Home Defense by Unlicensed Spouse (Castle Doctrine?)

[terraformer]

Kevlar, case law is an important companion to statutes. qqac, you should know better.

The statute you and qqac quote has been superseded for over a decade or more by case law because of a lenity issue. See Commonwealth v. Coren, 437 Mass. 723, 734 (2002).

 

[terraformer]

So, I promised to explain my position on the above. First, do not take what I say as legal advice. I am just discussing an academic issue. Also, everyone here should have their spouses and all family members, both present in the home or living separately in MA, licensed if they are willing to be. Those not willing should be convinced otherwise.

Besides what RKG said above, there is one other failsafe beyond lenity is that acting contrary to the law in furtherance of self-defense is a negation of the crimes committed. So if one possesses a firearm without a license because of a threat upon themselves (i.e.; a DB with a bat chasing after them) and in the act of self-defense is forced to jaywalk across the street with the gun in violation of G. L. 269 §10 would be able to claim self-defense to all said violations related to the defense. The court in Heller spent one and a half pages on this topic and it is instructive to how they see self-defense and how self-defense would be seen by honest judges. In the eyes of the Supreme Court, the common law right of self-defense is a deeply rooted fundamental human right. As such, acting in furtherance of it, within reason, trumps some stupid malum prohibitum BS. Now, that doesn't mean self-defense excuses everything, especially if you violate the principles of self-defense. See below for the section of the Heller case that goes into this in painful detail as part of a refutation of the minority in Heller.

Lastly, you will be charged with storage violations and the unlicensed spouse will be charged as well. You may well have to bring your case to the supreme court to be exonerated. Hence, the $100 license is cheap insurance. That said, the prosecutions will be the vile bullying of statists hell bent on tormenting a law abiding population because it dares to both commit self-defense and not fear in terror the power of the state to enforce unconstitutional laws aimed squarely at creating unacceptably high degrees of criminal risk for everyone who exercises their 2A rights.

JUSTICE BREYER points to other founding-era laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia and New York. Post, at 4 (citing Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year’s Eve and the first two days of January, and was aimed at preventing the “great Damages . . . frequently done on [those days] by persons going House to House, with Guns and other Firearms and being often intoxicated with Liquor.” 5 Colonial Laws of New York 244–246 (1894). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. The Pennsylvania law to which JUSTICE BREYER refers levied a fine of 5 shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the governor. See Act of Aug. 26, 1721, §4, in 3 Stat. at Large 253–254. Given Justice Wilson’s explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. JUSTICE BREYER cites a Rhode Island law that simply levied a 5 shilling fine on those who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other town in this Government, 1731, Rhode Island Session Laws. Finally, JUSTICE BREYER points to a Massachusetts law similar to the Pennsylvania law, prohibiting “discharg[ing] any Gun or Pistol charged with Shot or Ball in the Town of Boston.” Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay 208. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to “the indiscreet firing of Guns.” Ibid. (preamble) (emphasis added).

A broader point about the laws that JUSTICE BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.29 They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do Not Walk” sign in order to flee an attacker, or that the Government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D. C. Code §7–2507.06.

BTW: I also agree, this topic has nothing to do with the castle doctrine.

 

[Kevlar]

Kevlar, case law is an important companion to statutes.

I am aware of the importance and impact of case law, but was unfamiliar with that particular ruling. Thank you for bringing it to my attention.

 

[Gary599]

Well just move to NH an stop dealing with mass 2a crap.

Btw I grew up in waltham


Sent from my iPhone using Tapatalk

 

[qqac]

Kevlar, case law is an important companion to statutes. qqac, you should know better.

The statute you and qqac quote has been superseded for over a decade or more by case law because of a lenity issue. See Commonwealth v. Coren, 437 Mass. 723, 734 (2002).

I think you misunderstand the Coren case vis-a-vis subsection 10(h) and the legislative history of subsection 10(h). If you have time, maybe you can research the legislative changes to sub (h) and post up.
Coren addresses 10(h) in footnote 14:

[Note 14] Coren was also convicted of illegal possession of ammunition in violation of G. L. c. 269, § 10 (h), as appearing in St. 1990, c. 511, § 3, and this conviction was filed with his consent. See note 1, supra. While St. 1998, c. 180, § 69, rewrote § 10 (h), effective October 21, 1998, Coren was indicted under the earlier version, because the alleged offense occurred on July 2, 1994. See Commonwealth v. Feijoo, 419 Mass. 486 , 487 n.1 (1995). Because the version of the statute in effect on July 2, 1994, contained no requirement that a defendant be outside of his or her residence at the time of illegal possession, our reversal of the gun possession conviction has no bearing on the conviction of illegal possession of ammunition.

Bottom line: Coren did not invalidate 10(h), but merely noted that different versions (with substantially different provisions) were applicable at different times.

 

[Bob-Sig226]

Why would anyone take the chance of unleashing the madness of the MA legal system on you and yours. I have 2 safes, one for arms, one for "other valuables". My wife does not have access to the gun safe. I am working with her to get her setup with an LTC and THEN she will have access to the gun safe. A reasonable (i.e. covers legal requirement) gun safe can be purchased (assuming handguns and ammo) for under $100 bucks as compared to the 10's of thousands you would spend defending yourself in court. Don't screw around, and don't bank on contradictory or ambiguous laws. Play it safe (literally)

 

[terraformer]

I think you misunderstand the Coren case vis-a-vis subsection 10(h) and the legislative history of subsection 10(h). If you have time, maybe you can research the legislative changes to sub (h) and post up.
Coren addresses 10(h) in footnote 14:

[Note 14] Coren was also convicted of illegal possession of ammunition in violation of G. L. c. 269, § 10 (h), as appearing in St. 1990, c. 511, § 3, and this conviction was filed with his consent. See note 1, supra. While St. 1998, c. 180, § 69, rewrote § 10 (h), effective October 21, 1998, Coren was indicted under the earlier version, because the alleged offense occurred on July 2, 1994. See Commonwealth v. Feijoo, 419 Mass. 486 , 487 n.1 (1995). Because the version of the statute in effect on July 2, 1994, contained no requirement that a defendant be outside of his or her residence at the time of illegal possession, our reversal of the gun possession conviction has no bearing on the conviction of illegal possession of ammunition.

Bottom line: Coren did not invalidate 10(h), but merely noted that different versions (with substantially different provisions) were applicable at different times.

Really... Well, first the issue presented was possession of a firearm, not ammunition but obviously without the one, the other is useless. Given that the scenario is self-defense, lets deal with this issue.

First, that coren didn't address this issue, doesn't mean that statute is valid. That the criminal bar hasn't made the connection that a gun without ammunition is useless and precludes self-defense is not a surprise. Apparently passing the bar is not a sign of intelligence.

So ignoring the self-defense failsafe I mentioned which I believe would cover this case, lets approach the issue from the perspective laid out in RKGs post above. That the statutes here are a mess and are not internally coherent. Using Coren, one can only assert that it is LEGAL for one to possess a firearm in one's home for the purpose of self-defense. By making the necessary ammunition ILLEGAL, we have an inconsistency. Enter US v. Herrington (DC court of appeals, 07-CF-98 2010) surmised easily as follows. One can not make ammunition illegal when it is unconstitutional to do so for firearms (this ignore the more important burden shifting aspect of this case). Now, the context is different but the end result is the same, the legislature has made possession of a firearm without an FID card legal in the home and business. In fact, there are statutes on the books authorizing permits to purchase which yield no license but authorize the purchase of firearms and ammunition.

If in the face of this information the criminal bar continues to not challenge the application of G. L. 269 §10(h) on behalf of their clients, they are not representing their clients zealously enough.

 

[SeanT]

I know, I know. I was just making a point- a person without a LTC can access a safe. I didn't say I agreed with her having the combo.
In addition to firearms I can only assume some/most people put other important items (wills, titles, jewelry, deeds, bullion, etc) in their safes. Besides the fact of shared property- what if a death, arrest, or serious illness were to occur and a significant other needed to access the safe.
You can't all tell me you are the only ones with the safe combo...half of you maybe. The rest are liars. Sorry to get off topic here 0P.

Why would anyone take the chance of unleashing the madness of the MA legal system on you and yours. I have 2 safes, one for arms, one for "other valuables". My wife does not have access to the gun safe.

I'm right along with Bob on this one. We have multiple safes in our home for different purposes. My wife does not have the combo to the one with the guns, but does have the combo to the others. If I accidentally died, she'd need to get a lock smith to break into the gun safe... or pull out the Sawzall at least (it's not that nice a gun safe but meets requirements). I do have the combo hidden somewhere in case I forgot it for some reason, but I'm pretty confident I could have a search party go through my house for multiple days and not find it.

 

[RB101]

A reasonable (i.e. covers legal requirement) gun safe can be purchased (assuming handguns and ammo) for under $100 bucks as compared to the 10's of thousands you would spend defending yourself in court. Don't screw around, and don't bank on contradictory or ambiguous laws. Play it safe (literally)

So your either storing your firearms or all your household valuables in a safe costing under $100 bucks? No thanks, I'll take my chances with my $2000 safe staying put and my wife having the combo.
I still fail to see the connection...if we are still talking about an unlicensed spouse justifying a "castle doctrine" shooting, yes you as the gun owner are going to face storage charges and he/she will face some form of homicide charges. But the consequences, as I understand them would be the death of your spouse (as we are talking about a 'justified-in fear of your life' shooting here). Everyone would rather their spouse dies at the hands of a BG as opposed to giving out a safe combo?
In reference to a spouse having a safe combo and the safe storage charges unrelated to a shooting....you would have to physically have a LE official PRESENT on hand to witness a safe opened by a spouse to even think of being charged with safe storage violations? Right?

 

[RB101]

I'm right along with Bob on this one. We have multiple safes in our home for different purposes. My wife does not have the combo to the one with the guns, but does have the combo to the others. If I accidentally died, she'd need to get a lock smith to break into the gun safe... or pull out the Sawzall at least (it's not that nice a gun safe but meets requirements). I do have the combo hidden somewhere in case I forgot it for some reason, but I'm pretty confident I could have a search party go through my house for multiple days and not find it.

In a perfect world, if spending cash and free space were no issues, I can't argue with this logic. I have neither of those at my disposal right now....

 

[josh2600]

even her knowing the safe combo or key location is technically breaking the law on your end. my gf has been to the class but its like pulling teeth to get her to go through the app process, im simply looking out for her own well being.

 

[SClaflin]

The statute you and qqac quote has been superseded for over a decade or more by case law because of a lenity issue. See Commonwealth v. Coren, 437 Mass. 723, 734 (2002).

My understanding is that this simply isn't true. Coren didn't cast any doubt on the validity of G.L. 269 s. 10(h)(1). Coren simply held that there was insufficient evidence for a G.L. 269 s. 10(a) conviction. Coren does not stand for the proposition that it is legal for an unlicensed person to possess a firearm in the residence. G.L. 269(10)(h)(1) is still valid (though arguably unconstitutional), and it is routinely used (at no fault to the criminal bar).

10(h)(1) and 10(a) are different charges. If, in Coren, the state charged the defendant under 10(h)(1) for possession of the firearm, there would have been sufficient evidence to sustain a conviction.

 

[drgrant]

But the consequences, as I understand them would be the death of your spouse (as we are talking about a 'justified-in fear of your life' shooting here). Everyone would rather their spouse dies at the hands of a BG as opposed to giving out a safe combo?

You're making the assumption that every time a homeowner/occupant takes out a gun for self defense that shots will be fired in anger. That doesn't always happen. IMO if the authorities went full retard against the homeowner it'd probably be more likely in one of these "near miss" scenarios than it would be an actual SD shooting. Awhile ago some guy w/o a permit got busted in boston on one of these "non events". Some guy had broken into his apartment, the dweller got his XD or something like that, scared the BG off, BG gets away, cops come and steal gun from defender.... I forget what happened to him after that point. I don't think he was arrested but it is unclear to me as to whether or not they tried to indict him. I doubt he ever got his gun back, though.

I agree people gotta do what they have to do to protect themselves, law notwithstanding. That said, if it comes down to them getting a license, and they CAN get a license, it's cheap insurance against a potentially serious amount of jackassery/BS from the police or the DA.

-Mike

 

[terraformer]

My understanding is that this simply isn't true. Coren didn't cast any doubt on the validity of G.L. 269 s. 10(h)(1). Coren simply held that there was insufficient evidence for a G.L. 269 s. 10(a) conviction. Coren does not stand for the proposition that it is legal for an unlicensed person to possess a firearm in the residence. G.L. 269(10)(h)(1) is still valid (though arguably unconstitutional), and it is routinely used (at no fault to the criminal bar).

10(h)(1) and 10(a) are different charges. If, in Coren, the state charged the defendant under 10(h)(1) for possession of the firearm, there would have been sufficient evidence to sustain a conviction.

Here is the problem. Coren isn't enough, but the state can not charge under §10(h)(1) when there is 1) §10(a) on the books and 2) that the permit to purchase law (140 §131A) is still on the books. It's because there is no way an honest court would allow a conviction under §10(h)(1) when these types of internal inconsistencies exist.

 

[terraformer]

You're making the assumption that every time a homeowner/occupant takes out a gun for self defense that shots will be fired in anger. That doesn't always happen. IMO if the authorities went full retard against the homeowner it'd probably be more likely in one of these "near miss" scenarios than it would be an actual SD shooting. Awhile ago some guy w/o a permit got busted in boston on one of these "non events". Some guy had broken into his apartment, the dweller got his XD or something like that, scared the BG off, BG gets away, cops come and steal gun from defender.... I forget what happened to him after that point. I don't think he was arrested but it is unclear to me as to whether or not they tried to indict him. I doubt he ever got his gun back, though.

I agree people gotta do what they have to do to protect themselves, law notwithstanding. That said, if it comes down to them getting a license, and they CAN get a license, it's cheap insurance against a potentially serious amount of jackassery/BS from the police or the DA.

-Mike

That guy posted here. He had the gun taken but the cop said go get your license and come back for the gun. I think he said he got it back. BTW: There is a very high likelihood he had hi-caps...

 

[rlee]

If other people in the household need access to the gun safe, simply put trigger locks on all of the guns to get around the storage law.
The only rational approach to SD is a LTC and a holster or quick-access safe.

 

[SClaflin]

the state can not charge under §10(h)(1) when there is 1) §10(a) on the books and 2) that the permit to purchase law (140 §131A) is still on the books.

I guess that is what I don't understand. Admittedly, I haven't spent a lot of time on this issue. 10a and 10h are different charges, with different elements, different exclusions, and different penalties. Sort of like degrees of homicide. Just because 10a excludes possession at one's residence, this does not mean that it is legal; rather, it is simply a crime under 10h instead, which has a lesser penalty (and no mandatory jail time). Of course, in the self-defense scenario, there are other arguments to be made.

I do agree, however, there are significant constiutional issues with 10h (especially with 131A in its current form, as you point out). But, this will provide little to no relief at the trial level.

 

[Bob-Sig226]

I'm surprised that nobody has said anything about your spouses ability to actually use the gun. I'm sure everyone on this forum has trained their spouse to be knowledgeable and proficient with firearms and that if she pulled it from the safe, she would know how to use it properly (vs. basically handing it to the BG). Get her a safety class, get her licensed, get her trained, then give her the combo. If you're that worried about the marauders storming the stronghold then get her licensed ASAP - or get her some dang pepper spray!

 

[terraformer]

I guess that is what I don't understand. Admittedly, I haven't spent a lot of time on this issue. 10a and 10h are different charges, with different elements, different exclusions, and different penalties. Sort of like degrees of homicide. Just because 10a excludes possession at one's residence, this does not mean that it is legal; rather, it is simply a crime under 10h instead, which has a lesser penalty (and no mandatory jail time). Of course, in the self-defense scenario, there are other arguments to be made.

I do agree, however, there are significant constiutional issues with 10h (especially with 131A in its current form, as you point out). But, this will provide little to no relief at the trial level.

This is why this whole thread is an academic circle jerk and why multiple people have cautioned that not having the permit is still dumb. Charges will be filed at the whim of either a cop, CLEO or ADA.

On §10(h), do a lexis search and see how often cases comes up talking about firearms in relation to §10(h) specifically. It's used for ammunition only these days.

Look at this clause in §10(a):

The provisions of this subsection shall not affect the licensing requirements of section one hundred and twenty-nine C of chapter one hundred and forty which require every person not otherwise duly licensed or exempted to have been issued a firearms identification card in order to possess a firearm, rifle or shotgun in his residence or place of business.

This would seem to negate coren but yet, it doesn't. Coren is far from the final word on this subject either. This issue has featured in a few cases hitting the SJC or appeals court level.

Now, keep in mind that the SJC can do dumb things and the latest Powell drama out of the SJC points to how bad they can be. They let a conviction stand for "possession without an FID card" where the state only had to prove possession of the gun, not a lack of an FID card.

Point being, everyone needs to get the spouse/paramour to get at least an FID card.

 

[terraformer]

But, this will provide little to no relief at the trial level.

BTW: On this point specifically, the new Powell SCOTUS cert petition leans heavily on the Herrington case out of the DC court of appeals. This is what I mean by the criminal bar could be doing more. I may not think her petition was very good, but she is at least trying to move the sticks.

 

[happilute]

Point being, everyone needs to get the spouse/paramour to get at least an FID card.

Wow. I was expecting a simple "yes she would be OK" or "no, she would be in trouble" type of response, but clearly the question was not as simple as I thought it was. I haven't read into all the case information as yet, but the impression I'm getting is that there's some grey area here (but I think most of you have agreed that I would be charged with 'improper storage' should this event ever occur).

Just to give you a little added insight: The reason my wife would have had access to the safe combination was because, yes, we would keep other important things in there (passports, her jewelry, etc). We were victims of a home invasion a short while back; I was forced to protect us using a hatchet -- yes, a hatchet. Frankly, it was a terrifyingly traumatic experience we never want to face again. That is why I applied for and received an LTC. In a lapse of judgement, we failed to consider the legalities of her ever having to use the firearm.

Being new to this forum, I want to add that I think it's really sad that good, normally law-abiding citizens have to worry about getting into trouble for having to defend themselves in their own homes. It just seems really silly to me. A lot of legal mumbo-jumbo to discern with little use of common sense. Bleh...

It's going to take a while for me to digest all the information you've provided. Thank you all for your responses (and keep 'em coming)...

-Happy

 

[qqac]

I guess that is what I don't understand. Admittedly, I haven't spent a lot of time on this issue. 10a and 10h are different charges, with different elements, different exclusions, and different penalties. Sort of like degrees of homicide. Just because 10a excludes possession at one's residence, this does not mean that it is legal; rather, it is simply a crime under 10h instead, which has a lesser penalty (and no mandatory jail time). Of course, in the self-defense scenario, there are other arguments to be made.

I do agree, however, there are significant constiutional issues with 10h (especially with 131A in its current form, as you point out). But, this will provide little to no relief at the trial level.

The 1990 version of subsection 10(h) applicable in the Coren case contained a lesser included offense clause that basically prohibited charging under 10(h) for possession of firearms, rifles, and shotguns where a 10(a) charge stood. It did not exclude charging for ammo, thus the ammo charge under 10(h) in Coren (and in subsequent cases under the 1990 version of 10(h) that are just now showing up in appellate decisions). 10(h) was revised in 1998 to eliminate the lesser included offense clause, and amended again to the 10(h)(1) version.

 

[drgrant]

That guy posted here. He had the gun taken but the cop said go get your license and come back for the gun. I think he said he got it back. BTW: There is a very high likelihood he had hi-caps...

Yeah, now that I think of it.. you're right, he did post here, I just can't find the thread. That might have been one of those "wtf are you doing here go talk to a lawyer" threads. Glad to hear he made out OK.

-Mike

 

[terraformer]

The 1990 version of subsection 10(h) applicable in the Coren case contained a lesser included offense clause that basically prohibited charging under 10(h) for possession of firearms, rifles, and shotguns where a 10(a) charge stood. It did not exclude charging for ammo, thus the ammo charge under 10(h) in Coren (and in subsequent cases under the 1990 version of 10(h) that are just now showing up in appellate decisions). 10(h) was revised in 1998 to eliminate the lesser included offense clause, and amended again to the 10(h)(1) version.

Maybe they thought they were making changes, but it isn't flying with the courts and the PDs are still using (h) for ammo and (a) for the gun.

Commonwealth v. McCollum, 79 Mass. App. Ct. 239 - Mass: Appeals Court 2011

The Commonwealth charged the defendant with possession of cocaine with intent to distribute, G. L. c. 94C, § 32A(c); possession of cocaine with intent to distribute in a school zone, G. L. c. 94C, § 32J; possession of marijuana, G. L. c. 94C, § 34; possession of a firearm without a license, G. L. c. 269, § 10(a); and possession of ammunition without a firearm identification (FID) card, G. L. c. 269, § 10(h), as amended through St. 1998, c. 180, § 69.[2] The defendant's subsequent motion to suppress, arguing both that the protective sweep was impermissible and that the search warrant affidavit was insufficient, was denied.

McCollum was convicted because the court found that his residence was not the home he was found in.

 

[SeanT]

In a perfect world, if spending cash and free space were no issues, I can't argue with this logic. I have neither of those at my disposal right now....

If other people in the household need access to the gun safe, simply put trigger locks on all of the guns to get around the storage law.
The only rational approach to SD is a LTC and a holster or quick-access safe.

rlee's right. Here's your workaround, trigger locks on all of the guns in the safe if your spouse has the safe combo.

 

[qqac]

Maybe they thought they were making changes, but it isn't flying with the courts and the PDs are still using (h) for ammo and (a) for the gun.

Commonwealth v. McCollum, 79 Mass. App. Ct. 239 - Mass: Appeals Court 2011


McCollum was convicted because the court found that his residence was not the home he was found in.

They prefer to charge under 10(a) for guns since it has stiffer penalties.

If the person is at home and doesn't come under 10(a), then the charge for guns will be under 10(h)(1).

 

[terraformer]

They prefer to charge under 10(a) for guns since it has stiffer penalties.

If the person is at home and doesn't come under 10(a), then the charge for guns will be under 10(h)(1).

Yeah, so that's why the cops come out every frackin' year to bitch that they can't prosecute for the gun. Let's try this another way and dispel one of scaflin's assumptions at the same time. Maybe now you will get it.

Elements of §10(a):

• knowingly
• has in his possession;
• [STRIKE=dash]or has under his control in a vehicle; [/STRIKE]
• a firearm as defined in section one hundred and twenty-one of chapter one hundred and forty without either: (which is a handgun in this statute);
• where possession of a FID card or LTC exempts among other exemptions such as in the home.

Elements of §10(h)(1):

• [STRIKE=dash]owns, [/STRIKE]possesses
• [STRIKE=dash]or transfers [/STRIKE]
• a firearm,[STRIKE=dash] rifle, shotgun[/STRIKE] or ammunition
• without complying with the provisions of section 129C of chapter 140 (licensing section)

Caveats, I removed "owns" (btw, banning ownership is not enforceable for other reasons...), the "under control in a car BS" as that's not part of the OP's hypothetical nor is transfer and "under control" is also superfluous as it is redundant with mere possession in the same sub section. I also strike rifle and shotgun since that is related to §10(b) and not §10(a) so it is out of scope of the discussion.

Now, one will note that "knowingly" is one element not shared. However, the SJC has a policy of reading scienter/mens rea (knowledge of the crime) into all criminal laws and the supreme court has held multiple times (Staples v. US 1994, United States v. Balint, Lambert v. California, Smith v. California 1954, etc) that scienter is required for crimes with significant penalties or that implicate fundamental rights. So although the statute doesn't say it, there is scienter in §10(h)(1) as per case law.

That leaves ammunition as the only element of the crime not shared between the two statutes...

So how is it now that we can have elementally identical statutes and a person can be exempted from one but not the other???? What form of statutory construction (here is a link to them all http://en.wikipedia.org/wiki/Statutory_interpretation ) allows this statute to be interpreted said way, completely violating internal consistency within the same statute?

Really. I got nothing else. §10(h) is not enforceable because it is not internally consistent with §10(a) and the SJC applies the canon of lenity to all statutory construction and interpretation.

If RKG says I am wrong, then I will freely admit that I am wrong.

For those bored out of their skull, this is why we say the statutes here are absurdly and colossally screwed up.

 

[Blitz1]

Also, everyone here should have their spouses and all family members, both present in the home or living separately in MA, licensed if they are willing to be. Those not willing should be convinced otherwise.

This. It's just makes sense.

To the OP is there any reason she can't be licensed? If not then do your best to make it happen.

 

[SClaflin]

I wish I had more time to spend on this issue. But let's go over, in my opinion, some inaccurate information in this thread:

The statute you and qqac quote has been superseded for over a decade or more by case law because of a lenity issue. See Commonwealth v. Coren, 437 Mass. 723, 734 (2002).

Not true. 10(h) has never been superseded. Shepardize it, keycite it, do whatever you want, it's still valid. More importantly, it is still routinely used in the trial courts. You can argue that it is invalid, but no court has held it is invalid.

Using Coren, one can only assert that it is LEGAL for one to possess a firearm in one's home for the purpose of self-defense.

Not true. See my first post.

[10(h) is] used for ammunition only these days.

but it isn't flying with the courts and the PDs are still using (h) for ammo and (a) for the gun.

Not true. I have seen numerous people charged under 10(h) for possessing a firearm without a license at their residence. 10(h) is also used as a plea deal to reduce the 10(a) charges (and eliminate the mandatory jail sentence).

Let's try this another way and dispel one of scaflin's assumptions at the same time.

Not true. I never assumed anything.

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So how is it now that we can have elementally identical statutes and a person can be exempted from one but not the other?

Yes, their elements are essentially the same. But what aren't the same are the penalties. 10(a) is a felony with a mandatory minimum sentence where as 10(h) is a misdemeanor. It is arguably reasonable to assume that the legislature wanted to penalize the unlicensed possession of a firearm outside one's home or business more severely than the mere unlicensed possession of a firearm within one's home or business.


The moral of the story is far more simple, and everyone agrees: get the license. However, it is important to note that 10(h) is still routinely used in district and superior courts and certainly isn't considered invalid. Finally, one could put forth an argument that 10(h) is no longer valid (or constitutional), but this provides little relief at the trial level.

Just my five cents . . .

 

[terraformer]

There is something else we can agree upon. That the laws are this frackin' difficult to understand and analyze is a monumental indictment of the scumbags inhabiting Beacon Hill. You earlier said that §10(h) and §10(a) have different elements and now you agree they are essentially the same. Without having analyzed them in the way I had in the past, I would agree with you that they look and feel different, yet they aren't.

We also didn't discuss estoppel issues with those who had purchased based on a permit to purchase and those with "lifetime" FIDs. This law is a complete and utter fluster duck.