Supreme Court flips playing field for gun rights lawyers

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Second Amendment attorneys are eager to shape a new legal landscape in Massachusetts in the wake of a landmark affirmation of gun rights by the U.S. Supreme Court.

On June 23, the U.S. Supreme Court in a 6-3 decision struck down a New York law requiring an applicant to show “proper cause” to obtain a concealed carry license.

Under the law, an individual seeking a license to carry a firearm outside the home was required to show a “special need for self-protection distinguishable from that of the general community.”

Writing for the majority in New York State Rifle & Pistol Assn. v. Bruen, Justice Clarence Thomas said New York’s proper-cause requirement violated the 14th Amendment by preventing “law-abiding citizens” with “ordinary self-defense needs” from exercising their Second Amendment right to keep and bear arms in public for self-defense.

“We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Thomas wrote.

The hand-wringing by media pundits in the wake of Bruen perplexes Princeton attorney William S. Smith.

“At its core, the decision does little more than state the obvious: The text of the Second Amendment guarantees the right of law-abiding, peaceful Americans to carry firearms in self-defense outside the home,” Smith says.

But what has been obvious to Smith and the majority in Bruen has not been shared by lawmakers in Massachusetts. The state has its own analog to New York’s gun law in G.L.c. 140, section131(d), which provides a list of categories of people prohibited from obtaining a license to carry — most notably those with certain disqualifying criminal convictions.

Otherwise, the statute directs that a license to carry shall be granted to an applicant who “has good reason to fear injury” to themselves or their property. Moreover, the statute authorizes the licensing authority to deny an application to applicants or licensees deemed “unsuitable.”

The majority in Bruen noted the parallels between the “proper cause” requirement struck down in the New York law and similar requirements in Massachusetts.

“The law at issue in Bruen that the Supreme Court invalidated was virtually identical to the Massachusetts LTC restrictions,” Smith says.

Seeing the handwriting on the wall, Attorney General Maura T. Healey’s office and the Executive Office of Public Safety & Security issued guidance on July 1 explaining how the state’s gun laws should be implemented in the aftermath of Bruen.

Most notably, the guidance makes clear that licensing authorities should no longer enforce the “good-reason” provision of the license-to-carry statute.

“Authorities should no longer deny, or impose restrictions on, a license to carry because the applicant lacks a sufficiently good reason to carry a firearm,” the guidance states.

On the other hand, the new guidance leaves intact the “prohibited person” and “suitability” provisions of the LTC statute.

But firearms attorneys view the statute’s suitability provision as being imperiled by Bruen, too.

“We anticipate that the Bruen decision will impact not only the requirement that license applicants demonstrate a showing of need but also the subjective determination of the suitability of the applicant,” says Saugus attorney Jason A. Guida, a former director of the state Firearms Records Bureau and a former counsel to the Firearms Licensing Review Board.

“The [Bruen] court did imply that that’s next on the chopping block — the idea that a police captain can say you don’t seem to be the kind of person who needs a gun license because you were arrested 20 years ago,” Boston firearms attorney Matthew W. Peterson says.

In fact, Peterson says that getting rid of the “suitability” determination would have more of an impact in Massachusetts than bidding farewell to the good-reason standard in terms of those who are otherwise eligible to obtain a license.

“Generally, suitability is the reason why people get denied a license,” Peterson says. “I don’t get a lot of calls from people who say they were denied because they didn’t give a good-enough reason [to fear injury].”

Smith likewise sees so-called “suitability” denials, suspensions and revocations as being called into question under Bruen.

“Of course, the state can permissibly regulate and intervene in instances where there is a manifest present and/or future danger palpably established by the licensing authority,” Smith says. “However, a great many ‘suitability’ licensing actions in Massachusetts, from my experience, do not fall into this category.”

For example, he points to one of his clients who lost his license to carry due to a case of intoxication at a private residence.

“No gun was on him — or near him — and all his firearms were securely locked up in a safe at home a mile away,” Smith says. “Despite this, the police suspended his LTC in 2020 and it remains suspended to this day.”

Smith says he has another client who lost his LTC because he allegedly gave someone the finger and acted in a manner the police found indicative of some unspecified “mental health issue.”

“Bruen will encourage some people who may not otherwise have decided to appeal licensing decisions to do so,” Smith predicts.