Criminal – Firearm – Nonresident

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Where the defendant, a New Hampshire resident, was charged with unlawful possession of a firearm in violation of G.L.c. 269, §10(a), a judge’s decision to allow the defendant’s motion to dismiss should be affirmed because the commonwealth’s prior nonresident licensing scheme in effect at the time of the defendant’s arrest violates the Second Amendment.

“In August 2022, the defendant moved to dismiss the unlawful possession charge arguing, inter alia, that the nonresident licensing scheme violated his rights under the Second Amendment to the United States Constitution. In his motion, the defendant relied on the United States Supreme Court’s then-recently decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (Bruen). The Bruen decision called into question the discretionary ‘may issue’ language that appeared in the Commonwealth’s then-existing nonresident firearm licensing scheme. G.L.c. 140, §131F (§131F), as amended through St. 2014, c. 284, §§60, 63.

“A judge in the District Court allowed the defendant’s motion, concluding that a law-abiding citizen exercising his constitutional right to carry a firearm for self-defense cannot be charged with unlawful possession of a firearm while traveling through the Commonwealth. In allowing the motion, the judge found that §10(a) was unconstitutional as applied to the defendant. After the Commonwealth appealed, we granted its application for direct appellate review.

“… Here, we examine the prior ‘may issue’ version of §131F in effect at the time of the defendant’s arrest. For the reasons discussed below, we hold that the Commonwealth’s prior nonresident licensing scheme violates the Second Amendment under the Bruen decision. Accordingly, we affirm the dismissal of the §10(a) charge against the defendant. …

“… Our holding today does not, as the Commonwealth suggests, preclude it from requiring firearm licenses for persons within its borders. … 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.”

Commonwealth v. Donnell (Lawyers Weekly No. 10-027-25) (22 pages) (Gaziano, J.) A motion to dismiss was heard by John F. Coffey, J., and a motion for reconsideration was considered by him. Ryan J. Rall for the commonwealth; Patrick Levin for the defendant; the following submitted briefs for amici curiae: Nicholas M. Berg, Jason P. Roskom, Thanithia Billings and Katherine D. Kearns for Giffords Law Center to Prevent Gun Violence and another; Jason Gerhard, pro se; C.D. Michel, Konstadinos T. Moros and Jason A. Guida for California Rifle & Pistol Association, Incorporated, and others; Erin M. Erhardt, Joseph G.S. Greenlee, Adam Kraut and Edward F. George Jr. for National Rifle Association of America and another; John Parker Sweeney, James W. Porter III, William Chadwick Lamar Jr., James M. Campbell and Christopher R. Howe for Gun Owners’ Action League, Inc.; Jay Edward Simkin, pro se; Andrea Joy Campbell, Carlos Cousins, Grace Gohlke and Nicole Nixon for the Attorney General; John M. Formella, Anthony J. Galdieri and Brandon F. Chase for the state of New Hampshire; Joshua M. Daniels and Lisa J. Steele for Massachusetts Association of Criminal Defense Lawyers; James Ostrowski and Dan Hynes for New Hampshire Firearms Coalition, Inc., and another; Clark M. Neily III, Christopher D. Barnewolt and Kevin J. Powers for Cato Institute (Docket No. SJC-13561) (March 11, 2025).

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