The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Brain Harris that raised the issue whether Massachusetts law denies nonresidents the right to bear arms by exposing them to criminal penalties for not having an FID card. This case was argued in November with a decision likely in the next month or two.

In the Harris case, the defendant, Harris, was charged with possession of a firearm without an FID and possession of a Large Capacity Firearm out of the Lowell District Court.  The defendant got into an argument with his then-girlfriend who called the police.  When the defendant’s girlfriend called the police, she told the police he had guns; the police came to the apartment with guns drawn.  Harris showed the police a license to carry in New Hampshire and lead the police to the guns.

Where did the defendant Reside?

The key issue in the case was did Harris reside in Massachusetts or was he traveling here temporarily, passing through Massachusetts.  The defendant’s girlfriend’s testimony was detrimental to his defense as she testified that she saw his handguns many times before and that he packed his clothes and hand gun when he left the house.  She further testified that she saw the handguns hidden in the house and the closet.  The defendant testified that he never removed the gun from the car.  There was evidence from the girlfriend at trial that the defendant spent over 100 nights at her apartment in the Summer of 2015 and that he slept there except during work related trips. The defendant had a bill in his name at that address as well as a magazine subscription. The defendant denied moving in with his girlfriend.  The defendant admitted into evidence at trial various documents showing his New Hampshire address.

Does the Due Process Clause Allow Massachusetts to put the burden on the defendant to show he is licensed? 

The Massachusetts Courts have held that the Commonwealth can impose restrictions on the rights to carry a firearm by requiring the owner to satisfy the burden of producing a valid license.  The defendant argued that it is unconstitutional to presume someone is unlicensed to carry a firearm until they produce a license.  The defense argued that conclusive and mandatory presumptions violate the due process clause.  The defendant argued that the SJC has attempted to get around this mandatory presumption issue by holding that the lack of license is not an element of the crime, but simply an affirmative defense.  The defense argued that this violates the Second Amendment because the Commonwealth cannot ban all firearms by default with the requirement that a license be produced.  The defense argued that if the Commonwealth wants to criminalized unlicensed possession of a firearm than it must be made an element of the crime, by requiring the Commonwealth to prove that the defendant was unlicensed.

The defense argued that the Court has essentially treated guns as contraband; if you want to possess it, the State requires you to have a license.  The defense argued that those cases which hold that the license is an affirmative defense would have to be overruled as the right to own a gun is squarely protected by the Second Amendment.  During oral argument, the Chief Justice Gant asked how would the State know if someone had a license if the burden was not on the defendant.  The defense argued that they would have to create a database of license processes.  The defendant argued that the element of lack of the license has to be an element of the crime to comply with the Second Amendment but that the due process clause does not permit the burden to be put on the defendant.

Can a nonresident carry a handgun through Massachusetts?

The defendant further argued that Massachusetts gun laws are  unconstitutional as applied to nonresidents as they effectively ban nonresidents from traveling.

The defendant argued that there are few exceptions to a nonresident carrying a handgun through Massachusetts.  The defendant argued that while it is theoretically possible for a nonresident to get a firearm, the administrative burden makes the requirements essentially impractical.

The defendant argued that the State is essentially precluding nonresidents from traveling through Massachusetts and is not honoring the full faith and credit given to a license from another state.

During Oral argument, the defense argued that a non-resident should be allowed to carry a handgun out of the house.  Justice Lowy emphasized there is a federal statute that allows transfer between states.  The defense argued that the fact that the federal law supersedes the federal law does not make the Massachusetts law constitutional.  Without the federal law, the defense argues the Massachusetts FID card statute is unconstitutional because it infringes on interstate travel.

The defense argued that it should not be based on intent how long you stay; Justice Kafker stated this is not our case that the defendant was going to Massachusetts cutting through because the evidence showed he was in Massachusetts for considerable periods.

Justice Kafkner asked what happens if a guy travels over the line lives in Pawtucket and drives through Attleboro.  Is that person on the hook for an 18 month mandatory minimum, but for prosecutorial discretion.  It would be a silly thing to prosecute, but the State could still bring the charges based on this situation.  One of the purposes of the gun laws in Massachusetts is to reach people sell or trafficking firearms in the State without bring the person from one State who happens to drive across the border from Rhode Island to Massachusetts.  Justice Lowy indicated that the Attorney General interpretation of the statute is wrong and does not comply with federal statute.  Justice Lowy stated any place you can lawfully carry a firearm you can go from your home state back to your state under federal statute 926.  The district attorney argued that the Second Amendment does not allow a border state resident to travel into Massachusetts with their firearm.  Massachusetts General Laws has exemptions for travelers passing through with rifles, shotguns and ammunition by non-residents.  There is a also an exemption for pistols and revolvers for competition and exhibit purposes.

Did the Lowell District Court Judge properly instruct the jury on the law?

The defense also argued that the Lowell District Court trial judge failed to properly instruct the jury on a federal statute permitting interstate transport of firearms.  The defendant argued that he did not continue to transport his firearm merely because he briefly visited his girlfriend.

The defendant further argued that the judge committed error in not properly instructing the jury that under General Laws c. 140 Section 29C(j) a new resident is entitled to a 60 day grace period, exempting them from licensing the firearm.  The defense argued that the jury instruction was confusing because the jury was being asked to determine if the defendant was a Massachusetts resident while they were also instructed on the procedure for a non-resident to obtain a license.  The defense argued that there was no issue that he did not have a Massachusetts license so that additional instruction would have confused the jury.

This case raised an interesting issues of interpreting the Second Amendment as applied to out-of-state residence.  It appears from the facts of this case that the defendant was residing in Massachusetts.  However, the SJC did seem to struggle with how its ruling would apply to residents of a border state who travel into Massachusetts briefly and return home.  The Massachusetts statute does not seem to comply with the Second Amendment by making this conduct illegal, relying on prosecutors to use common sense or prosecutorial discretion to avoid these overly harsh consequences.  I would expect the SJC to uphold the conviction but indicate that the judge should have instructed the jury on the federal statute and the Court may try to interpret the Massachusetts gun laws to create an exemption to save the statute from Constitutional challenges for non-residents passing through Massachusetts.

To listen to the Oral arguments of the Harris case you can visit the Suffolk University Law School website.  Learn more about current issues in Massachusetts criminal law by following Attorney DelSignore on Facebook.