MA GUN LAWYER

Appellate and trial courts across the country have been consistently repeating language from the US Supreme Court (SCOTUS) cases Bruen and Heller for the proposition that states, like Massachusetts, requiring gun licensing, enjoy a “presumption” that such laws are constitutional.

But did SCOTUS really mean by this that therefore a state can put whatever burdensome or onerous processes it wishes into a licensing regime?

For example, in a decision last year, Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211, 222 (4th Cir. 2024) (en banc) cert. denied, 145 S. Ct. 1049 (2025), the court held “[N]ondiscretionary ‘shall-issue’ licensing laws are presumptively constitutional.”

However, all this means is that as the Bruen Court noted, unlike with respect to “may-issue” states like Massachusetts, in shall-issue states, there exist objective criteria defined in the law that guides the decision as to whether the applicant is to be granted the firearms license. The Court nowhere said, however, that in those states that have such criteria, those criteria are untouchable and their constitutionality beyond question.

No matter how many times it is claimed that Massachusetts is somehow now a “shall issue” state, it is not. Its gun licensing law with its “unsuitability” provision- G.L. c. 140, s131- creates an entirely subjective grant/deny, or suspend/do not suspend, decision by the licensing authority (chief of police) without reference to any objective criteria. Bruen itself says that this type of paradigm makes in a may-issue state. The Bruen Court even referenced the Bay State by name in this regard, including it in the small list of may-issue states.

Watch for this critical distinction in the coming months, hopefully including, and especially, from the US Supreme Court.