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


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.