Does Heller Apply?

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.


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  • 9/8/2010 4:35 PM parkiet warszawa wrote:
    nice article
    Reply to this
  • 9/29/2010 9:14 AM Erik wrote:
    My question is, under the Massachusetts' Constitution, Article XVII, "The people have a right to keep and to bear arms for the common defence" (part the first, right after the Preamble). So, why does State Supreme Judicial Court state, "the individual right to keep and bear arms does not exist in the Commonwealth"??
    Reply to this
  • 10/14/2010 3:24 PM Greg wrote:
    How is the Powell case effected in light of McDonald incorporating the 2A against the states via 14th amendment due process.
    Reply to this
  • 10/18/2010 2:57 PM Charles Mahar wrote:
    Before deciding whether or not to donate, I would like some detail about the circumstances leading to the arrest of this individual on the gun charge.
    Reply to this
    1. 11/15/2010 3:53 PM Marcia wrote:
      What difference do the circumstances of his arrest make if his basic rights were denied? Basic human rights apply to all people not only those you or the Commonwealth deem to be "suitable".
      Reply to this
  • 10/24/2010 9:01 AM Steven Crowell wrote:
    I'd like to see the outright, unilateral ban by the taxi regulators in Boston, on cab drivers carrying firearms, challenged.
    Reply to this
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