Opinion
21-P-145
12-08-2021
Michael A. CARLINO v. CHIEF OF POLICE OF FALMOUTH & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment of the Superior Court, which affirmed the decision of the chief of police of the town of Falmouth denying the plaintiff's application for a firearm identification (FID) card. We affirm.
The Massachusetts firearm licensing statute disqualifies anyone who "has ever, in a court of the commonwealth, been convicted ... for the commission of: (A) a felony" from ever again obtaining an FID card. G. L. c. 140, § 129B (1) (i). The plaintiff is a convicted felon and classified as a "prohibited person" under the statute. As such, the police chief -- who is the local licensing authority -- denied his FID application.
The plaintiff has also been convicted of multiple violent misdemeanors, including crimes of domestic violence, assault and battery, and assault and battery of a police officer. Any one of these violent misdemeanors would also disqualify him from obtaining an FID card under G. L. c. 140, § 129B (1) (i).
The plaintiff contends that the licensing statute, as applied to him, violates his rights under both the Second Amendment to the United States Constitution and art. 17 of the Massachusetts Declaration of Rights, because it contains no mechanism for restoring his right to own a firearm and because the statute does not permit the local licensing authority to conduct an individualized review of the facts and circumstances of an applicant's criminal history before approving or denying their application.
The case is controlled in material respects by Chardin v. Police Comm'r of Boston, 465 Mass. 314, 327, cert. denied, 571 U.S. 990 (2013). In Chardin, the Supreme Judicial Court held that the denial of the petitioner's application for a permit to carry a firearm, based on his classification as a prohibited person by reason of a felony conviction, did not violate his Second Amendment right. There is "a long-standing and well-recognized prohibition on the possession of firearms by a particular group of individuals -- those who have committed a felony." Id. Such prohibitions are "presumptively lawful," and, as such, "do not burden conduct that falls within the scope of the Second Amendment and therefore are not subject to the heightened scrutiny required where protected conduct within the scope of the Second Amendment is infringed." Id. at 324, quoting Commonwealth v. McGowan, 464 Mass. 232, 239 (2013).
In Chardin, the petitioner challenged the denial of his application for a license to carry a firearm under G. L. c. 140, § 13l (d ) (i). While the present case is a challenge to G. L. c. 140, § 129B, the "prohibited persons" language contained in both statutes is identical. We discern no basis to analyze the constitutional question differently between the two statutes.
The Supreme Judicial Court's holding in Chardin is consistent with numerous Federal cases recognizing that a categorical bar without individualized considerations against felons possessing firearms does not violate the Second Amendment. See, e.g., United States v. Booker, 644 F.3d 12, 23 (1st Cir. 2011), cert. denied, 565 U.S. 1204 (2012) ; Morin v. Leahy, 189 F. Supp. 3d 226, 236 (D. Mass. 2016), aff'd, 862 F.3d 123 (2017). See also District of Columbia v. Heller, 554 U.S. 570, 626-627 (2008).
Judgment affirmed.