THE RIGHT TO BEAR ARMS IN MASSACHUSETTS UNDER THE MASSACHUSETTS CONSTITUTION/DECLARATION OF RIGHTS
Massachusetts, which is joined by joined by California, Illinois, Connecticut, New Jersey, New York, Hawaii, and Maryland, has some of the most restrictive gun laws in the United States. Without getting into a discussion of politics this segment will focus primarily upon the basis for a Massachusetts resident’s right to keep and bear arms.
Under Art. XVII: of the Massachusetts Constitution (otherwise known as the Massachusetts Declaration of Rights – and which arguably offers criminal defendants greater rights than the United States Constitution) The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.
In interpreting Art. XVII to that point, there are three cases which are commonly used. The first one is Commonwealth vs Davis which says in relevant part:
The meaning of such provisions is to be gathered from their history which is reasonably well known and need not be reviewed here in detail. See Feller Gotting, The Second Amendment: A Second Look, 61 Nw. U.L. Rev. 46 (1966); Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi.-Kent L. Rev. 148 (1971). The colonists distrusted standing armies and preferred to look to a militia — “civilians primarily, soldiers on occasion” — for protection. Article 17 expresses the distrust in its second sentence. It refers to the preference in the first: the declared right to keep and bear arms is that of the people, the aggregate of citizens; the right is related to the common defense; and that in turn points to service in a broadly based, organized militia. Provisions like art. 17 were not directed to guaranteeing individual ownership or possession of weapons. See Salina v. Blaksley, 72 Kan. 230, 231-232 (1905); Burton v. Sills, 53 N.J. 86, 96-97 (1968). This generalization is perhaps subject to a qualification: Militiamen customarily furnished their own equipment and indeed might be under legal obligation to do so. See United States v. Miller, 307 U.S. 174, 179-181 (1939); State v. Dawson, 272 N.C. 535, 546 (1968). A law forbidding the keeping by individuals of arms that were used in the militia service might then have interfered with the effectiveness of the militia and thus offended the art. 17 right. But that situation no longer exists; our militia, of which the backbone is the National Guard, is now equipped and supported by public funds. See, e.g., G.L.c. 33, § 101 (payment by Commonwealth for clothing and equipment of units of its military forces). Moreover, the statute at bar is part of a large regulatory scheme to promote the public safety, and there is nothing to suggest that, even in early times, due regulation of possession or carrying of firearms, short of some sweeping prohibition, would have been thought to be an improper curtailment of individual liberty or to undercut the militia system. Very generally it has been held that such regulation is compatible with State constitutional provisions on the subject of the right to bear arms. Our own case of Commonwealth v. Murphy, 166 Mass. 171 (1896), is to that effect. It may be noted that some of the State constitutional provisions can be distinguished from our own because they speak of arms for self-defense as well as for defense of the State; even so, a regulatory power is not necessarily excluded. See People v. Brown, 253 Mich. 537, 538, 540 (1931); People v. McFadden, 31 Mich. App. 512, 515-516 (1971); State v. Robinson, 217 Or. 612, 615, 619 (1959) Commonwealth v. Davis, 369 Mass. 886, 887-89 (Mass. 1976)
The second case of Commonwealth v. McCollum focuses upon the fact that the Second Amendment of the US Constitution protects the right of a Massachusetts resident to have a handgun in the home for the purpose of self-defense
In District of Columbia v. Heller, 554 U.S. 570, 635 (2008), the United States Supreme Court held that the Second Amendment protects ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’ Two years later the Court in McDonald v. Chicago,130 S. Ct. 3020, 3050 (2010), extended the holding in Heller by concluding that ‘the Second Amendment . . . right to possess a handgun in the home for the purpose of self-defense . . . applies equally to the Federal Government and the States.’ See Powell, 459 Mass. at 589-591 (discussing Heller and McDonald). Commonwealth v. Williams, 09-P-813, at *1 (Mass. Aug. 3, 2011)
In the third case of Commonwealth v. Colon the possessor of the firearm or ammunition had to show that they are properly licensed to avoid criminal liability
General Laws c. 269, § 10 ( a), prohibits knowing possession of a firearm without a license. General Laws c. 269, § 10 ( h), prohibits possession of a firearm or ammunition without a firearm identification card. We have held that, in prosecutions under these provisions, the Commonwealth does not need to present evidence to show that the defendant did not have a license or firearm identification card because “`the burden is on the defendant’ to come forward” with such evidence. Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985), quoting Commonwealth v. Jones, 372 Mass. 403, 406 (1977). Commonwealth v. Parzick, 64 Mass. App. Ct. 846, 851 (2005). We have held further that the presumption that the defendant is not authorized to carry a firearm is constitutional. See Commonwealth v. Jones, supra at 404, 407-409. Moreover, the defendant’s contention — that it should be the Commonwealth’s burden to prove a lack of license or a firearm identification card because they are essential elements of the crimes charged — has been rejected. See id. at 406 (“Absence of a license is not `an element of the crimes,’ as that phrase is commonly used”) Commonwealth v. Colon, 449 Mass. 207, 225-26 (Mass. 2007). DISCLAIMER: This and other segments posted on this website are offered for informational, educational and discussion purposes only and is not offered as nor to be construed to be legal advice. .