Firearms Law

Firearms Law

Wrentham, Walpole, & Franklin, MA

Those charged with criminal violations of firearms law need counsel who understands the nature and function of firearms themselves, as well as of the laws regarding their use. An active shooter, Attorney Langer knows both guns and the laws affecting them and has successfully defended gun owners facing criminal charges.

If you are charged with the criminal use or possession of a firearm, please call this office to schedule an appointment.

FIREARMS MANUFACTURER CERTIFICATIONS

Attorney Langer has obtained manufacturer certifications for both autoloaders and revolvers on the Approved Firearms Roster (AFR), and for the first pistols to be approved for the Target Roster. Firearms manufacturers seeking access to the Massachusetts market, or dealing with the Attorney General regarding compliance, may wish to retain his services, particularly representing them before the Gun Control Advisory Board.

Firearms License Applications

Massachusetts

Firearms licensing involves the preparation of multi-page applications consisting of numerous questions. Many people misunderstand the questions, the answers to which often require legal analysis. An incorrect response may have consequences ranging from mere rejection of the application to potential criminal charges for filing an false answer.

The new law, Chapter 284 of the Acts of 2014, is the most significant change in gun licensing since Chapter 180 of 1998. It still permits each city and town to create its own criteria for “suitability” for a License To Carry Firearms (LTC) and to deny an applicant it deems not suitable. Many licensing authorities also add other requirements to the application process, many of which have little, if any, basis in the licensing statutes.

The McDonald decision, while acknowledged by the Supreme Judicial Court, has yet to be fully applied to Massachusetts licensing procedures. This means "suitability" is still the fundamental hurdle of handgun licensing.

Under Chapter 284, even FID applications, formerly "shall issue," can be challenged by the licensing authority on the basis of "suitability." However, unlike handgun licenses, the burden is now on the licensing authority to bring an appeal to court, and there prove that the applicant may prove dangerous to him/herself or others.

The element of "suitability," combined with the negative effects of wrong answers, make correct applications a necessity. Having an application denied must then be acknowledged on all subsequent applications, compounding the problem.

There is also some case law indicating the usual "rational basis" for upholding a chief's decision is inadequate. Firearms possession being a fundamental right, both Massachusetts and Federal decisions are acknowledging that "heightened scrutiny" is the appropriate standard. That scrutiny is still evolving.

These recent changes in firearms law, none of which have been tested in court, make this a changing field, in which past procedures have been significantly altered. It is also a subject which is often misunderstood and in which the law is misstated.

Attorney Langer has seven and a half years of service on the Firearms License Review Board, and maintains regular contact with those creating, implementing and enforcing licensing policies. Applications prepared for his clients reflect that knowledge and experience.

Rhode Island

Rhode Island has two licensing systems; through the local authority, and through the Attorney General. Each requires proof of passing a specific proficiency test and uses the licensing authority's personal determination of an applicant’s “need” to grant or deny an application for a Pistol Permit. Whether "need" is a valid requirement for local license applications is often the subject of appeals to the R.I. Supreme Court.

Attorney Langer has extensive experience in preparing successful applications for clients, and successfully representing those who appealed such denials.



Attorney Langer was a presenter at the Gun Law in Rhode Island seminar, April, 2017.

To determine if Attorney Langer can help you with your firearms licensing or certification matter, please call this office.

PREPARING your MASSACHUSETTS license APPLICATION (F 25/26) correctly

The Massachusetts application appears to be just a compilation of basic information, which it is. However, certain questions which appear simple are subtle; moreover, some applicants over-think (or attempt to out-think) certain questions. The greatest mistake an applicant can make is to guess at what a question actually asks for, or to guess at the correct answer.

Applications may be obtained from your local police (confirm it is the correct form) or down-loaded from the CHSB web site.
Page 1 of the Application

The first page is not usually a source of difficulty. The common error is providing the Social Security Number, which is not required. Still using one’s SSN for the driver’s license number is also a mistake, but one which precedes filling out the firearms license form.

Page 2 of the Application

It is on the second page that most applicants fail to answer the questions correctly. It is here that applicants think they know what a question asks - and do not. It is here that applicants are most likely to guess at what information is sought - and guess wrongly.

This is particularly true for Questions # 6, 7 and 10. What the applicant actually received for a sentence is irrelevant. Questions # 6 and 7 ask what the potential penalty for the crime the applicant was convicted of controls. Most applicants have no idea what the potential penalty or sentence was; they only remember - often vaguely and, often, incorrectly - what the penalty or sentence they received was. This means they answer the question(s) incorrectly.

Question # 10 is, arguably, the simplest of the law-based questions, # 4 through 14, on the page. It asks if the applicant has “...Ever Appeared in Any Court as a Defendant for Any Criminal Offense (Excluding Non - Criminal Traffic Offenses).”

Applicants answer this question incorrectly - which is to say, falsely - because they think they know what the question is asking. It is simple and direct: Did the applicant ever appear in court as a criminal defendant? Period.

It does not ask if the applicant was convicted. Neither is the question limited to adult appearances, or within a specific period of time. If the applicant ever appeared as a defendant in a criminal matter, the correct answer is YES. Whether the applicant was a juvenile is irrelevant; whether s/he was found not guilty is irrelevant, whether the case was dismissed is irrelevant. That the applicant appeared in court for a criminal matter mandates a “YES” to Question # 10. Period.

Those who fail to understand the above will almost certainly find their application denied. They may also be prosecuted on terms expressly set forth on the application itself, immediately above their signature:

I DECLARE THE ABOVE FACTS ARE TRUE AND COMPLETE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND I UNDERSTAND THAT ANY FALSE ANSWER(S) WILL BE JUST CAUSE FOR DENIAL OR REVOCATION OF MY LICENSE TO CARRY FIREARMS AND MAY BE USED IN A CRIMINAL PROCEEDING PURSUANT TO M.G.L. c. 140, §§ 129 AND 131.

With THIS explanation of the potential penalties:

*WARNING* ANY PERSON WHO KNOWINGLY FILES AN APPLICATION CONTAINING FALSE INFORMATION SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $500 NOR MORE THAN $1,000 OR BY IMPRISONMENT FOR NOT LESS THAN 6 MONTHS OR MORE THAN 2 YEARS IN A HOUSE OF CORRECTION, OR BY BOTH SUCH FINE AND IMPRISONMENT (M.G.L. c.140, §131).

Page 3 of the Application

There is little on Page 3 which is problematic. However, it is unlikely any “Yes” answer to a question on Page 2 can be adequately answered in the mere four lines for that purpose on Page 3. The better course of action is to prepare a detailed explanation and attach it to the application, preferably with supporting documents.

An applicant need only date, sign and submit the completed application. As with any such document, a copy should be kept for one’s records. It will prove useful for renewal - or on appeal.

Many chiefs have imposed a demand for "doctor's letters" and/or “letters of recommendation,” often with further requirements, such as notarization, content and who they will accept such letters from. There is no statutory basis for these requirements, as the official form simply requires two references. These further demands are based solely upon the "wide latitude and broad discretion" chiefs are allowed when issuing LTCs.

Whether an applicant accedes to such demands, particularly for multiple such letters, should be carefully considered. An experienced firearms attorney can prove helpful in such circumstances.

While the application simply seeks the name and address of two people, applicants may find it useful to add the phone number of each reference and the years known to them.

PREPARING A RHODE ISLAND APPLICATION CORRECTLY

The crucial elements for Rhode Island applications are the notarized letters of recommendation and some documentation of "need," each of which is required by the Attorney General's office. Rhode Island also requires a practical shooting test, certified by an instructor.

Note that the caliber used to qualify for the practical test is the largest caliber the licensee will be allowed to carry concealed, and is set forth on the license itself. For that reason, prudent applicants generally qualify with a .45 caliber handgun.

Whether one applies to a local authority or the AG will affect certain aspects of the license, if issued; notably open carry and the waiting period. There are also practical considerations regarding where to apply.

Those considering applying for a Rhode Island license may wish to consult with Attorney Langer beforehand.

RECENT DECISIONS

In March, 2016, the United States Supreme Court vacated the Massachusetts Supreme Judicial Court's decision to uphold the ban on Electronic Defensive Weapons (EDWs); i. e., "stun guns." In the concurrence written by Justice Alito, the SJC's flawed reasoning was set forth in detail, using a Second Amendment analysis.

The most important firearms law decision in decades was handed down June 28th, 2010. In McDonald v. City of Chicago, the Supreme Court held, in a 5-4 decision, that the Second Amendment applied to all fifty states. This decision incorporated the Second Amendment, placing it with the First, Fourth and Fifth Amendments as applying to state and local governments; not just the Federal government.

Since then, there have been a series of decisions in lower Federal courts interpreting and applying the Heller and McDonald decisions. Also, Massachusetts courts have challenged "suitability" denials on the grounds that the term is not defined, and that review of firearms license denials require heightened scrutiny. Such cases as Hill v. Provencher, and Peruta v. San Diego offer hope that the days of any "rational basis" sufficing to uphold a denial may be over.

How those decisions will affect Massachusetts and Rhode Island gun laws will be determined in each state's respective courts as challenges to local licensing practices, is evolving. This is particularly true in Massachusetts, where the new gun law has not been tested in the courts.

One area of Massachusetts gun law NOT affected by the McDonald decision is the storage statute. As Massachusetts never required guns to be wholly inaccessible while the owner was present, as the District of Columbia did, nothing in McDonald negates the Massachusetts storage statutes. Rather, the Massachusetts Supreme Judicial Court has always upheld them.