The Checks and Balances of Legally Owning a Firearm
Monday, June 11, 2012
Leonardo Angiulo, GoLocalWorcester Legal Expert
No matter how you may feel personally, the right to possess firearms has been identified by the United States Supreme Court as a fundamental right necessary to our system of ordered liberty. In addition, the terms of the second amendment are applicable to the states through the fourteenth amendment, so even if Massachusetts wanted to ban all handguns, it's not going to happen. The reality is that firearms, for sport or defense, are an inarguable part of our country and our culture.
But hold on. Just because we have the right to possess firearms doesn't mean that right is unlimited. Our current licensing statutes found in chapter 140 of the Massachusetts General Laws reflect traditional limits to possession such as felony conviction and serious mental illness. Also included in the list of people disqualified from firearm possession are children, people with documented habitual drug and alcohol issues, those convicted of certain violent crimes as well as anyone who has been convicted of a misdemeanor punishable by more than two years imprisonment.
If there is some minor indiscretion in your past, there is an administrative board charged with the task of reviewing your record and making exceptions. One example would be a single conviction for operating a vehicle under the influence of alcohol. Technically, that conviction would disqualify you from holding a license to carry because it carries the penalty of more than two years in the house of correction. By applying to the Firearm Licensing Board, meeting some very specific exceptions, and having the right evidence, you may be permitted to legally possess firearms. If you aren't sure what is on your record and how that affects your ability to hold a Firearm Identification Card or License to Carry, contact an attorney who can help you understand your situation.
Let's say you have a clean record. For most people, the next step is to appear at your local police department where you apply for a License to Carry. The application is a standardized form you fill out, identifying yourself and giving some important details. Once you apply, the chief and whomever from the department is designated to carry out the task conducts a background check of your criminal history. After completing that check, the chief of police for your city or town then may issue a license. Notice the words “may” issue, not “shall” issue. That little word can make a big difference because even if you are statutorily eligible, the chief still has the discretion to issue a license, or not.
One of the other hallmarks of our country is checks and balances between the branches of government. Police are members of the executive branch and if you believe the chief exercised his discretion incorrectly you have the right to appeal that decision to the judges of your local district court. The way this is done is by filing a complaint requesting the court review the evidence available to the chief and determine whether your denial was made in an arbitrary or capricious manner. Exactly what that means requires some legal study and more space for explanation than available in this column.
People react to the idea of lawful firearm ownership in different ways. No matter which side of this issue you fall on remember that there is no argument as to whether firearms will be in private hands in this country. The only question is how possession will be regulated.
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