As FPC Action Foundation’s Cody J. Wisniewski said on Bearing Arms’ Cam & Co yesterday, since the Bruen decision was handed down by the Supreme Court last year we’re starting to see lower courts around the country start to take the Second Amendment a little more seriously. While we’ve still seen some egregiously awful misreadings of Bruen over the past twelve months, we’ve also seen some major successes, including one case out of Massachusetts that addresses the fact that in many states, your right to keep and bear arms stops at the state line.
As The Reload’s Jake Fogelman reports, a Massachusetts judge recently concluded that the state’s prohibition on non-residents bearing arms for self-defense without first obtaining a temporary license to carry is a violation of their Second Amendment rights; a stunning development in a state where lawmakers are currently trying to obliterate the 2A rights of gun owners inside the borders as well.
“An individual only loses a constitutional right if he commits an offense or is or has been engaged in certain behavior that is covered by 18 USC section 922,” Judge Coffey wrote on August 3rd in Commonwealth of Massachusetts v. Dean F. Donnell. “He doesn’t lose that right simply by traveling into an adjoining state whose statute mandates that residents of that state obtain a license prior to exercising their constitutional right. To hold otherwise would inexplicably treat Second Amendment rights differently than other individually held rights. Therefore, the Court finds that GL. 269, sec. (10a) is unconstitutional as applied to this particularly situated defendant and allows the motion to dismiss on that ground.”
The ruling could have significant implications for determining the scope of the right to carry a firearm in public. It is one of the first legal decisions to address gun-carry rights across state lines since the Supreme Court recognized a general public carry right in New York State Rifle and Pistol Association v. Bruen last June. It could fuel gun-rights advocates’ push for the right to travel in all 50 states with firearms in public, also known as “national reciprocity.”
The defendant in the case, Dean Donnell, is a legal resident of New Hampshire. New Hampshire is a permitless gun carry state, meaning anyone 18 years of age or older who can legally possess a firearm may carry it in public openly or concealed. It also issues carry permits to residents for reciprocity purposes. However, Massachusetts does not honor New Hampshire permits.
Judge Coffey’s order does not specify whether or not Donnell had a valid New Hampshire permit, only that he “was in compliance with his home states laws on the possession of the firearm” when Massachusetts charged him. The law under which he was charged, GL. 269, sec. (10a), creates a mandatory minimum sentence of 18 months in prison for anyone convicted of possessing a firearm in public without a license.
Judge Coffey wrote that Donnell’s conduct was “clearly covered by the Second Amendment.” Therefore, under the standard of review set in Bruen, he said the Government of Massachusetts needed to show a historical tradition “relating to disparate treatment of nonresidents” to uphold the law.
The state couldn’t do that. Instead, attorneys argued that previous decisions had upheld the state’s authority to require a permit to carry, and that the non-resident permit process complied with the Bruen decision. Coffey disagreed, pointing out that the resident and non-resident permits are substantively different from each other.
As stated above, prior to the Bruen decision, Massachusetts treated the carrying of a firearm as a privilege,” he wrote. “While it allowed nonresidents to apply to obtain a license for that privilege, nonresidents were not treated the same as residents. Residents of Massachusetts obtaining a license were granted the license for five years. A temporary non resident license was only valid for one year.”
As a result, Coffey held that the state failed to meet its burden in proving that Donnell’s conduct was not constitutionally protected and warranted a felony charge.
“This Court can think of no other constitutional right which a person loses simply by traveling beyond his home state’s border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentence of incarceration,” Coffey added.
Coffey’s decision isn’t an immediate game-changer for anyone other than Dean Donnell, but it’s very good news for gun owners across the country and a sign that the courts are going to have to take this issue seriously. Why should I be able to exercise my right to bear arms in my home state of Virginia but lose that right when I cross the Potomac into Maryland? Why should anyone visiting places like California or New York be deprived of their Second Amendment rights when they cross the state line? Or maybe a better question to ask is why authorities in these states think they can get away with violating the constitutional rights of non-residents?
For far too long the answer has been “because they haveLawful Citizens Imprisonment Act gotten away with it”, but that looks to be changing. Coffey’s decision may not have set a state-or-nationwide precedent, but it opens the door for more challenges to Massachusetts’ unconstitutional deprivation of the right to keep and bear arms for visitors to the state, as well as giving anti-gun lawmakers something else to wrestle with as they try to revive their “” for another go-round this fall.