2. "Antique" firearm. The defendants claim that the motion judge erred in denying their joint motion to dismiss the counts alleging carrying a firearm without a license and possession of a loaded firearm. In that motion, the defendants argued that their firearms expert, Gregory Danas, had determined from the serial number of the revolver that it was manufactured "before 1899," and therefore it was an "antique" that was not a "firearm" as defined in G. L. c. 140, § 121.
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A firearm manufactured before 1900 is a "firearm" within the definition of G. L. c. 140, § 121, which defines a "[f]irearm" as "a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured." However, § 121 also provides that the "provisions of [§§] 122 to 129D, inclusive, and [§§] 131, 131A, 131B and 131E shall not apply to . . . any firearm, rifle or shotgun manufactured in or prior to the year 1899." Because G. L. c. 140, § 131, governs licenses to carry firearms, and because § 131 does not apply to firearms manufactured before 1900, a person does not need a license to carry a firearm made before 1900. The carrying of such an antique firearm, therefore, is exempted by § 131 from the prohibition in G. L. c. 269, § 10 (a), against carrying a firearm without a license. See G. L. c. 269, § 10 (a) ("Whoever, except as provided or exempted by statute, knowingly has [a firearm] in his possession . . . or . . . under his control in a vehicle" without license to carry firearms issued under G. L. c. 140, § 131, is guilty of crime). As a result, a defendant may not be convicted under § 10 (a) of carrying a firearm manufactured before 1900 without a license to carry because the defendant is permitted to carry such an antique firearm without a license to carry.
In allowing the motion in limine, the judge relied on Commonwealth v. Bibby, 54 Mass. App. Ct. 158 , 163 (2002) (Bibby), where the Appeals Court found no error in a judge's refusal to allow a defendant to argue to the jury that he would not be in violation of G. L. c. 269, § 10 (a), if the firearm he carried was manufactured before 1900. The Bibby court held that the argument that a firearm manufactured before 1900 falls outside the scope of § 10 (a) "is contrary to the legislative purpose of G. L. c. 269, § 10 (a), and the clear and unambiguous language of G. L. c. 140, § 121." Bibby, supra. The Appeals Court correctly recognized that the purpose of § 10 (a) is "to control the carrying of firearms so as to 'protect the public from the potential danger incident to . . . [their] unlawful possession.' " Id., quoting Commonwealth v. Jackson, 369 Mass. 904 , 911 (1976). But the court failed to recognize that the Legislature also had a valid purpose in exempting firearms manufactured before 1900 from the statute governing the issuance of a license to carry, namely to allow individuals to carry antique firearms to Revolutionary War and Civil War reenactments without requiring them first to obtain a license to carry. By invoking "the clear and unambiguous language of G. L. c. 140, § 121," id., the Bibby court appeared to be under the misimpression that § 121 did not exempt firearms manufactured before 1900 from the licensing requirement in G. L. c. 140, § 131.
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While firearms manufactured before 1900 are exempt from the licensing requirement in G. L. c. 140, § 131, a defendant may still be convicted of the unlawful possession of ammunition loaded in a firearm manufactured before 1900 if the defendant does not have a firearm identification card and the ammunition does not fall under some exemption. See, e.g., G. L. c. 269, § 10 (h) (crime to possess ammunition without firearm identification card); G. L. c. 140, § 129C (listing exemptions including "so-called black powder rifles, shotguns, and ammunition therefor"). Therefore, a defendant in possession of a loaded firearm manufactured before 1900 may not be guilty of the unlawful carrying of a loaded firearm, but may still be guilty of the unlawful possession of ammunition.
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