A political donnybrook is breaking out in Massachusetts after the state Attorney General and Executive Office of Public Safety issued a “Joint Advisory Regarding the Massachusetts Firearms Licensing System After the Supreme Court’s Decision in New York State Rifle & Pistol Association v. Bruen.”
Jim Wallace, executive director of the Massachusetts Gun Owners’ Action League (GOAL) contacted Liberty Park Press and provided texts of both the “advisory” and GOAL’s response.
Here is the full text of the Advisory:
“The Attorney General’s Office and the Executive Office of Public Safety and Security issue this joint advisory to provide guidance to licensing authorities and law enforcement officials on how the Supreme Court’s decision in Bruen affects Massachusetts’s firearms licensing laws. We are proud to continue to partner with you in implementing and vigorously enforcing Massachusetts’s gun safety laws. These laws help keep our state a safe place to live, raise families, work, and visit.
“On June 23, 2022, the United States Supreme Court issued its decision in New York State Rifle & Pistol Association v. Bruen. The case involved New York’s requirement that applicants demonstrate “proper cause” in order to obtain a permit to carry a concealed weapon in most public places. The Court held that New York’s proper cause requirement violates the Second and Fourteenth Amendments. Although Bruen concerned a New York law, the Court specifically identified the “good reason” provision of a Massachusetts law, G.L. c. 140, § 131(d), as an analogue to New York’s proper cause requirement. Bruen, slip op. 4-6; see also id. at 6 n.2.
Executive Summary
- It remains unlawful to carry a firearm in Massachusetts without a license. The Supreme Court’s decision in Bruen did not affect, but instead expressly stated that it was constitutional, for states to require a license to carry a firearm in public.
- Licensing authorities should continue to enforce the “prohibited person” and “suitability” provisions of the license-to-carry statute. These aspects of the statute are unaffected by Bruen.
- Licensing authorities should cease enforcement of the “good reason” provision of the license-to-carry statute in response to Bruen. Authorities should no longer deny, or impose restrictions on, a license to carry because the applicant lacks a sufficiently good reason to carry a firearm. An applicant who is neither a “prohibited person” or “unsuitable” must be issued an unrestricted license to carry.
- Licensing authorities may continue to inquire about the reasons why the applicant wants a license, but may only use that information to assess the prohibited person and suitability requirements of the statute. They may not use that information to deny or restrict a license for lack of a sufficiently good reason to carry a firearm. -2-
- The FID Card Process Is Unaffected by Bruen. Because there is no “good reason” provision for issuance of an FID card, licensing authorities should continue to process and issue FID cards exactly as they did prior to Bruen.
Massachusetts License to Carry Eligibility Requirements
In Massachusetts, a person must have a license to carry firearms in order to carry firearms in public. G.L. c. 269, § 10. Massachusetts’s statute governing the issuance of licenses to carry, G.L. c. 140, § 131, contains three central provisions that are discussed below. Only one of them—our “good reason” provision of G.L. c. 140, § 131(d)—is impacted by Bruen.
First, when an applicant applies for a license to carry, the licensing authority must determine whether the applicant is a “prohibited person” such as a convicted felon or a person who falls into one of the other categorical exclusions that are specifically listed out in the statute. G.L. c. 140, § 131(d)(i)-(x). If the applicant falls into one of these categories, they must not be issued a license to carry.
Second, if the applicant is not a prohibited person, the licensing authority may deny (or revoke or suspend) a license to carry if the applicant is “unsuitable.” The statute instructs that a “determination of unsuitability shall be based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.”
Third, if the applicant is not a prohibited person, and is not unsuitable, the licensing authority may issue a license to carry if it appears that “the applicant has good reason to fear injury to the applicant or the applicant’s property or for any other reason, including the carrying of firearms for use in sport or target practice only, subject to the restrictions expressed or authorized under this section.” Under this third element, if the applicant lacks good reason to fear injury to their person or property, the licensing authority may impose restrictions on the license, limiting the licensee to carrying a firearm for hunting, target shooting, employment, or the like. Id.; see also id. § 131(a).
Enforcement of License to Carry Eligibility Provisions
After Bruen Massachusetts’s strong gun safety laws have consistently led us to have among the lowest rates of gun violence and gun-related death in the country. Our license-to-carry statute is a critical component of our gun safety laws.
The Supreme Court made clear in Bruen that States may, consistent with the Second Amendment, require licenses to carry firearms in public. Bruen, slip op. 4-6 & 6 n.2; id. (Kavanaugh, J., concurring) (“the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense”).
Thus, after Bruen, it remains unlawful to carry a firearm in Massachusetts without a license to carry. Licensing authorities also can and should continue to enforce the “prohibited person” and the “suitability” elements of the license-to-carry statute (the first and second elements outlined above). These provisions, which are not affected by Bruen, ensure that individuals who are entrusted to carry a firearm, including in a concealed manner in public, do not pose a risk to public safety.
But in light of Bruen’s holding that New York’s “proper cause” requirement violates the Second and Fourteenth Amendments, licensing authorities should no longer enforce the third element above, i.e., the “good reason” aspect of the license-to-carry statute, under which the applicant must identify a reasons or reasons for obtaining a license, and the licensing authority may restrict the license upon determining that the applicant lacks a sufficiently good reason to fear injury to person or property.
This does not mean that a licensing authority is foreclosed from inquiring of the applicant about their reasons for seeking a license to carry. An answer to any such question may bear on whether an applicant is a prohibited person or is unsuitable under the definition set forth in the statute. But an applicant’s answer to such a question may not be used to deny the application because the applicant lacks a sufficiently good reason to request the license, or to restrict the permissible uses of the license based on an appearance that the applicant lacks a sufficiently good reason to fear injury to person or property. Going forward, if an applicant is not a prohibited person and is not unsuitable, the applicant must be issued an unrestricted license to carry.
Bruen also does not impact the Firearms Identification (“FID”) card application process. The statute governing eligibility for FID cards, G.L. c. 140, § 129B, does not contain a good reason provision. Licensing authorities should therefore continue to process FID card applications and issue FID cards in the same manner as prior to Bruen.
And here is the GOAL response to Gov. Charlie Baker, which was signed by Wallace, and copied to Attorney General Maura Healey and Secretary Terrence Reidy:
RE: Restoration of Civil Rights Under Bruen
Dear Governor Baker,
On June 23, 2022 the United States Supreme Court issued a decision on the case New York State Rifle & Pistol Association, Inc., ET AL v. Bruen ET AL.. In that decision the highest court firmly ruled that the Second Amendment is indeed an individual civil right enumerated in the United States Constitution. The Court reiterated that Second Amendment “is not a second class right subject to an entirely different body of rules.” Further, any laws or regulations regarding the Second Amendment must meet the absolute highest standard of review.
We are aware of the joint “guidance” released by the Massachusetts Office of the Attorney General and the Executive office of Public Safety and Security. We are officially demanding that the so-called “guidance” be retracted and revised as it does not reflect the decision handed down by the Court!
First: It is very clear by reading the guidance that the Commonwealth believes that “suitability,” IE Chief’s Discretion, is Constitutional. This method in Massachusetts has been widely abused by licensing authorities to restrict or deny all manner of people based on arbitrary personal opinions. Doing away with this type of discriminatory prejudice is absolutely at the core of the Court’s decision. Following a clear and logical reading of Bruen, that could not be further from the truth.
Post Bruen, the only hurdle a citizen must overcome to obtain a license is to pass a standard criminal and mental health background check. Those checks must be standard for every citizen under the 14th Amendment (Equal protection) and can only apply to criminal convictions or mental health commitments that make the citizen a “prohibited person”.
Second: Whereas restricted licenses are now clearly unconstitutional, the guidance gave no mention of the fact that any restrictions on currently issued licenses can no longer be enforced. That all such licenses are now considered to have been issued for all lawful purposes.
Third: A key element of the Bruen decision was the ability to carry firearms in public places. The court made it exceedingly clear that carry/possession bans in public areas must meet the “historically sensitive areas” condition, such as schools, court houses, etc. As such, state and local law enforcement need to be advised that any state laws or local ordinances that ban the carrying/possession of firearms in public places that are not strictly historically sensitive areas can no longer be enforced.
Fourth: The guidance states that “Licensing authorities may continue to inquire about the reasons why the applicant wants a license…” This absolutely violates not only the clear legal opinion of the Court, but indeed the spirit of it as well. If the licensing authority is not allowed to use that information against the applicant, then why would it be constitutional to ask the questions?
Fifth: As the issuance of licenses can only be predicated on a standard prohibited person status, this means that all other hurdles/inquiries are now unconstitutional. These would include mandates and/or conditions, but not limited to, training requirements, letters of reference, names of reference, qualification tests, etc. It must be included in any official guidance that these mandates are now in violation of Bruen.
It is for these, and other clear reasons, that we are demanding the guidance be retracted and revised to meet the clear legal reading and the actual spirit of Bruen!
