MA GUN LAWYER

Yesterday—January 20, 2026—the U.S. Supreme Court heard argument in Wolford v. Lopez (No. 24-1046), a case about a government trying to flip the default rule of liberty into a default rule of prohibition: you may not carry on most private property open to the public unless the owner affirmatively says “yes.”

That fact pattern is Hawaii’s. But the constitutional pathology is familiar to anyone who practices or lives under Massachusetts firearms law:

Treating the Second Amendment like a conditional privilege—dispensed by “permission” and “discretion”—rather than a right.

And the Supreme Court itself—right in the middle of Wolford—put a name on what’s going on.

1) Perhaps the biggest “second-class right” moment at the Supreme Court so far…

During argument, Justice Alito confronted Hawaii’s counsel with a blunt charge:

“…you’re just relegating the Second Amendment to second-class status.”

And the pushback from the State’s side was telling—not “we don’t do that,” but essentially “the Second Amendment doesn’t have the same components as other rights,” coupled with the insistence that it’s “not a second-class right.”

That exchange matters because it frames the real dispute: Does a state get to build a legal architecture that—functionally—puts the right behind extra locks and gates that other enumerated rights don’t face?

The U.S. government’s merits brief in Wolford hammered the doctrinal core: Bruen already rejected the idea that the right to bear arms is “a second-class right, subject to an entirely different body of rules.”

That principle is not window dressing. It’s the constitutional floor.

2) What Wolford is really about: “default bans” and the conversion of rights into permissions

The petitioners’ Wolford brief explains the challenged Hawaii scheme in plain terms: it presumptively prohibits carry on private property open to the public unless the owner gives express permission.

In opening, petitioners told the Court Hawaii “run[s] roughshod over that constitutional right” by making carry criminal “unless” the citizen first secures affirmative permission.

Even if you set aside the property-law debate and focus only on constitutional structure, the key point is this:

• A right normally operates on a presumption of liberty.
• A permission regime operates on a presumption of restraint—then lets the citizen plead their way into the exception.

And that is precisely the second-class move the Court has repeatedly condemned in Second Amendment cases—especially after Bruen.

3) Massachusetts “unsuitability” does the same thing—just with a different label

Massachusetts’ modern LTC statute says the licensing authority “shall issue” if the applicant is not prohibited and is not “determined to be unsuitable.”

But the devil is in what “unsuitable” means in practice—and even in the statutory definition.

Massachusetts now defines “unsuitability” in predictive, discretionary terms: it can rest on “reliable, articulable and credible information” suggesting the applicant “may” create a risk to public safety or danger to self or others.

That may sound like a tightening compared to the bad old days. But constitutionally, the structure is still the same:

• No conviction required.
• No enumerated, objective disqualifier required.
• A forward-looking judgment about what someone “may” do is enough—so long as the decisionmaker calls the information “reliable” and “credible.”

That is not how we treat other enumerated rights.

Imagine a licensing chief with authority to deny a parade permit because—based on “reliable information”—the applicant may cause disorder. Or to deny a journalist access because the journalist may publish misinformation. We’d recognize the scam immediately: the right is being converted into an administrative grace.

4) Wolford supplies the constitutional yardstick that Massachusetts still fails

The U.S. brief in Wolford did something especially useful for challenging regimes like Massachusetts: it emphasized that courts can look at a law’s design, operation, and enforcement to determine whether it genuinely serves legitimate ends—without playing mind-reader about subjective motives.

That is exactly where Massachusetts “unsuitability” collapses as a right-respecting framework:

A. “May create a risk” is not an objective limiting principle—it’s a subjective discretion juggernaut

A standard that turns on what someone “may” do is inherently elastic. It invites uneven application across towns, chiefs, and political climates—precisely the kind of arbitrary administration Bruen warned against when it rejected discretionary “proper cause” carry schemes.

B. The real-world pattern looks like second-class treatment

Massachusetts “unsuitability” decisions have repeatedly shown how the standard can sprawl beyond the individual, beyond adjudicated conduct, and into guilt-by-association territory. A very recent Massachusetts case illustrates the point: an applicant allegedly denied as “unsuitable” based on the spouse’s conduct and controversies swirling around someone else—exactly the kind of “predictive” and attenuated logic that would be intolerable if applied to core First Amendment activity.

C. The constitutional inversion: the citizen must prove “worthiness”

Under “unsuitability,” the practical burden often becomes: prove you’re safe enough, calm enough, respectable enough, ordinary enough. That is a character-licensing regime. It’s the opposite of how constitutional rights are supposed to work.

Wolford is about the government flipping the default rule in public carry. Massachusetts flips the default rule in eligibility: the Commonwealth starts from “you may exercise the right unless an official decides you’re unworthy,” using an open-ended predictive standard.

5) The constitutional bottom line: Massachusetts is still living in the “second-class” world Bruen rejected

If the Second Amendment is not “a second-class right,” then the state cannot do—by indirection—what it cannot do directly: create a regime where the right exists on paper but is contingent in reality.

That is why Wolford matters to Massachusetts even though the facts are Hawaii’s:

• Wolford spotlights the Supreme Court’s impatience with structures that turn constitutional carry into conditional permission.
• Massachusetts “unsuitability” remains a structure that turns constitutional possession/carry into conditional permission—because it relies on a predictive, discretionary judgment about what an applicant “may” do, rather than objective disqualifiers tied to historically grounded limits.

If Wolford produces what it should—a reaffirmation that the Second Amendment cannot be treated as a substandard right—Massachusetts is going to have to answer a hard question:

Why does the Commonwealth still insist on a licensing regime where a fundamental right can be denied on a subjective forecast of future risk, untethered from objective, historically accepted disqualifications?

That question is coming in my Pratt v. Westbrook case now pending at the Massachusetts Supreme Judicial Court.

And yesterday’s argument showed that at least some Justices are prepared to call the massive problem of the Massachusetts “unsuitability” law by its real name: second-class status.