Gun Rights Battles Brew in Massachusetts in Supreme Court’s Wake

Gun rights advocates are inviting more scrutiny from the US Supreme Court by challenging Massachusetts’ attempts to regulate firearms following the court’s decision last year in a case that made it significantly harder for guns laws to survive.

Four active suits, two in federal court and two in state court, will define how a state with one of the strictest regulatory regimes in the nation interprets New York State Rifles & Pistol Association Inc. v. Bruen. That decision left many unanswered questions about the new test courts have to apply.

“As a practitioner, you feel as though you’re cutting from whole cloth,” said Jason Guida, a firearms attorney and former counsel to the state’s Firearms Licensing Review Board.

Bruen requires state governments to prove that a restriction “would have been consistent with the framers’ conception of the Second Amendment” at the time it was adopted, said Renée Landers, a professor of law at Suffolk University Law School.

“Different lower courts are reaching different conclusions on similar fact patterns,” Guida said. That leaves attorneys with little guidance on how to apply Bruen‘s new test and judges lacking examples of how to scrutinize modern laws using a historical framework.

Federal Court Challenges

Gun owners and manufacturers in Granata v. Healey have asked the US District Court for the District of Massachusetts to block the state from enforcing its restrictions on malfunctioning handguns, which prevent retailers from selling some defective handguns in Massachusetts that are available in other states.

The Massachusetts Attorney General’s office argues the regulations don’t run afoul of the Second Amendment because they don’t function as a handgun ban. Cody Wisniewski, senior attorney for plaintiff the Firearms Policy Coalition, said, “It’s the right of the people to choose those arms that they see fit, and arms in common use are unquestionably protected by the Second Amendment.”

Since the case has a “similar fact pattern” as one before the Ninth Circuit on California’s Unsafe Handgun Law, the First Circuit’s decision in Granata could create a circuit split that sends the questions the cases present to the Supreme Court, Guida said.

In a separate case, the National Association for Gun Rights wants the District Court to declare Massachusetts’ ban on assault weapons and large-capacity magazines unconstitutional.

Courts may be more sympathetic to bans on these types of weapons given that they make mass shootings more than twice as deadly and have been used in most of the deadliest shootings in recent years, according to pro-gun-control group Everytown for Gun Safety.

(Everytown for Gun Safety is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.)

Courts have upheld assault weapon bans in numerous states even under Bruen’s test, said William Taylor, deputy director of Second Amendment litigation for Everytown for Gun Safety.

“We don’t know what the ultimate outcome of this quiet little revolution that’s happening in the federal courts will be, but what we’re seeing right now is very active litigation, and the challengers are winning,” said Adam Winkler, a professor of constitutional law at UCLA School of Law.

State Court Litigation

At the state level, a former gun owner is trying to convince Massachusetts’ Appeals Court that the law allowing a licensing authority its power to revoke a person’s gun license if it deems them unsuitable to own firearms is too vague under Bruen.

“If the legislature in Massachusetts does not put some guardrails” on the licensing authority’s discretion, “the courts are going to have no choice but to do so,” Guida said.

And a criminal defendant accused of threatening a woman is trying to apply Bruen‘s test to the state’s law prohibiting people from carrying switchblades, which the Supreme Judicial Court has agreed to consider.

That case will likely inspire more individual defendants to challenge laws regulating weapons other than guns to test Bruen‘s limits, said David McGowan, who represents the state in the case as chief of the appeals unit in Suffolk County’s district attorney’s office.

Room to Regulate

It will take years for the courts to refine Bruen‘s boundaries.

Attorneys may get some guidance from United States v. Rahimi, a case the Supreme Court has agreed to hear about the constitutionality of a federal law that bars a person subject to a domestic-violence restraining order from possessing guns. The Fifth Circuit ruled that the law is unconstitutional “because it could not find an 18th-century law disarming domestic abusers,” Taylor said.

“Even this current Supreme Court might have a little problem with that conclusion that pure application of the historical test gets you,” Landers said. She also noted that a number of cases involve weapons that did not exist in the 18th century, such as assault rifles.

Bruen could allow states to control gun possession in schools or government buildings, or limit licensing for people with mental illness or those convicted of felonies, Landers said.

While gun rights continue challenging state laws, gun safety advocates’ “best chance is to stay out of court” due to the Supreme Court’s “strong pro-gun majority,” Winkler said.

There is also “some advantage in not having a general set of rules from the court,” because “states that are willing to try to continue to pursue public safety goals in regulating weapons can make some progress in limiting the reach of Bruen over time,” Landers said.

The state legislature, for example, is pushing ahead on new firearm legislation.

“If we’re waiting for other states or somebody else to act, or the Supreme Court to potentially take up a case, then we’re not doing our jobs,” said state Rep. Michael Day (D), who is leading a new bill that would broaden the definition of an assault weapon, among other things

Massachusetts also voluntarily updated its firearm laws in the immediate aftermath of Bruen based on the Supreme Court’s guidance that states must issue licenses to prospective gun owners who have met the requirements for their application.

The state’s previous licensing scheme—like New York’s, which was targeted in Bruen—gave it too much subjective discretion to deny an applicant’s licensing.

Day’s bill will likely attract another wave of litigation if it becomes law.

“The states that weren’t friendly to gun rights before are just doubling down,” Wisniewski said.