Last night, in the waning hours of Massachusetts’ legislative session, its House and Senate passed H.4376. Seemingly out of definable categories of persons to deny the right to arms, this bill would make Massachusetts the first state in which an individual’s right to acquire any type of firearm would be subject to the discretion of a government official. The bill went through numerous versions, some better and some worse than H.4376. At one hopeful point, the discretionary provision was removed from the Senate version of the bill. After lobbying by several current and former Massachusetts police chiefs -- the very sorts of officials whose authority over individual rights would be expanded under the bill -- a “compromise” was reached by a committee of the House and Senate. The new provision would allow issuing officials to deny the mandatory license needed to obtain a firearm on any basis of risk they could think of, subject to a court’s determination they had proven their case by a preponderance of evidence (a far lesser standard than required for conviction of a crime).
If there is any question of how some officials view the authority they expect to gain from the bill, Boston Police Commissioner Bill Evans made it clear how a discretionary provision would be used in Boston. As we reported last week, in an interview with Boston Public Radio, Commissioner Evans claimed that “[f]or the most part, nobody in the city needs a shotgun, nobody needs a rifle, . . . I want to have discretion over who’s getting any type of gun because public safety is my main concern and as you know it’s an uphill battle taking as many guns off the street right now without pumping more into the system.”
Just what sort of theories licensing officials will come up with to exercise their discretion under the bill is anybody’s guess. A past version of the bill would have expanded the automatic “prohibited person” categories to cover many new misdemeanors. This was eliminated from the final version of the bill, but the discretionary provision could be used to deny applicants licenses based not just on convictions but on mere arrests or police contacts that never led to judgments by a court. Another provision of H.4376 seems to make clear that the intent of the discretionary provision is to significantly expand who would be prohibited from possessing firearms. That provision would require the collection and reporting of convictions of a number of misdemeanor crimes that are not prohibiting under federal or Massachusetts law. Clearly, somebody thinks this information will be considered relevant in who does and does not “deserve” a firearm.
While H.4376 did contain some beneficial provisions for gun owners, leaving the mere exercise of the right to arms up to the discretion of government officials was a deal-breaking and unprecedented overreach by the legislature. Yet this is far from the bill’s only problem. It also imposes increased penalties for violations of so-called “lost or stolen” and “safe-storage” laws, the creation of new crimes that might be used to prosecute those who use their firearms defensively, and a provision that encourages doctors to intrude on their patients’ privacy to discuss firearm ownership. The bill has not yet been signed into law, but Governor Deval Patrick has already signaled his support. H.4376 is yet another example of the importance of electing representatives who will support the Second Amendment.