Possession of a Firearm Without a License
- Steven Topazio wrote this July 19, 2023 at 4:37 pm
In Firearms cases, the prosecution must now prove an added element that you did not have a firearms license or valid firearm ID card and can no longer force you to prove that you had such a license at trial. Presenting evidence of possession of a firearm without a license is now the Commonwealth’s burden.
The Case: COMMONWEALTH vs. CARLOS GUARDADO, 491 Mass. 666 (2023)
Following a jury trial, Guardado was convicted of unlawfully carrying a firearm, unlawfully carrying a loaded firearm, unlawfully carrying ammunition, and unlawfully carrying a large capacity feeding device. The statute under which Grardado was convicted, G. L. c. 269, § 10, contains two exemptions. First, it exempts anyone who, while in possession of a firearm, is present in or on his or her place of business. Second, the statute exempts someone who has been issued a firearms license. At Guardado’s trial, the judge did not instruct the jury on either of these exemptions. Among other things, the court held that the trial judge erred in not instructing the jury on the licensure exemption. In the wake of the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2122 (2022), in which the Court held that the Second Amendment to the United States Constitution protects an individual’s right to carry a firearm in public, Massachusetts’ existing precedent that licensure is an affirmative defense, and not an element of the offense the Commonwealth is required to prove, was revisited. See Commonwealth v. Gouse, 461 Mass. 787 , 807 (2012). The court held that because possession of a firearm in public is constitutionally protected conduct, in order to convict a defendant of unlawful possession of a firearm, due process requires the Commonwealth to prove beyond a reasonable doubt that a defendant did not have a valid firearms license.
The standard going forward:
The SJC concluded that, given the holding of the United States Supreme Court establishing a constitutional right to possess a firearm outside the home, the absence of a license is an essential element of the offense of unlawful possession of a firearm pursuant to G. L. c. 269, § 10 (a) and must be proven by the Commonwealth. General Laws c. 278, § 7, which provides that licensure is an affirmative defense, is no longer applicable to G. L. c. 269, § 10 (a).
Prepare your defense!
In Massachusetts, the failure to obtain a valid firearms license is now an essential element of unlawful possession of a firearm which must be proven by the prosecution. Your confrontation right will be violated if the prosecution tries to establish lack of licensure with only an affidavit from the firearms database, which will prevent you the opportunity to question the officer knowledgeable about how the search of the database and how it was performed. Without live testimony, you will be denied the opportunity to explore whether the officer used the correct date of birth, name, or other identifying information such as a social security number in order to generate a correct search of the database, and what information that search produced.
Contact Attorney Topazio to learn more about your firearms and gun rights.
Commonwealth v. Gouse, 461 Mass. 787 , 807 (2012)
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