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Old March 27, 2009, 03:55 PM   #1
HarrySchell
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Heller incorporated in Mass decision re gun safes?

It appears that a Mass. court has relied clearly on Heller to declare gun storage requirements to be unconstitutional. And the prosecutor declined to appeal, as he read Heller and agreed with the judge that the state law was unconstitutional thereby.

In Massachusetts?!?

[Eugene Volokh, March 26, 2009 at 7:43pm] Trackbacks
Massachusetts Trial Court Holds Gun Storage Law Unconstitutional: After a police officer's 12-year-old son got access to the officer's handgun, the officer was prosecuted for violating Mass. Gen. Laws. ch. 140, § 131L:

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

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

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

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

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

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

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

Interestingly, the court seemed to assume that the Second Amendment applies to state laws -- what lawyers call the "incorporation" issue -- which is something Heller pointedly declined to resolve.
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Old March 27, 2009, 03:59 PM   #2
azredhawk44
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So then this means S&W can now get rid of the Hole.



Excellent.

After all, their own home state as well as SCOTUS have agreed that locks are not a legal requirement for handguns.
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Old March 27, 2009, 04:01 PM   #3
vranasaurus
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State courts can incorporate the BOR, within their state, whether or not federal courts choose to do so. It appears that this court chose to incorporate the 2A even though the federal courts have yet to do so.
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Old March 27, 2009, 04:09 PM   #4
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State courts can incorporate the BOR, within their state, whether or not federal courts choose to do so. It appears that this court chose to incorporate the 2A even though the federal courts have yet to do so.
Quite true. In fact, one could semantically argue that incorporation can only come via federal courts and that state appellate decisions aren't really relevant.
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Old March 27, 2009, 04:10 PM   #5
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Linky, please?

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Old March 27, 2009, 04:14 PM   #6
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While in no way binding this and other state court decisions like it will certainly help the cause of incorporation.
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Old March 27, 2009, 04:30 PM   #7
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Link to the post and responses are here.
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National listings of the Current 2A Cases.
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Old March 27, 2009, 06:04 PM   #8
HarrySchell
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Thanks for providing the link, Antipitas.
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Old March 27, 2009, 08:31 PM   #9
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Check the State Constitution

Most states have a clause in their state constitution similiar to (in some cases identical to) the 2nd Amendment. Some states go even further in their language than the 2nd Amendment.

It is possible, that the Mass judge, using the reasoning of the Heller case decision decided the Mass law to be contrary to the state constitution.

I am no legal beagle, so I don't know the details, so, is it "legal" for a state judge to declare a state law unconstitutional becase it violates the Federal Constitution? I know the Supreme Court can do this, but can a state judge?

Or does it even matter in this case, since the prosecutor has declined appeal, the judge's ruling will stand.?

Overall, I don't see how the ruling could be a bad thing for the rights of the people of Mass.

I could be wrong though, isn't Mass a Commonwealth, not a state? Are the rules different because of that?
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Old March 27, 2009, 08:39 PM   #10
vranasaurus
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I know the Supreme Court can do this, but can a state judge?
Yes, but it only applies in that state. State courts can declare state law unconstituional on the basis of the US constitution.
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Old March 29, 2009, 05:23 PM   #11
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Interesting...and from an unexpected state!

Have other states done this, previous to the Heller decision? That could bring in a lot of case history in our favor.
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Old March 30, 2009, 09:12 AM   #12
HarrySchell
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^^^^

So far as I know, this is the first such overt reliance on Heller to declare a law unconstitutional. Other cases have brought Heller in, but I think those are cases of debating whether a person should have a firearm or not. Mixed results, unclear compared to this.
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Old March 30, 2009, 11:36 AM   #13
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Somebody over there needs to immediately sue over their CCW policies and/or lack of open carry.
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Old March 30, 2009, 11:45 AM   #14
Brian Pfleuger
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Somebody over there needs to immediately sue over their CCW policies and/or lack of open carry.
CCW would be easy. All you have to do is be denied.

Open Carry would be for a real "die hard". You'd have to actually open carry and get arrested before you could "sue" them.
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