Lack of license deemed an element of firearm possession

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A defendant’s firearms convictions have been vacated by the Supreme Judicial Court because the jurors were not instructed that the commonwealth had to prove beyond a reasonable doubt that the defendant did not have a valid firearms license.

The statute under which the defendant was convicted, G.L.c. 269, §10, exempts someone who has been issued a firearms license. At the defendant’s trial, the judge did not instruct the jury on that exemption.

“In the wake of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen), 142 S. Ct. 2111, 2122 (2022), in which the Court held that the Second Amendment to the United States Constitution protects an individual’s right to carry a firearm in public, our existing precedent that licensure is an affirmative defense, and not an element of the offense the Commonwealth is required to prove, must be revisited,” Justice Frank M. Gaziano wrote for the SJC.

“Because possession of a firearm in public is constitutionally protected conduct, in order to convict a defendant of unlawful possession of a firearm, due process requires the Commonwealth prove beyond a reasonable doubt that a defendant did not have a valid firearms license,” Gaziano stated.

The court thus concluded that the absence of a license is an essential element of the offense of unlawful possession of a firearm pursuant to G.L.c. 269, §10(a).

“General Laws c. 278, §7, which provides that licensure is an affirmative defense, is no longer applicable to G.L.c. 269, §10(a). … Rather, to convict a defendant of unlawful possession of a firearm, the Commonwealth must prove ‘as an element of the crime charged’ that the defendant in fact failed to comply with the licensure requirements for possessing a firearm,” Gaziano said.

The 70-page decision is Commonwealth v. Guardado, Lawyers Weekly No. 10-039-23.

Click here to read the full text of the opinion.