License Renewal Problems
The GOAL office has received a lot of communication from members and gun owners in general concerning their recent inability to renew their LTC or FID. Many of these problems are due to the fact that the government has spent a lot of resources computerizing old paper court records. These old records that have languished in the dingy basements of court houses around the state are now available at a key stroke. With this available information, the state is now disqualifying individuals who may have renewed two or three times since the Gun Control Act of 1998. In many instances the applicants claim they did not even remember the incidents until they were denied the renewal.
There have been inquiries as to whether these circumstances should provide for some type of grandfathering. Their logic being that the citizens in question have already renewed several times and have had no problems then they should have demonstrated that they are suitable to maintain their rights. Unfortunately, for Massachusetts gun owners, logic rarely enters into the discussion of state gun law. Potential court challenges aside, as far as the state is concerned a disqualifier is currently a disqualifier no matter when it is found.
There is another problem that is starting to arise out of this issue and that is a potential false statement on the application. On the official Massachusetts application for a new or renewed LTC or FID question number ten asks:
Have you ever appeared in any court as a defendant for any criminal offense (excluding non-criminal traffic offenses)?
This question, perhaps more than any other has tripped up applicants, especially in non-friendly communities who look for any reason to strip you of your rights. There are several points here to deal with.
The first is the term that presents a problem is “appeared in any court as a defendant.” Many people read that quickly and assume that it refers to convictions. It does not. Still other people get confused about the circumstances thinking it meant a trial. Most misdemeanors throughout modern history are handled via a plea and sentencing without a trial. Because some applicants don’t consider that to be a “defendant in court” they don’t answer the question correctly. In any case, many people unintentionally provide an incorrect or “false” answer to question ten.
Another problem with this question is that applicants who have successfully renewed since 1998 feel no reason to disclose any records that might be pertinent. Many claim they simply forgot about pleading out when they were a teenager. Sadly, the state is not being forgiving when it comes to these old records and memory lapses.
So where do problems with the infamous question ten bring us? In both the LTC laws and the FID card laws there are rather severe penalties for answering the question incorrectly.
Chapter 140, Section 129B(8) Any person who knowingly files an application containing false information shall be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than two years in a house of correction, or by both such fine and imprisonment.
Chapter 140, Section 131(h) Any person who knowingly files an application containing false information shall be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than two years in a house of correction, or by both such fine and imprisonment.
While GOAL has not heard of any citizens being fined or jailed for question ten problems, we have heard of many cases where they have had their LTC or FID denied as a result. The latter part is most concerning since neither of the penalties outlined in sections 129B or 131 rise to the level of a crime punishable by more than two years (statutory disqualifier). Of course with the LTC there is always the infamous “suitability” trump card that can be played by unfriendly licensing officials. The FID card is another story all together since the “suitability” in that matter does not exist.
The only other explanation could be a very perverse use of a statutory disqualifier clause that exists in both sections 129B and 131.
129B(1)(i)(d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed
131(d)(i)(d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed
It would be a very long stretch to have a court rule that a poor answer on question ten could be construed as falling into one of these categories. Although, these are the same courts that have ruled that Heller and MacDonald don’t apply to Massachusetts law so don’t count on it.
GOAL will be studying this issue closely over the next few months. If any of our members are being disqualified for issues surrounding question ten, please forward us the information. We certainly don’t support the current gun laws in the Commonwealth and they are only made worse when they are being applied incorrectly.
Recently it was my honor to be appointed to two committees at the national level of the NRA. One of those is the committee on Shooters with Disabilities. The conversations at the last two meetings of the committee have focused on range and target access by persons with disabilities. Normally we think of access assistance to the club house or other structure or what we call “ground to facility”. These talks have been about making it easier to access the range and targets or “ground to target”.
While there was certainly a lot of discussion about disabled veterans as a result of the wars, there is also a lot of discussion about the aging shooting community. Wheelchair access to the facility and ranges is very important, but has your club thought about those who have bad knees, hips or balance problems. Does the path to the range consist of uneven stones? Do you have plenty of benches for people to rest and are they in the shade for the summer? Can someone who walks with a cane easily access the target stands? So there is a lot to think about not only for wheelchair bound folks, but also a host of people with a wide range of physical issues.
The committee is looking to put together some suggestions for clubs and ranges to think about when looking at their ranges. It has not yet been determined whether it will be included in the range source information or what the best way to distribute upcoming materials will be. In the meantime it is something to start thinking about at your local club. Making it easier for people to access your ranges will certainly only benefit the clubs. More info to follow.
Government Turns on Itself
By James Wallace / Executive Director Gun Owners' Action League
New Interpretations and Possible Legislation Could Imprison Law Enforcement Officers for Decades
lot has been happening lately in the gun world as legislation,
regulation and government agency “advisories” have been creating quite a
mess. Just recently I was going over some of the legislation that has
been filed to increase penalties for firearm offenses. One in particular
is S.1207 “An Act Increasing the Penalties for Illegal Possession of
Firearms" filed by Senator Eileen Donoghue. This bill drastically
increases a host of penalties for gun related crimes and creates
mandatory sentencing for the same. While going over this legislation I
took into account the so-called “Assault Weapon Law” advisory letter
from the Executive Office of Public Safety and Security (EOPS). Read
more about the letter at:
www.goal.org/newspages/eops_error_letter_to_ffl.html As GOAL
members know all too well, most of the unsigned and undated letter was
factually incorrect and did not properly represent the assault weapons
law as it stands today.
Of special concern to many law enforcement officers was the interpretation from EOPS about the exemptions in the Assault Weapons law Chapter 140, Section 131M. The advisory letter specifically addressed the following exemption: “The provisions of this section shall not apply to: (i) the possession by a law enforcement officer for purposes of law enforcement;”
In regards to this exemption the letter from EOPS states: “This exception allows police officer to possess assault weapons and large capacity feeding devices while in the performance of their official duties. This exception does not allow police officers to possess an assault weapon or large capacity feeding devices for their own personal use, or for both on-duty and off-duty use.
There is no exception allowing the sale or transfer of an assault weapon or large capacity feeding device to any person, including police officers.”
aside the fact that this is an interpretation not backed by court
precedent, let’s take a look at a possible scenario should the
statements in the EOPS advisory letter stand and S.1207 pass into law.
for discussion is as follows. Officer Jones works for a small rural
town in Massachusetts where their officers are required to purchase
their own firearms. For the sake of this discussion Jones decides he
needs a “service rifle” during official duties should he have to respond
to a certain type of incident. In going to the local licensed firearm
retailer that he normally uses, the officer purchases an AR-15 rifle
with three 30 round magazines. Each of these items are “post ban”
(September 13, 1994). In this case, both the retailer and the officer
fully believe they are acting within the law since there is an exemption
in Section 131M specifically for law enforcement.
Some years have passed since the officer purchased the rifle and magazines and he has used them on and off the job. Any good shooter knows that practice gets you familiar with your particular firearm should you need to use it. Knowing this, as any officer does, he has taken the rifle to the range countless times and even used it in local high power matches. According to the EOPS advisory letter and the possibility that S.1207 would become law, Officer Jones is facing many years in prison.
According to my count that is 105 years in prison for a law enforcement officer who thought he was acting within the law only to find out he wasn’t. Of course that part of the scenario would be no surprise considering the confusion surrounding Massachusetts gun law. Of course there is some good news for Officer Jones. If S.1207 does not pass into law and only the opinions in the EOPS letter stand the test of law, he might only be facing 40 years in prison.
sight I suppose it is disappointing that so many police chiefs around
the Commonwealth have fought against reforming the gun laws and have now
placed their own officers in serious jeopardy. The Massachusetts Gun
Control Act of 1998 took just a little over a decade to begin to turn on
the very people the government hires to enforce the law itself. We here
in Massachusetts have witnessed a full circle in the reversal of
freedom to the point where government is now turning on itself.
Massachusetts Supreme Judicial Court Issues Contorted Ruling in Powell Case
In late April of 2011 the Massachusetts Supreme Judicial Court (MassSJC) handed down its decision in Commonwealth v. Powell. This was a case of an 18 year citizen in possession of a handgun (firearm) without a Firearms Identification Card or a License to Carry. Gun Owners’ Action League (GOAL) filed an Amicus brief in the case in an attempt to point out the unconstitutional restrictions in Massachusetts law that prevents an adult aged 18 – 20 from possessing a handgun. In what is continuing to be a situation where the Commonwealth’s highest court either does not understand the law and/or is simply unwilling to apply United States Supreme Court (SCOTUS) decisions it ruled the following:
1. The Mass SJC said in Powell that neither Heller nor McDonald made it clear that the Second Amendment was an absolute individual right. Rather, the Mass SJC has ruled that Second Amendment rights are limited to only possessing firearms in the home for the SOLE purpose of self defense. According to the Mass SJC, Heller and McDonald held only that the Second Amendment is only infringed where there is a complete ban on handgun possession in the home, or where a statute prohibits having a fully operational handgun in the home.
2. The Mass SJC maintains that the Massachusetts gun laws to not represent an absolute prohibition for an 18 – 20 year to possess a handgun. The court contends that such a person can possess a handgun in the home with an FID Card.
Occasionally when you are in the business of following court decisions, you have to read one that simply makes your head hurt. The Powell decision is one of them. Anyone who knows Massachusetts gun law and has researched both of the recent SCOTUS decisions (Heller and McDonald) can only describe this decision as chaotic at best, as the Mass SJC decision contains arguments full of conjecture regarding the Massachusetts firearms statutes.
In one paragraph where the Mass SJC discusses the McDonald decision, the Court seems to insinuate that because the Justices in the plurality (Justices that joined the majority decision that is considered the legally binding holding of SCOTUS) could not agree on the mechanism for how the Second Amendment is incorporated through the Bill of Rights to apply to the States, that this difference between the Justices somehow adds “significance” to the SCOTUS statements regarding whether the rights under the Second Amendment were unlimited. Nevermind the fact that the plurality were in TOTAL agreement that the Second Amendment DOES fully apply to the States.
Take a look at the Mass SJC’s rationale:
The [US Supreme] Court concluded that the right "applies equally to the Federal Government and the States." Id. at 3050. The Court, however, was unable to agree on how the Second Amendment right applies to the States. Justice Alito, writing the plurality opinion concluded that the Second Amendment right is incorporated to the States through the due process clause of the Fourteenth Amendment. Id. In contrast, although he agreed that the Second Amendment is "fully applicable to the States," Justice Thomas concluded that the right "is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause." Id. at 3058-3059 (Thomas, J., concurring in part and concurring in the judgment). Of significance, the plurality opinion did not disturb the conclusion in Heller that a citizen's rights under the Second Amendment are limited.
This paragraph in the Powell decision is clear evidence that the Mass SJC is intentionally including irrelevant “disagreements” within the McDonald plurality in an attempt to cast suspicion on SCOTUS’s holding in McDonald. What is clear from McDonald is that all of the Justices that joined in the plurality opinion, drafted by Justice Alito, agreed on bedrock issues: 1) US Citizens have a pre-existing (prior to the drafting of the Constitution and Bill of Rights), fundamental right to keep and bear arms under the Second Amendment, and 2) The fundamental Second Amendment rights apply equally to the US Government and all of the States in the Nation. How the various Justices got to the end result is frankly irrelevant; they concluded that the Second Amendment of the US Constitution applies to the States, period.
So, it begs the question: why mention the “disagreement” on the mechanism of applying the fundamental Second Amendment rights to the States? Why mention the mechanism at all if the outcome (Second Amendment applies to all States) is the same? The answer: because it makes it seem like the plurality opinion and central holding in McDonald is somewhat undecided or up for debate, when in actuality it is clear and settled.
The second part of the Powell decision contends: Powell paragraph c. – General Laws c. 269, § 10 (h ) (1), makes it an offense to own or to possess a firearm, see note 3, supra, in one's home or place of business without obtaining an FID card pursuant to G.L. c. 140, § 129C.
It further states:
G.L. c. 140, § 129B (1). An FID card allows the holder to own or possess a firearm within the holder's residence or place of business, but not to carry it to or in any other place.
In this part of the decision the court continues to make the same mistakes it made in the Runyan decision.
First, with respect to c. 269, § 10 (h ) (1) it simply doesn’t say that. It actually states: Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished…
This may be a small difference, but it is certainly a meaningful one. The exclusion from punishment for possession in the home is not in turn a license to buy a handgun, transport it to the range for practice, or to transport it to a gunsmith for repairs or anyplace else. Also, FID Cards are not “obtained” through Section 129C, they are obtained through Section 129B.
Section 129C also states very clearly: “The possession of a firearm identification card issued under section one hundred and twenty-nine B shall not entitle any person to carry a firearm in violation of section ten of chapter two hundred and sixty-nine and…”
Next, Section 129B (1) does not allow “the holder to own or possess a firearm within the holder's residence or place of business…” Actually Section 129B (6) specifically prohibits such possession unless the holder of said card is at a licensed club and accompanied by a holder of a License to Carry, a point which was specifically made to the Mass SJC in GOAL’s Amicus brief- in the Powell case:
140, 129B (6) A firearm identification card shall not entitle a holder thereof to possess: (i) a large capacity firearm or large capacity feeding device therefor, except under a Class A license issued to a shooting club as provided under section 131 or under the direct supervision of a holder of a Class A license issued to an individual under section 131 at an incorporated shooting club or licensed shooting range; or (ii) a non-large capacity firearm or large capacity rifle or shotgun or large capacity feeding device therefor, except under a Class A license issued to a shooting club as provided under section 131 or under the direct supervision of a holder of a Class A or Class B license issued to an individual under section 131 at an incorporated shooting club or licensed shooting range.
Another questionable part of the Mass SJC’s decision is their use of case precedent to support its decision and reasoning. In backing up their contention that an FID Card allows for the possession of a handgun in home they cite to three cases. These cases, Commonwealth v. Belding, 42 Mass.App.Ct. 435, 436-437 (1997), Commonwealth v. Walker, 17 Mass.App.Ct. 182, 185 (1983), and Commonwealth v. Seay, 376 Mass. 735 (1978) were all decided prior to the 1998 Gun Control Act. That Act changed and re-wrote the gun laws, including by adding the language in 140, Section 129B (6) cited above, that should have been referenced by the Mass SJC in the Powell decision.
Once again, Massachusetts gun owners are left with a decision of our highest state court that has left us with more questions than answers. While some of us fully expected the Mass SJC to spin the Heller and McDonald decisions, few people could have foreseen how unwilling the Court would be to properly and accurately apply existing state law. It appears that in an effort to dilute and limit the holdings of the highest Court in the United States, the Mass SJC has resorted to either ignoring or intentionally misinterpreting the written (as onerous and offensive as they may be) Massachusetts statues relating to firearm licensing, purchasing, and possession.
As we predicted though, the fight for civil rights continues and GOAL will be on the frontline of that fight.
Voting For Someone
April 12, 2011
For quite some time I have heard nothing but complaints from voters all over the nation concerning the candidates on any given ballot. While there are certainly some politicians or candidates on the local level that voters get excited about supporting, the same cannot always be said for the higher offices.
Recently I asked a few people in casual conversation if they had ever voted FOR someone. The immediate response from most was – “Of course I have, I voted.” I clarified my question by asking them who was it that you actually voted FOR, not voted for candidate X because you were actually voting against the other candidate. Understanding my question better, the flood gates of complaints opened up.
Most everyone complained that they were sick of voting for the “lesser of two evils.” Still others voiced their frustration that there have not been any recent candidates that actually stood for their ideals. Far too many candidates in any party run to the center for election and then take off in different tangents after they are elected.
One of the fairly new issues with the Presidential elections is the invasion of the other party’s primary. In some states like Massachusetts voters have the right to vote in either party’s primary. In recent years there has been a strategy of voting in the opposition’s primary in an attempt to knock out their top candidate. For instance, in the last Presidential primary a host of voters invaded the Democrat primary in an attempt to unseat Hillary Clinton. For better or worse, the strategy actually worked. One of the major problems with the success of that strategy is that if it continues to work, it could lead to the deterioration of the American election process.
Many voters will admit that they only voted for someone to actually vote against the other candidate, the future of elections and who represents us could be drastically changed if that fine line is crossed. All one needs to do is look at the current sitting President to understand the dangers of completely flipping a system of voting. The result in the last election gave us a fringe Presidential candidate that actually won.
There is certainly a fringe sector of society that has been drooling over such an opportunity and it has proven very harmful to our nation. I can even remember the night of the election when national news anchors remarked that this is the first time they could recall a candidate winning that was such an unknown entity. Of course had these people paid any attention to the facts that were so obviously out there they might have learned something.
In any case, the last Presidential election was the first perfect storm of the new election strategy. One could argue, I suppose, that this new strategy kept a particular enemy out of office. The problem still remains that the strategy resulted in an enemy that had no history that would have provided the experience necessary to run a country. Policies and politics aside, if we continue on a path that puts incredibly inexperienced and potentially incompetent people in the most powerful position in the world we are all in serious trouble regardless of our political leanings.
What this nation needs is true leaders to once again be supported for high office. It has been bad enough that we had become a nation of voters yearning for someone vote FOR. That frustration will morph us onto a path of destruction if we are not careful. The election of the highest office in our nation should be about electing the best of the best, instead we are speeding towards a system that elects the worst of the worst. Prior to the next Presidential election let’s work towards finding candidates we want to vote FOR and set this country back on the track to greatness once again.