MA GUN LAWYER

On March 11, 2025, the Massachusetts Supreme Judicial Court held 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. Bruen, supra.”

The SJC was talking about the Massachusetts non-resident licensing law as it existed pre-Bruen (the seminal US Supreme Court decision). It was spot on correct in this regard.

So….then…..

How can it be that the current Massachusetts resident (and non-resident) licensing law, which does the same exact same thing, i.e., “vest an official with the discretion to deny a license to a qualified applicant,” in contrast is consistent with Bruen?

After all, being “qualified” (suitable) is itself an entirely subjective determination made by the police chief that the applicant “may pose a public safety risk.” G.L. c. 140, s131. “Qualified,” by definition, to be consistent with Bruen in this context, would have to mean after the application of objective criteria. The problem is, there is all of NO OBJECTIVE CRITERIA in the Massachusetts “suitability” licensing provision.

Enter Marquis.

On the same day it decided Donnell, the SJC decided another case, Commonwealth v. Marquis. There, the Massachusetts Supreme Judicial Court (SJC) upheld the constitutionality of the state’s revised nonresident firearm licensing scheme, affirming that it aligns with both the Second and Fourteenth Amendments.

The SJC first determined that Marquis lacked standing for an as-applied challenge because he had not applied for, and been denied, a nonresident firearm license under the current law. However, the court proceeded to assess the facial constitutionality of the revised licensing scheme. Saying it was applying the framework from Bruen and further clarified in United States v. Rahimi (2024), the SJC concluded that what it sees as the “shall issue” nature of the current law, which requires nonresidents to meet specific criteria to obtain a license, is consistent with the nation’s historical tradition of firearm regulation. The court emphasized that the law aims to restrict access to firearms by demonstrably dangerous persons, a purpose deemed constitutionally sound.

The new non-resident process is the same as the one for Massachusetts residents.

How can Massachusetts possibly be deemed a “shall issue” state? After all, Bruen specifically separated Massachusetts (and a handful of other states) as “may issue” states, meaning having subjective decision-making in the licensing process, but without reference to any objective criteria.

As the SJC said in 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. Bruen, supra.” How can this be squared with Marquis?

So are they saying in Donnell that by “qualified,” they meant: If a police chief first deems you based on his or her subjective judgment to be “suitable”?

Because if so, the US Supreme Court in Bruen plainly and clearly said otherwise.

“Qualified” means, at its core, reaching some objective standard. And that is just it: The definition of “unsuitable” has all of no standard, and no criteria. It is simply if the chief of police believes you “may pose a public safety risk…”

The licensing authorities’ lawyers and those for the Commonwealth have been arguing that the separate provisions in the law such as that a denial or suspension must be based on ‘reliable and credible information” are, in fact, such “criteria.” The SJC in Marquis seems to be suggesting the same.

However, with all due respect, this is not “criteria.” Criteria means what factor or factors are to be applied by the licensing authority (chief of police) in making his or her determination that you are “unsuitable.” For example, if one was charged in the past, how many years must transpire before such past conduct can no longer be considered in the licensing decision. What type of conduct may or may not be considered in this decision? There are all of no such objective criteria defined anywhere in Massachusetts law.

My Westbrook case illustrates this perfectly. When I asked the chief of police at the District Court hearing what criteria he had used in denying my client his firearms license, he testified it was merely his experience as a police chief.

No, Commonwealth of Massachusetts. These things are not the objective criteria of which the US Supreme Court spoke in Bruen.