The Massachusetts Supreme Judicial Court had taken two cases where non-residents had been arrested and prosecuted for possessing firearms and ammunition in Massachusetts. Both cases involved residents of New Hampshire, where the defendants could legally carry firearms without permits. The cases were combined for the Massachusetts Supreme Court. The decisions were rendered on March 11, 2025. The decisions were opposite for the two cases.
In the decision for the earlier case, Commonwealth v. Donnell, the Court found the Massachusetts firearm licensing scheme at the time of Donnell's arrest, to be unconstitutional, because the law was a "may issue" law which allowed discretion on the part of the issuing official.From findlaw.com:
Our holding today does not, as the Commonwealth suggests, preclude it from requiring firearm licenses for persons within its borders. See Marquis, 495 Mass. at ––––, ––– N.E.3d ––––. To be consistent with the Second Amendment, the Commonwealth's nonresident firearm licensing scheme cannot vest an official with the discretion to deny a license to a qualified applicant. The defendant was charged under a firearm licensing scheme that did just that. This manner of firearm restriction is no longer permissible. Bruen, supra. Accordingly, the allowance of the defendant's motion to dismiss is affirmed.
In the second case, Commonwealth v. Philip J. Marquis, the court upheld the law as constitutional. They found Marquis did not have standing because he had not applied for a nonresident permit under the new Massachusetts law. From findlaw.com, Commonwealth v. Philip J. Marquis:
This is one of two cases we decide today in which we determine the constitutionality of the Commonwealth's nonresident firearm licensing scheme.1 See Commonwealth v. Donnell, 495 Mass. (2025). While we consider a prior version of the nonresident firearm licensing scheme in Donnell, here we consider the current version of that scheme. See St. 2022, c. 175, §§ 17B-22 (effective Aug. 10, 2022). Specifically, we address whether the current nonresident firearm licensing scheme violates the right to keep and bear arms under the Second Amendment to the United States Constitution or the rights to travel and to equal protection under the Fourteenth Amendment to the United States Constitution. We hold that it does not.
Analysis: The Massachusetts court refused to consider the thrust of the argument against requiring non-residents to obtain a separate permit from the Commonwealth of Massachusetts in order to exercise rights protected by the Second Amendment. They did this by claiming the defendant had no standing because he had not applied for a non-resident permit. The argument ignores the fact it is much more difficult for a non-resident to obtain a non-resident permit than it is for a resident to obtain a resident permit. From the opinion:
Because that scheme does not penalize nonresidents' right to travel, and because differences in how that scheme operates for residents versus nonresidents are rationally related to legitimate State interests, the Commonwealth's nonresident firearm licensing scheme is also facially consistent with the Fourteenth Amendment rights to travel and to equal protection.
The Court dismisses those crucial arguments by citing precedents from more than a decade before the Supreme Court case in Bruen. The court goes on to make extensive arguments, which it says are not necessary. In the opinion of this correspondent, the arguments are weak. The Commonwealth treats non-residents substantially differently than it does residents when it comes to non-resident permits. The Court glosses over these differences as not relevant.
A non-resident permit is only valid for a year, while a resident permit is valid for 4-5 years. The non-refundable fee is $100 for both. A Massachusetts official can take up to 90 days to issue a non-resident permit, while they are only allowed 40 days to issue or deny a resident permit. Residents are allowed a sixty day grace period to renew their permit; non-residents have no grace period. The concept that a citizen would have to apply for a permit up to 90 days before they can exercise a fundamental, Constitutional right after a decision to cross a state line, is absurd. Those decisions are often made momentarily, on the spot. For the First Amendment, any delay of exercise of the right has been found to cause irreparable harm. The same standard should apply to the Second Amendment, which is not a Second Class right.
The Massachusetts court then reaches into fish and game law to claim there is no requirement for state permits to treat residents and non-residents alike. It claims the state permit system need only meet rational basis. Both claims are highly problematic.
Hunting and fishing are not rights enumerated in the Bill of Rights of the United States Constitution. The Court is playing games when it says the Massachusetts non-resident permit scheme does not violate the Second Amendment, and then claims the permit scheme can treat non-residents and residents differently, because the Court said it does not violate the Second Amendment. This is circular reasoning.
Massachusetts is one of the jurisdictions in the United States most hostile to the Second Amendment. The judges on the Commonwealth's high court are clever wordsmiths. This does not mean they are correct.
It is unclear if the Marquis case will be appealed to the Supreme Court of the United States.
©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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