Firearms Owners Against Crime
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Institute for Legal, Legislative and Educational Action
A person’s right to carry a firearm in public for self-defense does not end at state lines, a Massachusetts trial judge has ruled.
Earlier this month, Lowell District Court Justice John F. Coffey dismissed a criminal case against a New Hampshire man charged with carrying a firearm without a license in Massachusetts. He found the state’s requirement that non-residents obtain a temporary license to carry in Massachusetts violates the Second Amendment.
“An individual only loses a constitutional right if he commits an offense or is or has been engaged in certain behavior that is covered by 18 USC section 922,” Judge Coffey wrote on August 3rd in Commonwealth of Massachusetts v. Dean F. Donnell. “He doesn’t lose that right simply by traveling into an adjoining state whose statute mandates that residents of that state obtain a license prior to exercising their constitutional right. To hold otherwise would inexplicably treat Second Amendment rights differently than other individually held rights. Therefore, the Court finds that GL. 269, sec. (10a) is unconstitutional as applied to this particularly situated defendant and allows the motion to dismiss on that ground.”
The ruling could have significant implications for determining the scope of the right to carry a firearm in public. It is one of the first legal decisions to address gun-carry rights across state lines since the Supreme Court recognized a general public carry right in New York State Rifle and Pistol Association v. Bruenlast June. It could fuel gun-rights advocates’ push for the right to travel in all 50 states with firearms in public, also known as “national reciprocity.”
The defendant in the case, Dean Donnell, is a legal resident of New Hampshire. New Hampshire is a permitless gun carry state, meaning anyone 18 years of age or older who can legally possess a firearm may carry it in public openly or concealed. It also issues carry permits to residents for reciprocity purposes. However, Massachusetts does not honor New Hampshire permits.
Judge Coffey’s order does not specify whether or not Donnell had a valid New Hampshire permit, only that he “was in compliance with his home states laws on the possession of the firearm” when Massachusetts charged him. The law under which he was charged, GL. 269, sec. (10a), creates a mandatory minimum sentence of 18 months in prison for anyone convicted of possessing a firearm in public without a license.
Judge Coffey wrote that Donnell’s conduct was “clearly covered by the Second Amendment.” Therefore, under the standard of review set in Bruen, he said the Government of Massachusetts needed to show a historical tradition “relating to disparate treatment of nonresidents” to uphold the law.
Rather than point to any historical analogues, the Massachusetts Government argued that previous state court decisions had held that it was not required to recognize the gun-carry rights of non-residents.
Judge Coffey dismissed those arguments because the cited state court precedents relied on a time when Massachusetts issued permits on a subjective, may-issue standard struck down by the Supreme Court in Bruen.
“This argument is not persuasive because at the time of the Harris decision, carrying a firearm outside of the home was a privilege, and the Harris Court held that Massachusetts didn’t have to give Full Faith and Credit to New Hampshire laws conferring that same privilege,” he wrote. “The Commonwealth points to no historical precedent limiting the reach of one’s exercise to a federal constitutional right to only within that resident’s states borders.”
The government also argued that its law was constitutional because it allowed non-residents to obtain a special temporary permit to carry firearms when visiting the state. They cited Justice Brett Kavanaugh’s concurring opinion in Bruen clarifying that objective gun permitting systems were permissible as support.
Judge Coffey disagreed that the state’s nonresident permitting system was constitutionally sound because it sets different standards for non-resident applicants than resident applicants.
“As stated above, prior to the Bruen decision, Massachusetts treated the carrying of a firearm as a privilege,” he wrote. “While it allowed nonresidents to apply to obtain a license for that privilege, nonresidents were not treated the same as residents. Residents of Massachusetts obtaining a license were granted the license for five years. A temporary non resident license was only valid for one year.”
As a result, Coffey held that the state failed to meet its burden in proving that Donnell’s conduct was not constitutionally protected and warranted a felony charge.
“This Court can think of no other constitutional right which a person loses simply by traveling beyond his home state’s border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentence of incarceration,” Coffey added.
Massachusetts Attorney General Andrea Joy Campbell (D.) did not respond to a request for comment about the decision.