Mass. Supreme Court rules 2nd Amendment does not apply to states

Massachusetts SJC rules 2nd Amendment does not apply to states

By Brian Fraga
March 11, 2010 12:00 AM

The right to bear arms as defined in the Second Amendment does not apply to the states, so Massachusetts can regulate who can have firearms and how those weapons are to be stored, the state's high court ruled Wednesday.

The Massachusetts Supreme Judicial Court unanimously dismissed two challenges to the state's gun laws that require citizens to register with police departments before acquiring a firearm, as well as keeping guns stored in a locked container or equipped with a trigger lock.

The court upheld the conviction of Nathaniel DePina, a New Bedford man who is serving a two-year jail sentence for carrying an illegal firearm. His lawyer, Paul Patten of Fall River, challenged the conviction on the grounds that the state's gun licensing laws were unconstitutional.

Patten said the Supreme Judicial Court missed an opportunity to contribute to the debate surrounding the Second Amendment.

"I think they could have at least given some guidance on the issue," Patten said. "This leaves all the main questions unanswered."

Meanwhile, law enforcement officials and gun control advocates praised the ruling.

"We have seen in Bristol County, and I believe this is true throughout Massachusetts, that 95 percent of the gun violence is committed by those who have no lawful right to possess or carry a firearm," Bristol County District Attorney C. Samuel Sutter said.

"That is a powerfully compelling argument for the need for licensing requirements for the possession of firearms."

New Bedford Police Chief Ronald E. Teachman said he was "relieved" with the court's rulings.

"If the SJC had not ruled this way, where would we be? That anyone can have a gun, regardless of criminal background or mental health?" Teachman said.

The challenges before the Supreme Judicial Court flowed from the U.S. Supreme Court's 2008 decision in District of Columbia v. Heller, which said that the Second Amendment applied to private citizens in addition to state-regulated militias.

On Wednesday, Massachusetts Justice Ralph Gants said the Heller decision did not have any bearing on state law.

"We conclude that, based on current federal law, the Second Amendment does not apply to the states, either through the 14th Amendment's guarantee of substantive due process or otherwise," he said.

"The defendant's challenge likewise fails under our Massachusetts Constitution, which recognizes no individual right to keep and bear arms."

Jim Wallace, president of the Gun Owners Action League, a gun rights organization, decried the judge's ruling.

"What a mess. It's very clear to me that Justice Gants did not actually read the Heller decision," he said.

The issue could be revisited soon. Last week, the U.S. Supreme Court heard arguments in McDonald v. Chicago, a case in which the court is asked to determine whether the Second Amendment applies to state and local laws.

"The Chicago case will be a remarkable decision," Teachman said. "It will have a profound effect either way."

Attorney Dwight Duncan, a professor at the new UMass School of Law at Dartmouth, said the Supreme Judicial Court may be on "very thin ice" in its gun rulings.

"Given that virtually every provision of the Bill of Rights has been incorporated against the states by the 14th Amendment's due process clause, I think it highly unlikely that the U.S. Supreme Court will decide that the Second Amendment does not apply to the states," Duncan said.