Comm2A Challenges MA restrictions on LTCs (new carry case)

jrosenberger · Feb 11, 2013

Comm2A Challenges Restrictions in Worcester, Weymouth, Danvers and Peabody
February 8, 2013, Boston - Today Comm2A filed suit in federal court against four police chiefs in Massachusetts alleging that they violated citizens Second Amendment right to keep and bear arms.

With support from the National Rifle Association, Commonwealth Second Amendment (Comm2A) and six individual plaintiffs filed suit challenging the constitutionality of restrictions placed on the Licenses to Carry issued by police chiefs in the towns of Weymouth, Danvers, Peabody, and Worcester. The suit alleges that the plaintiffs were denied their Second Amendment right to keep and bear arms because the defendants imposed unreasonable and unlawful licensing restrictions on the plaintiffs.

"The fact that there are 351 unregulated and arbitrary practices of issuing licenses in Massachusetts is ridiculous," said Brent Carlton President of Comm2A. "No one would stand for it if it was arbitrarily determined who has the ability to access other rights granted by the Constitution such as free speech."

In all six cases Chiefs determined that individuals who were otherwise lawfully suitable would be restricted from having a firearm for self defense.
Plaintiffs in the lawsuit seek a declaratory ruling that the Massachusetts licensing statute and practices of the defendants that prohibit qualified citizens are unconstitutional because they prohibit qualified citizens such as the plaintiffs from carrying a loaded operable handgun for the purpose of self-defense. The suit also seeks to direct defendants to issue plaintiffs licenses to carry without restrictions that would otherwise prohibit the carrying of firearms for personal protection.

Short summary of MA licensing for those unfamiliar. Hierarchy is:
1 LTC-A unrestricted - allows carry and purchase / possess everything legal MA other than machine guns
2 LTC-A restricted - allows P/P of everything legal but MGs
3 LTC-B - P/P of all legal long guns and non-large cap hanguns
4 FID - P/P of all non large cap long guns
5 Restricted FID - P/P chemical defensive sprays (OC/CS)

The FIDs are shall issue, the LTCs are may issue and issuance and restrictions are at the discretion of the issuing police chief (must apply in your town of residence or business ownership). The suit here challenges the discretionary issuance of restricted LTCs, which prevent plaintiffs from bearing arms for self defense. The case was funded by Comm2A, a Massachusetts 501(c)(3), with help from the NRA. Lead Counsel for plaintiffs is David Jensen.

jrosenberger · Feb 11, 2013

Complaint is here: http://www.comm2a.org/images/PDFs/Davis_v_Grimes_Complaint-FINAL.pdf

press1280 · Feb 11, 2013

I take it this lawsuit is trying to pick up where Hightower bit the dust?

Al Norris · Feb 12, 2013

I RECAPped the docket, earlier today. While I didn't download the FAC (First Amended Complaint), you will see from the docket dates that the file at Comm2A is in fact the FAC.

Docket: Internet Archive

Yes, this appears to be a second attempt (with otherwise "clean" plaintiffs). unlike the ill-fated Hightower case. The reasons that the CA1 rejected Hightower are not precedential here and do not apply.

David Jensen, a protege of Alan Gura, will be the lead attorney.

Knuckle Dragger · Mar 17, 2013

Al Norris said:
David Jensen, a protege of Alan Gura, will be the lead attorney.

Neither attorney would characterize their relationship in this fashion.

Al Norris · Mar 18, 2013

If you were to compare the writings of both David Jensen and David Segel with those of Alan Gura, you would note an overall style.

While there may be no public acknowledgment of either being an understudy of Gura's, the fact remains that Mr. Gura is helping both of these attorneys in their ongoing SAF funded lawsuits.

Knuckle Dragger · Mar 18, 2013

Al Norris said:
If you were to compare the writings of both David Jensen and David Segel with those of Alan Gura, you would note an overall style.

While there may be no public acknowledgment of either being an understudy of Gura's, the fact remains that Mr. Gura is helping both of these attorneys in their ongoing SAF funded lawsuits.

I know all three men, although Sigale barely. While they have all done work for SAF and employ somewhat similar approaches, I can assure you that neither Gura nor Jensen would describe their relationship as protege - mentor. Not in a million years.

BeltBuckle · Mar 18, 2013

I don't know any of them, but I do have a shrine to Gura on my gun cleaning bench.

I would love to know how they would characterize their relationship. I might need to add more shrines... :worship:

press1280 · Apr 3, 2014

Opinion is out http://scholar.google.com/scholar_c...8147&q="bear+arms"&hl=en&scisbd=2&as_sdt=6,49

I was getting exited while reading because it looked like the judge was highly suspect of the Police Chiefs' policies, and also noted the split between CA2-4 and CA7 & 9. Judge ends up sending this to the Mass Supeme Judicial Court, doing everything to avoid the 2A question.
It's now in the Mass' court's hands, presumably to find a way out (maybe issuing a permit w/o letting the shall-issue floodgates open).

kcbrown · Apr 3, 2014

press1280 said:
Opinion is out http://scholar.google.com/scholar_c...8147&q="bear+arms"&hl=en&scisbd=2&as_sdt=6,49

I was getting exited while reading because it looked like the judge was highly suspect of the Police Chiefs' policies, and also noted the split between CA2-4 and CA7 & 9. Judge ends up sending this to the Mass Supeme Judicial Court, doing everything to avoid the 2A question.
It's now in the Mass' court's hands, presumably to find a way out (maybe issuing a permit w/o letting the shall-issue floodgates open).

Comm2A is a plaintiff. The existence of an institutional plaintiff here means, I expect, that mere issuance of licenses to the individual plaintiffs won't be enough to moot the case.

Knuckle Dragger · Apr 3, 2014

kcbrown said:
Comm2A is a plaintiff. The existence of an institutional plaintiff here means, I expect, that mere issuance of licenses to the individual plaintiffs won't be enough to moot the case.

That was the idea.

jrosenberger · Apr 3, 2014

press1280 said:
Opinion is out http://scholar.google.com/scholar_c...8147&q="bear+arms"&hl=en&scisbd=2&as_sdt=6,49

I was getting exited while reading because it looked like the judge was highly suspect of the Police Chiefs' policies, and also noted the split between CA2-4 and CA7 & 9. Judge ends up sending this to the Mass Supeme Judicial Court, doing everything to avoid the 2A question.
It's now in the Mass' court's hands, presumably to find a way out (maybe issuing a permit w/o letting the shall-issue floodgates open).

They didn't send it to the state courts yet, they asked for further briefing as to whether they should.

777GSOTB · Apr 4, 2014

There is no right to carry concealed. Therefore, a state can come up with any rule they want...including prohibiting that form of carry all together. The SCOTUS hasn't taken a concealed carry case yet. Maybe this has something to do with it....

District of Columbia v. Heller, 554 U.S. 570, (2008)

Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."

Also, for the uninformed, a fundamental right cannot be licensed. If you believe that,....since when?

MURDOCK v. COMMONWEALTH OF PENNSYLVANIA, 319 U.S. 105 (1943)

"The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment."

"It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant [319 U.S. 105, 113] if it does not do so. But that is to disregard the nature of this tax. It is a license tax – a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution."

ryan_j · Apr 4, 2014

777GSOTB said:
There is no right to carry concealed. Therefore, a state can come up with any rule they want...including prohibiting that form of carry all together. The SCOTUS hasn't taken a concealed carry case yet. Maybe this has something to do with it....

District of Columbia v. Heller, 554 U.S. 570, (2008)

Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."

Also, for the uninformed, a fundamental right cannot be licensed. If you believe that,....since when?

MURDOCK v. COMMONWEALTH OF PENNSYLVANIA, 319 U.S. 105 (1943)

"The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment."

"It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant [319 U.S. 105, 113] if it does not do so. But that is to disregard the nature of this tax. It is a license tax – a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution."

Is open carry allowed in MA?

press1280 · Apr 4, 2014

jrosenberger said:
They didn't send it to the state courts yet, they asked for further briefing as to whether they should.

In that case-do you think the MA state courts will take it? My non-lawyer take on it is that if the MA court won't take it, then it'll go back to the judge and he'll be forced to decide on the 2A claim.
But since you guys have pointed out Comm2A is a plaintiff, then the MA state court can't simply take the case, slap the chief's policy of no 1st time applicants getting LTC-As, and then the chiefs magically saying the individual plaintiffs ONLY proved their "good cause".

It's shall-issue (for all) or bust here, correct?

Knuckle Dragger · Apr 4, 2014

777GSOTB said:
There is no right to carry concealed. Therefore, a state can come up with any rule they want...including prohibiting that form of carry all together. The SCOTUS hasn't taken a concealed carry case yet. Maybe this has something to do with it....

True, but that was taken into account in this case. In the past the state has argued that there's no right to carry (a large capacity) firearm concealed and that if there is some right a plaintiff should have applied for a different license that would allow the open carry of a non-large capacity firearm. Both of the towns in question issue those licenses, but restrict the 'proper purposes' associated with them.

ryan_j said:
Is open carry allowed in MA?

^^Yes, but it is uncommon.

press1280 said:
In that case-do you think the MA state courts will take it? My non-lawyer take on it is that if the MA court won't take it, then it'll go back to the judge and he'll be forced to decide on the 2A claim.
But since you guys have pointed out Comm2A is a plaintiff, then the MA state court can't simply take the case, slap the chief's policy of no 1st time applicants getting LTC-As, and then the chiefs magically saying the individual plaintiffs ONLY proved their "good cause".

It's shall-issue (for all) or bust here, correct?

If it goes that way, the federal court will not remand the case to state court. The federal court will certify a question of state law to the SJC, the highest court in MA. Further federal proceedings will then be based upon whatever guidance the SJC gives the federal court relative to the meaning of state law. Federal courts don't normally interpret state law when there's a question as to the meaning.

press1280 · Apr 4, 2014

ryan_j said:
Is open carry allowed in MA?

Looks like it's similiar to NJ and MD-technically allowed with the proper permit but if you do they'll make up a bogus charge like disturbing the peace and yank your permit.

press1280 · Apr 4, 2014

Knuckle Dragger said:
True, but that was taken into account in this case. In the past the state has argued that there's no right to carry (a large capacity) firearm concealed and that if there is some right a plaintiff should have applied for a different license that would allow the open carry of a non-large capacity firearm. Both of the towns in question issue those licenses, but restrict the 'proper purposes' associated with them.
^^Yes, but it is uncommon.
If it goes that way, the federal court will not remand the case to state court. The federal court will certify a question of state law to the SJC, the highest court in MA. Further federal proceedings will then be based upon whatever guidance the SJC gives the federal court relative to the meaning of state law. Federal courts don't normally interpret state law when there's a question as to the meaning.

I looked a little closer and one of the plaintiffs put as his reason "for protection of self and family", no other explanation. So there's no way the police chiefs avoid the 2A question without going virtual shall-issue. If they do cave in then I suppose other Mass counties would have to be sued individually.
http://www.hubflyer.com/wp-content/uploads/macitytowngun.png

ryan_j · Apr 4, 2014

press1280 said:
Looks like it's similiar to NJ and MD-technically allowed with the proper permit but if you do they'll make up a bogus charge like disturbing the peace and yank your permit.

Sorry should have been clearer - I really meant PLOC like PA.

bigalf · Apr 4, 2014

The MA permit system is wack. Im a resident and have an unrestricted LTC permit. It all depends on your Chief. Can you imagine the outrage if only folks with a pro 2A Chief could get a permit. My friend and I were both in the same situation when we applied, same age, social status, no records, same safety course.l got my unrestricted LTC he got denied and a lower license to allow only range and hunting use. I am very glad to see the state finally getting challenged. Totally lopsided laws and vary from town to town.

Comm2A Challenges MA restrictions on LTCs (new carry case)

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