By Attorney William S. Smith, Princeton, MA
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For more than a decade the United States Supreme Court has made one thing clear: the Second Amendment is not a second-class constitutional right. Yet in Massachusetts, the everyday operation of our firearms licensing system continues to treat it as precisely that.
My current case, Pratt v. Westbrook, before the Massachusetts Supreme Judicial Court illustrates the problem vividly. This week I filed the appellate brief I have prepared in Westbrook.
The case involves my client, Randy Westbrook, a law-abiding citizen who applied for a License to Carry (LTC). His application was denied by a local police chief based on the chief’s subjective determination that Mr. Westbrook was an “unsuitable person” under Massachusetts law. That vague label — “unsuitable” — is the centerpiece of the state’s firearms licensing regime. And it is exactly the sort of discretionary standard the U.S. Supreme Court condemned in New York State Rifle & Pistol Association v. Bruen (2022).
The question now before the SJC is whether Massachusetts will finally bring its “unsuitability” law into line with the Constitution.
A System Built on Subjective Power
Massachusetts General Laws Chapter 140 §131 allows a police chief to deny a firearms license if the chief believes the applicant “may create a risk to public safety.” The statute provides no meaningful definition of what that means.
When I cross examined him, the licensing authority testified that his decision was based not on objective standards, but on his “31 years of police experience.”
Think about that for a moment.
No written criteria.
No measurable standards.
No clear threshold of evidence.
Just the personal judgment of a single government official.
That sort of open-ended discretion would be unthinkable if applied to other constitutional rights. Imagine if a police chief could deny someone the right to publish a newspaper or hold a protest because the chief felt, based on his experience, that the person might pose a future risk. Yet that is precisely how the Second Amendment is treated in Massachusetts.
The Supreme Court Has Already Rejected This Model
In District of Columbia v. Heller, the Supreme Court confirmed that the right to keep and bear arms is an individual constitutional right.
Fourteen years later, Bruen established a clear test: if the Second Amendment’s plain text covers an individual’s conduct, the government must justify any restriction by showing it is consistent with the nation’s historical tradition of firearm regulation.
In other words, the burden is on the government — not the citizen.
Yet Massachusetts continues to operate under a framework that does the exact opposite. When a license is denied, the applicant must go to court and prove the police chief acted improperly. The system presumes the denial is valid unless the citizen can prove otherwise.
That is backwards under Bruen.
Denied Based on Allegations from a Decade Ago
The facts of Mr. Westbrook’s case show how dangerous this system can be.
His license was denied largely because of criminal charges from 2010 and 2014 — events more than a decade old at the time of his application. Those cases were not convictions; one charge was dismissed after probation and another case had been resolved years earlier.
Nonetheless, the police chief concluded that these long-resolved allegations meant Mr. Westbrook might pose a future danger if allowed to exercise his Second Amendment rights.
There was no judicial finding of dangerousness.
No present threat.
No objective standard explaining why decade-old allegations should control the outcome.
Just subjective discretion.
The Historical Record Doesn’t Support Massachusetts’ Law
Under Bruen, the state must show that its licensing scheme is consistent with historical firearm regulations.
It cannot.
The government often points to colonial “surety” laws or “going armed” statutes as historical analogues. The SJC in its Marquis decision last year similarly did. But these laws were fundamentally different.
Surety laws did not permanently disarm people. They required individuals accused of threatening behavior to post a bond as a temporary measure. They involved judicial oversight and specific evidence of dangerous conduct, moreover.
Massachusetts’ present-day “unsuitability” system does none of that. It allows permanent or indefinite denial of a constitutional right based on speculation about what someone might do in the future.
That is not history.
That is administrative guesswork.
Predictive Disarmament Is Constitutionally Suspect
Another troubling aspect of the Massachusetts scheme is that it allows officials to deny rights based on predictions of future dangerousness.
That concept is extremely suspect in constitutional law, at best. Courts historically allowed disarmament of people who were convicted of serious crimes or who had been judicially determined to be dangerous. But they did not allow the government to strip citizens of their rights simply because an official believed they might become dangerous someday.
As the federal courts have increasingly recognized after Bruen, the legislature cannot simply label people “dangerous” and strip them of constitutional rights without historically grounded procedures.
The Broader Problem
Mr. Westbrook’s case is not om the least an isolated incident here in Massachusetts. It reflects a deeper structural problem in our state’s firearms law.
The state remains one of the few jurisdictions where officials retain sweeping discretionary authority to decide who may exercise the right to bear arms. Despite legislative tweaks following Bruen, the core system remains unchanged: a police chief may deny (or suspend) a license whenever he believes an applicant “may pose a risk.”
That is not an objective licensing system.
It is a permission slip.
And constitutional rights are not supposed to depend on permission from local officials. Permissions slips are the stuff of a privilege, not a constitutional right.
Why This Case Matters
This appeal gives the Massachusetts Supreme Judicial Court an opportunity to confront a fundamental question:
Will Massachusetts finally treat the Second Amendment like the rest of the Bill of Rights?
If the Constitution means what the Supreme Court says it means, then the answer should be clear. Licensing laws must rely on objective standards grounded in historical tradition. They cannot rest on vague predictions and personal judgments.
The right to bear arms is not reserved for those whom government officials deem worthy. It belongs to ordinary, peaceable citizens.
My client is asking for nothing more than that.
And the Constitution demands nothing less.
MA GUN LAWYER 
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