New Firearm Bill
As many are aware, there is a new firearms bill that, as of this writing, just passed the Massachusetts House of Representatives. The bill is largely in response to New York State Rifle & Pistol Ass’n, Inc. v. Bruen. Essentially, Bruen held that citizens have a right to carry firearms in public for self defense. Essentially, the local licensing authority denied a citizen a license to carry because they failed to display a unique need to carry in public for self defense. The Supreme Court of the United States deemed this a violation of the Second and Fourteenth Amendments to the United States Constitution. This decision is having a serious effect in Massachusetts.
As a result, a case came before the Supreme Judicial Court of Massachusetts that reversed the burden at trial from the defendant to the prosecution as to whether a citizen did not have a license to carry a firearm. The case is Commonwealth v. Guardado, 491 Mass. 666 (2022). This case held that a defendant in a criminal matter charged with carrying or possession of a firearm without a license to carry or FID card no longer had to assert having a license as an affirmative defense. Instead, the Commonwealth had to prove beyond a reasonable doubt that the defendant did not have a license. This presents several evidentiary issues. The databases that police access to see if someone has an LTC or FID card are hearsay for trial purposes, and therefore are inadmissible. So the best evidence that anyone doesn’t have a license to carry cannot be used at trial. Obviously this makes it nearly impossible for the State to prove someone did not have a license unless someone from the database that keeps these records appears in court and testifies at great detail as to the database. This is not sustainable due to the sheer volume of gun cases in Massachusetts courts. Some courts are in the process of streamlining how these cases will be prosecuted, but many of the issues have not yet reached the Supreme Judicial Court. In his concurring opinion, Judge David Lowy outlined several instances where a District Attorney may provide prima facie evidence that a defendant does not have a license to carry or an FID card, however as of now, those issues have not been litigated.
In an attempt to get around this issue, prosecutors have attempted to admit evidence of prior felonies on someone’s CARI/CORI that would disqualify anyone from having a license. The prosecution then asks the judge to take judicial notice that a felony is an automatic disqualifier in an application for an FID or LTC, and therefore makes it impossible for the defendant to possess a firearm. This issue will be up for appeal because of the prejudicial effect of introducing prior bad acts that are normally inadmissible at trial. Additionally, admitting evidence that a defendant had a restraining order taken out against them is another avenue prosecutors are using to show that someone cannot possess a firearm. Again, typically at trial this evidence never comes in because of the prejudicial effect that a prior bad act may have on a fact finder.
The current bill in Massachusetts attempts to remedy these issues, in addition to providing a way to track illegal firearms from making their way into the Commonwealth. The bill seeks to modernize the current registry system, in addition to providing data for academic and policy purposes. The bill proposes banning purchase of AR-15 style guns. Additionally, the bill seeks to prevent anyone from turning a legal firearm into an automatic weapon. There will also be what are called “common sense proposals,” namely live firearm training as a prerequisite to owning a firearm. Gun rights activists have resisted any change to the current laws, arguing that law abiding citizens are impacted the most by these new measures. The Senate, as of this writing, has not released their version of the bill.