The Bay State can require out-of-state visitors to obtain a special permit for their lawfully owned firearms, but only if the state grants those permits using objective standards.
That was the holding the Massachusetts Supreme Court reached in a pair of related decisions Tuesday. The state’s high court upheld the dismissal of felony gun charges against one New Hampshire man while reinstating similar charges against a separate New Hampshire resident. The distinction, the court ruled, lay in the version of Massachusetts’ gun-carry laws the state charged them under.
“Our holding today does not, as the Commonwealth suggests, preclude it from requiring firearm licenses for persons within its borders,” Massachusetts Supreme Court Justice Frank Gaziano wrote in Commonwealth v. Donnell. “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.”
By contrast, the court ruled that charges filed for an offense committed after Massachusetts amended its gun-carry laws to align with the Supreme Court’s 2022 New York State Rifle and Pistol Association v. Bruen decision are constitutionally sound.
“In sum, the defendant’s facial challenge to the constitutional validity of the Commonwealth’s nonresident firearm licensing scheme fails,” Massachusetts Supreme Court Justice Frank Gaziano wrote in Commonwealth v. Marquis. “We therefore reverse the motion judge’s order allowing the defendant’s motion to dismiss.”
The pair of rulings together allows Massachusetts, a state with some of the strictest gun laws in the country, to continue with its current restrictions on out-of-state visitors. That conclusion deals a blow to gun-rights advocates hoping for a more expansive reading of Second Amendment protections, including requiring Massachusetts to honor carry practices from other states. However, the rulings also reaffirmed the state’s old carry regime was unconstitutional.
Both cases involved gun owners traveling from New Hampshire, a state that allows its residents who can legally possess a firearm to also carry it openly or concealed without a permit.
Dean Donnell was arrested in 2021 by the Massachusetts State Police on suspicion of drunk driving after he crashed his car on a state highway. Responding officers found a loaded pistol in a duffle bag in the back seat of his car. He was subsequently charged with carrying a firearm without a license, an offense carrying a mandatory minimum sentence of 18 months in prison under Massachusetts law.
A state court judge tossed those charges in August 2023 on Second Amendment grounds, but the state appealed. The Massachusetts Supreme Court upheld the dismissal Tuesday because it said the charges relied on old statutory language that gave licensing officials subjective discretion to deny non-residents the ability to carry firearms in the state–often referred to as “may issue” permitting.
“Not only did the version of § 131F in force at the time of the offense contain ‘may issue’ language, but it also allowed the licensing official to deny a temporary license to a nonresident based on ‘such terms and conditions as [the] colonel may deem proper,'” Gaziano wrote. “These provisions place § 131F squarely into the category of firearm restrictions that the Supreme Court rejected in Bruen.”
The defendant in the other case, Philip Marquis, ran into trouble in 2022 following a minor traffic accident while driving from his home in New Hampshire to work in Massachusetts. When officers responded to the crash, he informed them that he had an unloaded pistol in his pocket and did not possess a Massachusetts license to carry. The state later charged him with unlawful possession of a firearm.
Like in Donnell, a lower court judge initially dismissed Marquis’ charges after finding they violated his Second Amendment rights. However, the state Supreme Court reinstated them on Tuesday. First, it ruled Marquis didn’t have standing to challenge the law because he didn’t apply for a non-resident permit. However, it then said that the legislature’s removal of discretionary “may-issue” language from Massachusetts’ carry law in 2022 meant that the law now comports with Bruen and its history-based test.
“To the extent that the Commonwealth restricts the ability of law-abiding citizens to carry firearms within its borders, the justification for so doing is credible, individualized evidence that the person in question would pose a danger if armed,” Gaziano wrote. “Both case law and the historical record unequivocally indicate that this justification is consistent with ‘the Nation’s historical tradition of firearm regulation.'”
Gaziano added that “how” the state’s licensing regime impacts the right to bear arms has also already been blessed by the US Supreme Court in both Bruen and Rahimi, in particular through analogies to “surety and going armed laws.'”
“It follows that the Commonwealth’s nonresident firearm licensing scheme is facially valid,” he concluded. “Accordingly, the order allowing the defendant’s motion to dismiss is reversed.”
