MASSACHUSETTS LAWMAKERS are free to require that New Hampshire residents – and all out-of-staters – have licenses to carry firearms within the borders of the Bay State after the state’s highest court decided recent gun licensing rules for non-residents pass constitutional muster.
Massachusetts, the Supreme Judicial Court ruled on Tuesday, can enforce its gun laws even against people who are legally allowed to carry a gun in another state.
The decision signals that even under a tougher standard for determining the constitutionality of gun regulations recently set by the Supreme Court, Massachusetts’ firearms restrictions – some of the strictest in the nation – may rest on solid ground.
“Certainly,” Justice Frank Gaziano wrote, “the Commonwealth has the power to enforce firearm restrictions within its own borders that are consistent with the United States Constitution.”
The SJC considered the separate cases of two New Hampshire men who are allowed to carry firearms back home but were charged for unlawful possession of a firearm when they crossed the border into Massachusetts without applying for and obtaining a Massachusetts license first. The court heard the cases together in September 2024, and the issue drew attention from gun owner rights groups, gun violence prevention groups, and officials from both states as they watched to see how the SJC would square Massachusetts law with the US Supreme Court’s 2022 decision that mandated gun laws must be “consistent with the Nation’s historical tradition of firearm regulation.”
Gaziano wrote both opinions for a unanimous court, tossing one charge brought under an earlier version of the state’s non-resident licensing statute while protecting the current law and the underlying principle of gun regulation applied to non-residents.
In both New Hampshire cases, the men were involved in car crashes and police responding to the scene found that there was a gun in the vehicle.
But the cases diverge in the details. Notably, the dates.
Dean Donnell, Jr. was arrested in 2021 on suspicion of drunk driving after a single-car crash on Interstate 495 near the Lowell Connector, according to the court. Officers searched the car, finding several empty beer cans and liquor bottles, along with two twelve-gauge shotgun slugs in the cabin of the car. Inside a duffel bag, the officers found a pistol with a single round inside and several empty magazines.
About one month before Donnell was charged under Massachusetts firearms laws, the US Supreme Court handed down its New York State Rifle & Pistol Assn., Inc. v. Bruen decision in June 2022.
The Bruen decision tossed out a New York licensing rule that gave individual officials discretion to deny carry permits – essentially identical to Massachusetts law at the time – because the court felt the law was not sufficiently connected to “historical tradition” of gun regulation. Donnell argued that because the Massachusetts statute said officials “may issue” a license rather than “shall issue” and the only reason to be denied a permit was because you posed a particular danger if approved, it conflicted with Bruen.
He was right in challenging the statute as unconstitutional under Bruen, the SJC concluded, dismissing his charges.
“To be consistent with the Second Amendment, the Commonwealth’s nonresident firearm licensing scheme cannot vest an official with the discretion to deny a license to a qualified applicant,” Gaziano wrote. “The defendant was charged under a firearm licensing scheme that did just that. This manner of firearm restriction is no longer permissible.”
But Gaziano emphasized that “the Second Amendment right to bear arms is not absolute” and the SJC’s ruling does not “preclude it from requiring firearm licenses for persons within its borders.”
The second opinion of the day offered legal justification for doing just that.
In September 2022, Philip Marquis got into an accident on I-495 in Lowell traveling from his home in Rochester, New Hampshire, to his work in Massachusetts. He told officers at the scene that he had an unloaded pistol but no license to carry in Massachusetts, for which he was charged.
Marquis challenged his charges under the state gun law, amended after Bruen, arguing that the Commonwealth’s nonresident firearm licensing scheme violated his Second Amendment rights as a nonresident. A district court judge agreed, dismissing the case after finding that the state did not demonstrate that the law was rooted in historical tradition.
But the SJC determined Marquis never applied for a firearms license under the current law, so his specific rights were not actually violated. As for the challenge to the entire licensing law, non-residents carrying handguns are protected within the scope of the Second Amendment, Gaziano wrote, but because the Legislature updated the “may issue” language, the licensing statute can be compared with historical analogues rather than automatically tossed.
The purpose of the law is to prevent “demonstrably dangerous persons” from being armed while in Massachusetts, he wrote, which more recent US Supreme Court decisions suggest is similar enough to historical rules preventing those who posed serious risk of violence from carrying deadly weapons unrestricted.
The court also was not convinced by Marquis’ argument that the law infringed on the right to travel between states – a sticking point between Massachusetts and New Hampshire, which filed an amicus brief in support of Marquis.
“Strict application of Massachusetts’s firearm statutes imposes on many New Hampshire citizens, particularly those living close to the border with Massachusetts, something of a Hobbesian choice,” New Hampshire officials wrote. “Lay down your right to armed self-defense upon entry into Massachusetts or face felony charges that carry harsh penalties and mandatory imprisonment.”
But residents and nonresidents are treated equally under the licensing wrote, Gaziano noting that the burden is minimal.
Second Amendment advocates have taken their constitutional grievances with state gun laws to the federal courts when possible, and the sprawling gun reform bill passed last legislative session – which includes provisions on ghost guns, expands areas where guns are prohibited, and strengthens courts’ abilities to take away firearms from dangerous people – is targeted by three lawsuits and a potential ballot campaign.
The SJC has treaded carefully around Second Amendment law since Bruen, aware that the conservative US Supreme Court majority has expanded gun rights beyond what Massachusetts law allows. After being overturned upholding a state ban on carrying stun guns, the SJC struck down bans on carrying switchblades.
But the SJC has found cracks in the Second Amendment armor where it can, as it did in the Marquis case. As the restrictions on firearms loosen, however, the Supreme Court will determine who gets the last word.
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