The fundamental right to travel has garnered increased attention over the past decade with the United States Supreme Court expanding and confirming that United States citizens have a protected right to travel from state to state without legal hinderances or significant restrictions. However, your right to defend yourself as you travel still stops at the Massachusetts border, and within those same borders remain numerous restrictions at odds with the Second Amendment.
The Commonwealth of Massachusetts is serving as a critical legal focal point for constitutional rights as the fight for both true shall issue firearm licensing and right to carry reciprocity continues for gun owners.
Recently, two legal cases have made their way to both the spotlight and higher courts: Marquis v. Massachusetts and Guinane v. Chief of Police of Manchester-by-the-Sea.
Unfortunately, last week, the United States Supreme Court denied review in the Marquis case, which allowed to stand a decision by the Massachusetts Supreme Judicial Court that empowers the colonel of police to employ a “suitability” standard to determine who can carry a firearm.
Marquis is a resident of New Hampshire with the legal ability to possess and carry a firearm. During travel to neighboring Massachusetts, he was involved in a motor vehicle accident. Following the accident when police arrived, Mr. Marquis notified law enforcement that he possessed an unloaded firearm. He was subsequently prosecuted under Massachusetts law for being in possession of a firearm without a license. Marquis challenged this restrictive and arbitrary non-resident firearm licensing regime, arguing it violates both the Second Amendment and the constitutional right to travel.
Current Massachusetts law includes the use of a “suitability” standard for applicants, and it is difficult to understand why the U.S. Supreme Court was uninterested in scrutinizing it in light of the New York State Rifle & Pistol Association, Inc. v. Bruen decision from 2022. In that case, the Court held both that the Second Amendment protects a right to bear handguns in public for self-defense and that this right is violated when it is subject to “may-issue” licensing. The Court, however, did not rule out the permissibility of shall-issue licensing schemes “designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens” via the imposition of “only narrow, objective, and definite standards” for licensure (internal quotation marks removed).
While amendments were made to the Massachusetts statute following the Bruen decision, including changing the word “may” to “shall” in describing the authority to issue a license, it still contains discretionary terms in describing who is eligible to be licensed. A license shall issue “if it appears that the applicant is not a prohibited person and is not determined unsuitable to be issued a license” (emphasis added). Ultimately, the “suitability” standard for both resident and non-resident applicants allows the issuing authority to decide what the standards for licensure are on a case-by-case basis. This is not consistent with the U.S. Supreme Court’s requirement for “only narrow, objective, and definite standards” in the licensing of an essential component of Second Amendment activity.
A second case coming from a three judge Massachusetts Appeals Court did give a well-needed shot of common sense in the Commonwealth regarding the “suitability” standard. In a strange determination of “unsuitability,” Barabara Guinane, a Massachusetts citizen, was initially denied a license to carry a firearm based solely on factors pertaining to her husband.
Thankfully, and appropriately, the Appeals Court panel unanimously ruled that a wife cannot be denied a license to carry because of past behavior of her husband whose license to carry a firearm had been previously suspended. The Court held that “…there was no reliable information about behavior by the applicant suggesting that, if issued a license, she [Guinane] would create a risk to public safety or a risk of danger to herself or others. That is the focus of the standard.” Bottom line: denial of a license to carry application should not be based on mere speculation, imaginary transferring of risk, or an “unsuitable” husband.
The Massachusetts decision for Mrs. Guinane is a welcome one. But the missed opportunity for what could have been a landmark decision from the U.S. Supreme Court on state-based reciprocity, as well as a strong reiteration of Bruen on subjective licensing schemes to bear arms, underscores the need for ongoing advocacy on both points.
The issues of firearm licensing and right to carry reciprocity remain active points of contention, and NRA-ILA will continue its work at the federal and state levels to eliminate burdensome and ahistorical requirements on your constitutional rights.
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