TexasCHLforum.com

by Eugene Volokh:
Massachusetts Trial Court Holds Gun Storage Law Unconstitutional:

http://volokh.com/archives/archive_2009 ... 1238111035" onclick="window.open(this.href);return false;


After a police officer's 12-year-old son got access to the officer's
handgun, the officer was prosecuted for violating Mass. Gen. Laws.
ch. 140, 31L:

It shall be unlawful to store or keep any firearm, rifle or shotgun
... in any place unless such weapon is secured in a locked
container or equipped with a tamper-resistant mechanical lock or
other safety device, properly engaged so as to render such weapon
inoperable by any person other than the owner or other lawfully
authorized user. For purposes of this section, such weapon shall
not be deemed stored or kept if carried by or under the control of
the owner or other lawfully authorized user.

Last month, the court held the statute was unconstitutional
(Commonwealth v. Bolduc), and dismissed the prosecution. I only
just now managed to get a copy of the opinion, and here's the relevant
discussion:

The locking mechanisms [required by the statute] are the functional
equivalent of those enumerated in the D.C. statute struck down in
Heller.

In Heller, the Court held that the Second Amendment not only
protects an individual's right to possess firearms but that the
right requires that the firearms be available for "the purpose of
immediate self-defense." The Massachusetts statute mandating lock
boxes or similar devices would frustrate an owner's ability to
immediately access an operable weapon.

Although the statute exempts firearms that are "carried" or "under
the control of the owner" from the requirement that they be locked,
the statute applies to the lawful owner of a firearm even when he
is at home. People can be subject to prosecution whether they are
home or not. The term "under the control of the owner" is a
question of fact and subject to interpretation. Any ambiguity in
the statute as applied to a person lawfully keeping a firearm in
the home must be resolved in favor of the holder of the right.
Legislation requiring an owner to store firearms in a place
inaccessible to children or unauthorized persons would satisfy the
Supreme Court's holding in Heller and protect the safety of others.

In light of the foregoing, the Court finds that, based on the
Supreme Court's decision in District of Columbia v. Heller, G.L.c.
140, sec. 131L is unconstitutional.

According to a [3]Massachusetts Lawyers Weekly article notes that
Massachusetts courts seem split on this. It also reports that the
prosecutor "agreed with [Judge] Lynch's analysis and decided not to
appeal. 'I've read the Heller case,' he says. 'Judge Lynch read the
Heller case, and the Heller case seems to say very clearly that these
kinds of blanket restrictions are unconstitutional.'"

Interestingly, the court seemed to assume that the Second Amendment
applies to state laws -- what lawyers call the [4]"incorporation"
issue -- which is something Heller pointedly declined to resolve.

Rex B wrote: Interestingly, the court seemed to assume that the Second Amendment
applies to state laws -- what lawyers call the [4]"incorporation"
issue -- which is something Heller pointedly declined to resolve.

Interesting. Here I has assumed that Heller didn't address incorporation because the case didn't involve state laws, and therefore incorporation would be well outside the scope of what was being decided. The way this is worded, it suggests that the SC declined to comment on a point of contention. EV is a good advocate for gun owners' rights, but I think this is poor phraseology.

Anyway, we've got a variety of lawsuits (including Chi-town) that will specifically address incorporation once they make their way through the system, so I suppose it'll be decided sooner or later (hopefully in favor of incorporation).

Thanks for posting this, Rex. I wasn't aware of it.

Here's how I see this case: It worked for the appellant and may set a precedent in Massachusetts (I don't know how such things work there). However, if judges start dismissing these cases because they are unconstitutional, another case will eventually be appealed to the state supreme court. They may or may not sustain the law.

I would say the ruling has no effect outside Massachusetts except to the extent that it might influence the thinking of other judges.

We ultimately need the Chicago case to go to the U.S. Supreme Court. I hesitate to make predictions about the Supreme Court, but I think they will incorporate.

IANAL, etc.

- Jim

Interesting that the court treated this as having already been incorporated.

It's encouraging, but a court can strike down a law because it's Tuesday, and the decision can potentially be reversed until it reaches the highest court that has jurisdiction.

I would rather have seen him overturn the Massachusetts law based on the RKBA in the state constitution. Unfortunately, it has one of the weaker wordings among the states:

The people have a right to keep and to bear arms for the common defense.

- Jim

Amazing that a Massachusetts court would rule this way.

stroo wrote:Amazing that a Massachusetts court would rule this way.

Even a blind hog finds an acorn occasionally.

Anygunanywhere

stroo wrote:Amazing that a Massachusetts court would rule this way.

Massachusetts is not all liberal Boston. There is a lot of rural area, and it is close to New Hampshire and Vermont. Plenty of hunters and outdoor types up there.

Even in Boston, there are MANY right-headed thinkers. I know several dozen very conservative and/or libertarian Boston natives.

The "Lawyers Weekly" article points out that the decisions (note the plural) were rendered in District Courts, and have yet to be appealed. It looks to me as if the score on Mass. 131L is 2 to 1.