Saturday, December 15, 2018

MA: Did Violation of Massachusetts Gun Storage Law Save Man from Pit Bull Attack?

On the 2nd of December, 2018, a 25-year-old man was at home with his girlfriend and a pit bull dog they were fostering. All of them were lying on a bed at about 6 p.m. The dog attacked the man. The man attempted to move the pit bull off of the bed. Instead, the dog bit the man on the left arm, and would not let go. From
In a desperate attempt to end the attack, the man reached for a 9mm handgun he had in his nightstand and shot the dog, police said.

“The single shot stopped the attack and the dog died shortly afterwards,” police said in the statement. “The man is fully licensed to have firearms in Massachusetts.”

The man was rushed to Cape Cod Hospital to be treated for his injuries, police said.

Police took the man’s handgun, a 12-gauge shotgun, and ammunition found in the home “for safekeeping.” The dead pit bull was taken away by Yarmouth animal control officers, police said.
It is unknown if the legal gun owner will be charged in the case.
Massachusetts is the only state in the nation that still requires all firearms in a home to be locked up when not in use. On March 10, 2010, the Massachusetts Supreme Court ruled the "safe storage" law did not violate the Second Amendment of the U.S. Constitution.  From

BOSTON – The highest court in Massachusetts on Wednesday upheld the constitutionality of a state law that requires gun owners to lock weapons in their homes, a case closely watched by both gun-control and gun-rights proponents. 
Massachusetts prosecutors argued that the law saves lives because it requires guns to be kept in a locked container or equipped with a trigger lock when not under the owner’s control. The Gun Owners’ Action League and the Second Amendment Foundation Inc., however, pointed to a 2008 U.S. Supreme Court ruling that said people have a constitutional right to keep weapons for self-defense. 
The state Supreme Judicial Court, ruling in the case of a man charged with improperly storing a hunting rifle in his Billerica home, unanimously agreed that the Second Amendment does not overrule the state’s right to require owners to store guns safely.
The Massachusetts Supreme Court ruling was based on two premises.

First, that the Second Amendment only applied to the federal government, not to the states. At the time, the McDonald case had been heard, but the U.S. Supreme Court did not deliver its opinion until July of 2010, two months later.

Second, the law in Massachusetts allows a person to have a firearm unlocked and loaded in the home when it is carried by them or "under their control".  From the Massachusetts Supreme Court ruling:
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. 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. 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.[6]
Exactly what is meant by "the owner's immediate control"? Does the law mean a person may not leave  an unlocked shotgun in their bedroom, while they are in another room of the house? It seems to mean a person who is not licensed, even if they are the gun owners spouse, parent, or child, is not allowed to have access to any of their firearms when they are not present.

The 9mm by the bed was arguably "under the control" of the licensed firearm owner. But what about the shotgun? Perhaps the shotgun was locked up. We do not know.

The U.S. Supreme Court has not heard a gun storage case since Heller, in 2008. No other state has a gun storage law as restrictive as Massachusetts. But San Francisco and other California cities have stricter gun storage laws dating from 2007 and later.

The Ninth Circuit upheld the San Francisco law.  In the Ninth Circuit ruling a judge said that modern safes and gun locks can be opened so quickly as to not interfere with the right to self defense in the home. From
Because trigger locks and modern gun safes can be opened quickly, a stored or locked handgun “may be readily accessed in case of an emergency,” Judge Sandra Ikuta said in the appeals court’s ruling.
The Ninth Circuit judge said the law serves a government function of reducing gun related injuries and deaths resulting from an unlocked handgun in the home.

The academic literature is mixed on the subject. Research by John Lott and John Whitley concluded the law had a net negative effect. From crime
It is frequently assumed that safe-storage gun laws reduce accidental gun deaths and total suicides, while the possible impact on crime rates is ignored. We find no support that safe-storage laws reduce either juvenile accidental gun deaths or suicides. Instead, these storage requirements appear to impair people’s ability to use guns defensively. Because accidental shooters also tend to be the ones most likely to violate the new law, safe-storage laws increase violent and property crimes against law-abiding citizens with no observable offsetting benefit in terms of reduced accidents or suicides.
Self defense in the home with handguns was ruled to be part of the core of Second Amendment rights, by the Supreme Court in Heller.  Infringement of that right should have been examined under strict scrutiny. Interest balancing was expressly forbidden in this context, by the Heller decision. From Heller:
“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
The Supreme Court did not accept the Ninth Circuit case about the San Francisco storage requirement.

It is unknown if the pit-bull victim will be charged with a crime or if he will have difficulty in retrieving his firearms from the police.

A Supreme Court with Justices Kavanaugh and Gorsuch may be more willing to accept Second Amendment cases.

We should find out in the next few months.  The Court normally recesses in June. The decision to accept, or not accept, a Second Amendment case this term will be made long before then.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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