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Citizens Prevail in Licensing Lawsuit Challenging Misdemeanor Firearm Disqualification

Friday, May 2, 2014

A recent court decision in Massachusetts upheld the right of state residents to keep and bear arms after minor, non-violent misdemeanor convictions.

Firearm laws in the Bay State require residents to obtain a Firearm Identification Card (FID) and a class A or class B license to possess, purchase, or carry a firearm, ammunition, and magazine (depending on the class or type of firearm). A permit to purchase a firearm (PTP) is also required to purchase, rent or lease a firearm. Carrying in a person's home is not exempt from these requirements. The PTPs and licenses are subject to the applicant demonstrating to the issuing authority that he or she is a "suitable person" and is not otherwise disqualified under state law. A "violation of any law regulating the use, possession or sale of controlled substances," disqualifies an applicant, and controlled substances include "marihuana."

Michael Wesson, a 65-year-old Massachusetts resident, was convicted of misdemeanor possession of a marijuana joint in 1973 and paid a fine. Thomas Woods, 52, was convicted in 1982 of simple possession of a small amount of marijuana and likewise paid a fine. Neither had any other criminal convictions, and both had led "exemplary adult lives" (Wesson, a grandfather, had worked for General Electric for 42 years; Woods was a "highly decorated veteran of the United States Navy and Army."). Both Wesson and Woods had previously been issued Massachusetts FIDs.

However, when Wesson and Woods applied for a PTP and a license to carry and PTP, respectively, their decades-old, out-of-state misdemeanor convictions were used as the reason for denying their applications. Wesson and Woods challenged the licensing scheme in federal court, seeking a vindication of their personal Second Amendment rights to purchase and possess firearms for home self-defense.

In an April 18 decision, U.S. District Court Judge Richard Stearns held that the licensing ban, as applied to Wesson and Woods, infringed their "Second Amendment right to possess firearms in their home for purposes of self-defense and the right to maintain proficiency in their use." Although a licensing authority had "considerable latitude" in applying the statutory scheme and preventing irresponsible people from having access to deadly weapons, the plaintiffs were entitled to exercise the core right of home self-defense and, significantly, as an extension of that right, to transport firearms to a shooting range or other lawful location to maintain proficiency in their use.

Several factors were important in the court reaching this decision. First, the state did not dispute that Wesson and Woods were "suitable persons" who were seeking to purchase and possess firearms for a "proper purpose." Second, persons with similar in-state convictions had the option of sealing their criminal records under Massachusetts law. Once sealed, these convictions could not be used for the purposes of firearm license and other disqualifications. Had Wesson and Woods' misdemeanor convictions occurred in Massachusetts instead of out-of-state, their eligibility would likely not be in issue. Third, Massachusetts voters had approved an initiative in 2008 that decriminalized the possession of an ounce or less of marijuana and prohibited the state from imposing "any form of penalty, sanction or disqualification" for simple possession, other than certain civil sanctions. Under current state law, the possession of a small amount of marijuana might not provide a basis for disqualifying offenders in the same situation as the plaintiffs (although this issue was left undecided). Last, the plaintiffs were not seeking an unrestricted or unlimited right to possess and carry firearms outside their homes.

Allowing for all these factors, the court directed the state to give prompt consideration to the plaintiffs' applications for the necessary permits or licenses that would enable them to exercise their fundamental right to possess firearms for self-defense in their homes and, "subject to such reasonable restrictions as the licensing authorities may decide to impose" to allow them to transport their firearms to lawful locations for the purposes of practice shooting.

The kinds of restrictions or license conditions that will be used to implement this ruling are not yet clear. Because the lawsuit did not challenge the validity of the statutory "controlled substances" disqualification, this ruling leaves that disqualification, and the state firearm laws, intact.

The case is Wesson v. Town of Salisbury, No. 13–10469–RGS, 2014 WL 1509562 (D. Mass. April 18, 2014).

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.