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“Live fire” tests for gun owners violates Second Amendment, says… Harvard Law Review?

March 13, 2023 by Cam Edwards Leave a Comment

My buddy Jim Wallace of the Gun Owners Action League likes to refer to Massachusetts as a “Second Amendment battleground state”, and he’s not wrong. Beleaguered gun owners in the Bay State are subjected to a host of unreasonable restrictions on their right to keep and bear arms, and if anything the Supreme Court’s decision in Bruen has only made anti-gun activists and politicians more eager to slap more laws on the books.

Under the pre-Bruen standard, local licensing authorities had broad discretion in approving or denying applicants for a License to Carry, and Wallace has previously told us that many jurisdictions are trying to get around the Supreme Court’s decision. State lawmakers are even pushing to require applicants to demonstrate their proficiency with a firearm by requiring live fire training and passing a test, something GOAL says is completely unnecessary.

Now a new article in the Harvard Law Review says those mandates aren’t just unneeded, they’re unconstitutional. The article focuses on the licensing process in Boston, where police already require applicants to pass a “shooting qualification test” at the local police range within two weeks of submitting an application. All would-be pistol owners (a LTC is required to own, purchase, and carry a handgun) must demonstrate “safe handling of, and familiarity with, a .38 caliber, 4-inch barrel revolver” as well as completing a scored live-fire test; requirements that have no analogues in history, according to the author.

The City of Boston could presumptively argue that its Qualification Test, which requires an LTC application to obtain a quantifiable point tally on a scored target, is the type of objective test that Justice Thomas deemed constitutional.
But that contention misconstrues Bruen. First, the Bruen majority did not hold that all objective licensing requirements are constitutional, for even an objective test must not “deny ordinary citizens their right to public carry.” And a shall-issue permitting scheme “can be put toward abusive ends.” Because the Qualification Test requires applicants to fire a heavy, unpopular handgun accurately, which not everyone can do, it impedes law-abiding citizens from exercising their armed self-defense right — the right to public carry is reserved only for those who shoot well with a heavy handgun. Second, Justice Thomas stated that background checks and firearms safety courses are constitutional, but a shooting qualification test is not a firearms safety course. Thus, Bruen does not support the proposition that scored live-fire tests survive judicial scrutiny. The Qualification Test’s quantitative characteristics may mitigate its constitutional deficiencies but do not cure them. In addition to accuracy, the Qualification Test demands that applicants show “safe handling of, and familiarity with, a .38 caliber, 4-inch barrel revolver.” The City of Boston does not provide any concrete guidelines, like a scoring rubric, for the safe-handling requirement, and licensing officials may have differing opinions on the matter. Such requirements do not resemble the “narrow, objective, and definite standards” that Justice Thomas referenced as per se constitutional.

According to the author of the law review article, Boston’s requirement is already ripe for a court challenge, and any move by the state to impose similar live-fire mandates on all LTC applicants would face stiff legal headwinds.

Based on the City of Boston’s facially unconstitutional licensing regime, any Boston resident can seek declaratory, injunctive, and monetary relief for the City’s infringing the constitutional right to keep and bear arms under the Second Amendment, as applied to the states by the Fourteenth Amendment’s Due Process Clause. This Note does not purport to discuss all the mechanics of either standing or § 1983 liability. As a general matter, however, it bears mentioning that an aggrieved applicant could assert a plausible claim for declaratory, injunctive, and monetary relief against City of Boston licensing officials, the colonel of the Massachusetts State Police, and certain state firearms officials, subject to any affirmative defenses raised by the government.

It’s refreshing (to say the least) to see an article casting doubt on the constitutionality of a Massachusetts gun control law in the pages of the Harvard Law Review, and I hope this is the start of a trend. Far too many academic institutions have seemingly adopted a post-Bruen position of supporting any and all gun control laws, or at least criticizing those court decisions that have ruled a particular law unconstitutional. Some, like the University of Minnesota, have even enshrined anti-gun activism into the curriculum in the wake of Bruen. I’m sure that the prevailing attitude at Harvard Law is still anti-2A, but at least the Harvard Law Journal is willing to print and publish pieces that take both Bruen and the right to keep and bear arms seriously.

A Catch-22 for Massachusetts gun sellers?

March 1, 2023 by Cam Edwards Leave a Comment

Massachusetts Gov. Maura Healey has been an anti-gun crusader throughout her time in public office, including her “reinterpretation” of the state’s ban on so-called assault weapons to encompass almost all semi-automatic long guns back when she was the state’s Attorney General; causing a run on modern sporting rifles in the short term and mass confusion over what exactly is an “assault weapon” under Massachusetts law ever since.

Healey’s latest edit is aimed at gun stores in the state, not directly at gun owners, but as Gun Owners Action League executive director Jim Wallace tells Bearing Arms’ Cam & Co, the governor’s recent announcement that the state will be providing new training for local law enforcement when they inspect FFLs is also sowing uncertainty.

As Wallace explains, the state law requiring annual inspections of local gun dealers is nothing new, but it’s been rarely and sporadically enforced since its enactment back in the 1980s. And despite Healey’s new directive on training local law enforcement on how to conduct the inspections, Wallace says under current law the state doesn’t really have a role to play.

For nearly a quarter of a century Massachusetts gun owners have struggled with many Local Licensing Authorities that make up their own rules when it comes to license application processes. During all this time, the State has consistently maintained that they have no control over the local authorities. The State further maintained that these were no State licenses (FID/LTC).
This is an interesting, convoluted stance since the firearm retailer licenses (Chapter 140, Section 122) are also issued by the Local Licensing Authorities. So, why suddenly does the State have the authority to train the local authorities on their legal obligations under this particular license?

Because Healey says so, that’s why. But Wallace says the issues with the governor’s directive go far beyond whether or not the state is overstepping its authority. While we haven’t seen the training standards yet, the Second Amendment advocate says the state appears to be asking the impossible of gun store owners.

Under Chapter 140, Section 123 the Local Licensing Authorities are required to conduct an annual inspection of all licensed retailers. The only authority they have under this law is: “…inspect, in a reasonable manner, such records and inventory for the purpose of enforcing the provisions of this section…” there are two clear problems here.
First, the State law clearly requires the Commonwealth to provide a “sales record book” to all licensed retailers. To date, no such books have ever been made available. It is the practice of the State to consider the records in the Massachusetts Instant Record Check System to act as the official books. That means there are no records to inspect on the retailer premises.
Second, there is no State law requiring retailers to keep a State inventory or report such inventory. To further complicate matters if the local authorities conduct such an inspection is that Federal Firearms Licensees (FFLs) (as we understand it) are allowed to keep inventory that can’t be transferred in the Commonwealth. So, what exactly will they be inspecting?

It’s a good question, but it also raises several others. Will some of those jurisdictions that have historically been hostile to the right to keep and bear arms use the convoluted language to try to shut down gun shops that don’t have a “sales record book” or track their inventory for the state, even though they’re not required by law? I wouldn’t be surprised to see it, especially since Healey is clearly hoping to add more red tape and regulations to firearm retailers.

Wallace says that GOAL is trying to get ahold of the actual training material and not just the governor’s talking points, so we’ll hopefully have some additional news to report on in the days ahead. Be sure to check out the entire conversation with Jim Wallace in the video window below, and stay tuned for any new developments as this training gets rolled out.

Massachusetts gun rights organization points out state’s stun gun fail

February 28, 2023 by John Petrolino Leave a Comment

Massachusetts is not known for embracing civil liberties. The sweet irony of the land where the shot heard around the world was fired from is that the elite ruling class in the Bay State loathes freedom and rights. We must remember that the commonwealth used to be in the practice of lynching people that they suspected were witches, aka people who were different or they disagreed with. As far as the right to keep and bear arms, Massachusetts makes things as restrictive as they can, and they were one of those jurisdictions that was forced into allowing the possession of electric arms. After the 2016 Caetano v. Massachusetts case that the Supreme Court issued a grant, vacate, remand on, they’ve done a crummy job getting their laws right. Our friends over at the Gun Owners’ Action League pointed out recently a bigger mess they’ve made of the situation.

After a 2016 Supreme Court of the United (SCOTUS) decision in JAIME CAETANO v. MASSACHUSETTS the Massachusetts legislature was forced to repeal the complete ban on “electronic weapons”, namely stun guns and tasers. New regulations finally released.
The case started when the boyfriend of a woman, Jaime Caetano, beat her enough to land her in the hospital (July 10, 2013). After the incident she obtained a restraining order and a friend offered her a stun gun for self-defense. Soon after she was confronted by her boyfriend when leaving work. In what probably saved her life she brandished the stun gun and threatened to use it. It was enough to scare him away, but it only began Caetano’s legal problems.
As a result, Caetano was found guilty of criminal possession of a stun gun. The case ended up before the Massachusetts Supreme Judicial Court (Mass SJC). That biased court defended the State law:
“This court concluded that a stun gun is not the type of weapon that is eligible for protection under the Second Amendment to the United States Constitution, where, although a stun gun is both dangerous per se and unusual, it was not in common use at the time of the enactment of the Second Amendment; and where the Legislature rationally could ban the use of stun guns in the interest of public health, safety, or welfare.”
Eventually the case went before SCOTUS and the conviction was vacated in what we now fondly refer to as the Mass SJC smackdown. In a rare unanimous decision, SCOTUS vacated the Mass SJC’s decision.
Subsequently the Massachusetts legislature passed legislation that repealed the outright ban on stun guns. Unfortunately, they made a complete mess of it because they would not listen to GOAL. The biggest part of the mess was they placed stun guns (stun guns and tasers) under the definition of “Firearm” which are handguns.

In their hubris, the legislators and rule makers of Massachusetts defined electric arms in an inappropriate manner. By trying to still keep the less-than-lethal arms under the taboo umbrella of handguns, the lawmakers created a situation that was very confusing. This fact about electric arms also gets pointed out by our friends at GOAL while they highlight a new definition within the Code of Massachusetts Regulations:

There is also the question of whether these items are legally considered lethal force. A handgun certainly is and since they are under the definition of a handgun, what does that mean? To further complicate that question, in the new regulations yet another definition magically appears:
“Electronic Control Weapon (ECW)/Conducted Energy Devices. A stun gun as defined in M.G.L. c. 140, § 121, or any portable device or weapon, regardless of whether it passes an electrical shock by means of a dart or projectile via a wire lead, from which an electrical current, impulse, wave or beam that is designed to incapacitate temporarily by causing neuromuscular incapacitation or pain so that an officer can regain and maintain control of the subject.”
This new definition adds more confusion to an already badly written law as it suggests that stun guns are considered less than lethal weapons that are only used to control an assailant. This new definition creates a dangerous legal trap for anyone who may be brought up on criminal charges in a self-defense incident much like what happened to Caetano. Once again, bad law made worse.

Between the existing section in Massachusetts General Law and now the new regulations in the Code of Massachusetts Regulations, it could be difficult for Mr. & Mrs. Massachusetts to know what a stun gun or Taser would be classified as. Citizens should not have to seek a deep education on weapons law when they look to procure simple devices to use for self-defense. Looking closer at the regulation, electric arms are in fact being treated as if they’re firearms:

8.08: General Requirements for Civilian Use and Possession of Electronic Control Weapons
(1) Civilians are required to hold a validly issued license to carry firearms (LTC) pursuant to M.G.L. c. 140, § 131 before using or possessing an electronic control weapon.
(2) Prohibited persons, as defined in M.G.L. c. 140 § 131, shall not use or possess electronic control weapons.
(3) If not in the immediate control or possession of a lawful owner or other lawfully authorized user, electronic control weapons shall be secured in a locked container in accordance with M.G.L. c. 140, § 131L.

The Commonwealth set the stage to make the possession and use of electric arms as burdensome as it is to possess and own handguns. This means that someone who wishes to use a less-than-lethal option for self-defense, they have to jump through the same exact hoops that a potential gun owner must. Further, this means that people who are disqualified from firearm ownership in the commonwealth would also be disqualified from this very useful self-defense device.

While this could quickly get out of control if we dive into a treatise on criminal justice system reform, let’s completely ignore the non-violent – and violent for that matter – felons who wish to have such an option for self-defense. Instead, let’s turn our attention to all the other people who by statute would be disqualified from firearm ownership in Massachusetts:

(iii) is or has been (A) committed to a hospital or institution for mental illness, alcohol or substance abuse, except a commitment pursuant to sections 35 or 36C of chapter 123, unless after 5 years from the date of the confinement, the applicant submits with the application an affidavit of a licensed physician or clinical psychologist attesting that such physician or psychologist is familiar with the applicant’s mental illness, alcohol or substance abuse and that in the physician’s or psychologist’s opinion, the applicant is not disabled by a mental illness, alcohol or substance abuse in a manner that shall prevent the applicant from possessing a firearm, rifle or shotgun; (B) committed by a court order to a hospital or institution for mental illness, unless the applicant was granted a petition for relief of the court order pursuant to said section 36C of said chapter 123 and submits a copy of the court order with the application; (C) subject to an order of the probate court appointing a guardian or conservator for a incapacitated person on the grounds that the applicant lacks the mental capacity to contract or manage the applicant’s affairs, unless the applicant was granted a petition for relief of the order of the probate court pursuant to section 56C of chapter 215 and submits a copy of the order of the probate court with the application; or (D) found to be a person with an alcohol use disorder or substance use disorder or both and committed pursuant to said section 35 of said chapter 123, unless the applicant was granted a petition for relief of the court order pursuant to said section 35 and submits a copy of the court order with the application;
(iv) is younger than 21 years of age at the time of the application;
(v) is an alien who does not maintain lawful permanent residency;

The statutes in Massachusetts General Law Chapter 140 Section 131 (d); (iii), (iv), and (v) really do speak for themselves. Whatever the legislative intent was of the regulations governing electric weapons, the lawmakers have excluded incredibly vulnerable sections of the population from being able to possess and use such arms for self-defense. Persons who would traditionally be barred from firearm ownership are also barred from the effective – and less-lethal – electric arms.

Jamie Caetano, who was the lead plaintiff in the case that took down the prohibition in Massachusetts – of all places – of such arms, could have been considered part of a vulnerable population at the time of her incident. At the time of her procurement of the stun gun, she effectively did use for self-defense, she was homeless. Under Massachusetts’ current laws, Caetano would not necessarily be able to get a Massachusetts License to Carry under the circumstances she found herself in at that time. The commonwealth does not give someone that has an urgent necessity the ability to quickly get an effective self-defense item to protect themselves or their family.

In a post Caetano commonwealth, Jamie Caetano would be afoul of the law under the new regulations. This seems to go grossly against the intent of the opinion that accompanied the grant, vacate, remand from the Supreme Court of the United States.

What the heck is wrong with having an adult, the age of 18 or over, just be able to buy and bear an electric arm by simply showing their drivers license?

The only upside here is that people that find firearms to be abhorrent, see the necessity of self-defense devices, who look into getting an electric arm, will have to go through the process. This will show the everyday citizen, possibly a deep blue progressive, how crazy the application process is to get a License to Carry. It will force someone that does not necessarily want anything to do with firearms to take a firearm safety class. Forcing someone to take a gun safety class, in of itself, could lead to litigation for those who morally object to having anything to do with guns. Finally, it’ll inflate the number of License to Carry holders in the state.

We can’t expect Massachusetts or other pinko strongholds to just do the “right thing” when it comes to civil liberties. The elite ruling class knows all too well what kind of tea parties unruly citizens like to have, and the commonwealth knows that they can’t have complete control over the subjects of Massachusetts if they’re armed. Gun Owners’ Action League is luckily there to fight for the Massachusetts gun owner, and in this case, electric arms owner. This has been a mess since 2016. It’s doubtful they’ll straighten out the new problems they’ve created within another 7 years. It will be interesting though, that we can guarantee.