Skip to comments.SJC to hear challenges to state gun laws brought by local defense attorney (MA)
Posted on 10/05/2009 7:17:06 PM PDT by neverdem
The Massachusetts Supreme Judicial Court is expected to decide whether a state law that requires residents to apply for gun licenses with their local police departments is unconstitutional.
The challenge is being brought before the court by Paul W. Patten, a Fall River defense attorney who is representing Nathaniel DePina, 19, a New Bedford man serving a 2-year jail sentence after being convicted last year of illegally carrying a firearm.
Patten is appealing DePina's conviction on the grounds that the state gun licensing statute is "vague and overbroad," inconsistent in application and violates an enumerated, fundamental right protected by the Second Amendment.
"This is not just about guns. To me, this case is about the U.S. Constitution," said Patten, who will argue his case Nov. 5 before the Supreme Judicial Court.
"The commonwealth has unbridled discretion to decide who is a suitable person to receive a gun license, and what conditions that license can have," Patten said.
Rather than going through the appellate courts, Patten appealed directly to the SJC, saying the DePina case concerned basic constitutional rights that required a final determination by the state's highest court.
On Sept. 16, the SJC agreed to hear the case, and put out a call for amicus briefs. The Bristol County District Attorney's Office is expected to file its response later this month.
On Nov. 5, the SJC is also scheduled to hear arguments in Commonwealth v. Richard Runyan, a case in which the constitutionality of the state's safe firearm storage law is being challenged. The law requires stored firearms to be secured in a locked container or equipped with a tamper-resistant safety device such as a trigger lock.
Both challenges are set against the backdrop of District of Columbia v. Heller, a landmark June 2008 case in which the U.S. Supreme Court ruled that the Second Amendment applies to private citizens in addition to state-regulated militias.
The Heller decision struck down a Washington D.C. gun law that banned residents from owning firearms in their homes for self defense. The law also required any firearms in the district to be kept "unloaded and disassembled or bound by a trigger lock."
However, the Supreme Court said that the right to bear arms could be regulated via constitutionally permissible licensing schemes, although the court did not address what those limits could be.
In the last year, the federal courts have upheld federal laws preventing convicted felons and illegal immigrants from owning guns, as well as upholding laws banning machine guns and making it a crime to carry firearms near schools.
But the question remains as to whether the Second Amendment applies to the states, and not just to laws regulating federal enclaves. Proponents argue it does, saying that the 14th Amendment which guarantees the right of due process extends the individual right to bear arms to all citizens.
"If you're saying the Second Amendment is not incorporated to the states, you're making an anti civil rights argument," said Jim Wallace, president of the Gun Owners Action League of Massachusetts, a pro gun rights group.
"Are you saying that you're working to keep the Bill of Rights out of Massachusetts and the states?" he asked.
The U.S. Supreme Court recently announced that it will hear arguments in McDonald v. Chicago, a case in which the court will decide whether state and local gun controls laws can be challenged under the Second Amendment.
A footnote in the Heller decision left open the possibility that the Second Amendment applied to the states: The court said three 19th century rulings that said the Second Amendment did not extend to the states would probably not meet modern standards of constitutional analysis.
"When you read Heller, it becomes clear that they refer to the right to bear arms as a fundamental right," said Patten, arguing that Massachusetts' firearm licensing laws must conform to that right.
The commonwealth's current firearm licensing law requires residents to first apply to their local police department before acquiring a firearm. Patten argues that is an unconstitutional barrier.
"You can't say people have a right to do something, but the state can come in and say, 'But before you can exercise that right for any reason, you first have to come to us for approval,'" Patten said, adding that there are substantial problems with the current licensing procedures.
"The local police chief decides who is suitable and unsuitable for having a gun license," Patten said. "There is no objective standard. One chief in one town could give you a license. The next in the town over could be a different story."
Wallace agreed, saying: "Local police chiefs can pretty much make up their own rules to give out the gun licenses."
New Bedford police spokesman Lt. Jeffrey P. Silva said his department enforces the law as it is written.
"While the holding in the Heller case is significant, the police will continue to enforce the law until and unless there is a legislative amendment to our statute or a ruling from the SJC of Massachusetts directing otherwise," Silva said.
Edward P. Ryan, a Fitchburg attorney and former president of the Massachusetts Bar Association, said he does not expect Patten's arguments to prevail at the SJC.
"It's an interesting, and unsettled argument, but I don't know if it will prevail here in Massachusetts," Ryan said.
"Heller does not represent some kind of call to arms. It does not stand for the proposition that licensing regulatory schemes are generally unconstitutional," said Ryan, who does expect the state's trigger lock law to be struck down in the Runyan case.
"Trigger locks was one of the points in Heller," Ryan said. "A law in so far that it regulates the storage of weapons in the home is unconstitutional."
Patten unsuccessfully challenged the gun licensing law last year in New Bedford Superior Court. He believes the law will eventually have to rewritten.
"The Legislature will have to figure out how to restrict (access to guns) on a much narrower basis," Patten said. "They will have to write a law that comports with the constitutional standard."
I'll be sharing it around.
Ditto - no mention on the local alphabet networks...(shocker).
The predetermined ruling of the seven robed tyrants, I can guaranty you, has already been written.
Their ruling against these two cases will give cover for a new flurry of anti-2nd legislation.
The USSC case re: Chicago that they are hearing now will effect this outcome. Good to hear that nearly everybody agrees the trigger lock requirement is toast.
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