Archive for Second Amendment in Massachusetts

March 14, 2017   Posted by: Margarita Smirnova

YOU ARE ON YOUR OWN!

     Second Amendment of the U.S. Constitution states: “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.”

Supreme Court ruled that the Second Amendment guarantees the individual right to posses a firearm in the home for the purpose of self defense. See District of Columbia v. Heller, 554 U.S. 570 (2008).  And the Fourteenth Amendment provides: “No State shall … deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend IV.   The court held that the the Second Amendment “is fully applicable against the States.” McDonald v. Chicago, 561 U.S. 742 (2010).

Massachusetts is famous for being one of the most toughest states in regulating firearms. Just by looking at the M.L. Section 131: Licenses to carry firearms; conditions and restrictions says a lot.  The law begins not with rights; it sets out restrictions.  In other words, M.G.L. c. 140 §131 authorizes a licensing authority to place restrictions on the license, preventing the licensee from lawfully carrying a handgun on his person outside of his home.  Residents of Massachusetts must obtain a license to both purchase and possess firearms, ammunition, and feeding devices. M.G.L. c. 140, §§ 129C, 131, 131E, c269 § 10.  Under M.G.L. c. 140, § 129B., a Firearms Identification Card is a “shall-issue” license, if an applicant meets statutory requirements.

Local Police Chiefs/Commissioners administer firearms licensing for any person residing or having a place of business within the jurisdiction of the licensing authority. M.G.L. c. 140, §§ 121, 129B, and 131.  Most of the time, the judge sides with the police deeming a petitioner who has had small indiscretions with the law in his or her teens and now a business owner and/or has a family, too dangerous to ever exercise their right to protect themselves and their loved ones.
Politics and money create a legal system reflecting the society.  Question comes to mind is how the right became a restricted permit?  In simple terms, some people are so scared of guns and gun violence that they would rather have no protection for themselves and others thinking they will be insulated by circumstances others aren’t as fortunate.

The police aren’t at our beck and call nor should they be.  Many folks working in law enforcement put their lives on a line to protect us and do their best.  They do reserve the right to protect themselves first and exercise their discretion whether the call is a true emergency.  Police also can be very busy and cannot arrive fast enough.  In 2005, U.S. Supreme Court ruled that Police doesn’t have a constitutional duty to protect.  See Castle Rock v. Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2 (Alito and Ginsberg dissented), that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children that the estranged husband kidnapped earlier during the day and the police used their discretion and ignored a judge who ordered restraining order.

Without going into analysis as to how and why the children were kidnapped with an active restraining order that police chose to ignore and argument that restraining orders are given out too easily, the judge ordered it, the order was in place and the system failed Mrs. Gonzales who did everything right to protect herself and her children.  This means that while a criminal element doesn’t care to obtain firearms legally, you are on your own!

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.

October 16, 2014   Posted by: Margarita Smirnova

Firearm Laws and Complications From Possessing Firearms!

In October, 2013, when Shaneen Allen was charged for possessing a firearm in her car in New Jersey the arrest came as a surprising shock.  According to the Philly.com report, a single mom of two, who resides in Philadelphia, obtained a license-to-carry permit and lawfully purchased .380 Bersa Thunder handgun for self defense purposes.   The last thing she expected was that during a routine traffic stop in New Jersey she would get arrested and was charged with unlawful possession of a weapon and possession of hollow-point bullets.  For many who were unaware of how firearm laws work it was mind boggling.   Ms. Allen had all the documentation and proper preparation to be able to carry her Bersa.  So, what went wrong? The answer is different states have different rules and reciprocity is far from automatic.

The Second Amendment to the U.S. Constitution guarantees to each citizen the right to bear arms.  Yet, many state legislations across the country enacted many controversial restrictions and limitations no other amendment could ever endure.  Each state requires its own license; whether it is to collect fees or to control the amount of firearms.

For better or worse, the firearm law is constantly changing.   It is important to know your rights because the punishment for these offenses is quite severe, and traditionally, the prosecution addresses the violators who possess firearms with vigor.

In 2013, New York enacted a Safe Act that claims to “keep communities safe while respecting hunters and sportsmen.” Governor Guomo, if reelected, plans to sign a Safe Act 2 which makes one wonder whether the first act didn’t keep the public safe.   Under the New York law, criminal possession of a weapon is fourth degree and is a strict liability and per se crime in the New York Penal Law pursuant to NY PL 265.01.  The implication of strict liability for simply possessing a firearm or even a knife is automatic prison time.

Recently, Massachusetts reinstated itself as one of the leaders in tough gun control in the nation.  On August 13, 2014, the Massachusetts legislation signed into law an Act Relative to the Reduction of Gun Violence.  The Act allows police chiefs to ask courts to deny firearms identification cards to individuals if they feel are unfit to obtain them.  The Act made gun-based crimes tougher and created an online portal for background checks in private gun sales, making Massachusetts join the National Instant Background Check System.

An improperly possessed or used firearm is dangerous not only for possessing the firearm which is regulated by the Mass. Gen. Laws Ch. 269 Sec. 10 (h) and having to surrender it under the Mass Gen. Laws Ch. 140 Sec. 129D but also risky to your freedom.  The Mass Gen Laws 140 Sec. 128B states that for the first offense the violator will be punished by a fine of up to $1,000 and for any subsequent offense by imprisonment in the state prison for up to ten years.

Different towns and cities require different policies and procedures to obtain License to Carry of Firearm Identification.  Possession, storage and transportation of firearms are heavily regulated.  It’s important to obtain a proper license prior to purchasing any firearms.  No doubt, the Act Relative to the Reduction of Gun Violence makes owning firearms more complicated and since certain regulations will become active in January 2015, applicants will be prone to make mistakes in filing or renewing their licenses to carry or firearm identifications cards applications, or worse, due to new regulations, losing their rights altogether.

It is important to note that under the Massachusetts law a possession of a firearm while committing a felony will will result in a mandatory minimum sentence of 5 years.  Failing to proper obtain a license to posses a firearm can automatically render a perfectly law abiding citizen a felon.

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.