For gun rights advocates, a ‘Bruen’ bonanza
Upholding weapons ban just one development

In a Dec. 22 press release, the Attorney General’s Office trumpeted the fact that it had successfully defended the state’s assault weapons ban in federal court.

But not only has the final chapter in that case, Capen and National Association for Gun Rights v. Campbell, not yet been written, there is no end in sight — here and across the country — to the battles spawned by the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

In Bruen, the Supreme Court refined the Second Amendment jurisprudence it had previously laid out in District of Columbia v. Heller and McDonald v. Chicago, clarifying that it believed that appellate courts had gone astray in interpreting Heller.

Since Heller, the appeals courts had developed a “two-step” framework for analyzing Second Amendment challenges, combining history with means-end scrutiny, which the Bruen court said was one step too many. The proper test should involve drawing analogies to the country’s history of firearm regulation alone, the Supreme Court ruled.

The court stressed that it was attempting to create “neither a regulatory straightjacket nor a regulatory blank check.” As courts were engaging in “analogical reasoning,” they need only find “a well-established and representative historical analogue, not a historical twin,” Justice Clarence Thomas wrote for the six-member majority in Bruen.

Since that ruling, courts in Massachusetts and elsewhere have begun fleshing out the standard, often prompted by cases filed by emboldened gun rights advocates. Recent weeks have not only seen U.S. District Court Chief Judge F. Dennis Saylor IV’s denial of the plaintiffs’ motion for a preliminary injunction in Capen but a Superior Court judge similarly rejecting a post-Bruen challenge to Massachusetts’ ban on anyone under the age of 21 obtaining a license to carry a handgun outside their home.

Meanwhile, gun rights advocates are celebrating a Lowell District Court judge’s decision to dismiss a charge of carrying a firearm without a license that a New Hampshire man had been facing for bringing the weapon he was licensed to carry in his home state across state lines.

Bruen has also revived a challenge to the state’s “gun roster” in the federal case Granata, et al. v. Campbell, et al., and spawned a new lawsuit challenging gun license delays of six months or more in Boston in White, et al. v. Cox.

In ‘Capen,’ appeal planned

Reacting to Saylor’s decision on Twitter, Hannah Hill, the executive director of Capen co-plaintiff National Association for Gun Rights, not only bestowed a “Grinch Award” on the judge but vowed to file a petition for review with the 1st U.S. Circuit Court of Appeals.

Most observers suspect that the plaintiffs’ Second Amendment challenge to G.L.c. 140, §§121 and 131M — which prohibit the possession, sale and transfer of certain semiautomatic weapons, as well as magazines capable of holding more than 10 rounds of ammunition — will not be warmly received by the 1st Circuit. But that may still fit into the plans of gun rights activists to create a circuit split that the U.S. Supreme Court needs to resolve.

In his 38-page decision, Saylor outlined the evolution of Second Amendment jurisprudence through Heller, McDonald and Bruen, along with the court’s per curiam opinion in Caetano v. Massachusetts, in which the court overturned a decision of the Supreme Judicial Court upholding a statute prohibiting the possession of stun guns.

Heller reaffirmed that the regulation of certain types of weapons is permissible, including those not in “common use” and “dangerous and unusual” weapons, which have historically been subject to regulation, Saylor said.

Courts and commentators have been confused over the meaning and application of the phrase “in common use” and the interplay between “in common use” and “dangerous and unusual,” Saylor noted.

In reaching his decision, Saylor rejected the plaintiffs’ contention that “common use” could be determined by the number of copies of the weapon that have been sold.

“Such a rule would lead to absurd results,” Saylor wrote. “Among other things, the constitutionality of the regulation of different firearms would ebb and flow with their sales receipts.”

The judge said there were two possible approaches to considering the issue of “common use,” but that under either, the result in Capen would be the same.

“The question thus becomes whether ‘the regulation is consistent with this Nation’s historical tradition of firearm regulation,’” Saylor said.

On that front, the defendants had the more persuasive argument, in light of the modern phenomenon of mass shootings, he found.

“High-fatality homicide events committed by individuals only became possible after the development of assault weapons,” Saylor wrote.

He concluded that the “banned weapons are ‘dangerous,’ because they are unreasonably dangerous for ordinary purposes of self-defense due to their extreme lethality and high potential for collateral harm, and they are ‘unusual,’ because it would be unusual for an ordinary citizen to carry such a weapon on his person on the street for self-defense, or to use it in the home to confront invaders or to protect against personal violence.”

Reaction on both sides

Filing an amicus brief in Capen is in keeping with her nonprofit organization’s efforts to support states that passed legislation after the federal assault weapons ban expired, said Shira Feldman of the Brady Center to Prevent Gun Violence.

“Trying to criminalize a class of firearm based upon cosmetic features is about as effective as trying to prevent speeding by outlawing mag wheels and racing stripes.”

— Keith G. Langer, Wrentham

Even after Bruen, there is a history of finding space within the Second Amendment to enact categorical bars on “weapons of war,” the Brady organization contends.

But Wrentham gun rights attorney Keith G. Langer sees no reason to place assault weapons in a special category, especially given that the federal assault weapons ban “was an utter failure.”

Saylor is just the latest jurist to be swayed by what Langer calls “cosmetic features” of semi-automatic weapons, noting that FBI statistics show that handguns are used far more often in criminal offenses.

“Trying to criminalize a class of firearm based upon cosmetic features is about as effective as trying to prevent speeding by outlawing mag wheels and racing stripes,” he said.

Springfield gun rights attorney Daniel C. Hagan agreed with Langer’s assessment, adding that the current Massachusetts law exempts any use of firearms that were manufactured before a certain date in September 1994.

“If any of those firearms or magazines were already in existence and are still in existence today, they’re still perfectly legal to own,” he said. “So, if you had one on Sept. 13, it’s not dangerous and unusual, but on Sept. 14, it becomes dangerous and unusual. I think it’s arbitrary.”

But at least thus far, courts that have been presented with challenges to assault weapons bans post-Bruen have agreed with Saylor’s analysis, according to Feldman. Still, she  acknowledges that there are outliers, like U.S. District Court Judge Roger Benitez in San Diego, who has twice now overturned California’s three-decade-old ban on assault weapons. By a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals decided to stay Benitez’s ruling, pending appeal in late October.

‘Rahimi’ may offer clarity

The Supreme Court may — or may not — eventually offer some insight as to whether Saylor properly sorted through the questions raised by Bruen when it issues its decision in the case United States v. Rahimi, which was argued in November.

In Rahimi, the government is appealing the decision of the 5th Circuit to wipe out a defendant’s conviction under a federal law that bars anyone subject to a domestic violence restraining order from possessing a gun.

During oral arguments in Rahimi, even the justices inclined to look unfavorably on firearms regulation that seemed to be recognizing, albeit “a little late,” that there may be some flaws with Bruen’s history-and-tradition test, said Suffolk University Law School Professor Renee Landers.

“There was a history and tradition of men being able to do whatever they wanted with their wives; obviously, that’s not going to fly in today’s day and age,” she said.

Though generally optimistic about the decision Rahimi, it is near impossible to predict whether the Supreme Court will use Rahimi to broadly reexamine the Bruen test, said Feldman’s Brady colleague, Douglas Letter.

A hopeful sign is that the solicitor general was asked during the oral argument in Rahimi how she would clarify Bruen, and she offered up three specific suggestions, Feldman said.

On the other hand, Boston University School of Law Professor Cody Jacobs said it is hard for him to imagine there being five votes to uphold an assault weapons ban once it reaches this Supreme Court. Yet the court is “in a bind with Rahimi,” he added.

To reach a decision to uphold the federal law in Rahimi, it may well need to water down or otherwise alter the historical analogue test in a way that makes it difficult not to preserve assault weapons bans as well, Jacobs said.

“There is a tension between the politics and legal logic,” he said.

Age limit upheld

Meanwhile, in the Middlesex Superior Court case Commonwealth v. Isert, defendant Ethan Isert moved to dismiss his indictments for unlawful possession of a loaded firearm and unlawful possession of ammunition, crimes that the indictments allege he committed when he was 18.

The commonwealth could not identify a Colonial-era or founding-era firearm restriction directed at people aged 18 to 20, said Isert’s attorney, Keren E. Goldenberg of Belmont.

“So, even if we all agree that keeping guns away from people under 21 is a good idea considering what we now know about emerging adult brain development, I do not believe that it is constitutional post-Bruen,” she said.

Goldenberg said she viewed the Bruen history-and-tradition test as narrow, particularly when the restriction deals with a general societal issue that was present in the 18th century, such as people under 21 carrying firearms.

However, Judge Kenneth W. Salinger took a more expansive view of the Bruen test, pointing to the historical tradition of disarming groups that the government believed could be dangerous, including free and enslaved Black people, indigenous people, Catholics and British Loyalists.

Citing the 2013 SJC case Diatchenko v. Dist. Att’y for Suffolk Dist., Salinger said it is now well established that juveniles under the age of 18 “demonstrate a ‘lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.’”

“Since the Nation’s historical traditions permit barring categories of potentially dangerous persons from carrying a firearm, and we now know that 18- to 20-year-olds generally have the impulsive recklessness that would make them dangerous if they had access to a firearm, the age restrictions in the Massachusetts license-to-carry statute pass muster under the Second Amendment,” Salinger concluded.

Attorneys say Salinger’s decision may stand on even sturdier ground than Saylor’s.

“I’m not surprised that the motion to dismiss was denied,” said Boston attorney Joseph B. Simons. “Bruen did not go as far as the defendant would have liked.”

Indeed, it was a common misperception in the immediate aftermath of Bruen that the decision would “completely gut” Massachusetts’ licensing schemes, said Wakefield attorney Neil S. Tassel.

“People more familiar with licensing knew that was not really the case,” Tassel said.

A win for gun rights

But it has not been all bad news for gun rights activists in Massachusetts, post-Bruen. In the Lowell District Court case Commonwealth v. Donnell, the defendant, a New Hampshire resident, lodged a constitutional challenge to his charge under G.L.c. 269, §10(a), for carrying a firearm without a license.

Part of his argument was that requiring non-residents to obtain licenses to carry firearms violates the Second Amendment because there is “no historical analogue” burdening the right to interstate travel.

In assessing that argument, Judge John F. Coffey noted that Bruen had “changed the legal landscape … particularly how it affects existing firearm statutes and challenges to their constitutionality.”

Prior to the SJC’s 2023 decision in Commonwealth v. Guardado, Massachusetts treated the possession or carrying a firearm outside of one’s home as a “privilege” that was conferred on a person by the state.

Given the Bruen decision — and the fact that the defendant’s conduct in Donnell was clearly covered by the Second Amendment — the burden fell on the commonwealth to justify the law showing that it is consistent with the country’s tradition of firearm regulation.

It could not do that, Coffey concluded.

“A law-abiding resident of New Hampshire who is exercising his Constitutional right should not become a felon by exercising that right while he is traveling through Massachusetts merely because he has not obtained a license to carry, which now, under the holding of Bruen, has to be issued to an applicant unless the applicant is otherwise disqualified,” Coffey wrote. “The standard for who is a disqualified individual must be the same.”

Coffey said he could “think of no other constitutional right which a person loses simply by traveling beyond his home state’s border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentence of incarceration.”

The Middlesex DA’s Office has appealed Coffey’s decision, and briefs in the Appeals Court case are due Feb. 23.

Jacobs said he viewed Coffey’s decision as inconsistent with Bruen and predicted it would be quickly overturned.