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LTC Suitability in this era of Heller/MacDonald

Discussion in 'Massachusetts Laws' started by dcmdon, Jan 27, 2019.

  1. dcmdon

    dcmdon NES Member

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    Hi all,

    I've been thinking about this for a while now and don't have an answer.

    Heller guarantees anyone who is not a prohibited person (PP) shall have the right to possess a handgun in their home.

    In MA a LTC is required to possess a handgun.

    The issuance of a LTC is subject to suitability standards applied by the licensing official.

    So what happens if you are denied a LTC based on suitability but are not a PP??

    Have the Mass courts addressed this?? Is there any case law??

    I'm curious to know how the state is finessing this, considering that as the law now stands, the LTC suitability allowance is unconstitutional.

    I'm looking for some legal analysis. PLEASE do not just write "Because its mass and mass sucks". Or , "god I'm glad I escaped".

    Thanks,

    Don

    p.s. Rob Boudrie, Len, Groundscraper - I'm hoping you guys respond.
     
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  2. ProGun

    ProGun NES Member

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  3. Rob Boudrie

    Rob Boudrie NES Member

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    The standard was changed from "any reason the issuing authority believes valid as long as it is not arbitrary, capricious and an abuse of discretion" (Moyer v. Shelburne) to "dangerousness". This was the primary case law cited for many years. There are other cases, such as Godfrey v. Wellesley that established that exercising the 5th amendment right to remain silent is a valid reason to revoke an LTC. Basically, you can exercise the 2nd or 5th, but not both.

    Sadly, the courts have, for the most part, continued to cite the old standard, and even the no longer applicable Moyer case, because they like it better than the new one. There have been a minority of courts supporting the new standard, though they are the exception.

    Our side (not Comm2a, just people on our side) lost a case in CA (9th circus court) based on the fact that the Sacramento sheriff issues carry permits only to connected and favored people. SCOTUS recently denied cert, so permit for friends of the system is the law of the land in the 9th district.

    Attempts to fight this discretion, as well as extra-judicial deprivation of 2A rights have met with considerable judicial activism. For example, the federal court ruled that a Permit to Purchase (prescribed in law, but the state has no record of any ever being issued .... we checked) and FID (which the state testified allowed a handgun in the home, despite the fact that the law says otherwise) is the minimum to meet Heller, so an appellant has no right to even argue for an LTC. (WTF??? .... yes, really). We have a fight just to prove nothing other than an LTC meets the Heller standard in the DPRM. And yes, we are working on it.
     
    Last edited: Jan 27, 2019
  4. dcmdon

    dcmdon NES Member

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    Thanks Rob.

    So you answered the crux of my question when you said that a fed court says that a FID (which is effectively shall issue) allows you to keep a handgun in the home.

    Do you know the name of case in question? I'd like to read it. Thanks.
     
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  5. Rob Boudrie

    Rob Boudrie NES Member

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    Morin v. Lyver

    And the court did not rule that an FID allows a handgun in the home, it simply accepted the state's argument. The case is probably of minimal value to the person with an FID only caught with a handgun in the home, and I expect the same attorney that told the federal court it was allowed would be glad to tell a MA court it is not.
     
    Last edited: Jan 27, 2019
  6. dcmdon

    dcmdon NES Member

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    So then, it might be useful to litigate this if the right test case can be found.

    Force the LTC to be shall issue, or make it so an FID can be used to possess a handgun, but not carry it.

    Ideally someone who has been a law abiding citizen all his life other than a non-prohibiting offense from 30 years ago that came up up and sunk a renewal or new LTC application through the PD's authority to judge someone as suitable or not.
     
  7. dcmdon

    dcmdon NES Member

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    Thanks for the FUD. But you must not have been paying much attention. There have been a number of wins in both Fed and MA courts over the last few years.
     
  8. Rob Boudrie

    Rob Boudrie NES Member

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    We have indeed had wins, but also some spectacular losses.

    1. Complete loss on Bonded Warehouse case. Court said it is not at all like the involuntary service of towing, and a bonded warehouse may set whatever charges and terms it wishes.

    2. Complete loss on AGs regulations/loaded chamber indicator Glock case. Fed court ruled "all claims by AG accepted, all claims by plaintiff rejected"; accepted that Glock CLI was ineffective and did not even allow us a trial to prove otherwise.

    On the other hand, we are making slow progress with the FLRB relief issue and just scored our 10th state level win.

    The moral of the story is any case is a crapshoot, no matter how strong the argument.
     
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  9. Knuckle Dragger

    Knuckle Dragger NES Member

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    I'm going to 'nitpick' the assumption in your post. What the Supreme Court said in Heller was that the Second Amendment protected an individual (as opposed to colletvie) right and that DC's ban on possession of handguns and operable long guns violated the rights of DC residents. Hard stop. They also said that Second Amendment rights were subject to 'reasonable' regulation and that courts should not assume that many 'long-standing' regulations were unconstitutional. They did NOT talk specifically about prohibited persons as we think about them in 922. One of the problems with Heller, or really with the court's failure to take additional 2A cases is that no one knows who can be barred from exercising the right or when.
     
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  10. 42!

    42! NES Life Member NES Member

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    Not truely Shall issue. suitability can be applied to an FID as well, and anything that will make you unsuitable for an LTC will also make you unsuitable for an FID. It makes sense in a way. The standard for suitability is the same for an LTC and an FID. If they issued an FID to someone they labeled unsuitable for an LTC, they would be creating a ready made case for an appeal of the LTC denial.

    Or with a single CWOF/Dismissed, NO CONVICTION, and only one arrest ever, yet unsuitable for both an LTC and FID. Of course this kind of thing is highly variable because it depends on the opinion of the LO, and the judges that side with them regardless of the law. I know for a fact that what would be used to label someone unsuitable in one town would hardly get noticed elsewhere.

    But you are right in that changing the law is the only real solution. Before I moved north I was working on trying to get my rep to support a bill to make a couple very small changes that would greatly improve the situation (because eliminating suitability would meet too much resistance). 1. Requiring that the LO cite a specific incident or incidence on which he is basing his determination of unsuitability. This will give those appealing a denial a clear reason they need to argue against. And 2. the incident must have occurred within the last 5 years. There are already other prohibiting factors that time-out in 5 years so there is a basis for this.
     
  11. Rob Boudrie

    Rob Boudrie NES Member

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    True, but it is not too much of a leap to conclude that if something is a right, it can only be stripped via judicial process (including a conviction for a misdafelony), and cannot be revoked at the whim of a public official absent a court finding, or revoked because the subject chose to lawfully exercise another protected right.
     
  12. VetteGirlMA

    VetteGirlMA NES Member

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    Do you ever have the fear though that 'our side' is always fighting against a moving goal post? Even when there's a win, there's someone who tries to imagine a way around it almost the same day that the win is announced and now we have to work on a new goal post that was moved a few feet in the wrong direction and suddenly we are defending a new position. It seems like holding the ground is the only option with an occasional slip backwards whenever some nutball decides to shoot up a school. Maybe the court will come out on our side on the NY Pistol case headed to scotus right now and scotus says that 'carrying a gun outside the home for lawful purposes is constitutionally protected', but my fear is that the anti-gun side will fall back to Heller and say 'subject to regulation' and then suddenly they are picking and choosing the days or ways when people can carry and now we are fighting a new goal post. It's a never ending pile of litigation. In the end it will be more complicated than tax law and this is supposed to be a fundamental natural right.

    I simply don't understand why 'our side' isn't going after putting some pro-freedom laws into effect and put the blue states on the defensive. I guess it's a red state vs blue state kind of thing I am guessing. People who don't live in MA might be saying "Wait, you can't buy a Glock?", "You can't buy a whole lot of weapons? Doesn't make sense, seems kind of arbitrary.". Maybe they don't have the need or urgency to change anything because they are fine where they are, except when the blue goo starts dripping into their states and suddenly they are on the defensive.
     
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  13. Chevy 2 65

    Chevy 2 65 NES Member

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    This state still fails to follow the Heller ruling.

    District of Columbia v. Heller (PDF), the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense. It also ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.
     
  14. Rob Boudrie

    Rob Boudrie NES Member

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    If our side wins the NY case, expect a narrow ruling that transporting an unloaded gun in a locked case for the purpose of maintaining proficiency is protected; not carry outside the home. The court already denied cert in a case that would cover the later - probably because what the constitution requires and desired public policy are in conflict.
     
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  15. AHM

    AHM NES Member

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    I'd hope for "intrastate FOPA", too -
    securely transporting your city-legal/state-legal gun
    between Fun City and your camp in the Catskills.
     
  16. Reptile

    Reptile NES Member

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    That is all I'm expecting from that future ruling.

    Some smart people here have taught me what "strict scrutiny" means.

    If "strict scrutiny" is applied to this case by the justices then we would have something real nice.

    I will be waiting with baited breath when the ruling is announced and the experts weigh in.
     
  17. Cap'n Mike

    Cap'n Mike NES Member

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    True, but it goes both ways. "Our side" does the same thing when a new gun law passes and a work around of the laws intention is found.
     
  18. milktree

    milktree NES Member

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    A "loophole"?
     
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  19. Len-2A Training

    Len-2A Training Instructor Instructor NES Life Member NES Member

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    IANAL, but my layman's reading of the words in FOPA leads me to believe that it isn't just coverage between states. However, as our enemies in NY/NJ have stated, it is an "affirmative defense", so the locals/state jacks you up, you spend $10s of thousands to have your attorney convince a judge/jury that you should not be convicted due to this exemption in Fed Law. Not a fun ride.
     
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  20. AHM

    AHM NES Member

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    If true (and I didn't assume so, and didn't check),
    then it would be unfortunate if SCOTUS smacked down NYC
    by merely citing FOPA as "settled law".

    It would be better if the outcome was something larger,
    such as finding the "right to bear" implied shall-issue for all non-FPP's.

    (Although that still might prove to be a brush-back pitch
    against some other jurisdictions...)
     
  21. drgrant

    drgrant Moderator NES Member

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    Lol not sure what you mean by this. When "our side" finds a poorly written law and exploits it, no harm is suffered by anyone.

    Yet when the state goes full retard and prosecutes a bunch of people for victimless crimes, tons of lives are irrrevocably ruined.

    Gun owners are never on the side of the law that has real teeth. The state doesn't like that. The state would have an aneurysm if there was ever a law that cracked the states skull in court for unlawfully disarming
    someone. (EG, at least like a minimum 10K fine and potential felony for some cop that got caught doing it more than once etc. )

    -Mike
     
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  22. Len-2A Training

    Len-2A Training Instructor Instructor NES Life Member NES Member

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    18 U.S. Code § 926A - Interstate transportation of firearms

     
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  23. MuzzleDiscipline

    MuzzleDiscipline NES Life Member NES Member

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    I will go one step further.....there is nothing in those words which prohibit any reasonable stop while in the process of the transport as in sleeping, fueling, eating, repairs, etc. As long as it can be construed as a necessary delay to enable transport it wouldn't violate those words and in fact if one were walking across NJ with locked separately firearm and ammo.......well I won't be the test case.
     
  24. AHM

    AHM NES Member

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    When interpreting a law,
    the Rule against Surplusage insists that
    the legislature put every word in the statute for a reason,
    and every word must be given meaning.
    The title of that law includes the word "interstate".

    This leads me to conclude that the law concerns
    transportation between distinct states.

    NYC and the Catskills are not in distinct states.
     
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  25. AHM

    AHM NES Member

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    P. S.
    I prefer the modern formulation:
    "My license to practice law in Massachusetts is the same as Elizabeth Warren's."
     
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  26. Cap'n Mike

    Cap'n Mike NES Member

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    I was just trying to find the silver lining in this dark cloud.
    The alternative is that this stuff starts to depress the hell out of me.
     
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