Charges against my client, a New Hampshire resident, for possessing a firearm without a license in Massachusetts were dismissed today. Judge John Coffey (Presiding Judge of the Lowell District Court) ruled that it is unconstitutional to criminalize the unlicensed carrying of a firearm “by an ordinary, law-abiding resident of the state of New Hampshire who exercises his Constitutional right under the Second Amendment while traveling in in Massachusetts.” Given Lowell’s close proximity to New Hampshire, where residents are not required to have a permit to carry a pistol, there are a lot of cases like this. Unlicensed possession or carrying of a firearm in Massachusetts has serious consequences: a conviction carries a mandatory minimum sentence of 18 months or 2.5 years depending on the applicable charge. Judge Coffey’s ruling applied to 7 non-residents charged with unlicensed possession/carrying in Massachusetts and their charges were dismissed. The DA’s Office will appeal the dismissals and has indicated that it will request Direct Appellate Review by the SJC. It is fair to assume that the Supreme Judicial Court agree to DAR given the public interest in this constitutional question.
In N.Y. Rifle & Pistol Association v. Bruen, the U.S. Supreme Court ruled that the ability to carry a pistol in public was a constitutional right guaranteed by the Second Amendment. The case calls into question the constitutionality of many state-level firearm regulation schemes. The Court ruled that the constitutionality of gun regulation laws will be based on whether the plain text of the Second Amendment protects the activities that the law is regulating. If it does, then “the government must affirmatively prove that its firearms regulation is part of the historical tradition” to set boundaries on gun use. In the post-Bruen landscape, firearm restrictions are presumptively unlawful unless the government can demonstrate that the regulation is consistent with this country’s historical tradition of firearm regulation.
Judge Coffey found that non-residents carrying a firearm fell under activity protected by the Second Amendment. The defendant in Donnell (and the 6 other defendants) were non-residents who were in compliance with the laws of their home state to carry a firearm and were not prohibited from possessing a firearm under federal law. The prosecution was not able to show a historical analogue to the disparate treatment of non-residents, who lose their right to carry a pistol in public simply by traveling into Massachusetts.