Massachusetts Supreme Judicial Court Issues Contorted Ruling in Powell Case

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.


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