Gould et al v. O'Leary et al
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDERPlaintiffs' motion for summary judgment 56 is DENIED. Defendants' motions for summary judgment 70 73 are GRANTED.(FDS, law1)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL GOULD, CHRISTOPHER
HART, DANNY WENG, SARAH ZESCH,
JOHN STANTON and COMMONWEALTH
SECOND AMENDMENT, INC.,
DANIEL O’LEARY, in his official capacity as )
Chief of the Brookline Police Department, and )
WILLIAM EVANS, in his official capacity as
Commissioner of the Boston Police Department, )
COMMONWEALTH OF MASSACHUSETTS, )
Civil Action No.
MEMORANDUM AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
This is a federal constitutional challenge to the firearm licensing policies of the Town of
Brookline and the City of Boston. Plaintiffs Michael Gould, Christopher Hart, Danny Weng,
Sarah Zesch, John Stanton, and Commonwealth Second Amendment, Inc. have brought suit
under 42 U.S.C. § 1983, contending that policies of the Brookline and Boston Police
Departments that restrict the ability of applicants to obtain licenses to carry firearms violate the
Second and Fourteenth Amendments. The named defendants are Daniel O’Leary, the chief of
the Brookline Police Department, and William Evans, the commissioner of the Boston Police
Department. The Commonwealth of Massachusetts has intervened to defend the
constitutionality of its state licensing scheme.
The parties have cross-moved for summary judgment. For the following reasons,
defendants’ motions will be granted, and plaintiffs’ motion will be denied.
The facts set forth below are undisputed.
Massachusetts Regulatory Framework
In Massachusetts, it is a crime to possess a firearm in public without a valid license to
carry. Mass. Gen. Laws ch. 269, § 10(a). 1 Licenses to carry (“LTC”) firearms may be requested
by application pursuant to Mass. Gen. Laws ch. 140, § 131(d). Applications are made to a
“licensing authority,” which is defined as either the applicant’s local police chief or the board or
officer having control of the police in a city or town. Id. §§ 121, 131(d). Massachusetts law
specifies the circumstances under which a licensing authority may grant licenses, when licenses
may be revoked, and what restrictions licenses may contain. Id. § 131.
Under the statute, a licensing authority “may issue” a license if “it appears” that the
applicant satisfies both parts of a two-step inquiry, demonstrating that he or she (1) is not a
“prohibited person” and (2) has a “proper purpose” for carrying a firearm. Ruggiero v. Police
Comm’r of Boston, 18 Mass. App. Ct. 256, 259 (1984) (discussing an earlier, similarly worded
version of the statute); Mass. Gen. Laws ch. 140, § 131(d). 2
With limited exceptions, a “firearm” is defined as “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.” Mass. Gen. Laws ch. 140 §
Prior to 2014, a licensing authority could issue licenses in two forms: Class A or Class B. Mass. Gen.
Laws. ch. 140, § 131(a-b). A Class A license permitted an individual to carry a concealed firearm in public and to
possess a large-capacity firearm, while a Class B license permitted only open carry of firearms that were not
classified as large-capacity. Id. In 2014, the Massachusetts legislature amended the licensing laws, eliminating
Class B licenses, effective in 2021. See Mass. Acts ch. 284, § 101. However, effective immediately, licensing
At the first step of the inquiry, the licensing authority examines whether the applicant is a
“prohibited person.” Mass. Gen. Laws ch. 140, § 131(d). An applicant may be categorically
prohibited from possessing a firearm (for example, minors). Id. Alternatively, an applicant may
be found to be a prohibited person if the licensing authority, in the reasonable exercise of his or
her discretion, determines that the applicant is “unsuitable” based on evidence or factors that
suggest the applicant would cause a risk to public safety. Id. The parties agree that plaintiffs
here are not categorically prohibited from obtaining a license.
At the second step of the inquiry, the licensing authority is required to consider whether
the applicant has a “proper purpose” for carrying a firearm. Ruggiero, 18 Mass. App. Ct. at 259.
The statute does not provide an exhaustive list of purposes for which an applicant may properly
request a license. Instead, it states that the licensing authority “may issue” a license if the
applicant (1) “has good reason to fear injury to the applicant or the applicant’s property” or (2)
“for any other reason, including the carrying of firearms for use in sport or target practice only,
subject to the restrictions expressed or authorized under this section.” Mass. Gen. Laws ch. 140,
§ 131(d). In Ruggiero, the Massachusetts appellate court summarized an earlier version of the
statute as follows: “Without excluding other valid reasons for being licensed, the statute
identifies two purposes which will furnish adequate cause to issue a license—‘good reason to
fear injury to person or property’ and an intent to carry a firearm for use in target practice.” 18
Mass. App. Ct. at 259. When an applicant seeks a license solely for self-protection, the licensing
authority may require that the applicant distinguish his or her own specific need for protection
from the needs of members of the general public. Id. at 261 (finding that, under an earlier,
authorities were directed to refrain from issuing Class B licenses and to issue new and renewed licenses as Class A
similarly worded version of the statute, an applicant’s stated purposes to avoid “spend[ing] his
entire life behind locked doors [and to prevent becoming] a potential victim of crimes” did not
require issuance of a license for self-defense in public).
Even when an applicant otherwise meets the requirements for license approval, the
licensing authority may issue the license “subject to such restrictions relative to the possession,
use or carrying of firearms as the licensing authority deems proper.” Mass. Gen. Laws ch. 140,
§ 131(a-b). Pursuant to that provision, the licensing authority may restrict a license to those uses
for which the authority determines there to be an appropriate reason. See Ruggiero, 18 Mass.
App. Ct. at 260 (upholding issuance of license with target, hunting, and sporting restriction
where applicant requested license for self-defense purposes).
A licensing authority’s decision to deny or restrict a license is subject to judicial review.
Mass. Gen. Laws ch. 140, § 131(f). An applicant who has been denied a license must challenge
the denial within ninety days. Id. By comparison, an applicant who has been granted a license
with restrictions may challenge the restrictions in court at “any time.” Id. Upon judicial review,
the licensing authority’s determination to impose restrictions may be reversed only if the
authority had “no reasonable ground for . . . restricting the license” or the determination is
“arbitrary, capricious, or an abuse of discretion.” Id.; Chief of Police of Shelburne v. Moyer, 16
Mass. App. Ct. 543, 546 (1983)).
Unless revoked or suspended, a license “shall be valid” for between five and six years,
and shall expire on the licensee’s birthday. Mass. Gen. Laws ch. 140, § 131(i). The licensing
authority “shall” revoke or suspend a license “upon the occurrence of any event that would have
disqualified the holder from being issued such license or from having such license renewed.” Id.
§ 131(f). Additionally, a license “may be” revoked or suspended if the licensee is “no longer a
suitable person.” Id. The determination to revoke or suspend a license is also subject to judicial
Brookline Firearm Licensing Policy
Daniel O’Leary is the Chief of the Brookline Police Department. (Def. O’Leary’s SMF ¶
1). He and Sergeant Christopher Malinn are the two officials who administer the firearmslicensing process in Brookline. (Id.). Sgt. Malinn is the “contact person and investigator” for
firearm-license applicants. (Id. ¶ 2). However, as Police Chief, O’Leary is the ultimate authority
responsible for issuing firearm licenses to Brookline residents pursuant to Mass. Gen. Laws ch.
140, § 131. (Id. ¶ 3). Chief O’Leary states that it is his practice to review personally all the
information concerning applicants submitted to Sgt. Malinn. (Id.). He also states that he is
always willing to meet with applicants to discuss their applications or licenses. (Id. ¶ 4).
Chief O’Leary will issue unrestricted LTCs to qualified individuals who show “good
reason to fear injury to his person or property.” (Def. O’Leary’s Ans. to Interrog. No. 9). An
otherwise-qualified applicant who fails to show “good reason to fear injury” will receive a
restricted license. When deciding which restrictions to impose, Chief O’Leary states that he
takes into account all information provided in the application, including field of employment and
any training or experience with firearms. (Id. at Nos. 11-12).
Since January 1, 2015, Brookline has imposed seven types of restrictions on firearm
licenses: (1) target, (2) hunting, (3) transport, (4) sporting, (5) employment, (6) in home, and (7)
collecting. (Def. O’Leary’s SMF ¶ 6). 3 Descriptions of those restrictions are as follows:
TARGET – allows firearms to be carried while engaged in firearms target
practice at a firearms club or firearms school. Included is reasonable traveling
time to and from said club or firearms school, with any weapon(s). The firearm
cannot be carried outside the home for another purpose.
The in home restriction was created only because one applicant specifically requested it. (Def. O’Leary’s
SMF ¶ 6).
HUNTING – allows firearms to be carried while hunting and while going to or
coming from a hunting area, when in possession of a valid hunting license. The
firearm cannot be carried outside of the home for another purpose.
TRANSPORT – allows one to transport firearms from one home to another.
Note that all of the restrictions allow one to transport the firearm to the allowed
activity. The firearm cannot be carried outside the home for another purpose.
SPORTING – allows the firearm to be carried for the purpose of target practice,
recreational shooting or competition, the lawful pursuit of game animals and
birds, and for outdoor recreational activities such as hiking, camping, cross
country skiing, and other related activities. The firearm cannot be carried outside
of the home for any other purpose.
EMPLOYMENT – allows the firearm to be carried only during the hours one is
actually employed by, and/or operating at their company/employer. This includes
reasonable time traveling to and from the company/employer. The firearm cannot
be carried outside the home for any other purpose.
IN HOME – allows one to keep the firearm in the home. It cannot be carried
outside of the home.
COLLECTING – allows one to carry the firearm for the purpose of firearms
collecting. Firearms cannot be carried outside the home for any other purpose.
(Def. O’Leary’s Ans. to Interrog. No. 3).
Between January 1, 2015, and July 18, 2017, Chief O’Leary issued a total of 191 LTCs.
(Stipulation at 1). Of those 191 LTCs, 68 (35.6%) were unrestricted and 123 (64.4%) contained
at least one restriction. (Id.). However, members of certain professions were more likely to
receive unrestricted licenses. (Id.). During that time period, 22 of 24 law enforcement officers
(91.7%), 10 of 14 physicians (71.4%), and 4 of 6 attorneys (66.7%) received unrestricted
Plaintiff Gould’s Application
In 2014, Michael Gould lived in Brookline. (Pls.’ SMF ¶ 81). He works as a
professional photographer at a fine arts museum and also operates his own photography business.
(Id. ¶ 79; Gould Aff. ¶ 1). He previously lived in Weymouth, Massachusetts, where he had a
LTC from the Weymouth Police Department with the restriction of “Target Hunting
Employment.” (Pls.’ SMF ¶ 80). On July 8, 2014, he applied to renew his LTC for “all lawful
purposes” with the Brookline Police Department. (Id. ¶ 81). During an interview with Sgt.
Malinn, he stated that he wanted an unrestricted LTC for self-defense. (Id. ¶ 82). Sgt. Malinn
advised that unrestricted LTCs were difficult to obtain in Brookline and that Gould would need
to obtain specific documentation to support his request. (Id.).
On September 29, 2014, Gould mailed a letter to Chief O’Leary detailing his request for
an unrestricted LTC. (Id. ¶ 83). In his letter, he stated that he needed an unrestricted LTC
because he routinely worked with “valuable photography equipment as well as extremely
valuable works of art.” (Gould Aff. Ex. 4, at 1). He further emphasized his experience with
Chief O’Leary denied Gould’s application for an unrestricted LTC in a letter dated
October 16, 2014, but offered to issue an LTC with the “Sporting” and “Employment”
restrictions. (Pls.’ SMF ¶ 84). On October 23, 2014, Sgt. Malinn explained to Gould that those
restrictions would allow him to carry a firearm on all occasions identified in his letter. (Def.
O’Leary’s SMF ¶ 13). Gould signed forms accepting a LTC with those two restrictions on
November 10, 2014, and received it on November 20, 2014. (Pls.’ SMF ¶¶ 86-87). He did not
appeal the license restrictions pursuant to Mass. Gen. Laws. ch. 140, § 131(f). (Def. O’Leary’s
SMF ¶ 14).
Boston Firearm Licensing Policy
William Evans is the Commissioner of the Boston Police Department. (Pls.’ SMF ¶ 1).
He has delegated his responsibilities as a licensing authority to Lt. Det. John McDonough, the
head of the Boston Police Department’s Licensing Unit. (Id.).
The Licensing Unit will issue unrestricted LTCs to qualified individuals who “show
‘good reason to fear injury’ that distinguishes them from the general population,” or “are
engaged in certain occupations.” (Id. ¶ 2). Occupations that typically qualify for unrestricted
LTCs include law enforcement officer, medical doctor, and lawyer. (Id. ¶ 3). In addition, the
Licensing Unit will issue an unrestricted LTC to an applicant who has already been issued an
unrestricted LTC anywhere else in Massachusetts. (Id. ¶ 4). If an individual does not meet one
of these requirements, the Licensing Unit will typically issue the LTC subject to a “Target &
Hunting” restriction. (Id. ¶ 5).
The Licensing Unit imposes three varieties of restrictions on firearm licenses: (1)
employment, (2) target and hunting, and (3) sporting. A written policy describing those
restrictions states as follows:
EMPLOYMENT – restricts possession to a business owner engaged in business
activities, or to an employee while engaged in work related activities, and
maintaining proficiency, where the employer requires carry of a firearm (i.e.
armored car, security guard, etc.). Includes travel to and from the activity
TARGET AND HUNTING – restricts possession to the purpose of lawful
recreational shooting or competition; for use in the lawful pursuit of game animals
and birds; for personal protection in the home; and for the purpose of collecting
(other than machine guns). Includes travel to and from activity location.
SPORTING – restricts possession to the purpose of lawful recreational shooting
or competition; for use in the lawful pursuit of game animals and birds; for
personal protection in the home; for the purpose of collecting (other than machine
guns); and for outdoor recreational activities such as hiking, camping, cross
country skiing, or similar activities. Includes travel to and from activity location.
(Def. Evans’s SMF, Ex. 4).
The Licensing Unit does not have a formal internal written policy for determining
whether an applicant has shown good “reason” or “proper purpose” for obtaining an unrestricted
LTC. (Def. Evans’s SMF ¶ 5). However, the Licensing Unit does follow general guidelines.
(Id. ¶ 6). For example, the Licensing Unit draws a distinction between victims of random crime
and victims who were specifically targeted; the latter are more likely to show the “good reason to
fear injury” required for an unrestricted LTC. (Id. ¶ 10). The Licensing Unit does not define
“good reason to fear injury” with regard to high-crime areas. (Id. ¶ 11). In addition, applicants
requesting an unrestricted LTC must submit a letter and supporting documentation to Lt. Det.
McDonough. (Id. ¶ 13). Lt. Det. McDonough states that he reviews those documents to
determine eligibility for an unrestricted LTC on an individualized, case-by-case basis. (Id. ¶ 14).
Between January 1, 2015, and July 18, 2017, the Licensing Unit issued a total of 3,684
LTCs. (Pls.’ SMF ¶ 21). Of those 3,684 LTCs, 1,576 (42.8%) were unrestricted and 2,108
(57.2%) contained at least one restriction. (Id.). 4 During that time period, 842 of 884 law
enforcement officers (95.25%), 29 of 40 physicians (72.5%) and 78 of 86 attorneys (90.7%)
received unrestricted licenses. (Id. ¶¶ 22-24). Excluding members of those three professions,
the Licensing Unit issued 2,674 LTCs, of which 628 (23.5%) were unrestricted. (Id. ¶ 25).
Boston Plaintiffs’ Applications
Four plaintiffs are residents of the City of Boston: Christopher Hart, Danny Weng, Sarah
Zesch, and Josh Stanton.
Christopher Hart works as the general manager of a restaurant in Boston. (Id. ¶ 48). He
previously lived in Connecticut, where he possessed a “State Permit to Carry Pistols and
Revolvers.” (Id. ¶ 49). He previously possessed handgun carry licenses from Florida, Maine,
The most common restriction imposed was “Target & Hunting,” which was placed on 1,815 LTCs. (Def.
Evans’s SMF ¶ 26). The Licensing Unit also issued 17 LTCs with “Sporting” restrictions and 34 LTCs with
“Employment” restrictions. (Id.). There were 242 LTCs issued with some combination of those three categories of
and New Hampshire. (Id.).
On June 4, 2014, he applied for an LTC with the Licensing Unit. (Id. ¶ 50). On his
application, Hart wrote that he was seeking a license for “personal protection both in/out of my
home.” (Id.). He then had an interview with Officer Angela Coleman. (Id. ¶ 51). After the
interview, Officer Coleman completed a Massachusetts Instant Record Check System
(“MIRCS”) application for Hart and wrote “Target and Hunting” under the section “Reason(s)
for requesting the issuance of a card or license.” (Id. ¶ 52). Although Hart also submitted a
letter to Lt. Det. McDonough requesting an unrestricted LTC for self-defense, he never received
a reply. (Id. ¶¶ 54-55).
On July 2, 2014, the Licensing Unit issued a LTC to Hart with the restriction of “Target
& Hunting.” (Id. ¶ 56). The following month, he visited the Licensing Unit and asked about the
possibility of removing the restriction. (Id. ¶ 57). Because his employer declined to provide
documentation to justify an additional “Employment” exception, Hart did not appeal the license.
Danny Weng is a software engineer who was honorably discharged from the U.S. Army.
(Id. ¶ 37). He applied for a LTC with the Licensing Unit on January 13, 2014. (Id. ¶ 38). On his
application, he stated that he was seeking a LTC for “all lawful purposes/target shooting.” (Id.).
He then interviewed with Officer Patricia McGoldrick, who completed a MIRCS application on
his behalf. (Id. ¶ 40). Officer McGoldrick wrote “Target and Hunting” on his MIRCS
application under the section “Reason(s) for requesting the issuance of a card or license.” (Id. ¶
On February 18, 2014, the Licensing Unit issued a LTC to Weng with the restriction of
“Target & Hunting.” (Id. ¶ 44). Nine months later, on November 14, 2014, he wrote a letter to
Lt. Det. McDonough reiterating his desire for an unrestricted LTC, emphasizing his military
experience and desire for additional protection. (Id. ¶ 45). He followed up with another letter on
March 13, 2015, adding that he wanted flexibility to participate in competitive shooting. (Id. ¶
46). Lt. Det. McDonough replied on April 4, 2015, denying the request for an unrestricted LTC
because he “could not show that [he had a] proper purpose to possess [an unrestricted] license.”
(Id. ¶ 47).
Sarah Zesch is a Boston native who recently graduated from college and works for a state
agency. (Id. ¶ 58). On January 6, 2015, she applied for a LTC with the Licensing Unit. (Id. ¶
59). She did not answer the question on the application form, “For what purpose do you require
a License to Carry Firearms?” (Id.). She then interviewed with Officer Coleman, and indicated
she wanted an unrestricted LTC for self-protection. (Id. ¶¶ 60-61).
After the interview, Officer Coleman wrote “Target and Hunting” on her MIRCS
application under the section “Reason(s) for requesting the issuance of a card or license.” (Id. ¶
63). Although she also submitted a letter to Lt. Det. McDonough requesting an unrestricted LTC
for personal protection, she never received a reply. (Id. ¶¶ 65, 67). On March 10, 2015, the
Licensing Unit issued a LTC to her with the restriction of “Target & Hunting.” (Id. ¶ 66).
John Stanton is a professional musician. (Id. ¶ 68). On December 15, 2014, he applied
for a LTC with the Licensing Unit. (Id. ¶ 69). He listed “self-defense, target shooting, hunting,
and all other lawful purposes” as reasons for requiring a LTC. (Id.). He then interviewed with
Officer Coleman, who wrote “Target and Hunting” on his MIRCS application under the section
“Reason(s) for requesting the issuance of a card or license.” (Id. ¶ 72). On January 15, 2015, the
Licensing Unit issued a LTC to him with the restriction of “Target & Hunting.” (Id. ¶ 74).
On March 13, 2015, Stanton wrote a letter to Lt. Det. McDonough requesting removal of
that restriction. (Id. ¶ 75). Lt. Det. McDonough denied the request on June 9, 2015, on the
ground that Stanton “could not show that [he had a] proper purpose to possess [an unrestricted]
license.” (Id. ¶ 76).
Within the next two months, Stanton was the victim of a theft. (Id. ¶ 77). On July 30,
2015, he again wrote to Lt. Det. McDonough and reiterated his prior request, emphasizing that
he wanted an unrestricted LTC for personal protection. (Id.). Lt. Det. McDonough denied the
request on August 6, 2015, stating he had still failed to provide justification for an unrestricted
LTC. (Id. ¶ 78).
Commonwealth Second Amendment, Inc.
Plaintiff Commonwealth Second Amendment, Inc. is a Massachusetts-based non-profit
corporation organized for the purpose of education, research, and legal action regarding what it
contends is the constitutional right to possess and carry firearms. (Id. ¶¶ 88-89). The individual
plaintiffs were made honorary members of the organization without their knowledge for
purposes of this suit. (Def. Evans’s SMF ¶ 25). However, since the filing of this suit, the
individual plaintiffs have accepted membership offers and are now “knowing” members of the
organization. (Pls.’ Resp. to Def. Evans’s SMF ¶ 25). Because Commonwealth Second
Amendment, Inc.’s standing relies on the standing of its members and because its claims appear
to be essentially derivative of the claims of its members, the organization’s claims can be
decided on the same grounds as those of the individual plaintiffs without separate analysis. See
United States v. AVX Corp., 962 F.2d 108, 116 (1st Cir. 1992).
On February 4, 2016, plaintiffs Gould, Hart, and Commonwealth Second Amendment,
Inc., brought this lawsuit against defendants O’Leary and Evans. 5 Plaintiffs amended the
complaint on April 14, 2016, to add individual plaintiffs Weng, Zesch, and Stanton.
On January 27, 2017, defendant Evans filed a motion for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c). The Court denied the motion on March 6, 2017, finding that
the amended complaint plausibly stated a claim for relief and raised factual issues that required
the development of a factual record. After discovery concluded, plaintiffs filed a motion for
summary judgment, and defendants O’Leary and Evans filed cross-motions for summary
Cross-Motions for Summary Judgment
The two-count amended complaint alleges violations of the Second and Fourteenth
Amendments under 42 U.S.C. § 1983. To succeed on a claim under 42 U.S.C. § 1983, plaintiffs
must prove that (1) the conduct complained of was carried out under color of state law and (2)
defendant’s actions deprived plaintiffs of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Collins v. Nuzzo, 244 F.3d 246, 250 (1st. Cir. 2001).
There is no dispute that defendants O’Leary and Evans were acting under color of state
law in issuing plaintiffs’ restricted licenses. The complaint alleges that Massachusetts’s firearm
licensing scheme and defendants’ licensing policies violate the Second Amendment and the
Equal Protection Clause by (1) permitting the imposition of restrictions such as “sporting,”
“target,” “hunting,” and “employment” on their licenses and (2) allowing issuance of permits to
The original complaint listed Irwin Cruz as a plaintiff and Chief David Provencher of the New Bedford
Police Department as a defendant. Neither individual is a current party to the case.
turn on “arbitrary considerations, such as whether an individual resides or previously resided on
the correct side of a boundary line, is wealthy and/or has a lot of cash, has a particular
occupation, or has a place of business in another locality that issues unrestricted LTC[ ]s.” Am.
Compl. ¶¶ 62-68. In essence, plaintiffs contend that the Second Amendment, as interpreted by
the Supreme Court decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and
McDonald v. City of Chicago, 561 U.S. 742 (2010), protect the right of law-abiding citizens to
carry handguns in public for the purpose of self-defense.
Defendants contend that neither the municipal policies in question nor the state statutory
scheme implicate a Second Amendment right because that right is limited to personal protection
within the home. 6
Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
Summary judgment is appropriate when the moving party shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A genuine issue is “one that must be decided at trial because the evidence,
viewed in the light most flattering to the nonmovant . . . would permit a rational fact finder to
resolve the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court
indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves,
In Batty v. Albertelli, 2017 WL 740989 (D. Mass. Feb. 24, 2017), this Court upheld the constitutionality
of the Town of Winchester’s firearm licensing scheme against a challenge virtually identical to that made by
plaintiffs here. Indeed, plaintiffs concede that the Court’s ruling in Batty “ought to be dispositive here—unless
revisited.” (Pls.’ Opp. and Reply at 1).
994 F.2d 905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving party may not simply “rest upon mere allegation or denials of his pleading,” but instead
must “present affirmative evidence.” Id. at 256-57.
The Second Amendment
The Second Amendment to the United States Constitution provides as follows: “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. In 2008, the Supreme Court
struck down a District of Columbia ordinance that prohibited the possession of handguns in the
home, declaring that the Amendment guarantees “the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” Heller, 554 U.S. at 635. In 2010, the Court affirmed
that the “right to possess a handgun in the home for the purpose of self-defense” is incorporated
into the protections against infringement by the states provided by the Fourteenth Amendment.
McDonald, 561 U.S. at 791. In Heller, however, the Supreme Court qualified its holding, stating
that “[l]ike most rights, the right secured by the Second Amendment is not unlimited. . . .
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” 554 U.S. at 626-27.
As the First Circuit has recognized, several circuits use a two-part framework to evaluate
a claim of Second Amendment infringement. Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st
Cir. 2015). Under that framework, courts
first consider whether the challenged law imposes a burden on conduct that falls
within the scope of the Second Amendment's guarantee as historically understood,
and if so, . . . next determine the appropriate form of judicial scrutiny to apply
(typically, some form of either intermediate scrutiny or strict scrutiny).
Id. (citing Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 962-63 (9th Cir. 2014);
Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 874-75
(4th Cir. 2013); Nat'l Rifle Assn'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th
Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“Heller II”);
Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Reese, 627 F.3d
792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); cf.
Kwong v. Bloomberg, 723 F.3d 160, 167 (2d Cir. 2013); United States v. Bena, 664 F.3d 1180,
1182-85 (8th Cir. 2011); United States v. Skoien, 614 F.3d 638, 639-43 (7th Cir. 2010) (en
Although the First Circuit has not explicitly adopted that two-step approach, the cases in
which it has directly analyzed Second Amendment issues appear to fall under either the first or
second step of the framework. For example, in United States v. Rene E., the court concluded that
the federal statute criminalizing firearm possession by juveniles did not violate the Second
Amendment because it was one of the “longstanding prohibitions” that Heller did not call into
question. See 583 F.3d 8, 15-16 (1st Cir. 2009). While the court in Rene E. did not specifically
hold that the statute only burdened conduct outside the scope of Second Amendment protection,
the analysis it followed was almost identical to those of other circuits when conducting the first
step in their Second Amendment analysis. Compare, e.g., Rene E., 583 F.3d at 13-16 (surveying
nineteenth-century state laws and the founders’ attitudes on juvenile handgun possession) with
National Rifle Ass’n of Am., 700 F.3d at 200-04 (surveying founding-era attitudes and
nineteenth-century opinion on juvenile firearm possession).
In United States v. Booker, 644 F.3d 12 (1st Cir. 2011) and United States v. Armstrong,
(1st Cir. 2013), the First Circuit upheld a federal statute criminalizing firearm possession by
persons convicted of misdemeanor crimes of domestic violence. In doing so, it found that the
statute, although falling within one of the “presumptively lawful” categories of firearm
regulation in Heller, required some form of means-ends scrutiny because it was a categorical
limit on the Second Amendment right. Booker, 644 F.3d at 25; Armstrong, 706 F.3d at 7-8.
In Hightower v. City of Boston, the First Circuit concluded that revoking an individual’s
license to carry a concealed weapon based on the fact that her firearm license application
contained a false statement did not violate the Second Amendment under any standard of
heightened scrutiny. 693 F.3d 61, 74 (1st Cir. 2012). Thus, the analysis in Booker, Armstrong,
and Hightower was similar to the analysis performed by other circuits at the second step of the
Second Amendment analytical framework. Compare Hightower, 693 F.3d at 73-76 (regulation
upheld under any standard of heightened means-ends scrutiny) with Woollard, 712 F.3d at 88082 (regulation upheld under intermediate scrutiny).
Accordingly, the Court will first analyze the scope of the Second Amendment to
determine whether the disputed restrictions impose a burden on the right to keep and bear arms
protected by the Second Amendment’s guarantee as historically understood. Next, the Court will
analyze what form of means-ends scrutiny the restrictions must satisfy. Finally, the Court will
apply the appropriate level of scrutiny to the restrictions at issue.
Scope of the Second Amendment
Heller specifically precluded from Second Amendment protection three categories of
firearm regulation: “longstanding prohibitions on the possession of firearms by felons and the
mentally ill, . . . laws forbidding the carrying of firearms in sensitive places, [and] laws imposing
conditions and qualifications on the commercial sale of arms.” 554 U.S. at 626-27. The court
identified these laws as examples of “presumptively lawful” regulatory measures, while
explicitly describing the list as non-exhaustive. Id. at 627 n.26. Courts have interpreted Heller
as delimiting the scope of the Second Amendment, placing regulations that are sufficiently
rooted in history and tradition as to rise to the level of “presumptively lawful” outside its
protection. See, e.g., Rene E., 583 F.3d at 12.
Plaintiffs contend that the restrictions imposed on their licenses do not comport with
historical understandings of the Second Amendment right as interpreted by Heller. They
contend that the Second Amendment squarely protects the right of law-abiding citizens to carry
handguns in public for the purpose of self-defense, which defendants have infringed by requiring
them to show a specific “reason to fear” in order to receive unrestricted licenses. Like the Third
Circuit in Drake, this Court is “not inclined to address this [issue] by engaging in a round of fullblown historical analysis, given other courts’ extensive consideration of the history and tradition
of the Second Amendment.” 724 F.3d at 431.
It is now well-established “that the possession of operative firearms for use in defense of
the home constitutes the ‘core’ of the Second Amendment.” Hightower, 693 F.3d at 72; see also
Powell, 783 F.3d at 347. However, Heller and McDonald were not intended to describe the full
scope of the Second Amendment right, and neither squarely addresses whether the Second
Amendment right extends beyond the home. See Heller, 554 U.S. at 595 (finding that “the
Second Amendment conferred an individual right to keep and bear arms,” but also that the
Second Amendment did not “protect the right of citizens to carry arms for any sort of
confrontation”). As a result, the lower federal courts have wrestled with the questions of
whether, and to what extent, the right protected by the Second Amendment extends beyond the
home. See Hightower, 693 F.3d at 74 (describing the matter as a “vast terra incognita”) (quoting
United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)). Twice, the First Circuit has
declined to reach the issue of “the scope of the Second Amendment as to carrying firearms
outside the vicinity of the home.” Hightower, 693 F.3d at 72 n.8; Powell, 783 F.3d at 348
(quoting Hightower, 693 F.3d at 72 n.8).
Decisions from the other courts of appeals offer mixed guidance. The Second, Third, and
Fourth Circuits have “assumed for analytical purposes” that the Second Amendment has some
application outside the home, without deciding the issue. See Powell, 783 F.3d at 348 n.10; see
also Drake, 724 F.3d at 431; Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir.
2012); Woollard, 712 F.3d at 876.
In contrast, the Seventh Circuit held that the “Supreme Court has decided that the
[Second] [A]mendment confers a right to bear arms for self-defense, which is as important
outside the home as inside.” Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). The Ninth
Circuit originally agreed with the Seventh Circuit’s analysis. See Peruta v. County of San Diego,
771 F.3d 570 (9th Cir. 2014). However, it reversed that decision upon rehearing en banc, and
determined that although the Second Amendment does not encompass a right to carry a
concealed weapon in public, “[t]here may or may not be a Second Amendment right for a
member of the general public to carry a firearm openly in public.” Peruta v. County of San
Diego, 824 F.3d 919, 939 (9th Cir. 2016).
More recently, the District of Columbia Circuit held that the Second Amendment protects
an individual’s right to carry firearms outside the home for self-defense. See Wrenn v. District of
Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017). In Wrenn, the court, in a 2-to-1 decision, found
that the “core” of the Second Amendment protected “the individual right to carry common
firearms beyond the home for self-defense—even in densely populated areas, even for those
lacking special self-defense needs.” Id. at 661.
The court invalidated the District of Columbia’s “good-reason” law as a categorical
restriction on a “‘core’ Second Amendment right.” Id. at 657. 7 It stated that the historical
analysis of the Supreme Court in Heller showed that when the Second Amendment was ratified,
the so-called Northampton laws that restricted carrying firearms in crowded areas only barred the
carrying of “dangerous and unusual” weaponry. Id. at 660 (citing Heller, 554 U.S. at 627). 8 In
addition, English “surety laws” requiring firearm carriers to post a bond to cover any potential
damage “did not deny a responsible person carrying rights . . . [t]hey only burdened someone
reasonably accused of posing a threat.” Id. at 661. Because the good-reason law infringed on
the “constitutional right to bear common arms for self-defense in any fashion at all,” the court
found it unnecessary to conduct a means-end analysis. Id. at 665-66 (“It’s appropriate to strike
down such ‘total ban[s]’ without bothering to apply tiers of scrutiny because no such analysis
could ever sanction obliterations of an enumerated constitutional right.”) (alteration in original). 9
No federal court of appeals has held that the Second Amendment does not extend beyond
The District of Columbia’s “good-reason” law is an “ensemble of [D.C.] Code provisions and police
regulations” limiting LTCs to those showing a “good reason to fear injury to [their] person or property” or “any
other proper reason for carrying a pistol.” Wrenn, 864 F.3d at 655-56.
The Statute of Northampton was passed during the early reign of Edward III. The Statute restricted the
possession of pistols and other weapons in public locations. 2 Edw. 3, c. 3 (1328). Several colonies (and later,
states) adopted similar laws in the 18th and 19th centuries. Wrenn, 864 F.3d at 659.
Wrenn appears to conflict, at least to some degree, with First Circuit precedent. As noted, the First
Circuit has stated “that the possession of operative firearms for use in defense of the home constitutes the ‘core’ of
the Second Amendment.” Hightower, 693 F.3d at 72. See also Powell, 783 F.3d at 347 (“Together, Heller and
McDonald establish that states may not impose legislation that works a complete ban on the possession of operable
handguns in the home by law-abiding, responsible citizens for use in immediate self-defense.”). In addition, while
the First Circuit has consistently declined to explicitly adopt intermediate scrutiny for reviewing Second
Amendment challenges, see Armstrong, 706 F.3d at 8, its language has strongly suggested that an analogous level of
means-end scrutiny is warranted. See Booker, 644 F.3d at 25.
the home. But see Williams v. State, 10 A.3d 1167, 1169, 1177 (Md. 2011) (holding that a
statute requiring a permit to carry a handgun outside the home “is outside of the scope of the
Second Amendment” and stating that “[i]f the Supreme Court . . . meant its holding to extend
beyond home possession, it will need to say so more plainly”).
In Hightower, the First Circuit stated that “[i]t is plain that the interest . . . in carrying
concealed weapons outside the home is distinct from [the] core interest emphasized in Heller.”
693 F.3d at 72. Although Hightower did not consider the constitutionality of regulating the open
carrying of weapons outside the home, the authority it cited did not distinguish between the two,
suggesting that the operative distinction was whether the individual asserted his Second
Amendment right outside or inside the home. See id. (collecting cases for the proposition that
“[c]ourts have consistently recognized that Heller established that the possession of operative
firearms for use in defense of the home constitutes the ‘core’ of the Second Amendment.”).
In short, precedent does not clearly dictate whether the Second Amendment extends to
protect the right of law-abiding citizens to carry firearms outside the home for the purpose of
self-defense. In the face of this conflicting authority, the Court will heed the caution urged by
the First Circuit that the Second Amendment is an area that “courts should enter only upon
necessity and only then by small degree.” Id. at 74 (quoting Masciandaro, 638 F.3d at 475).
Accordingly, the Court will follow the approach taken by the Second, Third, and Fourth Circuits,
and assume for analytical purposes that the Second Amendment extends to protect the right of
armed self-defense outside the home. The remaining question is whether the restrictions here
survive the applicable level of constitutional scrutiny.
Level of Scrutiny
Assuming without deciding that the restrictions at issue burden the Second Amendment
right, they must survive some form of means-ends scrutiny to be constitutional. See Hightower,
693 F.3d at 74 (regulation upheld “whatever standard of scrutiny is used, even assuming there is
some Second Amendment interest in carrying the concealed weapons at issue.”).
In Hightower, the First Circuit explicitly refrained from deciding what standard of
scrutiny applied to the concealed-carry regulation. Id. In Booker, however, the court found that
“a categorical ban on gun ownership by a class of individuals must be supported by some form
of ‘strong showing,’ necessitating a substantial relationship between the restriction and an
important governmental objective.” 644 F.3d at 25.
Booker’s language has been interpreted as a description of intermediate scrutiny. See,
e.g., Tyler v. Hillsdale Cty. Sheriff's Dep't, 837 F.3d 678, 692 (6th Cir. 2016) (describing Booker
as “applying the equivalent of intermediate scrutiny”); Kachalsky, 701 F.3d at 93 n.17; Williams
v. Puerto Rico, 910 F. Supp. 2d 386, 396 (D.P.R. 2012). Indeed, the normal definition of
“intermediate scrutiny” is a showing that “the challenged classification is ‘substantially related to
an important government objective.’” Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 47 (1st Cir.
2003) (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)). That definition is virtually
indistinguishable from the standard used in Booker. In Armstrong, however, the First Circuit
stated plainly that “this court has not adopted intermediate scrutiny as the appropriate type of
review for a [Second Amendment] challenge such as Armstrong’s.” 706 F.3d at 8.
The regulation at issue in Booker and Armstrong was substantially different from the
ones in this case, perhaps necessitating a different level of scrutiny. However, the Second, Third,
and Fourth Circuits have explicitly adopted the intermediate scrutiny standard when examining
regulations burdening an alleged Second Amendment right to carry weapons outside the home.
Kachalsky, 701 F.3d at 96; Drake, 724 F.3d at 435; Masciandaro, 638 F.3d at 470-71. 10 In
reaching that conclusion, those circuits have carefully parsed the language of Heller and
McDonald, noted the longstanding tradition of firearms regulation in this country, and made
parallels to situations where different levels of scrutiny are applied in the First Amendment
For example, the Second Circuit in Kachalsky noted that “when analyzing First
Amendment claims, content-based restrictions on noncommercial speech are subject to strict
scrutiny while laws regulating commercial speech are subject to intermediate scrutiny.” 701
F.3d at 94 (citations omitted). Kachalsky concluded that “applying less than strict scrutiny when
the regulation does not burden the ‘core’ protection of self-defense in the home makes eminent
sense in this context and is in line with the approach taken by our sister circuits.” Id. at 93. The
Third Circuit in Drake also analogized the Second Amendment to the First Amendment,
concluding that intermediate scrutiny applied because strict scrutiny was only triggered when the
core “right to possess usable handguns in the home for self-defense” was implicated. 724 F.3d at
436 (emphasis in original). Finally, the Fourth Circuit in Masciandaro noted that “as we move
outside the home, firearm rights have always been more limited, because public safety interests
often outweigh individual interests in self-defense.” 638 F.3d at 470. Because of the
longstanding tradition of regulating the carrying of firearms in public, Masciandaro concluded
those regulations need only satisfy intermediate scrutiny to survive constitutional challenge. Id.
In addition, other circuits have used the intermediate scrutiny standard when evaluating other types of
firearms regulations outside the “core” right of armed self-protection within the home. See, e.g., Nat’l Rifle Ass’n of
Am., 700 F.3d at 205 (federal ban on sale of handguns to juveniles); Heller II, 670 F.3d at 1257 (gun registration
laws); Reese, 627 F.3d at 802 (prohibition on firearms ownership by individuals subject to a domestic protective
order). No court has applied strict scrutiny to regulations burdening Second Amendment restrictions outside the
home, although the Seventh Circuit invalidated an Illinois law without applying a particular level of heightened
scrutiny. Moore, 702 F.3d at 941. As noted, the D.C. Circuit in Wrenn did not subject the law at issue even to strict
scrutiny analysis. 864 F.3d at 664-66.
This Court agrees that intermediate scrutiny, or a related analogue, is the appropriate
standard to assess the constitutionality of the restrictions in question. The challenged restrictions
allow for use of a firearm in defense of the home, and therefore only implicate an individual’s
ability to carry a firearm in public. Because that interest is not at the “core” of the Second
Amendment right recognized by Heller, analysis at a level of scrutiny lower than the strict
scrutiny standard appears to be appropriate. See Hightower, 693 F.3d at 72 (“It is plain that the
interest . . . in carrying concealed weapons outside the home is distinct from [the] core interest
emphasized in Heller.”).
However, because Armstrong plainly stated that the First Circuit has not yet adopted the
intermediate scrutiny standard for Second Amendment challenges to firearm regulations, the
Court will avoid using that specific label. Instead, the Court’s analysis will focus on whether
defendant has shown a “substantial relationship between the restriction and an important
governmental objective.” Booker, 644 F.3d at 25.
“In reviewing the constitutionality of a statute, courts must accord substantial deference
to the predictive judgments of [the legislature].” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
195 (1997) (quotation marks and citation omitted). “The Supreme Court has long granted
deference to legislative findings regarding matters that are beyond the competence of the courts.”
Kachalsky, 701 F.3d at 97 (citing Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010)).
As described, the Massachusetts firearm regulatory regime allows, but does not require, a
local licensing authority to impose restrictions on firearm licenses that the authority “deems
proper.” Mass. Gen. Laws ch. 140, § 131(a-b). Massachusetts law further provides that a
licensing authority “may issue” a license if the applicant either has a good reason to fear injury
or “for any other reason, including the carrying of firearms for use in sport or target practice
only, subject to the restrictions expressed or authorized under this section.” Id. § 131(d).
Pursuant to that broad grant of authority, defendants have policies of imposing various
restrictions on applicants who do not show a “good reason to fear injury” that distinguishes them
from the general population.
The purpose of the licensing provisions of Mass. Gen. Laws ch. 140, § 131, is “to protect
the health, safety, and welfare of [Massachusetts] citizens.” Chardin v. Police Comm’r of
Boston, 465 Mass. 314, 327 (2013). Massachusetts undoubtedly has a substantial interest in
promoting public safety and preventing crime. See McCullen v. Coakley, 571 F.3d 167, 178 (1st
Cir. 2009) (evaluating whether restriction on free speech was “reasonably related to the
legislature’s legitimate public safety objectives”); Schenck v. Pro-Choice Network of W. New
York, 519 U.S. 357, 376 (1997) (noting “the governmental interest in public safety is clearly a
valid interest”); United States v. Salerno, 481 U.S. 739, 750 (1987) (describing “the
[g]overnment’s general interest in preventing crime” as “compelling”). The question is whether
defendants’ policies of imposing restrictions on the licenses of applicants who fail to show a
specific “reason to fear” have a sufficiently substantial relationship to public safety to withstand
The New York licensing scheme considered by the Second Circuit in Kachalsky is
similar to the Massachusetts regulatory regime. New York law generally prohibits citizens from
possessing firearms without a valid license to carry. Kachalsky, 701 F.3d at 85. Several types of
firearm licenses are available for individuals who work in certain types of employment. Id. at
86. The only license that allows the carrying of a handgun without regard to employment is New
York Penal Law § 400.00(2)(f), which requires an applicant to demonstrate “proper cause” in
order to receive a license. Id. Thus, individuals “who desire to carry a handgun outside the
home and who do not fit within one of the employment categories [allowing handgun
possession] must demonstrate proper cause pursuant to section 400(2)(f).” Id.
Although “proper cause” is not defined in the statute, “New York state courts have
defined the term to include carrying a handgun for target practice, hunting, or self-defense.” Id.
Licenses that are issued for the purpose of target practice or hunting can be restricted to those
purposes. Id. To establish proper cause to obtain an unrestricted license, an applicant must
“demonstrate a special need for self-protection distinguishable from that of the general
community or of persons engaged in the same profession.” Id. (quoting Klenosky v. New York
City Police Dep’t, 428 N.Y.S. 2d 256, 257 (N.Y. App. Div. 1980)).
Three of the plaintiffs in Kachalsky were granted licenses limited to the purpose of target
shooting and sought to remove that restriction. Id. at 88 n.7. When the relevant licensing
officers refused to do so, the plaintiffs filed suit, contending that the refusal to remove the
restriction violated their right to armed self-defense outside the home and that New York could
not force them to demonstrate proper cause to exercise that right. Id. at 88.
After reviewing the legislative history of the New York licensing regime, the Second
Circuit found that New York’s decision to regulate the number of handguns in public “was
premised on the belief that it would have an appreciable impact on public safety and crime
prevention.” Id. at 98. It concluded that “[r]estricting handgun possession in public to those
who have a reason to possess the weapon for a lawful purpose is substantially related to New
York’s interests in public safety and crime prevention.” Id.
As noted, the licensing regime in New York is substantially similar to the one challenged
in this case. In New York, an applicant can receive an unrestricted license if he or she shows a
special need for self-protection distinguishable from that of the general public. Id. at 86. By
comparison, in Massachusetts, an applicant can receive a license if he or she shows “good reason
to fear injury to the applicant or the applicant’s property or for any other reason, including the
carrying of firearms for use in sport or target practice only, subject to the restrictions expressed
or authorized under this section.” Mass. Gen. Laws ch. 140, § 131(d). Although no authority
directly on point has interpreted the phrase “good reason to fear injury,” Massachusetts courts
have made clear that without such a showing, restrictions can be placed on a firearm license that
limit the holder’s ability to carry a firearm. See Ruggiero, 18 Mass. App. Ct. at 261 (plaintiff’s
request for unrestricted license because he “is a potential victim of crimes against his person” did
not make the decision to deny him an unrestricted license arbitrary, capricious, or an abuse of
discretion); Stanley v. Neilen, 2003 WL 1790853, at *2 (D. Mass. Mar. 31, 2003) (restriction on
plaintiff’s license because he “did not sufficiently demonstrate that he had good reason to fear
injury to his person or property—a requirement that has been part of the Massachusetts gun
licensing scheme at least since 1936” upheld). In some respects, the Massachusetts law is less
restrictive than the New York law, because while in New York an applicant must show a special
need to obtain an unrestricted license, Massachusetts law permits, but does not require, a
licensing authority to demand applicants demonstrate a special need for self-defense before being
issued an unrestricted license.
Massachusetts adopted its licensing requirement “as a first-line measure in the regulatory
scheme” as a result of the “realization that prevention of harm is often preferable to meting out
punishment after an unfortunate event.” Ruggiero, 18 Mass. App. Ct. at 258-59. The
requirement “was intended ‘to have local licensing authorities employ every conceivable means
of preventing deadly weapons in the form of firearms [from] coming into the hands of
evildoers.’” Id. at 259 (quoting Rep. A.G., Pub. Doc. No. 12, at 233-34 (1964) (alteration in
original)). As in New York, the Massachusetts legislature decided “not to ban handgun
possession, but to limit it to those individuals who have an actual reason . . . to carry the
weapon.” Kachalsky, 701 F.3d at 98.
To the extent that imposing “sporting,” “target,” “hunting,” and “employment”
restrictions on applicants who fail to show “good reason to fear injury” burdens conduct
protected by the Second Amendment, that requirement is substantially related to the state’s
important objective in protecting public safety and preventing crime. As other courts have
found, “requiring a showing that there is an objective threat to a person’s safety—a special need
for self-protection—before granting a carry license is entirely consistent with the right to bear
arms.” Id. at 100 (quotation marks omitted). See also Woollard, 712 F.3d at 880 (“there is a
reasonable fit between the good-and-substantial-reason requirement and Maryland's objectives of
protecting public safety and preventing crime”); Drake, 724 F.3d at 439-40 (the “justifiable
need” standard is a “measured approach [that] neither bans public handgun carrying nor allows
public carrying by all firearm owners; instead, the . . . [l]egislature left room for public carrying
by those citizens who can demonstrate a ‘justifiable need’ to do so.”). In making those findings,
courts have acknowledged the deference given to the legislature in matters of public policy. See,
e.g., Kachalsky, 701 F.3d at 99 (“It is the legislature’s job, not ours, to weigh conflicting
evidence and make policy judgments.”). Although the empirical data may be less than
conclusive, the government’s regulation need only be “substantially related” to its important
objective of promoting public safety and preventing crime in order to pass constitutional muster.
Instead of banning the carrying of firearms in public outright, the Massachusetts legislature has
balanced the need to reduce the number of firearms in public with the needs of individuals who
have a heightened need to carry firearms in public for self-defense.
In short, the policy that requires applicants to show a specific reason to fear in order to be
issued unrestricted firearm licenses, and its authorizing statute, are constitutional. The Court
agrees in substance with the Second, Third, and Fourth Circuits, which have upheld similar
requirements in other firearm-licensing regimes. See id. at 100-01 (upholding “proper cause”
requirement for unrestricted licenses in New York); Drake, 724 F.3d at 440 (upholding
“justifiable need” requirement for licenses in New Jersey); Woollard, 712 F.3d at 881 (upholding
“good-and-substantial reason” requirement for licenses in Maryland). Those requirements,
although phrased differently, are “essentially the same—the applicant must show a special need
for self-defense distinguishable from that of the population at large, often through a specific and
particularized threat of harm.” Drake, 724 F.3d at 442 (Hardiman, J., dissenting). The courts
analyzing these requirements have concluded that they are substantially related to the important
governmental objective of promoting public safety and preventing crime. The Court respectfully
disagrees with the majority opinion of the D.C. Circuit in Wrenn, principally for the reasons
stated by the dissenting judge, 864 F.3d at 668-71, and finds the Seventh Circuit’s opinion in
Moore to be distinguishable. 11
In Moore, the court considered a Second Amendment challenge to a “blanket prohibition on carrying [a]
gun in public” in Illinois. 702 F.3d at 940. In holding that prohibition unconstitutional, the court noted that
“[r]emarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home.”
Id. (emphasis in original). The Illinois law had no exception for individuals who showed an objective, heightened
need for a firearm for self-defense. Id. at 934. Indeed, Moore specifically noted that “[n]ot even Massachusetts has
so flat a ban as Illinois.” Id. at 940. Ultimately, the Seventh Circuit struck down the law, concluding that Illinois
had failed “to justify the most restrictive gun law of any of the 50 states.” Id. at 941. Even then, the court stayed its
entry of judgment for 180 days to “allow the Illinois legislature to craft a new gun law that will impose reasonable
limitations, consistent with public safety and the Second Amendment as interpreted in this opinion, on the carrying
of guns in public.” Id. at 942. The logical inference is that the Seventh Circuit concluded that some limitation on
the carrying of firearms is reasonable. As Moore did not consider a restriction that permitted individuals with a
special need for self-defense to obtain unrestricted firearm licenses, it is of limited persuasive value.
Accordingly, the placing of restrictions such as “sporting,” “target,” “hunting,” and
“employment” on the licenses of applicants who do not show good reason to fear injury is
substantially related to the important governmental objective of public safety, and therefore does
not violate the Second Amendment.
Equal Protection Claim
The amended complaint alleges a violation of the Equal Protection Clause of the
Fourteenth Amendment, contending that the Massachusetts regulatory regime, and in particular
Mass. Gen. Laws ch. 140, § 131(a) and (d), restricts the ability of law-abiding citizens to bear
arms based on arbitrary considerations. Like the Second Amendment claim, this issue is ripe for
disposal on summary judgment. “[E]qual protection analysis requires strict scrutiny of a
legislative classification only when the classification impermissibly interferes with the exercise
of a fundamental right or operates to the peculiar disadvantage of a suspect class.”
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976). Here, the classification
does not impermissibly interfere with the exercise of a fundamental right, and there is no suspect
class at issue. Thus, “[g]iven that the Second Amendment challenge fails, the Equal Protection
claim is subject to rational basis review.” Hightower, 693 F.3d at 83. For the same reasons that
the regulatory regime is substantially related to the important governmental objectives of
promoting public safety and preventing crime, it also survives rational basis review.
For the foregoing reasons, plaintiffs’ motion for summary judgment is DENIED.
Defendants’ motions for summary judgment are GRANTED.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: December 5, 2017
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