Fletcher et al v. Haas et al

Filing 31

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part and denying in part 12 Motion to Dismiss; granting in part and denying in part 14 Motion to Dismiss; granting in part and denying in part 16 Motion to Dismiss; the moti ons to dismiss are granted as to the claims of the plaintiff organizations but denied as to the claims of plaintiffs Fletcher and Pryal. Granting 23 Motion for Summary Judgment based upon the conclusion that the Massachusetts firearms regulatory r egime, as applied to the individual plaintiffs, contravenes the Second Amendment and accordingly directing that judgment enter enjoining denial of firearm licenses and permits to them solely on the basis of their permanent resident alien status. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CHRISTOPHER M. FLETCHER, EOIN M. PRYAL, )
SECOND AMENDMENT FOUNDATION, INC., and )
COMMONWEALTH SECOND AMENDMENT, INC.,
)
)
Plaintiffs,
)
)
v.
)
)
ROBERT C. HAAS, in his capacity
)
as Cambridge Commissioner of Police,
)
MARK K. LEAHY, in his capacity
)
as Northborough Chief of Police, and
)
JASON A. GUIDA, ESQ., in his capacity
)
as Director of the Firearms
)
Records Bureau,
)
)
Defendants.
)

CIVIL ACTION NO.
11-10644-DPW

MEMORANDUM AND ORDER
March 30, 2012
This case presents the question whether lawful permanent
resident aliens1 are among “the people” for whom the Second
Amendment the United States Constitution provides a right to bear
arms.

I conclude they are.

1

A lawful permanent resident is an alien who has been
granted the privilege of residing permanently in the United
States See 8 U.S.C. § 1101(a)(20). Generally, to be eligible for
naturalized citizenship, an alien must have been in lawful
permanent resident status for not less than five years.
1

Plaintiffs seek to enjoin enforcement of the citizenship
requirement contained in Massachusetts General Laws chapter 140,
sections 129B and 131, and all other Massachusetts provisions
which prohibit firearm possession by all lawfully admitted
aliens.
Defendants have moved to dismiss this action, contending
that the Second Amendment grants the right to bear arms only to
citizens.

Plaintiffs have in turn moved for summary judgment to

establish that lawfully admitted aliens have the same right to
bear arms as do citizens.

Because the only plaintiffs with

standing in this case are lawful permanent resident aliens, I
resolve the issue only as to lawful permanent resident aliens and
do not reach the question whether the Second Amendment provides
protection for other lawful aliens.
I.
A.

BACKGROUND

The Massachusetts Firearm Regulatory Regime
Massachusetts strictly regulates the possession of weapons

through a licensing regime.
140, §§ 121-131P.

See generally Mass. Gen. Laws. ch.

Any person residing in Massachusetts who

wishes to own, possess, or purchase a firearm,2 rifle,3 shotgun4
2

The term “firearm” refers to “a pistol, revolver or other
weapon of any description, loaded or unloaded, from which a shot
or bullet can be discharged and of which the length of the barrel
or barrels is less than 16 inches or 18 inches in the case of a
shotgun as originally manufactured; provided, however, that the
2

or ammunition, must obtain a permit.

Id. at §§ 129C, 131E.

This

permit may take the form of a firearm identification card, which
allows its licensee to own and possess non-large capacity5
shotguns and rifles.

Id. at § 129B(6).

It may also take the

form of a license to carry,6 which permits ownership and

term firearm shall not include any weapon that is: (i)
constructed in a shape that does not resemble a handgun,
short-barreled rifle or short-barreled shotgun including, but not
limited to, covert weapons that resemble key-chains, pens,
cigarette-lighters or cigarette-packages; or (ii) not detectable
as a weapon or potential weapon by x-ray machines commonly used
at airports or walk- through metal detectors.” Mass. Gen. Laws
ch. 140, § 121.
3

The term “rifle” means “a weapon having a rifled bore
with a barrel length equal to or greater than 16 inches and
capable of discharging a shot or bullet for each pull of the
trigger.” Id.
4

The term “shotgun” refers to “a weapon having a smooth
bore with a barrel length equal to or greater than 18 inches with
an overall length equal to or greater than 26 inches, and capable
of discharging a shot or bullet for each pull of the trigger.”
Id.
5

The term “large capacity weapon” means to “any firearm,
rifle or shotgun: (i) that is semiautomatic with a fixed large
capacity feeding device; (ii) that is semiautomatic and capable
of accepting, or readily modifiable to accept, any detachable
large capacity feeding device; (iii) that employs a rotating
cylinder capable of accepting more than ten rounds of ammunition
in a rifle or firearm and more than five shotgun shells in the
case of a shotgun or firearm; or (iv) that is an assault weapon.”
Id.
6

There are two
Massachusetts. Class
capacity firearms and
manner, whereas Class

classes of license to carry in
A allows the licensee to possess large
to carry these weapons in a concealed
B is more restrictive. Id. §§ 131(a)-(b).
3

possession of a broader selection of weapons, including certain
firearms.

Id. at § 131(a) & (b).

Massachusetts denies to all aliens, illegal or legal, the
right to obtain firearm identification cards or licenses to
carry.

Id. at §§ 129(B)(1)(vii), 131(d)(v).

has two exceptions, however.

That general ban

Lawfully admitted aliens residing

in Massachusetts may obtain a resident alien permit, which allows
them “to own or have in his possession or under his control a
rifle or shotgun,” but not a firearm.

Id. at § 131(H).

In

addition, lawfully admitted aliens residing in other states may
obtain temporary licenses to carry firearms “for purposes of
firearms competition.”
B.

Id. at § 131(F).

The Parties
Plaintiffs Christopher Fletcher and Eoin Pryal are lawful

permanent residents who emigrated from the United Kingdom and who
now reside respectively in Cambridge and Northborough,
Massachusetts.

Except for a two year period between 1999 and

2001, Fletcher has resided in the United States continuously
since 1995, and became a permanent resident alien on June 8,
2009.

Prior to moving to Massachusetts, Fletcher resided in

California, where he held a Basic Firearms Safety Certificate and
a Handgun Safety Certificate, which allowed him to purchase and
possess firearms in the state of California.

Upon relocating to

Massachusetts, Fletcher completed the Massachusetts Basic

4

Firearms Safety Course as required by Massachusetts General Laws
chapter 140, section 131P, and was awarded the Massachusetts
Basic Firearms Safety Certificate on June 21, 2008.
Pryal, who is married to a United States citizen, was a
Rifleman in the British Territorial Army before emigrating to the
United States.

In the United Kingdom, Pryal was granted a

shotgun certificate and international dealer’s license which
permitted him to travel to other countries with his own firearms
for hunting purposes.

Currently, Pryal is an assistant

instructor at the Massachusetts Firearm School in Framingham,
Massachusetts, and a customer service representative at a
Massachusetts-based firearm manufacturer.

Pryal completed the

Massachusetts Basic Firearms Safety Course, and was awarded the
Massachusetts Basic Firearms Safety Certificate on October 25,
2010.
Both Fletcher and Pryal applied for, and were denied, a
license to possess a firearm in their home for immediate selfdefense purposes.

Neither applied for a license to carry a

firearm on his person outside of the home.
Plaintiffs Second Amendment Foundation, Inc. (“SAF”) and
Commonwealth Second Amendment, Inc. (“CSA”) are organizations
whose purpose is the defense of the constitutional right to own
and possess firearms.

Both organizations claim to have as

members lawfully admitted aliens residing in Massachusetts.

5

Defendants Robert Haas, as Cambridge Commissioner of Police,
and Mark Leahy, as Northborough Chief of Police, are responsible
for determining whether to issue firearm identification cards and
licenses to carry to residents of their municipalities.

For his

part, defendant Jason Guida, as Director of the State Firearms
Records Bureau, is in charge of issuing resident alien permits.
II.
A.

STANDARDS OF REVIEW

Motion to Dismiss
A district “court may dismiss a complaint only if it is

clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations.”
& Spalding, 467 U.S. 69, 73 (1984).

Hishon v. King

In considering a motion to

dismiss, the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.”

S.E.C. v. Tambone, 597 F.3d 436, 441 (1st

Cir. 2010) (en banc).

The rules of pleading require “a short and

plain statement of the claim showing that the pleader is entitled
to relief.”

Fed. R. Civ. P. 8(a)(2).

This statement need only

“give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.”

Gargano v. Liberty Int’l

Underwriters, Inc., 572 F.3d 45, 48-49 (1st Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
B.

Motion for Summary Judgment
Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the
6

movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

“A dispute is genuine if the evidence about the fact

is such that a reasonable jury could resolve the point in the
favor of the non-moving party,” whereas “[a] fact is material if
it has the potential of determining the outcome of the
litigation.”

Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777,

782 (1st Cir. 2011) (quoting Rodríguez–Rivera v. Federico Trilla
Reg’l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).

Traditionally, a

district court must “draw every reasonable inference in favor of
the nonmoving party” on summary judgment.

Lopera v. Town Of

Coventry, 640 F.3d 388, 407 (1st Cir. 2011).

But, where, as

here, a party has cross-moved for summary judgment, a district
court “must determine based on the undisputed facts whether
either the plaintiffs or the defendants deserve judgment as a
matter of law.”

Hartford Fire Ins. Co. v. CNA Ins. Co. (Europe)

Ltd., 633 F.3d 50, 53 (1st Cir. 2011) (quotation and citation
omitted).
III.
A.

DISCUSSION

Do The Plaintiff Organizations Have Standing?
Standing is a prerequisite for Article III jurisdiction, and

thus must be determined before addressing the merits of a case.
See Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.
2009).

To establish standing, a plaintiff must “present an

injury that is concrete, particularized, and actual or imminent;
7

fairly traceable to the defendant’s challenged action; and
redressable by a favorable ruling.”

Ramírez-Lebrón v. Int’l

Shipping Agency, Inc., 593 F.3d 124, 130 (1st Cir. 2010) (quoting
Horne v. Flores, 129 S. Ct. 2579, 2592 (2009)).

In the context

of an organization suing on behalf of its members, the
organization must demonstrate “(1) at least one of its members
would have standing to sue as an individual, (2) ‘the interests
at stake are germane to the organization’s purpose,’ and (3)
individual members’ participation is not necessary to either the
claim asserted or the relief requested.”

Animal Welfare Inst. v.

Martin, 623 F.3d 19, 25 (1st Cir. 2010) (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
181 (2000)).

Only the first prong of the test is in dispute in

this case.
As to the first prong, the Plaintiff organizations fall
short of demonstrating Article III standing.

Neither SAF nor CSA

has identified a single member who sought to obtain a license to
carry a firearm in Massachusetts, let alone was denied.

See

Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004)
(concluding that organization lacked standing where it failed to
identify any member who had standing in his or her own right).
Instead, both organizations allege in a conclusory fashion that
their members include “lawfully admitted aliens residing in the
Commonwealth.”

That lawfully admitted aliens residing in

Massachusetts have joined SAF or CSA is, without more,
8

insufficient to show that these members themselves suffer harm
from the Massachusetts firearms regulatory regime.

Not every

lawfully admitted alien residing in Massachusetts who decides to
join this type of organization can necessarily be said to intend
to own or possess a firearm himself or herself, and to have been
denied that right.

Critically, SAF and CSA have failed to allege

that any of their members who are lawfully admitted aliens
“intend to purchase firearms domestically in violation of the
laws at issue.”

See Hodgkins v. Holder, 677 F. Supp. 2d 202, 206

(D.D.C. 2010) (dismissing claims brought by SAF for lack of
standing on the same ground presented here).
Even viewing the facts in the light most favorable to
plaintiff organizations, SAF and CSA fail to establish that “at
least one of [their] members would have standing to sue as an
individual.”

Animal Welfare, 623 F.3d at 25.

Accordingly, I

will grant the defendants’ motion to dismiss the claims brought
by SAF and CSA for lack of standing.
B.

Does the Second Amendment Protect Permanent Resident Aliens?
The crux of this case is whether the Massachusetts firearms

regulatory regime, as applied to Fletcher and Pryal, violates the
Second Amendment or the Equal Protection clause of the Fourteenth
Amendment.7

7

Although plaintiffs also contend that the Massachusetts
firearms regulatory regime is unconstitutional on its face, they
concede that the regime could be constitutionally applied to an
illegal alien or a lawfully admitted alien who does not establish
9

The Second Amendment of the United States Constitution,
provides:

“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.”

U.S. CONST. amend. II.

To

determine whether the Massachusetts firearms regulatory regime
impermissibly encroaches on the Second Amendment rights of
Fletcher and Pryal, I begin with the Supreme Court decision in
District of Columbia v. Heller, 554 U.S. 570 (2008).
In Heller, the Court struck down several District of
Columbia statutes prohibiting the possession of handguns.
Heller, 554 U.S. at 575.

The Court held that the Second

Amendment guarantees an “individual right” to possess and carry
weapons for the lawful purpose of self-defense.

Id. at 580.

Because “the need for defense of self, family and property is
most acute” in the home, the Court reasoned that the right to
bear arms applies to handguns because they are “the most
preferred firearm in the nation to ‘keep’ and use for protection
of one’s home and family.”

Id. at 628; see also id. (noting that

handguns are “overwhelmingly chosen by American society for [the]
lawful purpose” of self-defense).

Thus, the Court concluded that

“a complete prohibition of the[] use [of handguns] is invalid.”

residence in Massachusetts. Thus, the plaintiffs’ facial attack
fails because they have not established “that no set of
circumstances exists under which the [statutes] would be valid.”
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 (2008) (citation omitted). Only the plaintiffs’ “as applied”
challenge remains.
10

Id. at 629.

It noted, however, the right to bear arms is “not

unlimited.”

Id. at 595.

Although the Court declined to “clarify

the entire field” of the Second Amendment, id. at 635, it
emphasized that the opinion in no way casts doubt on certain
“presumptively lawful regulatory measures.”

Id. at 626 n.26.

Such measures include, but are not limited to, “longstanding
prohibitions” on the possession of firearms by felons and the
mentally ill, carrying concealed weapons, carrying firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial
sale of arms.

Id. at 626-27.

Applying this framework, Heller has been read to direct “a
two-prong approach to Second Amendment challenges” to state
statutes:
First, we ask whether the challenged law imposes a burden
on conduct falling within the scope of the Second
Amendment’s guarantee. If it does not, our inquiry is
complete. If it does, we evaluate the law under some
form of means-end scrutiny. If the law passes muster
under that standard, it is constitutional. If it fails,
it is invalid.
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)
(internal citation omitted).8
8

I will address the steps in

A Ninth Circuit panel recently applied a somewhat
different approach for Second Amendment challenges. In Nordyke
v. King, a divided panel stated that a court must apply a
“substantial burden framework” before applying heightened
scrutiny. 644 F.3d 776, 783-86 (9th Cir. 2011) (emphasis added),
reh’g en banc granted, 644 F.3d 776 (9th Cir. Nov. 28, 2011)
(argued Mar. 19, 2012). Under this framework, only laws that
“substantially burden” the Second Amendment will be subject to
11

sequence.
1.

The Scope of the Second Amendment

The threshold inquiry is whether the absolute prohibition on
handgun possession by Fletcher and Pryal, who are lawful
permanent residents, falls within the scope of the Second
Amendment.

Defendants moved to dismiss on the ground that the

Second Amendment only protects United States citizens.
a.

Historical Meaning of “The People”

The first component of the Second Amendment codifies “the
right of the people.”9

At the time of the founding of the

Constitution, the phrase “the people” was open textured.

JAMES H.

heightened judicial review. Id. The Nordyke majority
specifically left open “what type of heightened scrutiny applies
to laws that substantially burden Second Amendment rights.” Id.,
at 786 n.9. Nordyke suggests that a law that does not place a
substantial burden on an individual’s Second Amendment right may
be subject to rational basis review. Id. at 786 (In “a variety
of contexts” the Supreme Court “applies mere rational basis
scrutiny to laws that regulate, but do not significantly burden,
fundamental rights.”).
9

The term of art “the right of the people” appears in two
other provisions of the Bill of Rights: in the First Amendment
assembly-and petition clause, U.S. CONST. amend. I, cl. 3 (“the
right of the people peaceably to assemble, and to petition the
Government for a redress of grievances”), and in the Fourth
Amendment search and seizure clause, id. amend. IV (“[t]he right
of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures”).
Additionally, three other provisions of the Constitution use
variations of the term “the people”: § 2 of Article I, id. art.
1, § 2 (providing that the “people” will choose members of the
House), the Ninth Amendment, id. amend. IX (“[t]he enumeration in
the Constitution of certain rights shall not be construed to deny
or disparage others retained by the people.”), and the Tenth
Amendment, id. amend. X (providing that the powers not given to
the Federal Government remain with the States or “the people”).
12

KETTNER, THE DEVELOPMENT

OF

AMERICAN CITIZENSHIP, 1608-1870, at 209

(1978) (noting that at the beginning of the 19th century,
“Americans had only begun to discover the complexity of the
question ‘Who are “the People?”’ They were committed to certain
principles about the acquisition of citizenship, but they had yet
to develop fully the meaning of that status”).

Citizenship at

the founding of the nation reflected opposition to British
loyalists, rather than the modern conception in which citizenship
stands categorically distinct from immigrant status.
85, 208.
POLICY

See also ARISTIDE R. ZOLBERG, A NATION

IN THE

FASHIONING

OF

BY

Id. at 184-

DESIGN: IMMIGRATION

AMERICA 86 (2006) (recounting the

development of “[n]aturalization . . . as a second-line defense
against undesirable immigrants . . . [under which] the
Naturalization Act of 1790 . . . specif[ied] that foreign-born
persons . . . could not become naturalized without the express
consent of the states.

Directed at repentant British-born

Loyalists, this exclusionary provision, enacted several years
after the end of hostilities, constituted one more marker of the
country’s emerging assertiveness as a sovereign nation and
distinctive political régime”).
Statements from the Framers and contemporaneous state
constitutions support the notion that the term “the people” in
the Second Amendment includes more than those categorized as
“citizens.”

For example, George Mason, considered to be one of

the “fathers” of the Bill of Rights, declared in the Virginia
13

debates on adoption of the Constitution, “Who are the militia?
They consist now of the whole people.”

George Mason, Virginia

Debates on the Adoption of the Federal Constitution, in 3 THE
DEBATES

IN THE

CONSTITUTION,

SEVERAL STATE CONVENTIONS,
AS

RECOMMENDED

BY THE

ON THE

ADOPTION

GENERAL CONVENTION

OF THE

FEDERAL

PHILADELPHIA,

AT

1787, at 425 (Jonathan Elliot ed., 2d ed. 1836).

IN

The Virginia

Constitution of 1776 defined the makeup of the “well-regulated
militia” as “composed of the body of the people.”

VA. CONST.

OF

1776, art. I § 13.
Other rights guaranteed by the Constitution to “the people”
were freely exercised by non-citizens at the time of the
founding.

For example, the right to petition the government was

exercised by non-citizens, including immigrants, coming before
the same First Congress that approved the language of the First
Amendment and its accompanying Petition Clause.

See, e.g.,

Report of the Committee on Claims (Dec. 28, 1795), reprinted in 7
DOCUMENTARY HISTORY

OF THE

FIRST FEDERAL CONGRESS

OF THE

UNITED STATES

OF

AMERICA 76-78 (Kenneth R. Bowling et al. eds., 1998) (reporting on
accepted petition from Canadian citizen); id. at 83-84 (petition
from two British citizens); id. at 161 (petition from two French
foreigners); see generally Michael J. Wishnie, Immigrants and the
Right to Petition, 78 N.Y.U. L. REV. 667 (2003) (documenting the
extensive history of non-citizen petitions to the English,
colonial, state, and federal governments).

“History strongly

suggests that the use of the word ‘people’ . . . was not in any
14

way intended to exclude noncitizens from the rights safeguarded
therein.”

Wishnie, supra at 712.

The terms “citizen” and “the people” have generally not been
treated as synonymous for purposes of constitutional useage.10
The one instance in which they were treated as equivalent by the
court,11 Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404
(1856), was an unfortunate aberration that was subsequently
overruled by the enactment of the Fourteenth Amendment.

The

Fourteenth Amendment itself drew a distinction between the legal
status of citizenship and the general status of personhood in
consecutive clauses.

Compare U.S. CONST. amend. XIV, § 1, cl. 2

(“No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.”
(emphasis added)), with id. amend. XIV, § 1, cl. 3 (“[N]or shall
any State deprive any person of life, liberty, or property,
without due process of law.” (emphasis added)).

Thus, the

10

The Heller opinion itself notes that at the time of the
founding, the terms were used to represent different groups,
though the terms themselves were not used consistently. Heller,
554 U.S. at 580 n.6 (“If we look to other founding-era documents,
we find that some state constitutions used the term ‘the people’
to refer to the people collectively, in contrast to ‘citizen,’
which was used to invoke individual rights. . . But that usage
was not remotely uniform.” (citations omitted)).
11

To be sure, the Federalists in their defense of the
Alien and Sedition Acts also argued that aliens were not “the
people.” See GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS,
BORDERS, AND FUNDAMENTAL LAW 54-56 (1996).
15

Fourteenth Amendment underscored that the terms “citizens” and
“persons” were not considered coextensive in the Constitution.
Prior to Heller, the Supreme Court had only attempted to
define “the people” once, in United States v. Verdugo-Urquidez,
494 U.S. 259 (1990).

There, after looking at the various ways in

which the Constitution used the phrase “the people,” the VerdugoUrquidez court held that “‘the people’ protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom
rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community
or who have otherwise developed sufficient connection with this
country to be considered part of that community.”

Id. at 265.

Verdugo-Urquidez concluded that Supreme Court caselaw
“establishe[d] only that aliens receive constitutional
protections when they have come within the territory of the
United States and developed substantial connections with this
country.”

Id. at 271.

Applying this framework, the Court in Verdugo-Urquidez found
that a Mexican citizen and resident who had been brought to the
United States against his will for the sole purpose of being
subjected to criminal prosecution was not protected under the
Fourth Amendment because he “had no voluntary attachment to the
United States that might place him among ‘the people’ of the
United States.”

Id.

16

b.

Language in Heller

Defendants nevertheless rely on Heller for the proposition
that the Second Amendment does not protect lawful permanent
residents.

Although the opinion itself did not directly address

whether the Second Amendment extends to non-citizens, the Heller
majority described the right protected by the Second Amendment as
belonging variously to “citizens,” “Americans,” “all members of
the political community,” and “law abiding citizens.”

See

Heller, 554 at 579-80, 624 n.24, 625, 629-30.
Alluding to Verdugo-Urquidez, the Court in Heller stated
that the term “the people” in the Constitution and Bill of Rights
“unambiguously refers to all members of the political community,
not an unspecified set.”

Id. at 580.

This, however, restates

the holding in Verdugo-Urquidez, which did not limit “the people”
to the “members of the political community,” but instead to those
persons who have “developed sufficient connection with this
country to be considered part of that community [i.e., “this
country”].”

Vergudo-Urquidez, 494 U.S. at 265.

By restating

Vergudo-Urquidez, Heller arguably moved away from the “sufficient
connection” and “national community” language of Vergudo-Urquidez
when it used the seemingly narrower terms “political community,”
“Americans,” “citizens,” and “law-abiding citizens” throughout
its analysis.

17

For its part, the term “citizen” describes a legal status
found separately in numerous places in the Constitution,
including portions which protect fundamental rights.

See

Sugarman v. Dougall, 413 U.S. 634, 651 (1973) (Rehnquist, J.,
dissenting) (noting that the distinction between citizens and
non-citizens “is constitutionally important in no less than 11
instances in a political document noted for its brevity”).

To

determine whether, in holding that the Second Amendment protects
the fundamental right to possess a firearm for self defense,
Heller intended12 to restrict the Second Amendment to “citizens,”
it is useful to compare the Second Amendment as interpreted by
Heller with other portions of the Constitution protecting
fundamental rights and identify the class of those protected by
those rights.
There is only one constitutional right that is exclusive to
citizens:

the right to hold federal public office.

See U.S.

CONST. art. I, § 2, cls. 2-4 (limiting those who can be

12

One commentator has suggested the possibility that the
use of the term “citizen” in Heller was not an intentional effort
to restrict the scope of the term “citizen.” See Pratheepan
Gulasekaram, “The People” of the Second Amendment: Citizenship
and the Right to Bear Arms, 85 N.Y.U. L. REV. 1521, 1532 (2010)
(“The lack of attention by litigants and academics to the
‘citizens’ specified by the Heller majority makes sense if the
reference was inadvertent or was a colloquial allusion to a
general class of persons to whom all civil rights inure.”); cf.
Pierre N. Leval, Judging Under the Constitution: Dicta About
Dicta, 81 N.Y.U. L. REV. 1249, 1255 (2006) (noting that courts
are more likely to be imprecise in dicta than in an opinion’s
holding).
18

Representatives, Senators, or the President to “Citizen[s]”).
The Supreme Court has upheld other citizens-only rightrestrictions arising under state and federal statutes, but has
never declared them to be mandated by the Constitution.

See,

e.g., 18 U.S.C. § 611 (limiting who can vote in federal elections
to citizens); 18 U.S.C. § 1861 (jury service).

All of the

voting,13 right to public office, and jury service rights and
restrictions have a common theme:
governance, a public good.

they are integral to self-

See Pratheepan Gulasekaram, “The

People” of the Second Amendment:

Citizenship and the Right to

Bear Arms, 85 N.Y.U. L. REV. 1521, 1570-77 (2010)(searching for
“a theoretically coherent defense of gun rights as citizenship
rights” in light of Heller’s reading of the Second Amendment as a
right of self defense).

13

But see NEUMAN, supra n.11, at 63-71 (recounting the rise
and fall of alien suffrage in the states); accord Leon E.
Aylsworth, The Passing of Alien Suffrage, 25 AM. POL. SCI. REV.
114, 114 (1931) (“During the nineteenth century, the laws and
constitutions of at least twenty-two states and territories
granted aliens the right to vote. This tendency reached its
greatest extent about 1875. . . . In the following decades a
steady decline set in. The last state constitutions to grant
aliens who had declared their intention to become citizens the
full right of suffrage were those of the two Dakotas in 1889.
The movement to withdraw the right began in Illinois in 1848. At
the opening of the present century, only one-half of the original
number, or eleven states, continued to grant this right.”), id.
(“For the first time in over a hundred years, a national election
was held in 1928 in which no alien in any state had the right to
cast a vote for a candidate for any office---national, state, or
local.”).
19

Similarly, restrictions on non-citizen free speech that have
been upheld can be understood to turn on the protection and
advancement of the more general public good.

See, e.g.,

Harisiades v. Shaughnessy, 342 U.S. 580, 591-92 (1952) (upholding
constitutionality of statute which allowed for deportation of
lawful permanent residents based on membership in the Communist
party).

Frequently, the speech that is punishable if by non-

citizens, but not if by citizens, is speech which is thought to
undermine American society or its political system.

See id.; see

also 8 U.S.C. § 1182(a)(3)(D) (preventing admission of immigrant
members of totalitarian regimes); Kleindienst v. Mandel, 408 U.S.
753, 769-70 (1972) (upholding denial of admission of immigrant
with ties to communism).
general public good:

The aim of these restrictions is a

maintaining public order and society’s

institutions from denigration by non-members.
In short, the protection of the public good, rather than a
private right, features most prominently in the categories of
citizen-only rights.

Heller, by contrast, explicitly holds that

the Second Amendment protects not a public good like selfgovernance, but the private right of self defense.
McDonald v. City of Chicago, which incorporated the Second
Amendment against the states, may be read to clarify that the
Heller majority did not intend to limit the Second Amendment to
the formal category of “citizens.”

The Court in McDonald was

faced with two options under the Fourteenth Amendment for
20

incorporating the Second Amendment against the states:

the Due

Process clause, or the Privileges and Immunities clause.
McDonald, 130 S. Ct. 3020, 3028 (2010).

There is an important

difference between the language of the two clauses:

the Due

Process clause applies to “any person,” whereas the Privileges
and Immunities clause is limited to “citizens.”

Compare U.S.

CONST. amend. XIV, § 1, cl. 2 (“No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States.” (emphasis added)), with id.
amend. XIV, § 1, cl. 3 (“[N]or shall any State deprive any person
of life, liberty, or property, without due process of law.”
(emphasis added)).

The Supreme Court, no doubt for good and

sufficient reasons other than clarifying what persons were within
the protection of the Second Amendment,14 chose the option of
protecting Second Amendment rights under the Due Process clause
and eschewed deployment of the Privileges and Immunities clause,
which is limited to citizens.

That the majority did not choose

to rely on the Privileges and Immunities clause can be said to
reinforce the proposition that Heller’s periodic choice to use
the term “citizen” to describe those protected by the Second

14

See generally ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 33
(1975) (suggesting “the concept of citizenship plays only the
most minimal role in the American constitutional system” in a
chapter entitled “Citizen or Person - What is Not Granted Cannot
be Taken Away”).
21

Amendment was generated by rhetorical, not definitional,
concerns.
That the term “citizen” was used rhetorically, rather than
categorically, is further supported by the text of Heller itself.
For example, in making an analogy to limits on the First
Amendment, the majority noted that “we do not read the Second
Amendment to protect the right of citizens to carry arms for any
sort of confrontation, just as we do not read the First Amendment
to protect the right of citizens to speak for any purpose.”
U.S. at 595 (emphasis added and removed).

554

It is axiomatic that

the protections of the First Amendment are not limited to
“citizens.”

See Bridges v. Wixon, 326 U.S. 135, 148 (1945)

(“Freedom of speech and of press is accorded to aliens residing
in this country.”).15

The term “citizen” appears to have been

used in Heller for reasons of stylistic variety, not as a legally
prescriptive holding.
15

This seems the better reading because, as

See also Bridges v. Wixon, 326 U.S. 135, 161 (1945)
(Murphy, J., concurring) (“The Bill of Rights is a futile
authority for the alien seeking admission for the first time to
these shores. But once an alien lawfully enters and resides in
this country he becomes invested with the rights guaranteed by
the Constitution to all people within our borders. Such rights
include those protected by the First and the Fifth Amendments and
by the due process clause of the Fourteenth Amendment. None of
these provisions acknowledges any distinction between citizens
and resident aliens. They extend their inalienable privileges to
all ‘persons’ and guard against any encroachment on those rights
by federal or state authority.”); Jessica S. Horrocks, Campaigns,
Contributions and Citizenship: The First Amendment Right of
Resident Aliens to Finance Federal Elections, 38 B.C. L. REV.
771, 780-94 (1997) (charting the history of First Amendment
decisions regarding aliens).
22

noted below, the issue in Heller was not the scope of the term
“the people,” but whether the Second Amendment protected a
collective or an individual right.
There nevertheless exists a dilemma for lower courts
attempting faithfully to apply Heller.

Heller talks about the

Second Amendment’s scope using a narrow term like “citizens,” and
yet it holds that the Second Amendment protects the fundamental
right to own firearms for self-defense, a quintessential private
good unrelated to the activities of the political community.
Moreover, Heller affirmed Verdugo-Urquidez, which had a broad
definition of “the people.”
The defendants urge me to read Heller narrowly, and to find
the allusions to “citizens” to be evidence of an implicit holding
by the Supreme Court limiting those protected by the Second
Amendment to those falling in the formally defined category of
“citizens.”

Heller, however, explicitly left undefined the full

breadth of Second Amendment protection when it held that
“whatever else [the Second Amendment] leaves to future
evaluation, it surely elevates above all other interests the
right of law-abiding, responsible citizens to use arms in defense
of hearth and home.”

554 U.S. at 635 (emphasis added).

To draw

upon an analogy used in Heller itself, just as the First
Amendment protects the speech of all persons to varying degrees
(with citizens encumbered by the fewest restrictions), so too
does the Second Amendment protect the right of all persons to
23

bear arms to varying degrees (with “law-abiding, responsible
citizens” encumbered by the fewest restrictions).
The defendants’ reading of Heller requires a considerable
analytical strain.

The basic assumption in Heller was that it

was recognizing a pre-existing right.

Id. at 592 (“We look to

this because it has always been widely understood that the Second
Amendment, like the First and Fourth Amendments, codified a preexisting right.”).

That assumption is in tension with the fact

that if defendants are correct, Heller would be the first case to
find that a solely private-good fundamental right was limited to
citizens only, and to do so without mustering historical support
for such a proposition.

Only two pages of the lengthy Heller

majority opinion touch on the meaning of “the people,” and in
those two pages the opinion did not suggest why a shift in the
scope of constitutional protections might be underway, and why
such a shift would be justified on either historical or policy
grounds.

Indeed, the opinion did not address whether the Second

Amendment extends to non-citizens at all, let alone to the more
narrow category of lawful permanent residents.

That issue was

not presented because the plaintiff in Heller was a citizen.
I conclude that the “citizen” terminology used in Heller is
at most dicta regarding the universe of those afforded protection
by the Second Amendment.

As the First Circuit has noted,

although “Supreme Court dicta may be more persuasive than such
statements made by other courts, the Supreme Court itself has
24

recognized the limitations of its dicta.”

Iguarta v. United

States, 626 F.3d 592, 610 (1st Cir. 2010) (quoting Cent. Va.
Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (“[W]e are not
bound to follow our dicta in a prior case in which the point now
at issue was not fully debated.”)).

As far back as 1821, the

Court affirmed the “maxim not to be disregarded, that general
expressions, in every opinion, are to be taken in connection with
the case in which those expressions are used.

If they go beyond

the case, they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented
for decision.”

Cohens v. Virginia, 6 Wheat. 264, 399 (1821); see

also Pierre N. Leval, Judging Under the Constitution: Dicta About
Dicta, 81 N.Y.U. L. REV. 1249, 1250 (2006) (noting that when
judges accept dictum as if it were binding law, they “fail to
discharge [their] responsibility to deliberate on and decide the
question which needs to be decided”).

As Judge Leval has

observed, there is an important distinction between the language
used in a case that is dictum and language that goes to a case’s
holding:
It is by no means inevitable that rules initially
expressed in gratuitous, nonbinding dictum would be
ultimately adopted when it came time for the court to
decide the issue. . . . [C]ourts are more likely to
exercise flawed, ill-considered judgment, more likely
to overlook salutary cautions and contraindications,
more likely to pronounce flawed rules, when uttering
dicta than when deciding their cases. . . . Giving
dictum the force of law increases the likelihood that
the law we produce will be bad law.
Leval, supra, at 1255.
25

A restriction of the Second Amendment right only to
“citizens” appears unsupported by the historical meaning of the
term “the people,” the structure of the Constitution, and the
Supreme Court caselaw Heller reaffirmed and relied on.

I do not

embrace Heller’s “citizen” terminology as conclusive regarding
the definition of the term “the people.”

Rather, I turn to a

functional analysis directed by Verdugo-Urquidez.
c.

Analysis

The Supreme Court has long recognized that aliens may be
entitled to an “ascending scale of rights” as they increase their
identity with the American society.

“Mere lawful presence in the

country creates an implied assurance of safe conduct and gives
[an alien] certain rights; they become more extensive and secure
when he makes preliminary declaration of intention to become a
citizen, and they expand to those of full citizenship upon
naturalization.”

Johnson v. Eisentrager, 339 U.S. 763, 770

(1950).
Lawful permanent resident aliens are firmly on the path to
full citizenship16 and, although not obligated to take that path

16

Generally, a permanent resident alien can become a
citizen if he establishes that he (1) is at least 18 years old;
(2) has been lawfully admitted as a permanent resident for at
least 5 years (less for some individuals); (3) is a person of
good moral character; and (4) has established a residence and
maintained continuous physical presence in the United States for
a certain period of time. See 8 C.F.R. § 316.2(a).
26

to its destination,17 are entitled to a wide array of
constitutional rights.

See Verdugo-Urquidez, 494 U.S. at 270-71

(contrasting Fourth Amendment protections of non-resident aliens
with aliens resident in the United States); Graham v. Richardson,
403 U.S. 365, 376 (1971) (holding that a state statute denying
welfare benefits to resident aliens violates the Equal Protection
Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (“It
is well established that if an alien is a lawful permanent
resident of the United States and remains physically present
there, he is a person within the protection of the Fifth
Amendment.”); Bridges v. Wixon, 326 U.S. 135, 148 (1945)
(“Freedom of speech and of press is accorded aliens residing in
this country.”); Wong Wing v. United States, 163 U.S. 228, 238
(1896) (concluding that “all persons within the territory of the
United States [including aliens] are entitled to the protection
guarantied by [the Fifth and Sixth Amendments]”); Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886) (“The fourteenth amendment to
the constitution is not confined to the protection of
citizens.”).
17

See Demore v. Kim, 538 U.S. 510, 546 (2003) (Souter, J.,
concurring in part and dissenting in part) (“[I]f [lawful
permanent residents] choose, they may apply for full membership
in the national polity through naturalization.”) (emphasis
added). In any event, lawful permanent residents aliens may
remain in the United States indefinitely, as long as they do not
contravene the immigration laws such that they lose their lawful
permanent resident status as the result of a final administrative
order. See 8 C.F.R. § 1001.1(p). See generally Vartelas v.
Holder, 2012 WL 1019971, at *4-5 (S.Ct. Mar. 28, 2012).
27

In cases where state laws restricting the rights of aliens
have been struck down, the Supreme Court has emphasized “the
rights thus protected were those of aliens who were lawfully
inhabitants of the states in question.”

United States v.

Portillo-Munoz, 643 F.3d 437, 441 (5th Cir. 2011) (emphasis
added).

See Kwong Hai Chew, 344 U.S. at 596 (holding that an

alien is entitled to the Fifth Amendment protection to the extent
he “is a lawful permanent resident of the United States and
remains physically present there”); Truax v. Raich, 239 U.S. 33,
39 (1915) (holding that “the complainant is entitled under the
14th Amendment to the equal protection of its laws” because he is
“lawfully an inhabitant of Arizona”).

The Supreme Court has

explained that:
once an alien lawfully enters and resides in this country
he becomes invested with the rights guaranteed by the
Constitution to all people within our borders. Such
rights include those protected by the First and the Fifth
Amendments and by the due process clause of the
Fourteenth
Amendment.
None
of
these
provisions
acknowledges any distinction between citizens and
resident aliens.
They extend their inalienable
privileges to all ‘persons’ and guard against any
encroachment on those rights by federal or state
authority.
Kwong Hai Chew, 344 U.S. at 596 n.5 (emphasis added) (quoting
Bridges, 326 U.S. at 161 (Murphy, J., concurring)).
In the federal context, several courts have made clear in
connection with constitutional challenges to 18 U.S.C. §

28

922(g)(5),18 that the Second Amendment does not extend to illegal
aliens.

See, e.g., Portillo-Munoz, 643 F.3d at 442 (“the phrase

‘the people’ in the Second Amendment of the Constitution does not
include aliens illegally in the United States”); United States v.
Flores-Higuera, No. 11-182, 2011 WL 3329286, at *2 (N.D. Ga. July
6, 2011) (“[I]llegal aliens . . . do not have rights under the
Second Amendment in the first place because they are not among
‘the people’ contemplated by the Second Amendment.”); United
States v. Adame-Najera, No. 10-10-01, 2010 WL 6529643, at *2
(N.D. Ga. Nov. 24, 2010) (“Defendant, by virtue of his status as
an alien who is in this country unlawfully, is not a law-abiding
citizen and is disqualified from exercising the Second Amendment
right to possess a firearm.”); United States v. Flores, No. 10178, 2010 WL 4721069, at *2 (D. Minn. Sept. 17, 2010) (holding
that “an illegal alien appropriately falls within a class of
people who are rightly exempted from possessing firearms, despite
the Second Amendment”); United States v. Yanez-Vasquez, No. 0940056, 2010 WL 411112, at *3 (D. Kan. Jan. 28, 2010) (agreeing
with decisions suggesting that “illegal aliens are not protected
by the Second Amendment”); United States v. Boffil-Rivera, No.
08-20437, 2008 U.S. Dist. LEXIS 84633, at *21-22 (S.D. Fl. Aug.

18

Section 922(g)(5), part of the federal equivalent to the
Massachusetts firearms regulatory regime, makes it unlawful for
illegal and non-immigrant aliens to transport or possess
firearms, but does not impose specific restrictions on the right
of permanent resident aliens to do so. 18 U.S.C. § 922(g)(5).
29

12, 2008) (noting that after Heller, the Second Amendment does
not apply to an unlawful alien because he “is not a citizen, is
not ostensibly a person with identifiable and significant ties to
community, and is not someone who has any duty of allegiance to
the United States”).

Some courts, while reaching the same

conclusion, have left open the possibility that “lawful residents
with ties to the community” have a Second Amendment right.

See

United States v. Lewis, No. 10-007, 2010 WL 3370754, at *3 (N.D.
Ga. May 26, 2010) (“Because Defendant is not a citizen, or at the
least, a lawful resident with ties to the community, the Court
concludes that she is not a member of the ‘political community’
whose rights are protected by the Second Amendment.” (emphasis
added)); see also Portillo-Munoz, 643 F.3d at 440 (denying Second
Amendment right to defendant because “[i]llegal aliens are not
‘law-abiding, responsible citizens’ or ‘members of the political
community’” (emphasis added)).19

19

I note that there are two decisions, rendered in
different federal districts of North Carolina that in the context
of constitutional challenges to 18 U.S.C. § 922(g)(5), conclude
Heller does not extend the Second Amendment to legal aliens. See
United States v. Luviano-Vega, No. 10-184, 2010 WL 3732137, at *2
(E.D.N.C. Sept. 20, 2010) (noting Heller “in no way identified a
specific right of aliens—legal or not—to bear arms”); United
States v. Solis-Gonzalez, No. 08-145, 2008 WL 4539663, at *3
(W.D.N.C. Sept. 26, 2008) (finding “no persuasive support for
Defendant’s argument that the ‘individual right to bear firearms
conferred by Heller extends to aliens in possession of
firearms’”). Interestingly, neither the federal statute, 18
U.S.C. § 922(g)(5), nor its equivalent under North Carolina law,
N.C. Gen. Stat. § 14-404(c)(5), by terms restricts the right of
lawful permanent residents to possess or transport firearms.
30

As of the time of this writing, one state court of appeals
had held that the Second Amendment applies to lawful permanent
residents, striking down a prior incarnation of a Washington
state statute requiring aliens to register firearms.

Washington

v. Ibrahim, 269 P.3d 292, 297 (Wash. Ct. App. 2011).

And the

Massachusetts Supreme Judicial Court has held more broadly that
extending fundamental rights to citizens but not to lawful
permanent resident aliens would present state equal protection
problems subject to strict scrutiny.

Finch v. Commonwealth

Health Ins. Connector Auth., 959 N.E.2d 970, 984 (Mass. 2012).
With this framework in mind, I find no justification for
refusing to extend the Second Amendment to lawful permanent
residents.

They have necessarily “developed sufficient

connection with this country to be considered part of [the]
community.”

Verdugo-Urquidez, 494 U.S. at 265.

Professor

Rosberg has identified as “the traditional premise of the
country’s immigration policy---that resident aliens are virtually
full-fledged members of the American community, sharing the
burdens of membership as well as the benefits.”

Gerald M.

Rosberg, The Protection of Aliens from Discriminatory Treatment
by the National Government, 1977 SUP. CT. REV. 275, 337 (1978).
And then-Professor Aleinikoff, a former General Counsel of the
Immigration and Nationalization Service, observed a decade ago,
Permanently residing aliens live and function much like
citizens. They hold jobs, attend churches, send their
children to school, and pay taxes. Children they give
31

birth to in the United States are American citizens.
From this perspective, the fact that aliens are not
required by law to apply for citizenship is not
surprising; in day-to-day terms, permanently residing
aliens and citizens are already largely
indistinguishable.
T. ALEXANDER ALEINIKOFF, SEMBLANCES
STATE,

AND

OF

SOVEREIGNTY: THE CONSTITUTION,

AMERICAN CITIZENSHIP 173 (2002).

THE

See Demore, 538 U.S. at

544 (Souter, J., concurring in part and dissenting in part)
(characterizing the lives of lawfully admitted permanent
residents as “generally indistinguishable from those of United
States citizens”).
Fletcher and Pryal, who are both lawful permanent residents,
have plainly satisfied the “sufficient connection” test of
Verdugo-Urquidez.

Fletcher became a permanent resident in 2009.

Prior to the approval of his application for permanent residency,
which was submitted in 2005, Fletcher resided and worked lawfully
in the United States under various types of non-immigrant visas
for approximately ten years.

Before moving to Massachusetts,

Fletcher resided in California, where he was authorized to
possess firearms.

For his part, Pryal obtained permanent

residency about one year ago, after emigrating from the United
Kingdom.

He is married to a United States citizen and is

currently employed in Massachusetts.

It is beyond dispute that

plaintiffs have “accepted some societal obligations” that place
them “among ‘the people’ of the United States.”
Verdugo-Urquidez, 494 U.S. at 273.
32

This case does not require me to decide whether Second
Amendment protection applies to all lawfully admitted aliens.
Nevertheless, I conclude that Fletcher and Pryal, as lawful
permanent resident aliens, have demonstrated that they are
protected by the Second Amendment right to bear arms.
2.

The Constitutionality of Massachusetts Firearms
Regulatory Regime

Having found Fletcher and Pryal are protected under the
Second Amendment, I must evaluate under the appropriate level of
scrutiny the constitutionality of the burden imposed on that
right by the Massachusetts firearm regulatory regime.

The court

in Heller held that the absolute ban on handgun possession even
for self-defense in the home “would fail constitutional muster”
under “any of the standards of scrutiny” applied to enumerated
constitutional rights.

554 U.S. at 628-29 (emphasis added).

By

doing so, “the court expressly left for ‘future evaluation’ the
precise level of scrutiny to be applied to laws trenching upon
Second Amendment rights.”

United States v. Booker, 644 F.3d 12,

22 (1st Cir. 2011) (quoting Heller, 554 U.S. at 626, 634-35).
the Fourth Circuit has explained:
The Second Amendment is no more susceptible to a
one-size-fits-all standard of review than any other
constitutional right. Gun-control regulations impose
varying degrees of burden on Second Amendment rights, and
individual assertions of the right will come in many
forms.
A severe burden on the core Second Amendment
right of armed self-defense should require strong
justification. But less severe burdens on the right,
laws that merely regulate rather than restrict, and laws
33

As

that do not implicate the central self-defense concern of
the Second Amendment, may be more easily justified.
United States v. Masciandro, 638 F.3d 458, 470 (4th Cir. 2011)
(quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir.
2010)).

Nevertheless, Heller expressly ruled out applying

rational basis review to laws encroaching upon the Second
Amendment right to bear arms.

554 U.S. at 628 n.27.

The Court

explained that “[i]f all that was required to overcome the right
to keep and bear arms was a rational basis, the Second Amendment
would be redundant with the separate constitutional prohibitions
on irrational laws, [such as the Equal Protection clause] and
would have no effect.”

Id.

Since Heller, several circuits, including the First Circuit,
have applied intermediate scrutiny in Second Amendment cases to
laws identified as presumably “lawful regulatory measures.”

In

Booker, the First Circuit found that a categorical ban on gun
ownership by “any person . . . who has been convicted of a
misdemeanor crime for domestic violence,” 18 U.S.C § 922(g)(9),
was not inconsistent with the Second Amendment.

644 F.3d at 26.

In reaching this conclusion, the court reasoned that the
appropriate test was whether the ban was “supported by some form
of ‘strong showing,’ necessitating a substantial relationship
between the restriction and an important governmental objective.”
Id.

34

Other circuits have applied intermediate scrutiny to similar
federal statutes restricting handgun possession for individuals
with a criminal history.

See, e.g., United States v. Staten, 666

F.3d 154, 162-63 (4th Cir. 2011) (upholding 18 U.S.C. § 922(g)(9)
under intermediate scrutiny); Chester, 628 F.3d at 683 (applying
intermediate scrutiny, but holding government failed to carry its
burden to establish a reasonable fit); United States v. Reese,
627 F.3d 792, 802 (10th Cir. 2010) (applying intermediate
scrutiny under Second Amendment to 18 U.S.C § 922(g)(8)).

Courts

have also applied intermediate scrutiny to prohibitions on gun
possession outside the home, see Masciandro, 638 F.3d at 471
(applying intermediate scrutiny to ban on gun possession in
national parks), as well as to laws prohibiting possession of
certain firearms, see Marzzarella, 614 F.3d at 97 (applying
intermediate scrutiny to ban on possession of firearms with
obliterated serial number).

Nevertheless, it has been recognized

that “any law that would burden the ‘fundamental,’ core right of
self-defense in the home by a law-abiding citizen would be
subject to strict scrutiny.”

Masciandro, 638 F.3d at 470

(emphasis added).
The Massachusetts firearms regulatory regime, as applied to
Fletcher and Pryal, does not pass constitutional muster
regardless of whether intermediate scrutiny or strict scrutiny
applies.

Under intermediate scrutiny, defendants must show that

the Massachusetts firearms regime is “supported by some form of
35

‘strong showing,’ necessitating a substantial relationship
between the restriction and an important governmental objective.”
Booker, 644 F.3d at 25 (citing United States v. Skoien, 614 F.3d
638, 641 (7th Cir. 2010)).

And strict scrutiny is even more

demanding, requiring evidence that the law “furthers a compelling
interest and is narrowly tailored to achieve that interest.”
Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (quotation and
citation omitted).
Defendants argue that Massachusetts has a compelling
interest in limiting the proliferation of firearms because of
their inherent danger.

But defendants fail to establish that the

statute is either substantially related to, or narrowly tailored
to serve, this interest in a constitutional fashion.

Although

Massachusetts has an interest in regulating firearms to prevent
dangerous persons from obtaining firearms as recognized in
Booker, the statute here fails to distinguish between dangerous
non-citizens and those non-citizens who would pose no particular
threat if allowed to possess handguns.

Nor does it distinguish

between temporary non-immigrant residents and permanent
residents.

Any classification based on the assumption that

lawful permanent residents are categorically dangerous and that
all American citizens by contrast are trustworthy lacks even a
reasonable basis.
As one commentator noted, gun laws similar to the
Massachusetts firearms regulatory regime were enacted “when fear
36

of foreign anarchists during the red-scare era, notions of
immigrant mental deficiencies, and stereotypes of immigrants’
laziness and proclivity towards crime dominated the popular and
political consciousness.”

Pratheepan Gulasekaram, Aliens with

Guns: Equal Protection, Federal Power, and the Second Amendment,
92 IOWA L. REV. 891, 909 (2007).

Those fears are inapplicable to

Fletcher and Pryal, who as lawful permanent residents have
established indefinite residence in the United States and are
even eligible for military service.

The possibility that some

resident aliens are unsuited to possess a handgun does not
justify a wholesale ban.

See Application of Griffiths, 413 U.S.

717, 725 (1973) (rejecting “the possibility that some resident
aliens are unsuited to the practice of law” as a “justification
for a wholesale ban”).

In short, defendants have not sustained

their burden of showing that the statute passes muster under any
potentially applicable standard.

Consequently, I will grant

summary judgment in favor of plaintiffs on Count II.20

20

Because the Supreme Court has recently declared the
Second Amendment applicable to the States by virtue of the
Fourteenth Amendment, McDonald v. City of Chicago, 130 S. Ct.
3020 (2010), I need not embark on a discussion of the
constitutionality of the state law under the Equal Protection
clause. Since I find that plaintiffs Fletcher and Pryal are
covered by the Second Amendment, their Equal Protection claim
does not do any additional work in this case. I note, however,
that Massachusetts state equal protection law seems hospitable to
a state law challenge to different treatment of aliens and
citizens. See Finch v. Commonwealth Health Ins. Connector Auth.,
959 N.E.2d 970 (Mass. 2012). Plaintiffs, however, have not
raised state claims in this action.
37

C.

Preemption
For purposes of completeness, I will also address

plaintiffs’ claim, made for the first time in their cross-motion
for summary judgment,21 that the Massachusetts firearms
regulatory regime, as a regulation based on alienage, is
preempted by the exclusive federal right to regulate immigration.
To illustrate their argument, plaintiffs rely on the federal
statute, which regulates gun possession for aliens.

18 U.S.C. §

922(g)(5).
The Supreme Court has “long recognized the preeminent role
of the Federal Government with respect to the regulation of
aliens with our borders.”

Toll v. Moreno, 458 U.S. 1, 10 (1982).

Federal authority over aliens derives from various sources,
including the federal government’s power to establish a uniform
rule of naturalization, its power to regulate commerce with
foreign nations, and its broad authority over foreign affairs.
Id.

The broad constitutional powers detained by the federal

government does not mean, however, “that every state enactment
which in any way deals with aliens is a regulation of immigration
and thus per se pre-empted by this constitutional power.”
DeCanas v. Bica, 424 U.S. 351, 355 (1976) (superceded by the

21

The new preemption claim advanced by plaintiffs is not
contained in their complaint. Plaintiffs have not yet moved to
amend their complaint, but instead offer to do so “if necessary.”
38

Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.).22
Two principles guide preemption analysis under the Supremacy
Clause:23

(1) “the purpose of Congress is the ultimate

touchstone,” and (2) the presumption “that the historic police
powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.”
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotations and
citations omitted).

Congress could not have been more explicit

when enacting the federal statute regulating firearms; it made
clear that states would retain the authority to regulate firearms
possession:
No provision of this chapter shall be construed as
indicating an intent on the part of the Congress to

22

In DeCanas, the Supreme Court upheld a California law
forbidding employers from “knowingly employ[ing] an alien who is
not entitled to lawful residence in the United States if such
employment would have an adverse effect on lawful resident
workers.” 424 U.S. 351, 352 (1976) (quoting Cal. Labor Code §
2805(a)). Finding no clear intent of Congress to “preclude even
harmonious state regulation touching on aliens in general, or the
employment of illegal aliens in particular,” id. at 358, the
court reasoned “that aliens are the subject of state statute does
not render it a regulation of immigration, which is essentially a
determination of who should or should not be admitted into the
country, and the conditions under which a legal entrant may
remain.” Id. Ten years after DeCanas, Congress enacted the
Immigration Reform and Control Act (IRCA), 100 Stat. 3359. IRCA
makes it “unlawful for a person or other entity . . . to hire, or
to recruit or refer for a fee, for employment in the United
States an alien knowing the alien is an unauthorized alien.” 8
U.S.C. § 1324a(a)(1)(A).
23

“[T]he Laws of the United States . . . shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2.
39

occupy the field in which such provision operates to the
exclusion of the law of any State on the same subject
matter, unless there is a direct and positive conflict
between such provision and the law of the State so that
the two cannot be reconciled or consistently stand
together.
18 U.S.C. § 927.

Congress’s stated purpose aligns with the

Supreme Court’s longstanding recognition of state authority to
regulate handguns.

See McDonald, 130 S. Ct. at 3047 (“[S]tate

and local experimentation with reasonable firearms regulations
will continue under the Second Amendment.” (quoting the brief for
the thirty-eight state amici)); Heller, 554 U.S. at 626
(“[N]othing in our opinion should be taken to cast doubt on
longstanding [state] prohibitions on the possession of firearms”
in certain cases).

There is no evidence that the Massachusetts

firearms regulatory regime conflicts with federal law.24
Plaintiffs make no claim that “compliance with both state and
federal law is impossible,” or that “state law stands as an
obstacle to the accomplishment and execution of the full purposes
and objective of Congress.”

United States v. Locke, 529 U.S. 89,

109 (2000) (quotation marks and citation omitted).

Consequently,

I conclude that federal law does not preempt the Massachusetts
firearms regulatory regime so long as it is consistent with the
Second Amendment.

24

Recent caselaw, however, now suggests that the treatment
of aliens under the Massachusetts federal regulatory regime may
conflict with Massachusetts constitutional law. See supra note
20.
40

IV. CONCLUSION
For the reasons set forth more fully above, I GRANT
defendants’ motions to dismiss (Dkt. Nos. 12, 14, 16), as to the
claims of the plaintiff organizations; but DENY those motions as
to the claims of plaintiffs Fletcher and Pryal.
I conclude the Massachusetts firearms regulatory regime as
applied to the individual plaintiffs,
Amendment.

contravenes the Second

Accordingly I GRANT Fletcher and Pryal’s motion for

summary judgment (Dkt. No. 23) and direct that judgment enter
enjoining

denial of firearm licenses and permits to them solely

on the basis of their permanent resident alien status.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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