Dealing with old convictions

A client came to me because he could not renew the Firearms Identification Card (FID) that he has had for over 30 years.

In his youth, he had broken a window. He was charged with Breaking and Entering to commit a larceny. When he went to court, they told him that if he pleaded guilty that he would only have to pay for the window, and nothing else would happen. What they didn’t tell him was that he was pleading guilty to a felony. After five years went by, he was able to get an FID and go hunting. He was an avid hunter for over 30 years.

When Massachusetts changed the gun laws in 2015, they did away with the five year rights restoration for many convictions. Because of this change, my client was unable to renew his FID, and all of his hunting rifles were confiscated by the police.

We brought the case forward and explained to the judge that he had inadequate legal representation when he was arraigned, and that if he had adequate representation, he would not have pleaded guilty to a felony at his first court appearance. The judge agreed and vacated the conviction.

He applied for, and recently received, a License to Carry (LTC)

RE: Denial of Your Firearms Identification Card Application

Many Massachusetts residents have been receiving these letters due to old court cases that were not considered disqualifying crimes before 2015. Since the passage of “An Act Relative to the Reduction of Gun Violence.” in August of 2014, these convictions now prevent people from renewing FID cards that some have had for decades.

If you have been denied the renewal of your FID card, contact Attorney Foley and set up a 30 minute consultation to discuss your options. If you can, please being your iCori report, as well as docket sheets from the courts where your conviction occurred.

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Dear Massachusetts Firearms License Applicant:

As required by Massachusetts law, you are hereby notified that your application for a firearms identification card has been denied in accordance with the provisions in M.G.L. c. 140, § 129B.

The reason(s) for this action is/are as follows:

_ you have, in a court of the Commonwealth, been convicted as an adult of adjudicated a youthful offender or delinquent child, both as defined in M.G.L. c. 119, § 52, for the commission of (check all that apply):

_ a felony;

In accordance with M.G.L. c. 140, § 129D, you are required to turn in to the police department in the city/town in which you reside, without delay, your forearms license(s) and all firearms, rifles, shotguns, machine guns, large capacity feeding devices, and ammunition which you have in your possession or which are owned by you. Failure to do so in a criminal offense.

You may transfer any of your firearms, rifles, shotguns, machine guns, large capacity feeding devices, and ammunition to another person who can lawfully take possession of these items, but only after you surrender them to the police department.

Finally, you have the right to appeal this denial within 90 days to the District Court with appropriate jurisdiction.

Please contact us at any time if you have any questions concerning this matter.

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The Supreme Court overturns Massachusetts law prohibiting stunguns

SUPREME COURT OF THE UNITED STATES
JAIME CAETANO
v.
MASSACHUSETTS

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
No. 14–10078. Decided March 21, 2016
PER CURIAM

The Court has held that “the Second Amendment ex-tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.
The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N.E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.
Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.
For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis
are granted.

The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered

HISTORY OF MASSACHUSETTS FIREARMS STATUTES

The following was written by Karen MacNutt and included in a brief that was submitted to the Massachusetts Supreme Judicial Court in the case Gemme v. Holden. The entire brief can be found at http://comm2a.org/images/PDFs/holden_comm2a_final.pdf

HISTORY OF MASSACHUSETTS FIREARMS STATUTES

The Commonwealth’s gun laws are confusing unless viewed in historical context. There are two basic gun licenses in Massachusetts. 1) The Firearms Identification Card (FID Card) issued under (G.L. c. 140, § 129B). It allows you to purchase, possess and carry ammunition and non-large capacity rifles and shotguns. 2) The “handgun license,” issued under G.L. c. 140, § 131 allows you to purchase, possess and carry handguns and high capacity rifles and shotguns.

The term “firearm” in state law, is defined as a handgun. G.L. c. 140, § 121. Before 1906, the state had no restrictions on owning or carrying guns. Chapter 172, Acts of 1906 said that justices, mayors, or boards of police could authorize a person to carry a loaded pistol or revolver “if it appears that the applicant had good reason to fear an injury to his person or property, and that he is a suitable person to be so licensed.” Carrying a loaded handgun without a permit was punishable by up to one year in jail. The 1906 law is codified at G.L. c. 140, § 131 (licensing) and c. 269, § 10 (punishment for unlicensed possession). Chapter 548, § 1, Acts of 1911, removed the word “loaded,” thus punishing carrying of unloaded handguns without a license. Chapter 207, § 1, Acts of 1919 added after the word “property,” the words “or for any other proper purpose.” Chapter 485, Acts of 1922 licensed gun dealers and restricted “unnaturalized foreign born” from having a license. The Acts of 1925, c. 284, § 4, prohibited aliens and minors under the age of 15 from having a license. Acts of 1926, c. 395, § 3 (now G.L. c. 140, § 131A), allowed an unlicensed person to obtain a temporary license to buy a handgun to possess in his/her home or place of business. Acts of 1927, c. 326, § 5, Tenth, punished carrying a handgun, loaded or unloaded. There was no distinction between carrying openly or concealed. Over the years the specific classes of people prohibited from having a license has grown.

Before 1968 Massachusetts did not require a license to possess any type of gun in your home or place of business or to carry a rifle or shotgun outside your home. Only carrying a handgun outside the home or business was licensed. Acts of 1968, c. 737, § 7, (now G.L. c. 140, §§ 129B, 129C and 129D), enacted the Firearms Identification (FID) Card law which required citizens to have a license to possess a rifle, shotgun, or handgun in his/her own home or to carry a rifle or shotgun outside of his/her own home. The FID Card listed specific disqualifications for persons who wished the license. If you were not disqualified, you were “entitled” to the license. At that time the penalty section, (G.L. c. 269, § 10) was changed to distinguish between “carrying” a handgun outside of the home (requiring a § 131 license) and possessing a handgun inside the home without an FID Card. Acts of 1968, § 737. (Now at G.L. c. 269, §§ 10(a), 10(h)).

The Acts of 1975, c. 113, § 2 created a one year mandatory sentence for carrying a gun of any kind outside the home without the proper license (G.L. c. 269, § 10(a)). It made no difference if the gun were loaded, unloaded, in the open or concealed. Carrying was a felony. At that time the sections of c. 269, § 10 were renumbered. The penalty for “possession” of a gun without a license was placed in § 10(h). A conviction under § 10(h) was a misdemeanor without a mandatory sentence. People charged with “carrying” would admit to “possession” without an FID Card under § 10(h) to avoid the mandatory sentence. Temporary possession of a gun was not enough to prove the crime of “carrying” a gun without a license. Com. v. Osborne, 5 Mass. App. Ct. 657 (1977). Osborne, held that a § 131 license was not needed to possess a handgun in your home or place of business. Only an FID Card was needed. Id. at 649. See also Com. v. Seay, 376 Mass. 735 (1978) (being in the hall outside your apartment was not in your home) and Com. v. Morse, 12 Mass. App. Ct. 426 (1981) (contrasted the separate crimes carrying and possession without an FID Card).

 

The Acts of 1990, c. 511, § 2, rewrote G.L. c. 269, § 10 by changing the word “carry” to “possesses.” Police complained that it was too hard to prove someone outside a home was “carrying” if the police did not observe movement. At the same time Chapter 269, § 10(a)(1) was added to make it clear that the mandatory penalties of § 10(a) did not apply to people in their own home or place of business. Section 10(h) imposed a lesser penalty on people who had a gun in their home or place of business without complying with the FID Card law.

 

In December of 1997 you could own a rifle, shotgun or handgun in your home or place of business and carry a rifle or shotgun outside of the home on an FID Card. A handgun could not be outside the home without a § 131 handgun license. Carrying, that is movement, was no longer an element of the crime. Seay, 376 Mass. at 742. You were entitled to an FID Card if you were not a disqualified person. You could buy a handgun with a permit to purchase and possess the handgun in your home or place of business for protection without a § 131 handgun license. The law made no distinction between carrying a handgun openly or concealed.

Chapter 180, Acts of 1998, made major changes to the law which were, for the most part, the law in effect when this action arose. One major change was that you could no longer possess a handgun in your home under an FID card. The new G.L. c. 140, § 129B(6)(ii) only allowed possession of a handgun with an FID Card on a licensed gun range.

Attorney Foley

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Attorney Foley is a 2012 graduate of the Massachusetts School of Law at Andover and was admitted to the Massachusetts bar in 2012. He received a BS in Math and Computer Science from Worcester State College in 1983, and spent almost thirty years in the Information Systems and Manufacturing Industries.
CONTACT:
The Law Office of J. Steven Foley is located at 11 Pleasant Street #100 in Worcester, Massachusetts. Attorney Foley can be reached by telephone at 508-754-1041