Read this BEFORE you petition the Firearms Licensing Review Board

The Massachusetts Gun Control Act of 1998 was touted as a major public safety win for gun control activists who were seeking to limit individual access to firearms. This now two-decade old sweeping reform created new provisions which disqualified thousands of individuals from renewing their LTCs. Unfortunately (and perhaps unintentionally), these new provisions affected law enforcement officers and regular citizens in equal measure. In response, law enforcement unions and 2A-friendly groups like GOAL lobbied the Legislature to provide relief and, in 2004, the Massachusetts Legislature created the Firearms Licensing Review Board (“FLRB”).

The FLRB was empowered by statute to restore individual firearms rights to persons convicted of certain Massachusetts misdemeanor offenses (generally OUI and non-domestic assault and battery convictions) punishable by a maximum possible term of imprisonment of 2 1/2 years. Approximately 400 people have successfully petitioned the FLRB since 2004 and subsequently obtained their LTCs.

Unfortunately, despite case law to the contrary, the federal government (ATF) maintains an unwavering position that the FLRB cannot restore an individual’s right to possess a firearm under federal law . The ATF position is based upon an expansive reading of the Supreme Court’s 2007 Logan decision which was rejected by the Supreme Court of the State of New Hampshire in 2015.   The FLRB has operated for many years despite ATF’s position on the issue. However, on May 23, 2018, the current executive administration, acting in concert with ATF, announced a new interpretation of state and federal law that invalidated all previously issued FLRB restorations and triggered a flurry of LTC revocations and denials.

I began litigating against this new interpretation of law in late-2018 with the support of Commonwealth Second Amendment (Comm2A.org). There are now over 2 dozen court decisions that have rejected ATF’s opinion and have ordered the reinstatement of FLRB-supported LTCs. (More information on these decisions can be found under the “Press” link on this site).

I am continuing to fight for the rights of FLRB petitioners at an appellate level. I hope to have a favorable, binding court opinion by early 2021 that will make clear that a favorable FLRB decision restores an individual’s right to obtain an LTC and possess a firearm in Massachusetts. In the meantime, any person who is seeking FLRB relief should be aware that the FLRB has stopped issuing favorable decisions. The FLRB will hear your case but will automatically deny your petition based upon their support of ATF’s flawed interpretation of law.

Any new developments on this issue will be announced here first. Feel free to ask questions on this thread or contact my office for more information.

Traveling with a Firearm

Most people are aware that federal law allows individuals to travel across state lines so long as:

  1. the firearm is unloaded;
  2. the firearm and ammunition are inaccessible from the passenger compartment of the vehicle (ie. locked in a trunk or locked in a case if the vehicle has no trunk);
  3. the individual can lawfully possess the firearm in the place he/she is leaving as well as the place he/she is going. (See 18 U.S.C. 926A)

But what happens if you need to stop? Perhaps you need gas or want to use a rest stop. What if you are flying and your flight is diverted? This is when otherwise well-meaning travelers run into trouble, particularly in states like Massachusetts where a license to possess a firearm is required.

U.S. LawShield, a self-defense insurance company for firearms owners, recently provided an update on this issue to its members. (Full disclosure – I serve as the U.S. LawShield Massachusetts Program Attorney). The link below details a scenario that is based on an actual case out of New Jersey and provides good information on what to do if your flight is diverted with your firearm in your checked baggage.

The underlying point is that you become subject to the laws of the state in which you are in once your firearm becomes “accessible”. That means if you are traveling through Massachusetts (or New York or New Jersey or another state that requires a license) and you stop for any reason, you could be subject to arrest for possession of a firearm.

“Flight Diverted, Security Alerted” – U.S. LawShield: https://www.uslawshield.com/flight-diverted-security-alerted/?utm_medium=email&utm_source=newaletter_nl&utm_campaign=december_18_2019

Medical Marijuana Cards, LTC’s and Firearms Possession

UPDATE: The 9th Circuit has upheld BATFE’s opinion that any person who uses marijuana for medicinal purposes is an unlawful user of controlled substances and prohibited under federal law from possessing firearms or ammunition.  Applying intermediate scrutiny, the Court held that this ban does not violate the 2nd Amendment.

The case can be read here:

Click to access 14-15700.pdf

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BATFE released a newsletter this summer reinforcing its position on the use of medical marijuana.

In short, BATFE has determined that any person who uses marijuana for medicinal purposes is an unlawful user of controlled substances and prohibited under Federal law from possessing firearms or ammunition.  BATFE has instructed FFL dealers to 1) inform customers to answer “yes” to question 11(e) on Form 4473 if they disclose that they hold a medicinal marijuana card and 2) withhold the transfer of firearms and ammunition to any person who they have reasonable cause to believe possesses a medical marijuana card.  BATFE’s position on medicinal marijuana was upheld by the Court of Appeals for the Ninth Circuit in Nevada in August of 2016.

The effect of medicinal marijuana cards on Massachusetts firearms licensing remains cloudy.  On one hand, G.L. c. 140, sec 131(e) requires a licensing authority to determine whether the possession of a firearm by an LTC applicant would be a violation of state or federal law.  On the other hand, the medicinal marijuana law states clearly that people who qualify for medicinal marijuana cards shall not be denied any right or privilege under state law.  There have been no published cases to date addressing this issue.  However, if you are denied an LTC or FID due to your possession of a medicinal marijuana card, please contact my office at (617) 383-4652.

The original 2011 ATF opinion can be read here:

https://www.atf.gov/file/60211/download

The June 2016 newsletter can be read here:

https://www.atf.gov/explosives/docs/newsletter/explosives-industry-newsletter-june-2016/download

Wilson v. Lynch, 2016 WL 4537376, ____ F.3d____ (2016) can be read here:

Click to access 14-15700.pdf

A recent news article on this matter can be read here:

http://www.wbur.org/news/2018/07/16/massachusetts-marijuana-guns

Copies and Duplicates – the “New” Massachusetts Assault Weapons Ban

On the morning of July 20th, 2016 the Massachusetts Attorney General’s Office issued a new enforcement notice which restricted the sale of commonly owned sporting rifles in Massachusetts.  This “new” assault weapons ban reinterpreted long-standing language in existing law, effectively banning the sale of weapons that either have the same operating system or interchangeable parts with AR and AK-type weapons.  Details of this ban can be found on the AG’s website here: http://www.mass.gov/ago/public-safety/awbe.html

The AG’s decision upset the long-standing notion that it was lawful to sell and possess modern sporting rifles so long as they did not have certain unlawful features such as a folding stock or bayonet lug.  Thousands of Massachusetts residents who had purchased these rifles from licensed firearms dealers over the past 10 years suddenly found themselves on the wrong side of the law.

Over the past two weeks I have been assisting both license holders and firearms dealers to understand and remediate the impact of this decision.  It is our hope that there will some clarity (and potentially a reversal) in the coming months.  In the meantime, residents and dealers should be mindful of the new restrictions and seek legal assistance if an unexpected enforcement action occurs.