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Wouldn't Boston and Brookline be able to just deny all those they would have restricted as unsuitable?
The “suitable person” requirement became a requirement that an applicant not be “unsuitable” in 2014's changes to the MGL. If a city/town started blanket denying licenses Comm2A and the SAF would file another case along with the lines of what's going on in D.C. It would also FLY IN THE FACE OF HELLER and potentially lead to another epic bench slap by the USSC ordering the commonwealth to play nice.
IANAL... wondering why, when the power of the chiefs to have discretion is supposedly founded on their intimate knowledge of the limited miscreants in each little fiefdom (the ability to put limitations on those few individuals with issues only the locals know which may not on paper be a disqualification, the few)...why is there no mention of the widespread blanket application of these restrictions on the many...especially to those new residents applying for which the locale gendarme could have essentially no such familiarity? ( get that the widespread application is at the core of this, wondering why the premise of the few is not mentioned)
Every time the mere notion of removing this discretion is even whispered there is a great hue and cry about how only the local PD can possibly know the details of the 0.5% of the population that they are charged with screening out.
I'm assuming it has to do with the focus of the individual citations being leveraged to make the argument...again, just curious.
Discover is now closed. Today we filed our Motion for Summary Judgement. Enjoy
Next these here will likely be Boston and Brookline filing and opposition to which we'll have an opportunity to reply. They may also file a motion to dismiss or some combination of the above. The Commonwealth might also file something as they've intervened.
The nature of any 'positive' outcome cannot be predicted other than to say that it will be appealed.
make it hard(*) for the 1CA to avoid reaching the merits. But don't hold your breath for a district court victory.
(*) A few months ago on Twitter, I made the error of overstating this by saying "no way they're weaseling out of getting to the merits". This led to none other than Alan Gura dropping out of a ceiling tile to wag his finger at me: "They can weasel out of whatever they want to weasel out of. Nothing is weasel proof. You can only make the complaint weasel resistant." Ouch.
I saw that and he is right. When CA1 will literally lie about what the law says (they say we can possess handguns on an FID...) then they can weasel anything they want.
The law is clear that you can possess a handgun on an FID+PtP.
In Morin, this counterargument would have been estopped on account of the state's stipulation.
Oh really, please point to that clear law. And you can't point to the SJC decision, which isn't law, it's dicta.
No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.
Oh, and this was never "stipulated to" until CA1 oral argument and I will point out that it was yet another lie the AAG told. Morin is eligible for an FID. Though I have to admit, when she lies, or is just plain incompetent, she sounds like she has a clue. She got a judge to bite that Class B's were still available, until she was proven wrong. There were more than a few of those instances in that case.
Weasel proof. What a great exchange.
I once had a weasel-proof governmental organization. We were an anarcho-syndicalist commune…
The plain language of c. 140 §129B, paragraph 6, suggests that an FID (by itself at least), does not confer the right to possess a handgun. But there is also no statute which takes away that right from FID holders.
The statute which ordinarily criminalizes possession of a handgun, unless any of several criteria is met, is c. 269 §10(a). One exempting criterion is having a valid LTC. Another criterion is "having complied with the provisions of sections one hundred and twenty-nine C and one hundred and thirty-one G of chapter one hundred and forty". Redundantly there's another statute c. 269 §10(h)1 which provides "Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished…". 131G pertains to non-residents visiting the commonwealth with their firearm and isn't relevant to this discussion. 129C contains a multitude of provisions, but the only one governing mere possession of a non-large-capacity handgun is this one (emphasis added):
Followed by lots of exceptions to the FID requirement.
I agree with you that the language asserting the legality of possessing a handgun with an FID under the two SJC cases cited by CA1 in Morin, namely Powell and Gouse, is dicta, because it pertains to hypothetical situations: neither Powell nor Gouse had an FID. However, I think Commonwealth v. Cornelius is ratio decidendi, where the SJC answered in the affirmative a certified question as to "Whether satisfaction of the firearm identification card exception set out in G. L. c. 140, § 129C(j), by itself, satisfies the firearm possession exemption set out in G. L. c. 269, § 10(a)(4)". The defendant didn't have an FID in that case either, but the SJC found that Cornelius would nonetheless would be protected under exception (j) if the commonwealth couldn't disprove his claim that he had only recently moved to Massachusetts at the time of his arrest. It obviously follows, a fortiori, that if satisfying one of the exceptions to the c. 140 §129C FID requirement is a defense under c. 269, § 10(a)(4), so is satisfying the FID requirement itself. I reiterate that the SJC's findings here seem perfectly consistent with a plain reading of the statute.
c. 140 §131A provides for issuance of permits to purchase, and transfer of a handgun to someone who has both an FID and PtP is consistent with the requirements of c. 140 §129C and every other statute I can find.
I'm not going to defend this or any other shady behavior by the AAG, but you don't get to pin that on the court. I'm not sure whether you're correct that he's eligible for an FID. Under c. 140 §129B (1)(ii)(D) he "has, in any other state or federal jurisdiction, been convicted… of… 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". I know that five years have elapsed since then, but I don't know whether his "right or ability to possess a rifle or shotgun has been fully restored in the jurisdiction wherein the conviction or adjudication was entered". If it has, then AAG's stipulated denial was even more of gift than I thought: it should have turned a losing case into a winning one if Morin's attorneys had seized on it.
Morin should never have brought this appeal to CA1. After losing in district court, he should have (and still should):
1. Applied for an FID and gotten the outcome of his application on the record.
2. Regardless of the outcome, attempted to apply for a PtP. If given nothing but blank looks conveying "WTF is a PtP?", or told that an FID is a prerequisite for a PtP, gotten that on record.
3. If the PtP was issued, attempted to purchase a non-large-capacity handgun.
4. Re-filed his lawsuit in district court if he was unsuccessful in getting through step 3.
Circling back to Powell and Gouse being dicta: no, it's not fantastic that CA1 relied on these rather than examining the statutory language directly, but for the reasons I outlined above, doing so shouldn't have changed their conclusion. But CA1's conclusions in Morin as to whether an FID alone allows possession of a handgun are themselves dicta, because the only relevant matter is whether having both an FID and PtP allows both purchase and possession. No sane judge is going to find that there is any constitutionally relevant difference between "it is illegal for Morin to possess a handgun" and "it is illegal for Morin to purchase or obtain a handgun, but if only he could then his continued possession of it would be legal". For the proposition that FID+PtP does allow purchase and possession, 1CA relies on a direct reading of the statutes. They also cite dicta from another case, Commonwealth v. Seay, in support of their analysis, but that's a perfectly appropriate way to use dicta. And although Seay is from 1978, all the statutes it cites still say what it says they say. So despite the dubious citations to Powell and Gouse, I think denying en banc rehearing of Morin was appropriate. (n.b., this denial doesn't seem to be posted yet on comm2a.org. I had to find it on PACER.)
Or perhaps a round table?I thought for certain the rest of this comment was going to be about the deep foundation and 10-gague steel wire that reliably kept weasels out of your communal chicken coop.
Corneilius was an appeals court case. Not the SJC.
Your "Followed by lots of exceptions to the FID requirement." waived a magic wand over all of the exemptions that fail to exempt possession of a handgun in the home for one in possession of an FID card. So, no exemption, no possession. Combined with your assertion, false BTW, that there is no blanket prohibition of possession of a handgun, the entire law is predicated on this blanket exception and §10(a) and §10(h) combined create this blanket prohibition. So no exception in §129C and no LTC means no possession of a handgun.
Does the gun for a restricted LTC holder need to be locked up or can they carry in their home/property? There is a reason why I ask. NO it's not about me.Discover is now closed. Today we filed our Motion for Summary Judgement. Enjoy
Right !!! It would be easier if you just said it !I don't even know what's going on with all this fancy law talk but it seems exciting.
My bad.
I haven't hand-waved anything at all here. None of the lettered exceptions generally pertain to possession of a handgun in the home. They don't need to, because the FID card "exception" isn't an exception; it's a limiting clause of the general rule stated in the first paragraph, which I previously quoted: "No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B". So, if you've been issued an FID, you're not violating c. 140 §129C by possessing a handgun. No violation of §129C means no violation of c. 269, § 10(a) or 10(h), and nothing besides 10(a) and 10(h) generally prohibit possession of a handgun in the home.