In 2008 the United States Supreme Court decided the case of District of Columbia v. Heller, 554 U.S. 570 (2008). For the first time in history the Court ruled that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia. The defendant had been refused a license to register a handgun and filed suit alleging that the District of Columbia law denied him his rights pursuant to the Second Amendment. Additionally, the District of Columbia law provided that all firearms were required to have trigger locks on them in the home.
The Court found not only that the Second Amendment provided an individual right to bear arms, but also found that the requirement of a trigger lock to deny one's right to self-defense. The Court conducted an extensive analysis of both the Second Amendment and the right to self-defense, and finally held that to deny an individual's right to bear arms within his home would deny him a right to self-defense. The case however did not extend the Second Amendment right to the states, as it was only dealing with a federal statute.
A little more than a year later however, the Court decided McDonald vs. City of Chicago, 230 S. Ct. 3020 (2009). The Court at that time extended the rights pursuant to the Second Amendment to the citizens of the states for the first time. Once again, as in Heller, the Court conducted an extensive analysis of the history of the Second Amendment and the law of self-defense. The Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense. The Court further found that the right to bear arms is a fundamental right of the citizenry.
The question now arises as to the effect of these decisions on the Massachusetts gun law. M.G.L. c.140 §131. The Massachusetts Courts have repeatedly held that the Massachusetts Constitution does not provide an individual right to bear arms, pointing out that there is a significant difference between the wording of the Second Amendment and Article 17 of the Massachusetts Declaration of Rights. The Second Amendment reads "A well regulated militia, being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed." Article 17 however provides "The people have a right to keep and bear arms for the common defense. And as, in the time of peace, armies are dangerous to liberty, that 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."
To date there have not been any decisions challenging the constitutionality of c. 140 §131. The challenges have only arisen in the context of criminal cases where a person is charged with unlawfully carrying a firearm. The Massachusetts Supreme Judicial Court in Commonwealth vs. DePina, 456 Mass. 238 (2010) and Commonwealth vs. Runyan, 456 Mass. 230 (2010) have rejected these challenges pursuant to Article 17. The United States Supreme Court has ordered a rehearing in Runyan however in light of McDonald. This hearing is now scheduled for September 2011.
The question remains open however, as to the constitutionality of the discretion granted to the issuing authority pursuant to c.140§ 131. As some chiefs of police take the position that only law enforcement shall have the right to a license to carry for all lawful purposes, it would appear that McDonald would hold this practice to be unconstitutional. It appears that the most likely challenge to be successful pursuant to McDonald would be a challenge to the almost unbridled discretion granted to issuing authorities in determining who is a suitable person to have a license to carry.
In conclusion, Heller and McDonald have not recognized an individual's right to bear arms. It remains to be seen as to what extent the Massachusetts Courts will seek to restrict this right.
