News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Supreme Judicial Court Requires Prosecutors to Prove Lack of License in Firearm Cases


Since its 2008 decision in Heller, the U.S. Supreme Court has been expanding the understanding of the constitutional right to bear arms under the Second Amendment. Heller held that the Second Amendment right is individual, and not limited to the context of an organized, “well-regulated militia.” In 2010, the Court held in McDonald that the right to bear arms applies to the states, not just against the federal government. Both Heller and McDonald addressed the context of keeping a firearm for self-defense in the home. But in the 2022 case of Bruen, the Supreme Court extended that right beyond the home, to include carrying a firearm in public, at least under some circumstances. State courts and legislatures are still grappling with the consequences of that decision.

In the first major Massachusetts decision to address the fallout from Bruen, the Supreme Judicial Court held in Commonwealth v. Guardado that in a case for illegal firearm possession, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant did not have a license to carry a firearm. In Massachusetts, one who legally purchases or owns a firearm must have an FID card (which is relatively simple to get after taking a gun safety course, unless one is disqualified by criminal history or other restrictions). To carry a firearm in public, one must also have a license to carry, which the local police chief will only grant to a “suitable person” in their discretion. Carrying a firearm in public without a license is a felony with a mandatory minimum sentence of at least 18 months, and possibly much more depending on the circumstances.

Having a license has traditionally been seen as an affirmative defense under this statute. Prior to Guardado, Massachusetts courts had long held that as a matter of procedure and as required by statute, a defendant had to give notice of their intention to raise a license as a defense and come forward with some evidence to support it. If the defendant did not do so, the prosecution had no obligation to prove that the defendant lacked a license. If the defendant produced some evidence of having a license, then the Commonwealth would have to prove lack of license beyond a reasonable doubt. The reasoning for this process was that, if a defendant had a license, it would be easy for them to present at least some evidence of it, whereas it would be highly burdensome for the Commonwealth to prove a negative and foreclose the possibility beyond a reasonable doubt that, for instance, the defendant had been granted a license by the state police or some other police chief even if the local chief had not.

As explained by the court in Guardado, a background assumption of this procedure is that carrying a firearm is generally illegal, but only becomes legal if someone has a license; in that context, making the license an affirmative defense makes some sense. However, after Bruen, that assumption is no longer tenable. The Second Amendment right as expressed by the Supreme Court requires a different perspective: carrying a firearm must be considered as generally legal, and is only illegal when someone lacks a license. Because the lack of a license is now an inherent part of the crime, the jury must be instructed on it and the prosecution bears the burden of proving it beyond a reasonable doubt. The SJC applied this reasoning both to possession of a firearm and possession of ammunition. (However, the SJC declined to extend it to possession of a large-capacity feeding device because of past state and federal cases holding that assault weapons and large-capacity magazines were not weapons usually possessed for lawful purposes and could be banned consistent with the Second Amendment.)

This case is a landmark development in the evolution of firearm-related laws in Massachusetts. Going forward, prosecutors will have to uncover and present evidence beyond a reasonable doubt of a lack of a license to secure a valid conviction for gun possession, which in some cases may be difficult. (A concurrence by Justices Lowy and Georges provides some guidance about what kind of evidence might or might not be admissible for this purpose.) And some past firearm cases are now called into question; the SJC held that for convictions after the date of the Bruen decision and those that were on appeal as of that date, the prosecution needed to prove the lack of a license. Some of those convictions, like Guardado’s, will now be thrown out, while other defendants may be able to get a new trial. However, the SJC refused to grant similar relief to defendants whose firearm cases became final before Bruen was decided. It is likely that federal courts will be asked to weigh in on whether older cases may need to be revisited as a matter of federal law. Regardless, Guardado represents a significant change in the SJC’s approach to firearm laws, and it may just be the beginning. The full implications of the Second Amendment after Bruen still remain to be seen.

If you or someone you know is involved in a firearm-related or other criminal case and needs legal assistance, fill out our online intake form or call us at (617) 742-6020 to be connected with a criminal defense lawyer.

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