is still "Shall issue" and refusing one to a qualified applicant takes a judicial finding of fact that the person should be stripped of his/her 2A rights, and the person is afforded dues process (yeah, right) at a hearing.

But would it be ripe if someone were to try buying a handgun with the FID, go to the local cops and the State trying to get a permit to purchase and then when denied they have standing as the state has no process by which to issue said permit?

 

[Coyote33]

Many things that are considered "carry" under MA law would be "possession" under most states laws, as well as common English usage.

It is important to note that this case is about "carry" in the plain English sense of the word, not the MGL technical definition.
...

I have said it on here before. The state (MGL) needs a "Table of Definitions", where all other laws just point to, in reference to things like this. This would allow a LOT OF THINGS to be cleared up, with proper definitions. Of course, this could probably have a downside as well, where things get too narrowly defined.

 

[Boston4567]

No, we were out-lied. The opposition stated that an FID allowed one to own a handgun, and that an FID+P2P would allow purchase. The court accepted that argument because it led to the desired conclusion.

As to Gould, there are two arguments being made:

1. 2A
2. Equal protection under the law

While #2 has failed in some other circuits, it is a very valid argument. Two people get treated vastly different depending only on the side of a city/town border they live on, or because one owns a business in a green town and the other does not.

It will be easy for the court to dismiss all 2A arguments out of hand (because they are very used to doing so), but harder to provide an intellectually consistent argument as to the unequal treatment. And that's before you get into the unequal treatment of people in Boston/Brookline (ordinary, unconnected people vs. the special ones).

I suppose the issue you'll run into is that equal protection arguments basically always fail unless they have racially discriminatory intent or implicate "fundamental rights". So if the courts claim carry isn't a "fundamental right" protected by 2A, they get to use the rational basis test for assessing the geographic disparities, and virtually everything passes muster under rational basis.

Reminds me of one of the best court decisions ever, Don Willett's concurrence in Patel v. Texas Dept. of Licensing:

The principal dissent claims “the rational basis standard invokes objective reason as its measure,” a contention difficult to take seriously. Legal fictions abound in the law, but the federal “rational basis test” is something special; it is a misnomer, wrapped in an anomaly, inside a contradiction. Its measure often seems less objective reason than subjective rationalization.

The test adopted today bears a passing resemblance to “rational basis”-type wording, but this test is rational basis with bite, demanding actual rationality, scrutinizing the law’s actual basis, and applying an actual test. In my view, the principal dissent is unduly diffident, concluding the threading rules, while “excessive” and “obviously too much” are not “clearly arbitrary.” If these rules are not arbitrary, then the definition of “arbitrary” is itself arbitrary. Without discussing (or even citing) recent federal cases striking down nonsensical licensing rules under the supine federal test, the dissents sever “rational” from “rational basis,” loading the dice—relentlessly— in government’s favor. Their test is tantamount to no test at all; at most it is pass/fail, and government never fails.

That's the man we need on the Supreme Court.

 

[JohnZ]

Holy crap:

The licensing authority may impose such restrictions relative to the caliber and capacity of the firearm to be purchased, rented or leased as he deems proper.

Such permits shall be issued on forms furnished by the commissioner of the department of criminal justice information services shall be valid for not more than ten days after issue... he fee for the permits shall be $100,

Now we know why nobody gets one. $100 for 10 days. What happens if you are delayed by NICS? Better not run out of ammo... I would think that this could be attacked on cost alone. This puts loan sharks to shame.

 

[M1911]

I have said it on here before. The state (MGL) needs a "Table of Definitions", where all other laws just point to, in reference to things like this. This would allow a LOT OF THINGS to be cleared up, with proper definitions. Of course, this could probably have a downside as well, where things get too narrowly defined.

It has one. MGL Chapter 140 Section 121. General Law - Part I, Title XX, Chapter 140, Section 121

 

[seanc]

I have said it on here before. The state (MGL) needs a "Table of Definitions", where all other laws just point to, in reference to things like this. This would allow a LOT OF THINGS to be cleared up, with proper definitions. Of course, this could probably have a downside as well, where things get too narrowly defined.

They will never do that. Not defining things officially allows them to argue points any way they want at any moment. And even argue contradictory definitions as the wind blows.

One recent example is that I can not bring a friend to the range and let the shoot my machine gun. Unless they have ltp machine gun. allowing them to shoot my gun, at a range, in my presence violates the law and constitutes “possession”. In this case merely holding a gun constitutes possession. If my understanding is wrong here please correct me.

 

[Rob Boudrie]

One recent example is that I can not bring a friend to the range and let the shoot my machine gun. Unless they have ltp machine gun. allowing them to shoot my gun, at a range, in my presence violates the law and constitutes “possession”. In this case merely holding a gun constitutes possession. If my understanding is wrong here please correct me.

You are correct. Precedent established that differences in various sections of the law are construed to have meaning(*), and the law provides for an exemption for shooting under the supervision of a license holder for instructional purposes for rifles, shotguns and firearms but not machine guns. This was largely ignored until the tragedy where an 8 year old was killed at a public MG shoot.

* - This logic is why the "one one's person" clause in 269-10(j) has been construed to have meaning, despite the fact that virtually everyone in the justice chain from local cop to persecutor to court would prefer it not be so.

They will never do that. Not defining things officially allows them to argue points any way they want at any moment. And even argue contradictory definitions as the wind blows.

But, MGL does have definitions. Some are the results of incompetence or not understanding guns - the most glaring being one in our favor (frames/receivers are not guns and not regulated under state law).

MA did not, however, define zoobow, but did state that we cannot have them.

The best example of "not defining" was the old case of Ruggerio v. Roache. The LTC appellant (petition for unrestricted LTC) asked at deposition "what is a large amount of money for the purpose of determining suitability" and was told "We are not prepared to state a specific amount".