Does Heller Apply?

That depends on who you ask and when you ask it.

Just recently I received an email from a defense attorney filing an appeal for a client based on Second Amendment issues. The case involved the arrest of an 18 year old (Powell) in possession of a handgun in Massachusetts. The facts of the arrest are very interesting and perhaps even questionable at best, but for the purposes of this article the meat of the story comes from the briefs filed by the Suffolk County District Attorney’s office.

During the appeals process that is leading up to the Massachusetts Supreme Judicial Court (Mass SJC) case, Powell has claimed that the Massachusetts laws regarding the possession of a handgun by 18 – 20 year olds are now unconstitutional in light of the recent McDonald v. Chicago (June 2010) Supreme Court decision. While Heller (June 2008) is the landmark case that began the modern discussion of the Second Amendment, it was the McDonald decision that officially “incorporated” the Second Amendment as applying to the States. Or did it? That depends on who you ask and when you ask it.

Before proceeding with this discussion it is important to remind the reader that since the 1976 Massachusetts Supreme Court Decision in Commonwealth v. Davis, Massachusetts courts have maintained that the Second Amendment does not apply to the states and the individual right to keep and bear arms does not exist in the Commonwealth. The Davis decision went so far as to state: “The chances appear remote that this amendment will ultimately be read to control the States, for unlike some other provisions of the bill of rights, this is not directed to guaranteeing the rights of individuals, but rather, as we have said, to assuring some freedom of State forces from national interference.” 

The Massachusetts courts have upheld this position as recently as March 2010 with the Runyan decision. As  readers might recall, Runyan was a case before the Mass SJC regarding the state’s gun storage laws. In the case, the lower court had dismissed the charges based on Heller. When the case was appealed to the Mass SJC by the local District Attorney, they rejected the Heller argument and ruled as follows:

“The judge's conclusion that the Supreme Court's decision in Heller required a dismissal of the count charging a violation of G.L. c. 140, § 131L (a ), rests on two premises, both of which are in error. First, the decision assumes that the protection of the Second Amendment applies to the States as a matter of substantive due process under the Fourteenth Amendment to the United States Constitution. To reach such a conclusion would require a determination that the right protected under the Second Amendment is among those fundamental rights "implicit in the concept of ordered liberty." … Based on current Federal law, however, we cannot say that the Second Amendment applies to the States, either through the Fourteenth Amendment's guarantee of substantive due process or otherwise.”

“FN4. The Heller Court stated that the question whether United States v. Cruikshank, 92 U.S. 542 (1875) (Cruikshank ), remains a continuing bar against application of the Second Amendment to the States was "not presented" to the Court. District of Columbia v. Heller, 128 S.Ct. 2783, 2813 n. 23 (2008) (Heller ). Therefore, Cruikshank 's holding that the Second Amendment does not apply to the States has not been affected by the Court's decision in Heller.”

So nearly a year and a half after the Heller decision the Mass SJC, in March 2010, still maintained that the Second Amendment did not apply to the states and that no individual right to keep and bear arms existed in Massachusetts. This date is very important since the original trial and conviction of Powell took place in January 2009.

As the appeal based on constitutional matters moved along, the prosecution, in the form of the Suffolk County District Attorney’s office, filed a brief with the opinion that the defendant should not be able to appeal on the new constitutional grounds since it was not brought up in the trial. In this same brief the DA also stated clearly that it was their position that the Second Amendment was not incorporated and did not apply to the states:

December 2009 Commonwealth v. Powell Brief for the Commonwealth on Appeal by Kathleen Celion, Assistant District Attorney for Suffolk County District Attorney Daniel Conley

“The Second Amendment is Not Incorporated to the States by the Fourteenth Amendment and the Commonwealth of Massachusetts therefore has the right to regulate firearms as it sees fit.”

“The Second Amendment’s application to the States was not before the Supreme Court in Heller.

“The Court in Heller referred to the Second Amendment right to keep and bear arms as ‘pre-existing’ and ‘one of the fundamental rights of Englishmen’. This is not sufficient, however, to conclude that the Second Amendment is incorporated through the Fourteenth Amendment.”

“Accordingly, the Second Amendment cannot be construed as applying against state regulation of firearms. This Court should therefore find that the Massachusetts statutes in question are constitutional.”

Virtually the same opinion through a brief was filed by the Suffolk County District Attorney’s office four months earlier in the Runyan case.

September 2009 Commonwealth v. Runyan Amicus Brief David Deakin and Joseph Ditkoff Assistant District Attorneys for Suffolk County District Attorney Daniel Conley

“…the Framers wrote the Second Amendment so that the state governments would have armed militias for use against an encroachment on the sovereignty by the federal standing army. As thus understood, the individual right against being disarmed by the federal government recognized by Heller has no logical extension to a restriction on the right of state governments to decide how best to arm their citizenry. At least two of the Supreme Court Justices in the majority in Heller have expressed skepticism of incorporation, and there is no reason to think that the United States Supreme Court would find that the Second Amendment applies to bar the States from regulating firearms.”

“If the Supreme Court were to consider the issue today, it would likely find that the Second Amendment should not be incorporated through the Fourteenth Amendment and applied to the states.”

In late 2009, well over a year after Heller, the Suffolk County District Attorney’s office filed at least two separate briefs to the Mass SJC stating that the Second Amendment did not apply to the states and that Heller was of no consequence in regard to Massachusetts gun laws. Why is this important? Simple, in less than a year after filing the December 2009 Powell brief the Suffolk County District Attorney’s office has apparently changed their mind.

In a later brief in the same case (Powell) authored by the same Assistant District Attorney on behalf of the same District Attorney now claims that the defendant should have no right to appeal because they should have done so earlier. The difference in the newer brief is that they now state the defendant should have understood that Heller overruled Davis.

August 2010 Commonwealth’s Memorandum of Law by Kathleen Celion, Assistant District Attorney for Suffolk County District Attorney Daniel Conley

“Prior to the defendant’s trial, however, the Supreme Court in District of Columbia v. Heller … held that the right to bear arms was an individual, not collective right.. Thus, Heller effectively overruled the portion of the Supreme Judicial Court’s ruling in Davis that the right to bear arms was an individual right. Therefore, Heller would have given notice to the defendant that the Supreme Judicial Court’s interpretation of the Second Amendment was not the final word on the subject and was erroneous.”

Confused yet? You should be because I’ll bet Powell is. After over a year of claiming that the defendant has no right to appeal because Heller does not apply to the states, the Commonwealth is now trying to tell him he should have known at the original trial that it did. As the title of the article asks, does Heller apply? The answer is apparently very clear. That depends on who you ask and when you ask it.

Unfortunately, Massachusetts gun owners have little to be surprised about. There is a long tradition in our state of the government interpreting gun laws to their convenience rather than our civil rights. It will be very interesting to see how this plays out. GOAL will be watching the Powell case with great interest and may get involved at some point.

Gun Trace Data or Deception?

On June 7, 2010 Boston Globe blogger James Alan Fox posted an article/blog supporting Governor Patrick’s gun control legislation, H.4102. The legislation includes the infamous one gun a month law, more commonly known as the “Lawful Citizens Imprisonment Act”. The premise of the legislation is to imprison lawfully licensed citizens for merely purchasing more than one gun, or large capacity magazine, within a 30 day period.

Scenario under the bill: A lawfully licensed citizen follows all of the procedures for lawfully purchasing a rifle and a large capacity magazine (A very common lawful transaction.) The citizen lawfully transports the rifle and magazine back to their home and stores them according to Massachusetts law. The rifle and magazine were never loaded, never fired and never taken out of the box again. Under this scenario, the Governor’s proposal would imprison the licensed purchaser for up to 2 ½ years and the licensed retailer for up to 2 ½ years.

It goes without saying that this proposal is simply a horrible idea and an insult to all lawful gun owners who are being labeled criminals by this bill.

In the blog the author uses 2009 ATF trace data to back his position or at least add supposed evidence for the need to stop lawful multiple firearm sales in a 30 day period. In his blog he states that according to this data“60% of guns associated with criminal activities within Massachusetts come from other states…” This information is supposedly evidence for the need of the proposed bill for Massachusetts and other states where guns are traced back to.

In reviewing the report linked to in the blog one cannot simply take the informational graphs at face value. Anyone reviewing the material must carefully read it and understand how it can be misused. One of the very first things in the report is a disclaimer stating: “Not all firearms used in crime are traced and not all firearms traced are used in crime.” Right away a reader must understand that an undisclosed number of guns reflected in the report were never used in a crime.

This distinction is not a new one. Back in 2002 I wrote a brief report concerning “crime gun” trace data from Boston. In reviewing the material closely I determined that of the 1,020 guns traced from Boston approximately 74% were probably never used in a crime. They were simply just traced for various reasons. Having that previous knowledge and reading the disclaimer from the new report we have to assume that there are a great number of guns traced that are not related to crime.

The new report actually backs up that assumption on two different pages. The first is entitled “Top Categories Reported on Firearm Traces”. On this page it categorizes 872 guns of the 1,968 guns traced in Massachusetts as “Possession of Weapon”. One might assume that this refers to unlawful possession, but just a few categories down is “Weapon Offense”. With this we have to conclude that like in 2002, the 872 guns were most likely just traced by police for purposes not related to crime.

This hypothesis can also be backed up by information on the “Time to Crime Rates” page. On that page it shows that in took over three years (average time was 13.36 years) for 839 guns to show up on a trace. Readers must also keep in mind that guns represented on the “Time to Crime” page are simply guns traced by the ATF not necessarily used in a crime as reflected by the explanations in the report.

By carefully examining the information presented in the report, one can logically conclude that nearly half of the guns included in the trace data never had anything to do with a crime. Still there is more to examine closely in the report.
Another reason for proponents of the Governor’s bill to use this report is to attempt to provide evidence regarding where traced guns come from. In the report it has a colorful chart showing the states where Massachusetts traced guns have been tracked back to. With this information supporters of more gun control will try to point out the supposed problem states that are trafficking guns into the Commonwealth. Unfortunately, this information is also suspect at best.

Going back to the disclosure page it reads, “Firearms are normally traced to the first retail seller, and sources reported for firearms traced do not necessarily represent the sources or methods by which firearms are acquired for use in crime.” This is a very pertinent piece of information if certain people are pointing to this report as showing where “crime guns” are coming from and the report is actually not reflecting that at all. According to the report a gun they represent coming from New Hampshire could have been legally transferred several times over thirteen years before actually being stolen in Mexico and smuggled back to Massachusetts with a load of illegal drugs.

The 2009 ATF report used to provide so-called evidence reflects a list of guns that may or may not have been used in crimes. It reflects where the guns may or may not have gone from legal to criminal. In short the report actually provides very little credible or useful information, especially when someone is using it to back ultra restrictive legislation.

The moral of the story is always look at the source of so-called evidence that anyone is using to restrict your freedoms. In this case we learned that the evidence is not at all what it is being reported to be. In the long run it is just one more chink in the credibility chain for legislation like the “Lawful Citizens Imprisonment Act.” The question still remains, is it data or deception? I think it is clear that it is certainly carefully crafted data being used for deceptive purposes.

http://boston.com/community/blogs/crime_punishment/2010/06/govs_gun_bill_on_target.html

More on Runyan;

The other question concerning the Runyan case (COMMONWEALTH vs. Richard RUNYAN SJC-10480) that we got at the GOAL office was did it clarify the storage laws or just OK them? According to the court records: The defendant was charged in the Lowell Division of the District Court Department with storing or keeping a firearm that was not "secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner of other lawfully authorized user," in violation of G.L. c. 140, § 131L (a )
The particular section of law is as follows: Section 131L. (a) It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.

Before getting into what the Massachusetts Supreme Judicial Court (MassSJC) said about the storage laws, it is important to know exactly what the Supreme Court of the United States said about them in general in the Heller decision. In the holdings in Heller, number 3 clearly stated: “3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” I don’t think that statement could be any more clear on the federal court’s view on trigger locks. With that knowledge we can now explore the MassSJC ruling in Runyan.

The MassSJC ruling concerning the storage laws starts off by referring to the lower court’s dismissal as “erroneous”. “The judge's second erroneous premise was that the provisions of G.L. c. 140, § 131L (a ), are indistinguishable from those held unconstitutional by the Supreme Court in Heller. General Laws, c. 140, § 131L (a ), provides:”

The term erroneous is bad enough to use at that level of law, but the reason for it was that the MassSJC decided not to actually enforce the Heller ruling itself. Instead the MassSJC decided to come up with their own interpretation based on a comparison of the Massachusetts storage laws and the Washington D.C. code that was challenged in Heller. The following paragraph from the Runyan decision is how the MassSJC explains their opinion that ignores holding number 3 in Heller.

D.C.Code § 7-2507.02 (2008). Under this provision, a person registered to keep a firearm (apart from law enforcement personnel) was prohibited in any circumstance from carrying or keeping a loaded firearm in his or her home. The ordinance prohibited a registered gun owner from keeping even an unloaded firearm in his or her home unless it was disassembled or rendered inoperable by a trigger lock or similar device. The Supreme Court ruled that the District of Columbia's requirement "that firearms in the home be rendered and kept inoperable at all times" made it "impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." Heller, supra at 2818. General Law c. 140, § 131L (a ), does not require that firearms in the home be rendered and kept inoperable at all times and does not prohibit a licensed gun owner from carrying a loaded firearm in the home; the statute therefore does not make it impossible for those persons licensed to possess firearms to rely on them for lawful self-defense. [FN7], [FN8]

So the court ignored the actual holdings of Heller and used its own diagnosis of the Massachusetts law versus the D.C. Code. If that were not bad enough, they did so by adding a caveat by means of [FN7]. In this note the MassSJC actually acknowledges that its ruling would probably not stand if they recognized the Second Amendment as a civil right.

FN7. We note that the Court in Heller, supra at 2820, declared that its analysis should not be taken to "suggest the invalidity of laws regulating the storage of firearms to prevent accidents." We do not, however, decide whether the defendant's alleged violation of G.L. c. 140, § 131L (a ), could survive a motion to dismiss if the Second Amendment were made applicable to the States through incorporation under the Fourteenth Amendment's due process clause.

As for clarifying anything regarding the storage laws, the court actually made things more confusing. In a single paragraph of the decision the MassSJC stated several things that have only added to the confusion about when a gun needs to be locked in Massachusetts.

The first was: “Under this provision, an individual with a valid firearms identification card issued under G.L. c. 140, § 129C, is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual's control.” Firearm Identification Cards (FID Cards) are not issued under G.L. c. 140, § 129C they are issued under G.L. c. 140, § 129B. Also, FID Card holders cannot possess or carry firearms. Under G.L. c. 140, § 121 a firearm is legally defined as a pistol or revolver neither of which can be owned under and FID Card. These two points already should place doubt as to whether the justices are educated enough on the state’s gun laws to make a ruling on them.

Adding to the confusion is the following statement: “A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device.” Traditional views of the law have always been that in order for a gun to be under your direct control you must be carrying it in some fashion. This statement seems to say something different as it states “carry or … under his or her control”. This now begs the question when is a gun under your control when you are not carrying it?

That question is even more complicated by the sentence that follows it because it adds the word “immediate”. “The gun owner's obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner's immediate control. [FN6]”

The confusing language of the decision does not favor any reasonable conclusions from the language that was used. In fact the decision has actually muddied the waters even further as to what control means. With all of this confusion in the Runyan ruling, there is still more.

The paragraph in Runyan ruling dealing with “control” referenced footnote number 6, FN6.

FN6. This statutory obligation owed by one who keeps firearms in the home to secure those firearms safely is separate and distinct from the common-law duty of a home owner to ensure that the firearms stored on the property are properly secured when the home owner "allows unsupervised access to that property by a person known by her to have a history of violence and mental instability." Jupin v. Kask, 447 Mass. 141, 143 (2006).

This note basically says that if you allow someone in your home that meets a certain classification, and something happens, you can be exposed to legal action even if you meet the storage law requirements. As with most Massachusetts laws regarding guns, the key to this will be what meets the definition of “history of violence and mental instability”.

Unfortunately the Runyan decision has left us with more questions and certainly more uncertainty about our civil rights.

Massachusetts’ Highest Court Hastens to Rule Against the Second Amendment

Read the entire decision here.

On Wednesday, March 10, 2010 the Massachusetts Supreme Judicial Court (MassSJC) handed down its ruling in COMMONWEALTH vs. Richard RUNYAN (SJC-10480). The Runyan case regarded a lower court’s decision to dismiss a charge of improper gun storage. The lower court dismissed the charges based the ruling in the Heller decision in the Supreme Court of the United States (SCOTUS).

Of important note in this decision, that can only be called an aberration, is the absence of a dissenting opinion. This means that every justice sitting on Massachusetts’ highest court agrees with everything written in the decision.

In a completely surprising and very disturbing opinion the court ruled against the Second Amendment as being an individual right and also ruled incorrectly that Heller did not rule that trigger lock requirements were unconstitutional.

In the opinion of the MassSJC, authored by Justice Gants, the court stated the following:

“The judge's conclusion that the Supreme Court's decision in Heller required a dismissal of the count charging a violation of G.L. c. 140, § 131L (a ), rests on two premises, both of which are in error. First, the decision assumes that the protection of the Second Amendment applies to the States as a matter of substantive due process under the Fourteenth Amendment to the United States Constitution. Based on current Federal law, however, we cannot say that the Second Amendment applies to the States, either through the Fourteenth Amendment's guarantee of substantive due process or otherwise.”

Under the holdings of the Heller decision the court clearly stated in statement number 1: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” It is technically true that Heller did not “incorporate” the Second Amendment as being applied to the states.

What is also true and very well known is that SCOTUS just heard oral arguments on McDonald v. Chicago. This case has been well publicized as being the first case in United States history to directly address the incorporation status of the Second Amendment. Knowing this case was in the works, why would the MassSJC issue an opinion citing a century’s worth of convoluted anti-civil rights gibberish?

To make matters worse, and even more offensive, the MassSJC in its Runyan opinion continually cited Cruikshank as being the determining factor in ruling against the Second Amendment. “Under Cruikshank, the Second Amendment imposes no limitations on the ability of the Massachusetts Legislature to regulate the possession of firearms and ammunition.”

Cruikshank was a post Civil War 1875 decision handed down by the Supreme Court of the United States. This case is renowned as one of the most racist anti-civil rights cases ever handed. The case was in regards to a massacre at the Colfax Court House where approximately one hundred people guarding the premises, mostly freed black men, where disarmed and murdered by a white mob.

Further citing of Cruikshank in the Runyan decision was found in Foot Note 4 at the end of the opinion. In it the court attempted to say that the Heller decision upheld the findings in Cruikshank. “FN4. The Heller Court stated that the question whether United States v. Cruikshank, 92 U.S. 542 (1875) (Cruikshank ), remains a continuing bar against application of the Second Amendment to the States was "not presented" to the Court. District of Columbia v. Heller, 128 S.Ct. 2783, 2813 n. 23 (2008) (Heller ). Therefore, Cruikshank 's holding that the Second Amendment does not apply to the States has not been affected by the Court's decision in Heller.”

In reading Heller, FN4 of Runyan was not at all accurate and taken completely out of context. What was actually written in Heller was a footnote numbered 23 on page 48: “With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.”

What the Heller court was saying is that if we believe that the Cruikshank opinion still rules against the Second Amendment than we have to believe it still rules against the First Amendment. It has always been a dark secret for those who still use the case against us that it ruled against the First Amendment Right of Assembly.

In what can only be called selective citing of Heller by the MassSJC, the court stated: “In Heller, the Supreme Court acknowledged that in United States v. Cruikshank, 92 U.S. 542 (1875) (Cruikshank ), it held that "the Second Amendment does not by its own force apply to anyone other than the Federal Government."

Actually the following is the complete statement from Heller regarding that point:

United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress.” 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruik­shank supports, if anything, the individual-rights interpretation.

The Massachusetts court conveniently left out the part about individual rights. After reading the Runyan decision, one has to wonder whether anyone on the MassSJC actually read Heller or if they simply relied on someone else’s misrepresentation of it.

The second part of the MassSJC decision was in regards to the mandatory storage of firearms and trigger locks and whether such laws were constitutional. The MassSJC ruling stated: “We conclude that the legal obligation safely to secure firearms in G.L. c. 140, § 131L (a), is not unconstitutional, that the motion to dismiss the count charging its violation was allowed in error, and that the defendant may face prosecution on this count. [FN9]”

This part of the decision makes one wonder if the court even read the Heller decision. In the holdings in Heller, number 3 clearly stated: “3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” It can’t be anymore clear. The Supreme Court of the United States declared that trigger lock requirements are unconstitutional.

One could not talk about the Runyan decision without mentioning one of the most bizarre parts of any court ruling ever seen. At the end of the ruling in FN8 Justice Gants actually attempts to justify his opinion on trigger locks by equating the time it takes to disengage one with how long it would take to load a musket in 1791.

“FN8. We also note that, even if a firearm were secured in the manner required by G.L. c. 140, § 131L (a ), a gun owner threatened in his or her home today would be able to fire the weapon in self-defense at least as quickly as would a gun owner in 1791, when the Second Amendment was adopted. At that time, laws were in effect requiring that gunpowder be stored separately from firearms, which meant that a law-abiding homeowner acting in self-defense would need time to load and fire a musket or flintlock pistol. See Heller, supra at 2849-2850 (Breyer, J., dissenting). A skilled soldier of that time using specially prepared cartridges required a minimum of fifteen to twenty seconds to load and fire a musket; a less skilled soldier could fire no more quickly than once per minute. Hicks, United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Found. 23, 30-31 (1937). A gun owner today could remove a firearm from a locked container or release a trigger lock more quickly than that.”

Is it the opinion of the Justice that the courts make determinations on our modern day civil rights based on the technologies and abilities of the 1700’s? If that were expanded to every civil right many things we take for granted today would be banned or heavily restricted.

Perhaps though, the most telling part of this abhorrent decision can be found at the end in FN7.

“FN7. We note that the Court in Heller, supra at 2820, declared that its analysis should not be taken to "suggest the invalidity of laws regulating the storage of firearms to prevent accidents." We do not, however, decide whether the defendant's alleged violation of G.L. c. 140, § 131L (a ), could survive a motion to dismiss if the Second Amendment were made applicable to the States through incorporation under the Fourteenth Amendment's due process clause.”

This statement basically tells us that the court was well aware that the McDonald case at the federal level may well incorporate the Second Amendment and that if they waited for that case to be settled, the MassSJC probably could not get away with the ruling they just made. Is it any wonder that lawful gun owners feel they are waiting behind enemy lines to be set free?

SCOTUS Hears Civil Rights Case

On Tuesday, March 2, 2010 the Supreme Court of the United States (SCOTUS) heard oral arguments on the case McDonald v. Chicago. The case originated from a lawsuit filed in regard to the outright ban of handguns within the City of Chicago. The historical value of the case is that it is the next critical step following the Heller decision that will hopefully incorporate the Second Amendment through the Fourteenth Amendment.

In short, the incorporation process is what officially applies the enumerated rights in our Bill of Rights at the state and local levels. This process protects citizens from state and local governments that seek to restrict our civil rights. It is important to understand that any argument against incorporation is actually an attempt to block the courts from protecting your civil rights.

The Heller decision and now the McDonald case have brought to the national scene a fairly new twist on the Second Amendment debate. For decades the disputes across the country have always been framed as “anti-gun” or “pro-gun”. Proudly we can say that has not been the case here in Massachusetts for some time.

For many years GOAL has been steadfast in our assertion that this was always a civil rights issue and that those who opposed our Second Amendment rights were indeed anti-civil rights not anti-gun (Although most of them hate guns as well). The two historical cases that the world is now talking about have slowly started to shift the national discussions from so-called “gun rights” to civil rights. Once again, GOAL and our members were well ahead of the curve on this.

Conversations about these cases are now surrounded by terms like incorporation, jurisprudence, strict scrutiny and alike. Conspicuous by their absence in discussions about these cases are the tired terms of assault weapons, high capacity weapons, cop killer bullets and so forth.  Even in the oral arguments of the McDonald case the court suggested they were not interested in the old tired arguments of so-called “gun control”.

In discussing whether statistics of gun crimes should be entered into matters of ruling on civil rights, Justice Scalia said: “There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can't be used. We don't -- we don't resolve questions like that on the basis of statistics, do we?” Meaning, matters regarding criminal actions should not be entered into discussions regarding the civil rights of those who are not committing crimes.

Why the major shift in terminology? Actually, the shift was inevitable once the truth was exposed. Anyone who has carefully studied the matter always knew that it was always about civil rights. It is for this very reason that our adversaries always strove to be the ones to frame the argument. They knew that if they were able to successfully keep the argument around things rather than rights, they would be able to keep a certain sector of society afraid and willing to vote their way.

Likewise, they had to have known that if and when the debate turned to civil rights that they would be harshly looked upon by all of society for what they had done. Groups that are constantly fighting to destroy our civil rights are simply not prepared to enter into this new discussion and that is why they are feverishly trying to prevent the incorporation of the Second Amendment.

Our opposition has placed all of their hopes on the fact that the general public and our legislators would never separate the actions of criminals and the civil rights of lawful citizens in the discussion around the Second Amendment. Because if that ever happened, their arguments would come crashing down.

Proudly here in Massachusetts, GOAL and our members have led the way in this new discussion. Even before Heller was decided in 2008, GOAL was already drafting a piece of legislation the likes of which had never been attempted anywhere in the nation. Since January of 2009, GOAL has been giving seminars across the state on our groundbreaking legislation H.2259, the Civil Rights and Public Safety Act. (Information can be found at www.MassGunLawReform.com)

Our legislation begins the process of leading the logical progression reflected in the new discussions by separating the laws regarding gun ownership. It does so by creating a separate set of laws regarding civil rights/lawful ownership and a set of laws regarding criminal enforcement.

While no one should ever try to predict what SCOTUS will do with any given case or the legislature will do with legislation, one thing is sure. The discussions around the Second Amendment are beginning to go where they always should have. Where we always knew they belonged. While we can’t predict with certainty what the future will bring for us, we can be assured of another thing that history has taught us. If civil rights are the matter of discussion, freedom shall eventually always prevail!

McDonald v. Chicago oral arguments transcript:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

On Tuesday, January 19, 2010 the citizens of Massachusetts have a once in a lifetime opportunity to send a message to Washington D.C. that will resonate around the world!

The election on Tuesday is not about Democrat vs. Republican. It isn’t even just about our Second Amendment civil rights, while that is certainly a priority for GOAL members. This election is about sending a clear message to the entrenched political machine in Washington D.C. that an elected seat of any kind belongs to the people and not to a family dynasty, political party or any other entity.

As Thomas Jefferson once said, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” It should be obvious to all that we have not come to that point yet, but it should also be clear to everyone that our nation’s capital has become a tyrant in of itself. While this is not a physical battle, we certainly have an opportunity on Tuesday to spill some political blood and recapture some of our authority over our government. In this battle, your weapon is your vote!

As our forefathers did many years ago when they rallied the local patriots at the Concord Bridge, it is time for us to rally our fellow patriots. We urge you to rally your family, your friends, your neighbors and armed with their votes go to the polls on Tuesday. Together as a voting modern militia we can retake our freedom and our future! A win for Scott Brown on Tuesday is a win for freedom and it will most certainly become known as the political shot heard round the world.

 

Scott Brown:

·         Supported GOAL’s Target Shooter’s bill in 2006 allowing the sale of new Olympic Style Target pistols in Massachusetts,

·         Supported the Hunter Education Bill in 2006,

·         Supported the GOAL’s 2004 Reform Bill

o   Created a review board for people who had lost their rights for minor offenses,

o   Created a 90 day grace period for lawful citizens who trying to renew their licenses but were entangled in an unresponsive bureaucracy,

o   Standardized the size of  firearm license

 

·         When in the House he fought to undo a lot of the mistakes made in the anti-civil rights 1998 Gun Control Act

Martha Coakley:

·         In November of 2009 as Massachusetts Attorney General she filed an Amicus Brief to the Massachusetts Supreme Judicial Court opposing the Second Amendment as an individual civil right. In the brief she cited a post civil war case called Cruikshank to back her position. This case was one of the most anti-civil rights and racist decisions ever handed down and not only ruled against the Second Amendment, but the First as well.

·         Attached regulations to GOAL’s Target Shooters bill after its passage to make it virtually impossible for firearms to pass the standards. Nearly four years after the bill’s passage only three firearms have made the list.

·         Continued the enforcement of the fraudulent handgun regulations that were created through an abuse of the consumer protection laws.

Civil Rights Equals Detainment?! So Says the Federal Court

If the gun laws here in Massachusetts are not confusing enough, just try and follow the court rulings. Most recently a case has come out of a local federal court that has gun owners confused and angry.

This most recent case is Schubert v. City of Springfield (United States District Court Civil No. 07-30033). In this case Mr. Schubert was crossing a street during mid-day and was held at gun point by a police officer. The officer had claimed that he had seen a handgun under Mr. Schubert’s jacket. In legal terms the officer claimed to be conducting what is called a Terry Stop.

A "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established in a case, Terry v. Ohio, 392 U.S. 1, 6 (1968).

During the stop, the officer detained Mr. Schubert for around ten minutes while he supposedly tried to verify the License to Carry (LTC). According to court records, the officer was not able to validate the LTC and as a result released Mr. Schubert but confiscated the LTC and the firearm. Both items were recovered at the police station later on. As a result of the incident, Mr. Schubert filed a civil rights case in federal court. The particular filings did not include any Second Amendment claims.

On March 4, 2009 Judge Michael A. Ponsor heard a motion to dismiss from the city. Judge Ponsor was born in Chicago and appointed to his position on the federal court by President Bill Clinton. That same day, the Judge gave an oral ruling followed by one in writing. The Judge stated in his ruling the following:
“I find on the undisputed facts of this case that the police officer had the right under the Terry decision to stop and make inquiry of the plaintiff once he recognized that he was walking in public and carrying a firearm…”
“…I believe the police officer is not violating the Constitution by confronting the individual, disarming the individual, and requiring the individual to produce identification and a license.”
“I don’t believe that the police officer crossed the constitutional line by drawing his firearm to protect himself and even pointing it at the plaintiff…”

“I find that the police officer once he was given the license was not required to accept it on its face…”
The events that led up to this case and the subsequent ruling are disturbing at best. According to this ruling, any lawful citizen who chooses to exercise their civil rights in public is now subject to detainment and search. This ruling exemplifies the socially immature attitude towards firearms here in Massachusetts. Of course one has to wonder how this type of ruling would go in an open carry state.

The ruling itself is very disturbing alone, but we can certainly get some insight as to how that ruling came about by looking at some statements made by the Judge. GOAL acquired a transcript from the motion to dismiss on March 4, 2009. The following are some statements made by Judge

Ponsor during that hearing. The statements obviously demonstrate a complete prejudice towards firearm ownership.

Judge Michael A. Ponsor
“I guess my question is what is a middle aged guy with a suit carrying a briefcase doing packing a handgun and walking around downtown Springfield? Is this becoming Dodge City here where everybody’s going to be carrying firearms?”

“Every time anybody’s at a chicken place and somebody pulls out a handgun we’ll have bullets flying in 16 different directions and its mutual destruction and we’re really two seconds away from gun firing breaking out. I’m really, really, really bothered by that.”

“I’m really appalled to hear that that many people are carrying guns.”

“You have the right to do a lot of things. It doesn’t mean you have the right to be free from an inquiry about what you’re doing.”

“I find on the undisputed facts of this case that the police officer had the right under the Terry decision to stop and make inquiry of the plaintiff once he recognized that he was walking in public and carrying a firearm that was visible to him from where he was seated in his squad car.”

With this new disturbing federal court decision, we must now ask the question as to how it affects prior state court rulings or rather how the federal decision should have been affected by them.

It is common knowledge that the Massachusetts Supreme Judicial Court stripped Commonwealth citizens of their Second Amendment civil rights in the infamous 1976 case Commonwealth V. Davis (369 Mass. 886).

“The Second Amendment to the Constitution of the United States declares: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  This was adopted to quiet the fears of those who thought that the Congressional powers under article 1, section 8, clauses 15 and 16, with regard to the State militias might have the effect of enervating or destroying those forces.  The amendment is to be read as an assurance that the national government shall not so reduce the militias… So the amendment is irrelevant to the present case. The chances appear remote that this amendment will ultimately be read to control the States, for unlike some other provisions of the bill of rights, this is not directed to guaranteeing the rights of individuals, but rather, as we have said, to assuring some freedom of State forces from national interference.”

This horrendous decision was based on anti-civil rights cases like United States v. Cruickshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875). The same case the Massachusetts Attorney General used recently to back her possession against the Second Amendment. This Supreme Court of the

United States (SCOTUS) Case not only ruled against the Second Amendment, but also the First.

“The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone.”

“The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States.”

The Davis decision was then backed up by Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. at 547 (1983) and Ruggiero v. Police Commissioner of Boston, 18 Mass.App. 256, 464 N.E.2d 104 (Mass.App. 1984). These two decisions basically echoed the courts’ anti-civil rights stance and the authority of local authorities to deny or restrict rights. The Moyer decision also seemed to create a complete role reversal between citizens and their government.

“The burden is upon the applicant to produce substantial evidence that he is a proper person to hold a license to carry a firearm.”
Even with all of these absurd rulings and statements by the court concern our civil rights in earlier years there has certainly been some sound state court rulings that should have had some leverage on the Schubert decision.

Commonwealth vs. Samuel H. Nowells 390 Mass. 621 September 12, 1983 - December 20, 1983
“The ownership or possession of a handgun (or a rifle) is not a crime and standing alone creates no probable cause.”

Commonwealth vs. Marcos A. Rojas. 403 Mass. 483 October 5, 1988 - December 8, 1988
 “We note that possession of a handgun is not per se illegal.”

Commonwealth vs. Paul R. Couture. 407 Mass. 178 December 6, 1989 - April 9, 1990
“The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.”
“The police in this case had no reason to believe, before conducting the search of the vehicle, that the defendant had no license to carry a firearm. A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.”
In the Couture case, a clerk at a convenience store in Lowell telephoned the local police and informed them that a man inside the store had a small handgun protruding from his right rear pocket. The clerk said that the man entered a gray pickup truck with a New Hampshire registration number. The clerk reported the registration number to the police. The man was then pulled over and arrested by police for illegal possession after a search of his vehicle. The evidence was eventually thrown out since no criminal activity was known to have taken place prior to the stop.

An interesting to connection to the Couture case is the Assistant District Attorney that lost this case, former State Senator Cheryl Jacques. Senator Jacques was the architect of the disastrous Gun Control Act of 1998. In 2008 she was appointed by Governor Deval Patrick to be a Judge at the Department of Industrial Accidents.
Most recently a case regarding possession came before the Massachusetts Supreme Judicial Court in Commonwealth vs. Thomas YOUNG & another. SJC-10147 January 5, 2009. - May 4, 2009.

“While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless.

Case after case in Massachusetts the courts have maintained that mere possession of a firearm is not enough evidence to justify suspicion, search or detainment. The problem here is that the case was filed as a civil rights case in federal court and unfortunately some federal courts are still stuck in Civil War Era civil rights denial.

One interesting statement that appeared in the Schubert ruling was a footnote #2 on page three: “Second, Plaintiff’s right is secured, not restricted, by the state licensing statute, Mass. Gen. Laws.ch. 140, § 131.” This is a very peculiar statement since the licensing system in Massachusetts is based on Commonwealth v. Davis that told us we citizens of Massachusetts have no such rights. A law student could probably do a whole thesis on that one.

So now that your eyes are glazed over you are probably asking the question, where does this leave us as lawful gun owners? The answer is, good question.

From all of the case research and history here, it all boils down to this. We have a federal court system that sort of recognizes our civil rights as gun owners but does not feel it is a problem if we are detained and questioned for simply exercising our rights. On the other hand we have a state court system in Massachusetts that does not recognize our civil right to keep and bear arms, but has strongly ruled that we should not be detained or questioned for mere possession of a firearm.

In the months and years to come I am certain there will be more cases heard on the national level to follow the famous Heller decision. Certainly the McDonald v. city of Chicago to be heard this spring by SCOTUS should provide us with more insight as to how we are going to be treated by our collective governments. For now, I am afraid, the lawful gun owners of Massachusetts are still yet seeking answers to the answers we have been given to the questions we shouldn’t have had to ask.

Find your legislator here.

GOAL Calls on Legislature to Come to the Aid of a Heroic Citizen
By now the world has heard the news of the lawful defense shooting that took place at the Massachusetts General Hospital clinic in Boston. In a case of true American selflessness, Massachusetts citizen Paul Langone ran towards danger to come to the aid of a complete stranger. In doing so, Mr. Langone saved the life of Psychiatrist Astrid Desrosiers who was being repeatedly stabbed by patient turned assailant, Jay Carciero.

In what was most certainly a case of lawful defense, Mr. Langone found himself in a situation that called on deadly force in order to save Ms. Desrosiers and to protect the lives and safety of other clinic staff and visitors. While there is much debate in the media and amongst the general public as to why Mr. Langone was there and why he was carrying a gun, the simple answer for everyone involved is that they are lucky he was.
What may be the greatest tragedy to yet take place regarding this story of a citizen hero is his exposure to a civil suit from the assailant's family. While we are not aware that such a suit has been filed, the danger exists. Under current Massachusetts law there are no protections from such suits for citizens who use force to protect themselves or others. However, the Massachusetts legislature has an opportunity to save this hero from such a suit.

Gun Owners' Action League (GOAL) currently has a bill before the Joint Committee on the Judiciary in the State House to address this matter. Senate Bill #1580, "An Act Relative to the Common Defense", was filed January 11th 2009 to protect citizens who find themselves in a situation that requires the use of force to defend themselves or others.

"It is clear enough to everyone that we live in a state where self defense is frowned upon and even discouraged," said Jim Wallace Executive Director of Gun Owners' Action League. "However, when such a lawful action of defense takes place it is unforgiveable that the Commonwealth would allow a law to exist where an assailant, or his family, is allowed to sue a defender. Just as Mr. Langone risked his life to come to the aid of other citizens, we now must come to his aid."

S.1580 would provide specific language that would clearly define what an act of lawful defense is. It would also provide protection to citizens who have acted in a lawful defense act from civil suits regarding the death or injuries to an assailant.

GOAL urges all Massachusetts citizens to come to the aid of this hero by contacting their legislator and ask them to immediately move on S.1580 "An Act Relative to the Common Defense". Citizens can obtain information on their legislators here.
 
S.1580        AN ACT RELATIVE TO THE COMMON DEFENSE.
 
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 
SECTION 1. Chapter 278: Section 8A. Killing or injuring a person defense of self or others;
 
Section 8A. It shall be an act of lawful defense if a person, who is an occupant of a dwelling or in any place that they have a right to be, used deadly force, or less than deadly force, if he or she acted in the reasonable belief that an assailant was about to inflict great bodily injury or death upon themselves or upon another person who also had a right to be in the location. There shall be no duty on a person to retreat from any place that they have a right to be. An act of lawful defense as outlined in this section shall not be cause for arrest or prosecution. Further, an act of lawful defense under this section shall not be cause for the revocation of a license issued under sections, 122, 123, 129B or 131 of Chapter 140.
 
SECTION 2. Chapter 231: Section 85U. Death or injury to assailants; liability of defender
 
Section 85U. No person who has committed an act of lawful defense as outlined in section 8A of chapter 278 shall be held liable in an action for damages for death or injuries to an assailant.

Massachusetts Attorney General and District Attorneys Argue to Block Bill of Rights

Recently the Massachusetts Attorney General filed what is called an Amici Curiae (friend of the court brief) in the case of Commonwealth v. Richard Runyan. The brief is signed on to by a host of district attorneys and state officials. This is a case that is going before the Massachusetts Supreme Judicial Court regarding the Massachusetts firearm storage laws. In typical fashion of what we have come to expect of our state officials, the brief is full of support for state restrictions on innocent lawful citizens and an outright objection that the Second Amendment applies to the states.

One of the arguments from state officials is that the Supreme Court of the United States (SCOTUS) has never incorporated the Second Amendment through the Fourteenth Amendment (adopted in 1868) thus the states are free to abuse their citizens as they see fit.

For those who are not aware of what “incorporation” refers to, it refers to the process by which the Bill of Rights is applied to the states through what is called the “Due Process Clause” of the Fourteenth Amendment.

Throughout history the Bill of Rights has been incrementally incorporated. In other words, the entire Bill of Rights has not yet been established as protecting citizens against state governments. In fact it was years, even decades, after the Fourteenth Amendment before citizen’s civil rights were being protected from state governments. This history lesson is critical when reading the arguments of state officials who still wish to trample on the civil rights of lawful citizens.

In Attorney General Martha Coakley’s Amicus Brief she, like so many before, selectively chose to use ancient Supreme Court rulings in arguing against civil rights. As in so many writings of officials who attempt to subdue Second Amendment rights, she uses two well known cases as examples. In her brief she states: “For over 120 years it has been established that the Second Amendment is not incorporated through the Fourteenth Amendment and, thus, does not restrict the authority of the states to regulate firearms.”
It is important to keep in mind that the Bill of Rights was never about regulations. It was about protecting the sacred civil rights of every lawful citizen of United States. So, when state officials argue that certain rights have not been incorporated, what they are actually telling us is that lawful citizens have no federal protection from state official’s tyrannical actions against our civil rights. That is truly the core of the incorporation argument.

The two cases that are continually used to argue the preservation of certain state tyranny in regards to the Second Amendment are United States v. Cruikshank (1876) and Presser v. Illinois (1886). Both cases ruled that in spite of the Fourteenth Amendment passed years before that the Bill of Rights did not apply to the state governments. Specifically, in the Attorney General’s brief, she uses a quote from Cruikshank that regards the Second Amendment as a “means no more than that it shall not be infringed by congress, and has no other effect than to restrict the powers of the National government.” What the Attorney General, and many before her, continually fail to mention is that this same case ruled against the First Amendment right to assembly. The Cruikshank ruling stated that the First "was not intended to limit the powers of the State governments in respect to their own citizens." In fact the right to assembly under the First Amendment was not incorporated until 1937 nearly seven decades after the Fourteenth Amendment was adopted.

In doing some research on the subject, I came across a Wikipedia article on the case, it can be found at: en.wikipedia.org/wiki/United_States_v._Cruikshank

Rather than defend the decision, as does our Attorney General and other public officials, the article actually stated that because of the decision: “In the short term, blacks in the south were left to the mercy of increasingly hostile state governments who did little to protect them. When Democrats regained power in the late 1870’s, they passed legislation (state) making voter registration and elections more complicated, effectively stripping blacks from voter rolls.”

I urge everyone to do a web search on Cruikshank and you will find article after article that blames the decision for the disarming and disenfranchisement of African Americans.

Is this the type of decision that our state officials should be using to defend their position on gun control? Would these state officials still defend the entire decision? If a public official is going to use rulings like Cruikshank to support their policy positions, then they must be held as supporting the entire decision and the consequences of it!

As a further example of how ridiculous it is use to use late 1800’s decision in defending an anti-civil rights policy decision, we must look at how long it took SCOTUS to officially incorporate other parts of the Bill of Rights. Here is a short list of some of our civil rights we take for granted and the year in which they were incorporated:

First Amendment
Freedom of Religion 1940
Freedom of Speech 1925
Freedom of the Press 1931
Freedom of Assembly 1937

Third Amendment (Quartering of Soldiers in Private Homes)
Has NOT been incorporated.
Fourth Amendment
Unreasonable Search and Seizure 1961 (Had been ruled to not be incorporated as late as 1949.)
Fifth Amendment
Double Jeopardy 1969
Self Incrimination 1964
Sixth Amendment
Speedy Trial 1967
Public Trial 1948
Trial by Impartial Jury 1971
Right to Council 1963
Eighth Amendment
Protection Against Excessive Bail 1982

And it goes on. How many people actually know that the 1970’s Equal Rights Amendment (ERA) never made it to the Bill of Rights because the states failed to ratify it? If our Attorney General and other state officials stand behind their argument, then they certainly wouldn’t support any of the issues in the ERA since it was never even ratified.

If we are to logically apply the Attorney General’s use of Presser and Cruikshank should we soon expect that Massachusetts will begin quartering National Guard persons in our homes because the Third Amendment has not been incorporated? Also lest we forget, that a woman’s right to vote (Nineteenth Amendment) was not part of the Bill of Rights until 1920.

The history lesson here is that it took nearly a century after Fourteenth Amendment for SCOTUS to officially recognize most of our civil rights as protecting us from our own state governments. The certainty is that one by one SCOTUS has in fact given protection to citizens from their own state governments. For sure the court has been painstakingly slow and very deliberate, but it has done it. To use 120 year old anti-civil rights case law to defend a draconian position on gun control speaks volumes about those who support such stances.

Why is this history lesson of incorporation so important? Simply put, every citizen should keep the following in mind. Any person, and especially public officials, that use the incorporation argument to defend a policy position is in fact defending that position via the exclusion of the Bill of Rights. Clearly stated, the people using that argument are in fact supporting a position to keep the Bill of Rights from applying to the citizens of the states. By fighting to keep the Bill of Rights from applying to certain citizens can only mean they are anti-civil rights activists.

For years, I have told our members that the people fighting against our Second Amendment Rights are not anti-gun, but in fact are anti-civil rights extremists. The fairly new incorporation argument against the Bill of Rights, and especially the Second Amendment, has proven that I was correct. The people supporting this argument can try to spin it anyway they want, but the plain fact is that anyone who fights against incorporation itself or uses the incorporation argument against certain rights is in fact anti-civil rights.
Sadly, we can count among the anti-civil rights activists those public officials that have signed on to the Runyan Amicus Brief. If the signers object to being honestly labeled, perhaps they should be more aware of what they sign their names to.

They are:
Massachusetts Attorney General Martha Coakley
Berkshire District Attorney David Capeless
Bristol County District Attorney C. Samuel Sutter
Cape & Islands District Attorney Michael O’Keefe
Essex County District Attorney Jonathan Blodgett
Hampden County District Attorney William Bennett
Middle District Attorney Joseph Early
Norfolk District Attorney William Keating
Northwestern District Attorney Elizabeth Scheibel
Plymouth District Attorney Timothy Cruz
Suffolk District Attorney Daniel Conley
The Massachusetts Executive Office of Public Safety and Security
The Massachusetts Executive Office of Health and Human Services
The Massachusetts Department of Public Health

More articles on Cruiksank:
U.S. v. Cruikshank: 1875 - Southern Racism Makes A Comeback

U.S. v. Cruikshank: 1875 - Supreme Court Delivers A Crushing Blow

United States v. Cruikshank

Good Guys Made Bad by Their Own Government

In 1974 the Massachusetts government implemented a new gun law known as the Bartley-Fox Act. This new law was supposed to be the answer to rising gun crime in the Commonwealth. The emphasis of the law was that anyone in possession of a gun without a license would be put in jail for one year. No excuses, no mercy, everyone who does not have a license goes to jail. This was government’s answer to crime?

Since the law was put in place over three decades ago, very few criminals have ever been sentenced under the law. While that itself is a failure of the system, I believe that Bartley-Fox is actually where things really started to go wrong in Massachusetts.
The passage of this law actually represents a surrender of sorts by our own state government. If one really thinks about the premise of that law, what it is really saying is: “We [the government] give up. We have no answers for rising crime. We don’t have the ability to tell the difference between a lawful citizen and a hardcore criminal. So anyone who doesn’t have the right piece of paper from us is going to jail regardless if they had criminal intent or not.” This was quite a startling new position taken by the Commonwealth where freedom was born.

Unfortunately for the citizens, this was only the beginning of a new culture of government that decided it was their job to grant us rights. Furthermore, they felt it was their job to monitor and control anyone who wished to exercise their rights, especially the right to keep and bear arms.

This new culture is what led to the Gun Control Act of 1998, commonly known as “Chapter 180”. This bill contained seventy-nine sections of new law written by people who hated guns and despised gun owners. A whole new set of laws built on the premise of the Bartley-Fox Act that blurred the lines between lawful citizens and criminals. Like Bartley-Fox, this law was designed to persecute anyone who didn’t fit government’s new culture of monitor, control and prosecute anyone who gets in their way.

More recently, a District Attorney from Bristol County began misusing the state’s “dangerousness statute”. This is a law that allows the courts to hold a suspect without bail if they have been declared a danger to society by the court. The DA began bringing people before the court to be held as dangerous for firearm violations. The problem is that he stated on a radio interview that he was making no distinction between a lawful citizen who simply didn’t have the right piece of paper and a three time violent felon.

As an example of this new culture, one of the most frightening statements I have heard from a government official recently was a District Attorney who when speaking to the media said, “I can find no law that allows this activity to take place.” This is a true reflection of our government has changed. There are no laws that “allow” citizens to do anything. Laws are put in place to ban activities, not allow them.

It is very clear that this cultural change that began with Bartley-Fox has led the Commonwealth to a time where the lawful and the criminal are blurred together and treated the same. Knowing this, no rational person can deny the need for immediate reform. GOAL’s Civil Rights and Public Safety Act (www.MassGunLawReform.com) is an attempt to address and reverse this culture of government. By clearly separating the lawful possession issues and criminal enforcement matters we can begin to restore sensibility in our government policies. Only when we return to the day when our government can distinguish a lawful citizen, who may not understand the law, and a hardcore criminal robbing a store, can we effectively begin to fight the true enemy – the human criminal element.