SJC finds 269 § 10(a) constitutional in wake of Heller

Much was made of the Heller decision that came down from the United States Supreme Court in 2008. Heller meant that the D.C. gun law was too restrictive and infringed on the 2nd amendment right to bear arms. Since the decision, a flurry of suits have been brought across the country challenging all manner of State gun laws as unconstitutional under the 2nd amendment.

On March 10, 2010 the Supreme Judicial Court in COMMONWEALTH vs. NATHANIEL DEPINA, 456 Mass. 238 (2010) ruled that ch. 269 §10(a) was in compliance with constitutional standards under Heller. In deciding they stated “The defendant’s Second Amendment claim. In his final challenge to the verdicts, the defendant, citing District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (Heller), argues that, even if he violated the prohibitions of G. L. c. 269, § 10 (a) and (n), by carrying a loaded firearm without a license to carry, his convictions must be reversed because the statutory scheme requiring a license to carry a firearm impermissibly infringed his individual, constitutional right to keep and bear arms under the Second Amendment to the United States Constitution. [FN10] In Heller, the Supreme Court held that the District of Columbia’s “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Id. at 2821- 2822. In doing so, the Supreme Court announced for the first time that theSecond Amendment protects a limited, individual right to keep and bear firearms for the purpose of self-defense, not simply a collective right to possess and carry arms for the purpose of maintaining a State militia. See id. at 2799. [FN11]

he defendant asserts that, because G. L. c. 140, § 131, requires a person to obtain a license before he may carry a handgun, the statutory scheme operates as a prior restraint that impermissibly interferes with the exercise of his Second Amendment right to bear arms. Therefore, he argues, his convictions under G. L. c. 269, § 10 (a) and (n), which punish him for carrying a firearm in noncompliance with the license requirement, must be overturned as unconstitutional.

The defendant’s argument rests on the assumption that the protection of the Second Amendment applies to the States as a matter of substantive due process under the Fourteenth Amendment *252 to the United States Constitution. For the reasons stated in Commonwealth v. Runyan, ante 230 (2010), we conclude that, based on current Federal law, the Second Amendment does not apply to the States, either through the Fourteenth Amendment’s guarantee of substantive due process or otherwise. Because the Second Amendment does not apply to the States, the defendant’s claim that G. L. c. 269, § 10 (a) and (n), and the licensing scheme the statute enforces, infringe on his Second Amendment right to keep and bear arms must fail.

The defendant’s challenge likewise fails under our Massachusetts Constitution, which recognizes no individual right to keep and bear arms. Article 17 of the Massachusetts Declaration of Rights provides: “The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.” In Commonwealth v. Davis, 369 Mass. 886, 888 (1976), we concluded that G. L. c. 269, § 10, did not violate the Massachusetts Constitution because art. 17 was intended to provide for the common defense and does not guarantee an individual right to keep and bear arms. We further stated that the statute was “part of a large regulatory scheme to promote the public safety, and there is nothing to suggest that, even in early times, due regulation of possession or carrying of firearms, short of some sweeping prohibition, would have been thought to be an improper curtailment of individual liberty or to undercut the militia system” (footnotes omitted). [FN12] Id. See Commonwealth v. Murphy, 166 Mass. 171, 172 (1896) (notwithstanding *253 art. 17, it is within police powers of Legislature to regulate bearing of arms); Chief of Police of Shelburne v.Moyer, 16 Mass. App. Ct. 543, 547 (1983) (“There is no right under art. 17 of the Declaration of Rights of the Massachusetts Constitution for a private citizen to keep and bear arms . . .”).


Gun rights advocates are relying on the Heller decision as the basis of many challenges, but fail to take into account why Heller was decided the way it was. The District of Columbias gun laws were a ridiculous overreach on the part of their legislature, outright banning all firearms. Under ch. 269 §10(a) the law sets down a clear number of disqaulifiers that don’t even come close to the standards imposed in D.C.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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