-: SJC-13561
and 13562.
Commonwealth versus Dean F. Donnell, Jr.
And Commonwealth versus Philip J. Marquis.
-: Okay. Attorney Rall. -: Good morning, your honors.
May it please the Court,
assistant district Attorney Ryan Rall
for the Commonwealth on both these cases
on behalf of Middlesex County.
The motion judge clearly aired in allowing a motion dismiss
in both of these cases where Massachusetts has the authority
to implement a uniform licensing scheme
to apply to all citizens
regardless of residency
under sections chapter one 40, section 131 and 131F.
-: Which version of 131F applies to each defendant.
Just to clarify for me.
-: So there is a version of 131F
that still has the language of the may issue scheme
and that I believe
was only effective until August of 2022.
And then Mr. Marquis has the newest version,
which is current until of course
any revisions from the newest firearm legislation
are applied to 131F.
So there are two versions, one from 2021 till 2022,
which still has the may issue language.
And then Mr. Marquis version of 131F,
which no longer contains the may issue language.
-: And are you defending the may issue one
after the Bruen case?
-: I'm not defending the language may issue
as I believe that that's not necessary in this appeal
and also I will point to the fact that
the may issue language is actually not dispositive
as the Bruen court identified in the series
of shall issuing licensing schemes,
the fact that it says may issue is not itself
dispositive on whether it is a may issue regime.
So looking at 131F and-
-: No, I'm sorry.
You're saying it's irrelevant,
that's the statute for Mr. Donnell is may issue.
-: I would first say they don't have standing the challenge,
the language of the may issue.
So I would say it's irrelevant for that purpose.
But I would also say that the licensing scheme
as applied at the time of Mr. Donnell's prosecution,
was more akin to a shall issue licensing schemes
than the may issue that's described
with the proper cause requirement as in Bruen.
So it issued in effect as a shall issue regime.
And that's clear also from the advisory opinion
of the attorney chair.
-: Wait, I don't understand that argument at all.
I have a chronology here, which I hope I have correct.
Donnell is pulled over
after his car accident
on November 8th, 2021.
Bruen is decided June
and at that time
he's only charged with a misdemeanor, right?
He's not charged with under Section 10A.
-: So he was originally charged with 10H and 10M.
-: Okay. -: And then the 10,
there was a decision made
to keep the case in the district courts,
so the 10M was no (indistinct)
and a replacement complaint was taken for 10A.
-: Okay. So 10A was not in the case
when he's originally charged.
-: Correct. -: Bruens decided
then the AG issues at advisory
and then Donnell's charged thereafter with 10A.
So how is it that at that point
we can say that the previous version
of 131F should be construed
as a shall versus may type of statute.
When we have an AG advisory saying that's not the case
and it's not being enforced.
-: I guess what I would say is that in being pressed
that the may issue regime
as far as that language meant that it was a may issue regime
that would not be constitutional under Bruen.
So that specific language in that aspect
of the licensing scheme provision
wouldn't be able to be enforced that way.
But we don't have to reach that-
-: So if it can't be enforced,
then how can there be a charge under 10A at that point?
-: Because as this court acknowledged
in the (indistinct) opinion,
and as numerous courts,
as I referenced in my brief in New Jersey and California
and also New York Post-Bruen have applied,
just because one provision of the statute
is unconstitutional,
does not make the entirety
of the enforcement of that scheme unconstitutional.
-: But that's not the test.
You don't look at the whole scheme entirely.
You look at 131F
and see if that on its face is constitutional
and that has for Mr. Donnell a may issue provision.
-: So every court that's addressed this question
of the may issue licensing language existing,
and in fact for the other matter,
the proper cause which is even more problematic
and is expressly unconstitutional under Bruen,
has analyzed this all the same,
which is they look at the person's underlying conduct.
And like in the California
and New Jersey cases that I cited in my brief
and subsequent New York cases,
when someone chooses not to get a license at all,
those provisions are in fact severable
from their ongoing prosecution.
They had no effect on their prosecution
and the court has routinely upheld the licensing scheme
as it is enforceable to be constitutional.
-: Is that the same thing as anybody's convicted under 10A
pre-Bruen under the may issue statutes
don't have the benefit of Bruen?
-: Correct. Well, yes, except in so far as-
-: 'Cause they can't say that
and I forget the name of our cases that hold it.
They can't say that I would've gotten a license,
but they never applied for one.
-: Correct. And actually the best analysis for that
is what happened Post-Bruen in New York.
It's not that every single conviction
that was previously obtained in New York
prior to Bruen was invalidated immediately.
And I think that starting in historical narrative here,
it's clear that 131F is facially constitutional
under the Second Amendment.
Looking to the same historical analogs provided in Bruen
and reasserted in Rahimi,
we have the surety laws, we have the going armed laws
as they're called or the brandishing arms.
We also have-
-: Don't all those statutes involve threats?
-: Those involve risks to public safety as-
-: By dangerous folk.
-: Right. And besides those
we also have loyalty oath statutes
that existed as well as a so called events.
-: I guess you put you in that strange position
of arguing like the anti-Catholic cases support you.
-: So I'll start by saying
I don't think you need to get there,
'cause I believe that the loyalty oath cases
set a prerequisite that you have to swear
after the American Revolution.
You have to swear loyalty to the United States and,
or your specific colony before you're allowed to be armed.
And we have the example of the Shays's Rebellion in 1787,
which makes it clear that people
who pose a public safety writ
because of their allegiance to an enemy we just fought
is a prerequisite to disarm them entirely.
-: But don't we have to look at statutes
that involve regulation of people
who otherwise would have a legitimate right
to carry a firearm?
-: Right. So when we established
this uniform licensing scheme,
I think the best way to look at it
is the way that Rahimi itself said it,
which is we look to whether the why is analogous
and we look to whether the how is analogous.
And I think that the why is analogous here,
clearly as in Rahimi.
I think Bruen made that clear in footnote nine
when it said there was no question
as to the constitutionality
of shall issue licensing schemes generally
that just check to see if in fact people
were law abiding responsible citizens.
When I say responsible,
I'll adopt the general solicitor's argument in Rahimi,
which is either pose a risk of harm or danger to others,
or due to the characteristics
pose an increased risk of danger.
-: Well, what do we have here though
to have these two cases be informed by Rahimi?
Because there's a significance to the fact that
there was a hearing where Rahimi had an opportunity
to contest the allegations
and the court made a finding that he was dangerous.
It was lots of evidence that Mr. Rahimi
was a danger to the public.
It wasn't even just the index domestic violence charge.
Here, what do we have here to say that
that's all instructive in our analysis?
-: So what we have here is a state licensing scheme
that allows the executive authorities, the state,
in this case, the Massachusetts State Police
and the Firearms record bureau
to identify if people are in fact pose a risk of harm
of public safety first.
That's a judicially reviewable decision
that is allowed to be appealed.
And so like Rahimi, what we have here
is a scheme that's designed the exact same way,
which is to ensure that people who pose a threat,
or public safety to the community
are not allowed to be armed.
We have a judicial reviewable decision
if they in fact apply for a license.
And of course this is all presupposing
that they have standing to raise these various provisions,
which I won't belabor because we're all here.
But the point is they do not,
and the motion judge erred in that regards as well,
but putting that aside-
-: I mean they have standing
to raise a facial challenge, right?
-: They do. -: Okay.
-: And, but a facial challenge as to sort of
the provisions that are relevant to their conduct
and what's relevant to their conduct-
-: They have standing to challenge the constitutionality
of section 10A,
both as applied to them and on its face.
Rall: I disagree with that, believe that they-
-: Okay, why they're being prosecuted under 10A?
How can they not have standing
to challenge its application to them?
-: This court has repeatedly said in Powell, Loadholt
and also circuit cases have said in a challenge
in a criminal conviction,
when one chooses to violate the law
and not proceed with the licensing scheme,
that they are limited to a facial challenge,
both of the licensing scheme but also 10A.
But even if the court does choose
to do an as applied challenge in this case,
we have two different defendants,
one of which was recently convicted of drunk driving.
So I can say this is not just an allegation,
he was driving drunk through Massachusetts for however long.
And the other individual works in Massachusetts
and was traveling to work in Massachusetts
carrying an unlawful firearm without being licensed.
So when you apply the conduct,
what is it that they're being prosecuted for,
making no attempts to get a license whatsoever.
It isn't about the may issue language of the regime,
it isn't about the incorrect interpretation of 131F
by the motion judge and the defendants
that it somehow restricts non-resident licenses,
which it does not.
-: They're not really being prosecuted
for not trying to get a license.
I mean they're being prosecuted for carrying a firearm,
or possessing a firearm without having gotten a license.
I see a distinction between those two things.
-: I guess what I would say is they're being prosecuted
using the plain language as not having an effect a license.
So to challenge that requirement,
they have to prove that under no circumstances
can a non-resident be required to have in effect
a non-resident license, so-
-: Do you lose, if we disagree with your proposition
that the statute only applies to non-residents
who are traveling to this commonwealth
for shooting competitions?
-: I strongly dispute that description of that.
I think the unique-
-: Okay, like the question I have is,
do you lose on the interstate travel part of this?
-: So I don't think I lose on it.
First of all, I'd say that
I think the only interpretation is,
as the amicus brief does,
and in fact for this court to agree with the motion judge,
it would turn on its head how we analyze statutes.
It would find the statute
to be unconstitutionally interpreted
in order to get to the result
that the defendant's standing.
-: Just humor me. -: Okay, sorry.
-: We disagree with you. Do you still lose?
-: No. And the reason we don't lose
is because even if the provision as it existed
that restriction, they still don't have standing.
So we still have the standing problem here, which is-
-: But they have the standing to bring the facial challenge.
-: Right, and this is-
-: And if the statute only allowed,
and I'm not saying I agree with this,
but if the statute only allowed a non-resident
to get a license not for self-defense,
but only for these competitions
that seems to squarely violate Bruen.
-: I agree that the restriction would violate Bruen.
I think the issue-
-: So that means it violates the Second Amendment,
which means you lose.
-: Where I disagree that I lose
is where we get wrapped into the standing issue,
which is that making no attempt to get a license whatsoever
and their reliance is on-
-: Why would they get a license
if the provision only allows them
to get a license for competition
and they don't need it for competition?
They need it for self-defense.
There's no provision for them.
-: So had they applied for a license
and someone tried to restrict their ability
to sporting competition,
they would have a right
to appeal that determination fight that.
They would have various options available to them,
pre-enforcement federal challenges to the statute
if it was actually interpreted that way.
I do think it's somewhat of a legal fiction
because there's no record of anyone
ever receiving this type
of restrictive non-resident license.
There's no evidence of a previous prosecution
for this in the Simkin case, which this court is trust-
Wendlandt: We're on a motion to dismiss, right?
-: Correct. -: Okay.
-: And so there's no rec area in the record
or evidence to support that interpretation
besides the fact-
-: In one of the amicus briefs there was a,
I think a breakdown of some 5,000 people
who have non-resident licenses. Are you aware of this?
-: I did see that there was a reference
to a number of people who have non-resident licenses.
Gaziano: Have you looked into this at all?
-: So I spoke very briefly
and I'm happy to submit something to the court
in a 16L letter with more definitive statistic.
-: That's what I'd like to know is,
how many LTCs are there for residents
and how many LTCs are there,
or temporary LTCs there are for non-residents?
And did that change when the statute changed?
-: My understanding is that
the numbers have been jumping up exponentially
over the last few years since,
let's say it's Bruen itself.
So I don't know how-
-: I like to know the pre-Bruen number
and the post-Bruen number
of non-resident temporary licenses.
-: Maybe you can submit a- -: I can certainly try
to seek that information from the firearm record bureau
who keeps track of the non-resident in particular
and compare that.
-: You had begun earlier
before I probably cut you off, sorry about that.
To discuss the why and the how historic analogs,
can I ask you to address the how portion in light of the
18 month mandatory minimum for violation.
-: So as to the how,
I don't think that the 18 month mandatory minimum
plays into that.
And the reason I say that is also why I addressed
that it doesn't constitute cruel unusual punishment
when that's sort of wrapped into a Second Amendment argument
by a defendant Donnell's attorney.
But what I'll say briefly on that is that the how,
you know, Rahimi had to do with a prohibition for him
to have a firearm at all
and be subject to a very high maximum sentence.
My memory of the federal statute
is that it's a 10 year sentence.
And while I understand that,
that's not a mandatory minimum in the normal sense,
federal sentencing guidelines
make it more akin to a mandatory minimum
as a general principle than say Massachusetts law,
which doesn't have codified sentencing guidelines.
So I think that Rahimi,
the how is basically the same,
that the how is that these laws allow the government
to create these types of prophylactic measures
to ensure that the dangerous,
or certain classes people such as the mentally ill,
which pose an increased risk of danger.
-: But is that the right and now analog,
'cause I mean it's the outta state licensing scheme
that is really the most appropriate analog, isn't it?
-: Well- -: Bear with me for a second
because I mean, they're gonna get up
and talk about sort of the highway men
and the dangers of travel.
Isn't the analog not sort of generalized,
but what is the rule for outta state
in this case, license holders.
They have a license from outta state
and what kind of rules can we impose
and what kind of rules are the historic analogs to those?
Isn't that the better analog rather than
the general one about, you know,
mentally ill or convicted felons?
-: So I have a few responses to that.
Let me start by saying that,
I think that the traveler's exemption
as is a sort of outlined
in the NRA amicus brief in particular.
I think it makes too much of that exemption to be applicable
to non-residents generally.
I think the Massachusetts Attorney General amicus brief
does an excellent job of describing
how the history of this has to do nothing
with whether you were a resident or non-resident at all.
That being said, the analysis as the commonwealth sees it.
-: Well that can't be true though
because the statutes draw distinctions
between residents and non-residents and aliens.
There's a 1957 statute, there's a 19, I can't remember,
70 something statute.
So this idea of the different classes
was on people's minds, wasn't it?
-: Well the modern statutes do,
but that's what's sort of interesting
about the historical analogs and history of this country,
which is why the Commonwealth focuses heavily
on pointing out that,
that Massachusetts as all colonies and states,
whether we're talking about the founding area,
or moving forward into the passage of the 14th Amendment,
have this foremost prerogative
and sovereignty to create their own criminal code
and enforce it as a general principle
against all who go within its borders.
And that is, I think the correct historical analysis here.
As the Hamilton and Pallozzi case said, we live in a nation.
-: I get the general federalism principles.
I'm more focused on the analog
and also one thing you jumped to
that it's rational basis.
So we don't have a uniform standard.
We apply different standards to non-residents
and aliens than we do to residents.
It's not totally different, but it is different.
Do we subject that to strict scrutiny,
or do we subject that to rational basis?
'Cause I think the US Supreme Court's saying
the right to carry a gun is a fundamental right if in,
is that right?
Are they saying that, you know?
-: They are saying that,
but it still gets you to rational basis and here's why.
First non-residents are not a suspect class,
so we take that out. I know that-
Kafker: But if fundamental rights and equal protection,
there are two ways to strict scrutiny,
fundamental rights generate strict scrutiny
and equal protection violations
generate strict scrutiny, right?
-: Correct. And so when you're asking the question,
it's not whether any regulation on a fundamental right
is not allowed on a non-resident.
And it's not even that there can't be differences
between non-residents
and residents in how it's applied in the law.
What it requires is that,
it be substantially burdened
that it burdens a fundamental right.
And the commonwealth would argue that the distinctions
that the motion judge relied upon and the amicus
and the defendants point to, such as waiting periods,
or the length of a license,
these don't rise to level
of burdening the fundamental right.
Even if they did,
and I argued rational basis is applicable here,
but even if it did,
I think that the Bach case and the wrong-
-: I'm confused by that.
So if I'm licensed in New Hampshire,
I have a license to a gun, and I work in Massachusetts
and I can't get that,
I can't use that gun for
a fairly significant period of time,
'cause we don't do them quickly.
That doesn't burden the right?
I just wanna make sure
I understand your argument on that.
-: My argument is that all of the requirements,
even the differences non-resident and residents
are constitutionally permissible under the Second Amendment.
I do acknowledge that there are some distinctions,
these defendants don't have standing to raise them.
But there are some distinctions
between non-resident, resident,
but why they are satisfying a compelling interest
and they satisfy strict scrutiny.
Is the compelling interest is the one that is fundamental
to the entire licensing scheme. It's designed to -
-: I think you may be right,
but you are applying strict scrutiny there,
you're not applying a rational basis if you're saying
there's a compelling interest in support of that regulation
and it's the least restrictive, which you're,
I don't know if it is, but that's the harder part.
-: Right, so I do think rational basis
is the appropriate test.
And I say that
because the difference in the length of time, for example,
is not a burden on the fundamental right.
-: Is US Supreme Court said it's a rational basis that,
where they said it's a compelling interest
and I just don't,
I don't know what Bruen says on this.
-: So I think the fundamental principle
both in Massachusetts and federal laws,
that when we get past the equal protection issue,
which I don't think is an issue here,
it's whether it's burdening of fundamental rights.
So the first question is whether the difference
in the length of time is burdening the fundamental right
to keep in bear arms, for example. And I would argue-
-: Could you analyze that for us then?
So this man apply, he doesn't apply for license.
I get your argument that he loses no matter what,
but if he can challenge the statute on its face
and there's no way he could have gotten the license,
what's the time?
There's no timeframe for getting a license, right?
-: There's no timeframe for what sort of a waiting period,
correct.
There's a time period to process the application
that is slightly different
for non-residents than residents.
-: What is the difference?
-: My memory is that the maximum waiting period,
-: 90 days. -: for the processing
of the application for non-residents is six months.
And the maximum for residents is 90 days.
It's actually shorter than 90 days,
I believe it's 60 days.
And then, but once it hits 90 days,
they have an automatic right of appeal
for a timeliness issue
that gives them sort of a presumption
that the license is issued.
And so- -: So if that-
-: So non-residents wait up to three times as long
to get a temporary one year license
as residents who get a five to six year license,
is that right?
-: I wouldn't say
and there's no evidence of record
as to how long these actually takes.
So I don't wanna say that that,
I said the maximum period that is allowed under the statute.
And I think the reason for that is,
is very clear in the Bach and Cult cases, which is that
the state has an interest in monitoring
and collecting information.
If it is a Massachusetts resident,
they have access to all of the authorities
that law enforcement have in Massachusetts.
They have access to all these police reports, CAD reports,
other incident reports,
and they're able to make a quick determination
as to whether or not
the person is a law abiding responsible citizen.
There's no requirements, for example,
and I know this in my reply brief
for New Hampshire to tell even
the federal government in terms of background check
about disqualifying.
-: I get why we want more strict requirements
and I get that we can impose more strict requirements,
but I'm wondering whether that,
and I get you may be right that it satisfies rational basis,
but these extent that means this person has no right
to come into Massachusetts with a gun,
or even though they're working in Massachusetts
for as long as six months, maybe even longer.
I don't, isn't that-
-: And you have another problem too is
Justice Kafker's point, right?
Because you are waiting
and they have a right for self-defense
and if they come in,
they're looking at an 18 month man, man, right?
-: Right. But in so far as that is a problem
is also a problem for a normal resident
who needs to wait until the background check
and processes are done
before they start carrying a firearm within Massachusetts.
And I think that that-
-: It's a much shorter timeframe.
So if you look at both sides of,
if you're saying the strict scrutiny
and you're saying the least restrictive, right?
The least restrictive is the 18 month hit.
-: Right, so I don't wanna intermix the potential penalty
with the analysis under the burden
for the constitutional right to travel
because I think that it is first of all
the same for residents and non-residents.
-: Okay, but why isn't the penalty even if it's the same
part of the burden?
-: So I think that the question of the burden
stems from what the regulation is requiring,
not noncompliance with the regulation
under a subsequent statute.
So I think that the question about whether 131F's
longer period of time it takes to sort
of finish the background check process
is an interesting one.
I think it's one that,
if these defendants were in fact waiting,
there may be a decent argument here about that.
But in terms of how 10A is applied
and the penalty portion is applied,
that's not the burden we're talking about
when we're talking about this regulation
because it's a choice of non-compliance.
-: May I ask a question
that builds on Justice Kafker's question,
and I'm trying to probe what the outer limits
of your argument are.
If you have a New Hampshire resident
who lawfully possesses a firearm
and has, let's just assume for this hypothetical,
has a New Hampshire license,
that's my understanding is New Hampshire
is a voluntary licensing jurisdiction,
so they can get a license.
So let's just assume he has a license
and that New Hampshire resident
wants to drive from New Hampshire to Connecticut,
passing through Massachusetts
and the New Hampshire resident complies
with the federal rule of
unloading the gun
and keeping it in a locked container
while he's in transit.
I take it, if I understand your argument correctly,
that from the moment that resident
crosses the border into Massachusetts
until the moment he crosses out into Connecticut,
he is violating, he could be charged under 10A.
-: No. -: Why not?
-: And this actually speaks to the point
of why non-residents,
I mean, not that we're required
to give them greater privilege,
but in fact they have greater privileges than residence,
18 USC 926A, which is the carrying through statute is,
there's a state exemption for that,
but it's also the federal exemption applies.
And so if you can show
that you are statutorily exempt
from following the license laws under 10A,
you can't be prosecuted for it.
So you can and not in fact be prosecuted
if it's being faithfully applied
the way it's supposed to be.
And there are various other exemptions
that are given to non-residents.
-: Where is the exemption? Where is that exemption?
-: So 18 USC 926A is the exemption for the federal and-
-: Are you are,
so are are you saying that in the in transit circumstance,
the person is exempt from having to obtain a 131F license?
-: Correct. -: Under state law?
-: Correct. -: Okay.
And but if he's coming in and it's not just in transit,
it is, for example, well, we don't know in the case
of Donnell whether he was in transit or not. Correct?
-: Well, all we know is that
he was driving drunk in Massachusetts.
-: Okay, but we don't know whether he was in transit.
-: Correct. -: Okay. So he may have been
entitled to that exemption
-: If at trial if he can show
that he was traveling from New Hampshire to another state
where he was lawfully allowed to carry,
and it was, and my memory is that
they were not properly secured
under what would be the state exemption,
but he may qualify for the federal exemption.
-: So- -: Loaded as well, right?
-: Right. -: So it doesn't matter.
-: Yeah. -: So my memory was that
it was-
-: That Donnell was loaded,
that's why I charged him on the 10M.
-: 10M was a large capacity magazine found next to him,
I don't actually believe it was loaded.
There was ammunition in the large capacity,
which we chose not-
Kafker: I thought it was one bullet.
There wasn't one bullet?
-: There wasn't one bullet.
-: Yeah, it was one bullet, right?
In the gun.
-: I misspoke, I apologize.
But either way,
he wouldn't be qualified for the exemption if it was-
-: So Marquis in your view,
Marquis doesn't qualify for the exemption
because he was coming to work,
rather than simply passing through?
-: Correct. He was not going from one state to another.
He was not using it for one of the many exemptions
that non-residents have,
such as for hunting, or shooting range,
or a pistol competition, or a shooting competition.
So he was required to get a non-resident license
if he chose to carry it for all purposes
while he goes back and forth to work in Massachusetts.
And that's just consistent
with what residents in Massachusetts have to do.
I know I'm well over time,
but I would be remiss if I didn't at least make
some comment briefly on
the request from defendant Donnell to add an element
to 10A of essentially knowledge that it's illegal to,
I think that my brief addressed this sufficiently,
but I just want to say that
even the logical extension of that argument
would be that the defendant needed to know
that he didn't have a non-resident license.
Not that he didn't know that it was illegal,
or that he was not in compliance.
I just wanna leave it at that and say that,
'cause I don't know that that was clear from my reply brief,
but if there's no other questions,
I'll yield the rest of my time,
which I don't have to my brief.
(all laughing)
-: Thank you. Okay, Attorney Levin.
-: Good morning.
May I please the court?
Patrick Levin on behalf of Dean Donnell.
I hope to discuss the issues that I've raised
in the brief regarding Section 10A
as well as the Second Amendment issues
relating to the unconstitutional may issue scheme
that previously existed in the Commonwealth.
Attorney Barnwell will address
the broader Second Amendment questions
and the right to travel.
Before I get to that hard stuff, I just want to emphasize
that the affirmance in Mr. Donnell's case must,
that the dismissal in Mr. Donnell's case must be affirmed
because this complaint does not allege a crime.
He cannot be prosecuted on a complaint
that doesn't allege that he was not licensed to carry.
So moving to the issues that I've raised
with respect to Section 10A,
there are two provisions of the statute
that I take issue with and they're intertwined.
So the fact that the statute does not require any awareness
of wrongful conduct is a huge problem in light of
the stiff mandatory minimum sentence.
Or alternatively, you can view it the other way
that the mandatory minimum sentence is a huge problem,
especially in light of the fact that
no knowledge of wrongful conduct
as required under the statute.
-: Can I just, sorry, you had made an initial point,
and I'm just looking at the complaint it says that,
Donnell had the firearm,
not having in effect a license to carry firearms.
Why isn't that enough?
-: Your Honor, I apologize.
I don't have the complaint right in front of me, but-
-: I do.
But I thought your position was,
they didn't allege that he didn't have a license,
but it sounds like they did.
-: So your Honor, I don't agree.
And so the complaint,
so there's two complaints against Mr. Donnell,
they're both in the record,
but the complaint at issue here,
all it does is add that the 10A charge.
But the application for the complaint
does not say that
Mr. Donnell did not have a license to carry.
It doesn't suggest any investigation into that.
And in fact, to the extent
that the application did contain any allegation,
it alleged that he did have a license
because the initial complaint charged him with
carrying a firearm while licensed and intoxicated.
So moving back to the constitutional-
Wolohojian: There was no motion
for a bill of particulars?
-: No, your Honor, there was a motion to dismiss for absence
of probable cause,
which that's what we're here on appeal of.
So coming back to this question of
whether the statute now in the wake of Bruen
and Guardado should be construed
to require knowledge as to all of the elements
that follow the knowingly phrase in Section 10A.
This is a classic principle of statutory interpretation
that we presume that a statute that says, you know,
you're in violation if you knowingly
and then enumerates the elements applies that mens rea
to all of the following elements.
And the fact that,
that this court has now recognized that the non-compliance
with regulatory requirements is an element of the crime
also requires you to apply that knowingly mens rea
to that element.
Because that element is the only thing
that distinguishes constitutionally protected conduct
from a felony.
I think if you synthesize this court's decisions
in Jackson and Kelly and Guardado
with the US Supreme Court's decisions in
Lambert versus California,
and the statutory construction cases following Morissette
and especially Staples versus United States,
you cannot come to another conclusion
that in Jackson this court concluded
that Section 10A was not intended
to be a public welfare offense.
That it does, it was intended to incorporate some mens rea
and they rely on the Lambert decision
and that's in part a constitutional avoidance holding.
But in so holding, they confront the very argument
that I'm making here,
that awareness of the requirement
of licensure was also required.
And they say no, that's not necessary
to distinguish a guilty mind from an innocent mind because,
and they rely solely on
a United States Supreme Court decision that says, you know,
that possessing hand grenades is not an innocent act.
Well, in Staples, the US Supreme Court
makes clear that that's an error.
That knowing that you possess a hand grenade
is very different than knowing you possess a gun.
And in fact, if you look at Heller
and compare Heller with Staples,
the line that they're drawing in Staples in some ways
is the same line that Heller draws
in terms of what is an arm
that's protected by the Second Amendment
and what is a dangerous and unusual weapon,
or a weapon that's not in common use for a lawful purpose.
What Staples says is,
if all you know is I have a gun
in the ordinary meaning of the word,
an instrument that is commonly possessed
for lawful purposes, that does not,
that's not a guilty mind and we shouldn't-
-: I'm just trying to make sure I understand your argument.
Are you saying that you need to know,
you need to be licensed,
or do you need to know that
you need to get a second license?
-: That you need to know you're not allowed
to have the gun in Massachusetts as applied to this case.
So there should be a showing,
and this is hardly an impossible showing to make
any evidence of consciousness, of guilt,
of concealment of the gun from authorities.
Certainly would-
-: Well what about the fact that
there's something in the record that New Hampshire
says that your license only applies in New Hampshire.
Is that enough that you-
-: Yes.
If there was evidence of that at trial, certainly.
But there's no allegation of that in this complaint.
And that's the point,
is that the complaint doesn't set forth probable cause
that Mr. Donnell
did not have a wholly innocent mental state.
-: So if I understand what you're arguing,
mens rea would require not simply the mens rea of facts,
but mens rea of the law.
-: So what it requires is knowledge as to the element
that provides the distinction between innocent conduct
and wrongful conduct.
And when the Supreme Court confronts-
-: Which in this case
would be that he had to get a license.
-: Right.
And so when you look at cases like Lambert versus California
and then Liparota versus United States,
and Rehaif versus United States,
and Ruan versus United States,
these are all cases where that key element
is a lawful or a regulatory element.
And the Supreme Court doesn't hesitate
to construe federal statutes to require knowledge
of that regulatory element.
Or in the case of Lambert,
which is the only one of those cases
that involves a state statute to say that
the due process clause requires such knowledge
to be imputed to-
-: Did New Hampshire ever require licenses?
-: Yes. -: And when did that end?
-: I believe it was 2017 or 18,
but I wouldn't want to-
-: And when is, what is the,
as I understand there are voluntary licensing regime now,
what are the benefits to getting a license?
Why would a person get a license?
-: So I think the likeliest reason would be that many states,
although not Massachusetts, do have reciprocity agreements.
And so if you are licensed in New Hampshire
and you travel to a state where there is reciprocity,
then you don't need a license from the-
-: Does does your argument
writ large mandate reciprocity?
-: I think,
well
I think that the answer is yes,
provided that the home state has, you know, some,
like I think there could be some minimum,
like a statute that provides
for some minimum level of screening in the home state.
And then you could say, okay-
-: Well what if the home state's
a constitutional carry state?
-: So in that case that, I mean the reciprocity
question is not quite the same, right?
There is, it's not reciprocity,
it's nullification almost, right?
-: So to take an easy example,
non-controversial assault rifles, right?
And the two way advocates would say
there's no such thing as an assault white rifle.
That's a made up term. -: Right.
-: Some other states like this one says
it's absolutely a term,
it's very controversial in the two-way world.
If someone in a constitutional carry state
were to comply with the Second Amendment,
you have a absolute right to carry
what we call in this state of assault rifle.
Could that person under your scheme
driving to Massachusetts, visit Massachusetts
with an assault rifle in the backseat?
-: So your Honor, I suppose that my real answer to that
is I don't need to go that far,
because Mr. Donnell is being-
Gaziano: I'm gonna press you for an answer.
-: Well, so your honor, if you're gonna force me-
-: 'Cause this would lead to that hypothetical
because we're talking about essentially Bruen allowed for
exchanged Howard McDonald to say
the right to carry is no longer in the house,
it's the right to carry outside the house.
Now as I read this,
this is the right to carry outside the house,
-: Right. -: and into another state.
So again, getting back to the hypothetical,
would the exercise of the right,
the Second Amendment right
in a constitutional carry state,
allow someone to enter this state with an assault weapon?
-: So your Honor, I think that the answer to that question
actually depends on the answer
to the assault weapon question.
If that's an arm or not under the Second Amendment and-
-: Well, so the constitutional carrier state
would say absolutely, -: Right.
-: and this state says no. -: And so I'm not arguing
that Massachusetts is required to defer
to the law of other states on all questions.
And so if you accept as correct, for example,
the recent fourth circuit en banc decision
that says assault weapons don't fall
within the Second Amendment's protection,
then obviously Massachusetts is free
to criminalize those weapons.
And so this is,
it's a separate question than the right to travel question
that's what I'm saying.
-: And the reason I didn't raise the extended magazine,
or the high capacity magazine,
because that's part of 131F, right?
-: Well that's true,
but also he's not charged with that anymore.
-: Right. I know that, but I'm just think thinking about
these hypotheticals,
about how far this force reciprocity goes,
-: Right. -: to this state.
-: Well, and if I may, your Honor, if you'll forgive me
and if allow me to defer some of these questions
to Attorney Barnwell. -: All right.
-: And fall back on
because Mr. Donnell is being prosecuted.
-: I would forward to asking him Attorney Barnwell
these questions. -: Because the thing is that,
my case is much easier than that.
Mr. Donnell is being prosecuted under a statutory regime
that even the Commonwealth concedes
is not constitutional. This may issue regime-
-: And where does this take us as far as
Guardado on steroids essentially,
if we say that the May versus shall license in scheme
makes it constitutionally infirm for these people.
Does that lead us to our case law
about you didn't have a license,
you don't get to play essentially,
does that hold true for all the Guardado folks
as well as your client?
Anyone that was convicted on the 10A?
-: I'm not sure I'm following your question.
-: Right. -: So is it
a retroactivity question
or is it a standing question?
-: So right now the law is that,
you can't say I would've gotten a license,
-: Right. -: that's not a defense
to 10A violation. -: Right. Okay.
-: Right. If we agree with you, does that law go away?
-: So as to people charged- -: Postpone, I guess.
-: As to people charged
under the unconstitutional may issue statute,
the answer is in effect yes.
Although not quite in that way.
That the point is that,
if there is no facially constitutional means
of obtaining a license,
then what you have in 10A
is just a ban on carrying guns effectively, so-
-: So we basically take the hold in Guardado
and we say Post-Bruen,
all the 10A violations for residents as well are invalid?
-: Yes. As to people-
Gaziano: 'Cause we had the may issue statute.
-: Right. As to people charged under the may issue regime,
that's correct.
-: That's a result of what you want us to rule in this case.
-: It in effect, yes.
Although this case
by its terms only presents the application
of Section 10A3 and section 131F.
-: Right. This this only applies to non-resident, right?
-: Right. -: But the result
of that ruling would be
residents would get the benefit of the elimination
of the licensing requirement.
-: Yes, I believe so.
Although I do note in the brief
that section 131F is actually in some ways
a doubly problematic may issue statute.
It entails more discretion
on the part of the state police colonel
than even the section 131 little D
does to the licensing authorities
for Massachusetts residents.
And so it's, I mean,
even if you were to uphold the, you know,
to somehow sever and uphold pieces of section 131,
but I will, you know, to the extent that
what you're trying to do
is save some of these prosecutions. I also would say-
-: That I just talked, I'm dealing with the consequences
as you well know from Guardado.
-: Right. -: And now we don't have
a new trial, we have a prohibition as well, right?
-: Well, so what I was gonna say is that
potentially, in terms of, you know,
which parts of these statutes it's possible to save.
The prohibitive person section
is not challenged in this case.
And frankly, it tracks pretty closely
with the prohibitions in federal law of, you know,
under section 922G of people
who are not allowed to carry guns at all
anywhere in the country.
And you know, that's Judge Coffey's point below
to a certain extent is that, you know,
we have the Massachusetts prohibitive persons
and the federal prohibitive persons are basically the same.
And if you're a prohibitive person federally,
you're also not lawfully allowed to carry in New Hampshire.
So, you know, as to anyone who's lawfully allowed
to carry a gun in New Hampshire, we already,
if you're allowed to carry a gun in New Hampshire,
then that means you're not a prohibited person
in Massachusetts either.
And the only basis to have denied a license
would've been the unconstitutional discretionary basis.
Do you see what I mean?
-: I do. -: And so in, you know,
in terms of severing pieces of the statute
and striking them down,
even if you say the only parts of the statute
that were unconstitutional
were the discretionary may issue parts of the statute.
Okay, so perhaps it would have been constitutional
even under that statute as severed
to prosecute someone who was a prohibited person,
do you see what I mean?
But of course, in this case,
we have two New Hampshire residents
who were lawfully permitted to carry in New Hampshire.
And so it was only under
the unconstitutional may issue provisions
that they could have ever been denied
a non-resident license.
Wolohojian: When you say lawfully permitted,
do you mean lawfully allowed
as opposed to having a permit in New Hampshire?
-: Right. There's no suggest,
there's no evidence in this case that either
of these defendants had the optional permit.
It's just that they were lawfully allowed to carry
because they were not prohibited
by federal or New Hampshire law.
And so just to circle back-
-: Oh no. Wait.
Yeah, I'm sorry.
So we're 10 minutes over and I just wanna make sure that
whatever it is you were gonna say,
it sounds like it might be something you said already.
-: I was just gonna ask
if anyone had any questions about this.
Budd: Oh, good. That was what I was gonna ask as well.
(audience laughing)
-: About the standing in particular.
-: Okay. -: Okay.
Thank you so much. -: Thank you very much.
Okay, Attorney Barnwell.
-: Good morning your honors,
Hayne Barnwell on behalf of Phillip Marquis.
So there have been
a lot of issues touched on in this case.
I would just like to zoom out a bit
and to state that, whether it's in their brief or today,
the Commonwealth has not shown
a relevantly similar historical analog to this law.
Rahimi also, I mean, beyond Bruen,
Rahimi also dooms its argument
because Rahimi makes clear how narrow the holding is.
We are only today saying that if a court,
and specifically a court finds
that this person is dangerous,
that the state can regulate or even, you know,
ban that person from having a firearm.
But it also cautioned
after that narrow holding that the broader you go,
the broader the prohibition is,
the more constitutional peril the state will be in.
-: But counsel, how about the circumstance
that you're pointing out though,
I get you with Rahimi,
that's not necessarily instructive here,
but getting aside from the optional licensing
that you might do if you are a New Hampshire resident,
if you are the going the route of the constitutional carry,
why is it that there is an even under a rational basis,
a reason for this Commonwealth
to say there's been no vetting
of the New Hampshire resident?
So even if you have this right,
that Bruen has again reaffirmed
that Massachusetts shouldn't just be allowed
or forced to just say ole.
-: Because well that gets to reciprocity.
My answer is that Massachusetts
does not have to have a reciprocal regime,
or recognize a New Hampshire license, for example,
or authorization.
It's just that Massachusetts
can't be less protected than the Second Amendment,
and that's the problem. -: Well I guess it depends
on whose Second Amendment. -: Right.
-: 'Cause that's the hypothetical I have
about the constitutional carry states,
-: Right. -: in this notion
of forced reciprocity,
or mandatory reciprocity.
what's your answer to the hypothetical
about the person who comes in
from a constitutional carry state
with a magazine over 10 rounds and or an assault weapon?
-: So that comes down to not what,
it's not about what New Hampshire allows or doesn't allow.
It's whether that comports
with the Second Amendment period,
whether you can- -: Okay, so-
-: Whether you can (indistinct) or you ban that.
And I apologize,
I'm not prepared to talk about those cases.
I know there are cases percolating up
to the US Supreme Court on this very question,
on the question of can assault weapons
be effectively banned or you know?
-: So obviously McDonald, Heller,
they all say there can be reasonable regulation
and this can be 50 different states, right?
Obviously 50 different regulations,
or types of regulations,
as long as they don't impede the Second Amendment,
which is the bellwether.
But what if someone's from the state of Oklahoma
and they think there's no such thing as an assault weapon
and that's fine there
and they drive into Massachusetts. Is that a problem?
-: So if the US Supreme Court declares
that that's both a dangerous and unusual weapon
and therefore it doesn't come under the protection
of an arm, then can do that.
It can be, you know, in my view,
it can be strictly to the Second Amendment.
Not less than, but strictly to,
it doesn't have to go beyond,
that would be my argument there.
But the problem with this statute is that
it temporarily disarms.
-: But what about the reciprocity that-
-: I'm sorry. -: What about the reciprocity
from the person, from the constitutional carry state?
We don't have to extend the reciprocity to that level.
-: I haven't argued full faith and credit.
I feel like that was persuasively handled
in Commonwealth versus Harris.
Again, I think it really just comes down to,
is the US Supreme Court,
I hope it eventually gets up there
because I think that needs to be settled.
Whether that's a dangerous and unusual weapon.
And this court's of course,
opinion in Kendra is instructive on that, you know,
what kind of historical analog
are you going to sort of see with that?
And I can't think of one.
I don't know where the commonwealth will go.
Would they go to Cannons?
You know, maybe there was a Cannon ban and they can say,
well therefore I just don't know.
But I don't think the (indistinct) of it is reciprocity its,
does Massachusetts,
this particular law does a comport the Second Amendment?
-: No, I believe, I fully understand that
the floor has to be the Second Amendment.
And if the Supreme Court says that
there's no such thing as assault rifle,
that's what we have to apply.
But I'm trying to explore
what happens to these folks who come in.
-: Yeah. -: And we don't know
about fitness, we don't know about mental ability.
We don't know about criminal records.
-: And on that, I defer
to Attorney Levin's excellent argument that
that's yet another reason to put a men's ray
attached to this.
That, you know, usually
ignorance of the law isn't an excuse,
but there are those cases like Rehaif,
where you know, one status,
you do have to know your status. And I think-
-: But how does that affect the reciprocity issue
if go to your client, right?
So your client comes over, he doesn't have the benefit.
He's unlike Mr. Levin's client as far as the statute goes,
but we don't know where he fits as far as suitability
because he has a constitutional carry permission
to carry from New Hampshire.
-: Well, so we- -: Don't know if he's
-: I'm sorry. -: right.
So tell me how we handle that.
-: Sure. So with suitability,
suitability actually proves that
this is still a may issue regime.
And if you look at Bruen-
-: But the Supreme Courts allow us to look into suitability.
Barnwell: Actually Bruen says the opposite-
-: But not suitability,
as far as mental illness in the like, right?
-: Oh, I'm sorry. Whether we're worried to hell-
-: Or whether or not they're felon,
what categories,
whether or not they're felon or mentally ill.
-: But those are objective standards
and we can get in an argument about whether that's
or not in Heller,
but assuming that's operative law,
-: Right. -: that's still
an objective standard.
And so what Bruen points out,
I think it's page 13 of Bruen,
it singles out regimes that have a quote.
You know, if you have a perceived lack of need,
you don't get the license or suitability, right?
And so we still have-
-: I misspoke on suitability,
but I'm more concerned about the categories
we know that are uncontroversial as far as criminal history
and or mental illness.
You agree with me that those even under Bruen
are disqualifiers?
-: Those are disqualifiers. -: Okay.
-: The problem is how you administer it.
And we have to look at the historical tradition.
We can't look at, I mean the Supreme Court has told us,
again and again, we can't look at administrative convenience
or the like,
we have to keep to the historical tradition test.
And the question is,
can you as a state temporarily disarm the entire,
like literally the entire public outside of Massachusetts
while that person tries to go through
the hoops of a discretionary licensing regime.
-: But we do temporarily disarm everybody,
but I take it we're disarming outta staters much longer.
-: Much longer,
and that makes it even more problematic. Yes.
-: But are you suggesting that you can't temporarily disarm
prohibited persons,
or to determine whether somebody's a prohibited person?
'Cause that's the objective standard,
I think is what you're talking about, right?
-: If it were just on the prohibited.
So if it's just on the,
so we're taking out suitability,
I'm assuming in your hypothetical, okay?
And so then the only guidance we have on that
temporarily disarming someone,
so you can find out whether he or she
is a prohibited person.
The only guidance we have on that
is footnote nine and Bruen.
That footnote is dicta
because it doesn't have any historical analysis.
So then the question is how,
like how long can you make that person wait?
So you to determine-
-: So you can make them wait for some time.
And we can argue about what the reasonableness
of what that time is.
But there is the possibility,
consistent with the Second Amendment
to temporarily disarm somebody, as you say,
in order to determine whether
they are an objectively prohibited person.
-: Well, the problem is, again, footnote nine is dicta.
So there's no historical analysis.
I don't know what the historical analog would be
because again,
Rahimi only talks about after the person is found.
-: So your position is that Massachusetts
and all states need to allow everybody to be armed
until they determine
that they are prohibited person?
So that even the temporary disarmament
of somebody would violate the Second Amendment,
even if it's only for reasonable period
to determine if somebody's prohibited.
-: Well, Massachusetts can say these are prohibitive people,
meaning you need not apply,
you are banned as long as those prohibited.
-: Well they have. -: Well, as long
as the prohibited people categories
are tailored to dangerousness
and there are some that are not.
-: Right, so let's just stick with the hypothetical
where they're just tailored to dangerousness, then?
-: That might be constitutional.
I just don't, the problem is,
is that the footnote nine
just doesn't have any historical analysis-
Kafker: But we don't know about your client.
-: Right. -: That's the problem.
-: Right. But I think your position is that,
even temporarily determining
to disarming somebody, violates a Second Amendment-
-: Because again, I realize footnote nine-
-: Even if's only for a reasonable period.
-: Yes. -: You know, regardless
of footnote nine, your position though is that,
Second Amendment prohibits a state
from temporarily disarming somebody, period.
-: I'm sorry. -: Unless they then determine
that they're a prohibited person.
While they're armed they can,
while they're armed they may or may not be prohibited,
but we don't have a time at all,
zero time to determine.
-: Unless and until the person is actually found dangerous
or the commonwealth,
and again, I don't know what that is,
but if the Commonwealth puts up a historical analog
where there's-
-: How they can't be right?
How would the forum ever know?
How would they ever know?
If we just limit it to prohibited persons
and you're saying that every state could just
enact a statute that says if you're a prohibited person,
you can't carry.
Who's walking into the state saying,
hey, here by the way, I'm a prohibited person?
-: I realize that that is a compelling, you know,
administrative reason.
And if we were in a means in scrutiny world,
that would probably be dispositive.
-: Okay. -: But again, Bruen,
the body of Bruen says,
you gotta do historical tradition.
I just dunno what that is.
-: I frame this just a little bit
just to follow up on the way Justice (indistinct)
phrase this.
So we have the standing put back in standing.
Your client didn't request,
I'm trying to understand
what your client can actually challenge.
-: Yes. -: So your client
didn't request a license.
He, so we're this discretionary part of this it,
so he doesn't request a license
and I'm just trying to get a sense of how that adds to this.
So the Commonwealth has a legitimate interest
in at least screening for the bad guys.
Whether your guy is in that category or not,
they don't know.
Your person doesn't request the license.
So they still have this legitimate concern.
They don't know whether your person
is in one of those categorical,
so they have to have some time to make that determination.
How does this case play out given that?
-: Well as applied to Mr. Marquis,
he is a law abiding citizen, he's an adult, he's authorized.
-: We don't know that, but we don't know that based on,
'cause he doesn't go for a license.
-: Well we do know that
because the Commonwealth would've,
-: No, that's not case. -: told us that
he's got this conviction or that.
They've done that in Loadholt,
they've done that in Johnson,
they've not made that claim here.
But even if the court sticks with Powell,
and I think Powell is effectively overruled by Bruen
because it was basically,
this court decided that the right
does not extend outside the home.
But even if you find that they don't have standing,
you still have to grapple with,
just like they did in Rahimi, a facial challenge.
The United States Supreme Court could have
had a two page decision and said,
well, Mr. Rahimi is obviously a violent, dangerous person,
game over,
but they instead grappled with a historical tradition.
And there's just not a relevantly similar
historical analog here.
-: If we were to posit a version of,
just accept a version of 131F
that complies with the Second Amendment.
Okay, just accept that it is.
Can you then explain what remains in your view
of the interstate travel argument, if anything?
-: So the,
I'm just trying to make sure I understand the hypothetical.
So the firearms competition restriction is effectively not-
-: Let's just all assume that, you know,
there's a 131F that satisfies the Second Amendment,
that's fully satisfies the Second Amendment.
I'm trying to figure out
whether the interstate travel right
is coterminous with the Second Amendment,
or it does something survive of it beyond the challenge
on Second Amendment grounds to 131F.
-: I see, I see. So there are two issues
I would see remaining.
One is that there still is that fundamental right to carry.
And so it's at least impacted by one's decision to travel,
if that makes sense. But the, oh, go ahead.
-: That seems to me reciprocity,
like if every state gets to regulate what's happening
in its own state.
-: But it deters and burdens Mr. Marquis's travel.
But aside from that,
there's also the issue of the fact that
in 129C, I believe it's 129CH,
there's the equal protection problem
of people carrying rifles
and shotguns are exempted from a 10A prosecution.
While if you've got a normal handgun, you're not exempted,
I think that is huge.
That one is burden with-
Wolohojian: Do you think it's not rational,
when there's no protected?
-: I don't think it's even rational
because if you have an unloaded handgun in your car,
it's the same as an unloaded rifle
and yet one is subjected to a 10A,
18 month mandatory minimum sentence
and the other isn't at all.
So I don't even think that survives a rational basis.
Gaziano: The fact that one's concealable
doesn't do anything for you.
-: I'm sorry. -: The fact that
one's concealable.
-: One that's concealable but unloaded
and you're traveling in a car,
I don't see that that's a distinction at all.
And if you're given the same rights
as a rifle shotgun carrying person,
then you would have it enclosed, et cetera.
So I think that still survives,
'cause that's still a legal protection problem.
And there's all the problems,
I won't get into all of them now,
but the, you know, the wait time,
the processing burdens,
the fees that are involved, et cetera,
those still survive as well.