The two cases, Commonwealth vs. Dean F. Donnell, Jr. and Commonwealth vs. Philip J. Marquis, both address the constitutionality of the Commonwealth's nonresident firearm licensing scheme, but they examine different versions of the law. The Massachusetts Supreme Judicial Court issued decisions pertaining to the two cases and the important differentiating factors between them.
Here's a breakdown of the key differences:
Statutory Scheme Version:
Donnell examines the prior "may issue" version of G. L. c. 140, § 131F, which was in effect at the time of the defendant's arrest. This version gave the State police colonel discretion in issuing licenses.
Marquis considers the current version of the licensing scheme, which was updated on August 10, 2022. This version mandates that a license "shall be issued" to a nonresident applicant if they are not a prohibited person and are not determined unsuitable.
"May Issue" vs. "Shall Issue":
The Donnell case focuses on the unconstitutionality of the discretionary "may issue" system, which the Supreme Court indicated was presumptively invalid in Bruen.
The Marquis case addresses the "shall issue" regime, assessing whether it aligns with Second Amendment requirements and historical traditions.
Second Amendment Analysis:
In Donnell, the court found that the prior nonresident licensing scheme violated the Second Amendment under the Bruendecision. The "may issue" language and the discretion afforded to the licensing official were key factors in this determination.
In Marquis, the court concluded that the current licensing scheme is facially consistent with the Second Amendment. The "shall issue" nature of the law, along with its restrictions on demonstrably dangerous persons, aligned with the nation's historical tradition of firearm regulation.
Standing:
In Marquis, the court determined that the defendant lacked standing to bring an as-applied challenge because he never applied for a firearms license under the challenged scheme.
Donnell notes that because the defendant never applied for a firearm license, the defendant does not have standing to bring an as-applied challenge and the court only considers facial challenges to the licensing scheme.
Fourteenth Amendment Challenges:
Marquis also addresses Fourteenth Amendment challenges related to the right to travel and equal protection, ultimately finding the scheme facially valid. The court found that differences in how the scheme operates for residents versus nonresidents are rationally related to legitimate State interests.
Severability:
Donnell considers whether the impermissible provisions of the prior licensing scheme could be severed, but concludes that the discretionary language was too entwined in the licensing procedure to allow for separation.
Therefore, the two SJC decisions have set a clear standard for non-residents with firearms within the Commonwealth. If a non-resident individual possessed a firearm in Massachusetts prior to August, 2022, that individual likely has a valid Second Amendment challenge to a possession of firearm charge. If a non-resident individual possessed a firearm in Massachusetts after August, 2022, that individual is not afforded the same Second Amendment challenge due to the legislative change to the General Laws.
If you have been charged with a firearms offense, give one of our experienced attorneys a call to discuss your rights.
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