GOAL Massachusetts

H.4102 Alert and Information Deval Patrick's "One gun a month bill"

July 16th Update:
The Governor's "Lawful Citizen Imprisonment and Profiling Act" is still in the House Committee on Ways & Means. To our knowledge they have not conducted a formal poll of the committee members in an attempt to release the bill to the House floor for a vote. We can tell you that the House leadership has been unofficially surveying the committee members to get a better sense of how an official poll might go.

With only two weeks left in the session it is clear that this bill is a major priority for the Governor. It is likely that during the fast paced end of session days that H.4102 will most likely come out of committee with little or no notice. Our members need to keep in touch with their State Representatives and remind them that you oppose all parts of the Governor's "Lawful Citizen Imprisonment and Profiling Act". Ask them to focus on reforming the laws by passing H.2259, "The Civil Rights and Public Safety Act".

Action: Oppose H.4102 Deval Patricks "Crime Bill" This bill will only prosecute law abiding gun owners for buying more than one gun a month and will do NOTHING to stop inner-city crime. Please call the committee members and your state representative today and urge them to oppose H.4102

Click here for contact information of the House Ways and Means Committee

 

Action: Support H.2259 GOAL's "Civil Rights and Public Safety" Bill. This bill will give real reform and real results, enabling law enforcement officers to better prosecute criminals while respecting the civil rights of all citizens of the Commonwealth. Please call your state representative and urge them to support H.2259, it's about Civil Rights and Public Safety!

 

Click here to find your state representative

 

Click here for more information about H.2259

 

June 18th 1:00 pm update.

The bill was released from committee with a 6-5 vote in favor of it taking the next step toward becoming law.

It will most likely go to the House for discussion, possibly as early as Wednesday. We will update with a call to action as soon as more information becomes available.

Please call your Representative and let them know that you are in opposition to this becoming law.

Click here for contact information for your state Representative and Senator
Click here to download talking points comparing H.4102 & H.2259
Click here for a listing of existing MA law pertaining to illegal firearms possession, buying, and selling.
Click here for a pdf of the procedure necessary to legally buy a handgun in MA.
Click here for a line by line analysis of why H.4102 must be stopped. (pdf)

 

June 16th 11:30 am update.

The "Lawful Citizens Imprisonment Act" Gets Political “Do Over”

On Tuesday, June 15, 2010 the Massachusetts House of Representatives sent Governor Patrick’s anti-civil rights bill H.4102 back to the Joint Committee on the Judiciary. This action took place because a week ago the same committee had polled its members for five days on the bill. After the poll the bill was reported to the House Clerk’s office as a 4 – 4 tie resulting in an “Ought Not to Pass”.

Immediately following the negative report, the Senate Chair Cynthia Stone Creem of the Joint Committee on the Judiciary cried foul. According to several press reports, the Senate Chair claimed that the House staff had not counted two senate votes in favor of the legislation. On the floor of the House yesterday, the House Chair of the Judiciary Committee Eugene O’Flaherty stated that according to their records the count was accurate. “Our internal records indicate that not to be the case. But being a deliberative body, being a collegial body, we are here today asking that this bill be recommitted back to the Judiciary Committee to ensure there were no errors – which I do not acknowledge occurred on the House side.”

 

As result of the press stories regarding the perceived mishandling of the bill, the House chose to recommit the bill to the committee and start the process anew. The procedural vote was taken and passed by the following: 111 yeas, 32 nays and 14 No Votes. The vote is actually a mixed bag of intentions and other than the 32 nays it can’t be used to determine support or opposition to H.4102.

Some voted not to send it back because they felt the process had already been followed. Others did so to show their immediate disapproval of the bill. Some who voted to send it back chose to do so because they wanted no perception that the bill received unfair treatment. Some wanted to make sure that the bill had a clean up or down vote. In any case the votes to recommit cannot be counted as supporting the bill, regardless of what certain news outlets are claiming.

 

We are left with a political “do over” and need to, once again, focus on the members of the Joint Committee on the Judiciary since they are likely to take another vote on the bill soon. We urge our members to once again contact these Committee members and ask them to oppose all components of H.4102 “The Lawful Citizens Imprisonment Act.”

 

Click here to download contact information for the Committee Members with phone numbers.
Click here for contact information for your state Representative and Senator
Click here to download talking points comparing H.4102 & H.2259

 

There is nothing, absolutely nothing in the Governor’s bill that will make the streets of our inner cities safer,” said Jim Wallace, Executive Director of Gun Owners’ Action League. “This bill points directly at the 15% of lawful gun owners left in the Commonwealth and blames them for the deaths of young children murdered on city streets. It is incomprehensible that the political leader of a state can have the opinion that putting our members in prison for conducting lawful transactions is the solution to murders happening in the inner city!”

 

Below are some bullet points that our members may want to be aware of when contacting the members of the Committee.

 

·     There is nothing in the bill that will save the lives of criminal victims or reduce crime in general. IF the legislature is looking for such solutions they should be addressing H.2259, The Civil Rights and Public Safety Bill.

·     None of the provisions of H.4102 should be supported.

·     H.4102 seeks to put lawfully licensed citizens in prison for harming nobody.

·     H.4102 attempts to blame and imprison lawful citizens for actions of hardcore criminals.

·     H.4102 would outlaw private transfers between lawfully licensed citizens. Current law restricts such transfers between lawfully licensed citizens to four in a calendar year. All such transfers must include the state transfer form FA-10.

·     Licensed gun owners have been reduced by 85% since the Gun Control Act of 1998 and this bill (H.4102) tells us that the Governor doesn’t trust the remaining 15% of lawfully licensed gun owners.

·     The state already has laws in place that severely punish criminals who unlawfully transfer/sell multiple firearms. Chapter 269, Section 10E provides up to a life sentence for anyone who illegally transfers 20 or more guns in a 12 month period. (For more on this see our "MA Illegal Gun Laws" Page)

·     The Bureau of Alcohol Tobacco Firearm and Explosives (BATFE) mandates that if more than one handgun is being purchased from a licensed dealer within a five day period the dealer is required to fill out BATFE Form 3310 and submit a copy to the BATFE and the state agency in charge of licensing before the close of business on the day of the second sale.

 

June 15th, 1:15 pm update.

GOAL has learned that the House may take up the Governor’s Bill, H.4102 as early as today. As you know, if passed, this bill will make it illegal to purchase more than one gun in a one-month period, make private sales/transfers obsolete, etc.  Please review the bullet points on both bills below.  GOAL’s Bill, H.2259 clearly makes more sense-not more gun control. 

Please call your State Representatives and urge them not to support the Governor’s “Lawful Citizens Imprisonment Act” and instead, support GOAL’s Bill, H.2259.

Contact your legislators here.

 

Also, we ask that you ask your legislator how they intend to vote on H.4102 and email GOAL with their response.

 

Vote for the future, vote for Civil Rights and Public Safety

 

H.4102

More “Gun Control”

H.2259

Civil Rights and Public Safety Solutions

 

  • Creates the “One Gun Month Law” more commonly referred to as the “Lawful Citizens Imprisonment Act” that imprisons lawfully licensed citizens for buying more than one gun a month.
  • Amends the dangerousness statute, a subject the House of Representatives already took up.
  • Changes the definition of a firearm to include parts that “which will or is designed to or may readily be converted”.
  • Creates a 10 year prison sentence for possession of a firearm while attempting to commit a misdemeanor and threatening force against another. This is very loose language that could be troublesome to lawful gun owners.
  • Would allow the State Police to destroy surrendered guns.
  • Changes the public record laws providing licensed dealers with information regarding lawful gun owners. This is part of the “Lawful Citizens Imprisonment Act.”
  • Places further restrictions on the licensing and handling of machine guns. A matter already heavily regulated on the federal and state level.
  • Adds more language to background check laws.
  • Clearly separates the lawful possession issues and the criminal enforcement needs.
  • It creates a special unit of the State Police, known as the Criminal Firearms and Trafficking Division that will be attached to the Department of the Attorney General and will assist that office with the investigation and prosecution of all crimes of violence involving the criminal use of a firearm and intrastate firearms trafficking.
  • Creates a "State Firearm Crime."
  • Creates a new definition of a "Prohibited Person" and using that term throughout the laws as the means of legitimately denying a citizen a firearm license.
  • It will create tough laws to punish “prohibited persons” who are in possession of firearms.
  • Creates laws punishing those who break and enter to steal a firearm.
  • Creates clear and easy to understand unlawful transfer laws.
  • Creates laws to punish those engaged in unlawful intrastate commerce of firearms.
  • Creates laws preventing the unlawful confiscation of firearms.
  • Creates laws regarding the use of a "Deceptive Weapon."
  • Creates a separate definition section for the criminal enforcement chapter.
  • Makes it very clear that there is an individual civil right to keep and bear arms and that the government must operate under that presumption.
  • Reduce the number and types of firearm licenses (currently four) to one.
  • Creates understandable and commonsense terminology that is currently used and understood by the firearms owning community.
  • Make the rights inherent for the license based on the age of the holder rather than having to acquire a new license at a particular age.
  • Removes the authority of local licensing agents to deny a person’s civil rights without due process.
  • Removes the laws regarding the state licensing of retailers already licensed by the federal government.
  • Creates clearer language for the judicial review process of a denied license.
  • Removes jail sentences for lawful possession infractions and removes any jailable offenses to the criminal enforcement chapter.
  • Removes restrictive storage laws that have been found to be unconstitutional by the U.S. Supreme Court.
  • Making laws easier to understand and find by separating them into concise short sections those that are unnecessarily long and complicated.

 

 

 

June 10th 11:15 am update.
Update on H.4102 Judiciary Committee Action.

The vote is in, the bill was sent to the house with an "ought not to pass".

This is by no means the end of this legislation however as we now have three possible scenarios that could develop.

These are the three scenarios that could take place.

  • The House of Representatives can vote to accept the committee report, in which case the bill will not continue towards becoming law.
  • The report can be substituted for the actual bill, this would essentially disregard the "ought not to pass" report and put the bill back into play. The House could then vote on it, most likely in a formal session.
  • The House and the Senate could vote to send it back to the Judiciary Committee for discussion and another vote. This would take a positive majority vote from both the House and the Senate.

We will continue to follow this bill and will keep our members updated on the status.

June 9th 9:50 am update.
Update on H.4102 Judiciary Committee Action

According to several news sources last evening the Judiciary Committee has reported to the House Clerk that the Committee vote was a 4 – 4 tie on H.4102. According to reports, the bill has been formally filed as “Ought not to Pass” with the House Clerk. There is no public record yet of how committee members voted. It is notable that only 8 out 17 Committee members cast a vote on the bill.

A controversy has arisen from the Committee action not directly related to the language of the bill. Senate Judiciary Committee Chair Cynthia Creem has told the press that two additional senate members supposedly cast votes in favor of the bill that were not counted. The Senate Chair is accusing the House staff of not properly tabulating the vote on the bill. According to reports the Senate Chair is pushing to have the bill recommitted to the Judiciary Committee so they can vote on it again.

GOAL will update its members as we get more information regarding the procedural future of this bill. In the meantime we would like to thank all of our members who made calls to the Judiciary Committee members.

June 8th update
Vote results expected today! Turns out they "mailed the vote in" on this one, in other words the committee has and is voting on this without getting together for discussion.

We are expecting the results of the vote TODAY, most likely late this afternoon!

If you have not already please call the committee members and let them know that you are a MA voter and that you are opposed to this legislation.

We will let you know as soon as we have something to report.

Legislative Alert!
June 4, 2010
Gun Owners' Action League.
Legislative Action needed!


Please call the members of the Joint Committee on the Judiciary and ask them to OPPOSE the Governor's Bill, H.4102! (see below for more information on H. 4102

As you know, the Governor has been pushing his anti-civil rights bill, "An Act to Reduce Firearm Violence" in every media outlet possible this past week, and blaming the "gun lobby" for the bill not moving forward. GOAL has just learned that the Joint Committee on the Judiciary is polling their members in order to try to release this bill favorably to the House of Representatives. Although GOAL has been trying to get the Committee on Public Safety and Homeland Security to release our pro-civil rights bill, H.2259 for months, the Governor seems to have twisted the arms of the Judiciary Committee to take action on his bill.

Please contact the Committee members and urge them to reject any further "gun control" bills and OPPOSE H.4102.

If passed, H.4102 will create the following changes:

·Allow licensed firearms dealers to access the names and addresses of firearms owners, which as of right now is NOT public information. (This language is part of the "one gun a month law" and would involve licensed firearms dealers in the prosecution of lawful citizens.)

·Allow the State Police to destroy confiscated guns.

·Limit lawful gun owners to purchase one gun a month. (this also includes large capacity magazines, so if you purchased a new AR, you'd have to wait until the next month to buy a magazine for it

·Do away face to face sales/transfers-which means all sales/transfers would need to go through a licensed dealer.

·Create dangerousness hearings, holding citizens in jail without bail for simple unlicensed possession of a firearm. (This is the same language that the House just rejected last week in the CORI bill H.4703, because it would have been in violation of a Massachusetts Supreme Judicial Court ruling.)

Please contact the Joint Committee members by calling their State House office and/or their District Office at the telephone numbers below:

Senator Cynthia Stone-Creem 617.722.1639
Senator Steven Baddour 617.722.1604
Senator Gale Candaras 617.722.1291 District Telephone 413.599.4785
Senator John Hart 617.722.1150
Senator Thomas McGee 617.722.1350
Senator Bruce Tarr 617.722.1600
Rep. Eugene O'Flaherty 617.722.2396 District Telephone 617.884.3350
Rep. Christopher Speranzo 617.722.2396 District Telephone 413.447.7225
Rep. James Fagan 617.722.2430 District Telephone 508.824.7000
Rep. Colleen Garry 617.722.2380
Rep. Marie St. Fleur 617.722.2030
Rep. John Fernandes 617.722.2396 District Telephone 508.473.3063
Rep. Katherine Clark 617.722.2220
Rep. Danielle Gregoire 617.722.2080
Rep. James Dwyer 617.722.2014

 

Below is a summary of H.4102 "An Act to Reduce Firearm Violence", a bill filed by Governor Deval Patrick. Please note that GOAL is working with our national partners to further investigate matters in this bill regarding the National Instant Criminal Background Check System (NICS).

This bill has been assigned to the Joint Committee on the Judiciary and we urge our members to contact Committee members and ask they do not support this bill that infringes on the rights of legal gun owners in the Commonwealth.

A hearing regarding this bill has a tentative date of Tuesday, July 14, 2009 at the State House and is open to the public. We will keep members updated regarding any new information on the bill or a change in the hearing schedule.

H.4102 “An Act to Reduce Firearm Violence”
Governor Deval Patrick

  • Sections 1, 4, 13, 17, 21 and 22 create laws regarding information to be forwarded from the criminal history systems board to the National Instant Background Check System.
  • Section 2 changes the public record law.
  • Section 3 deals with the reporting of alcoholics and person addicted to drugs.
  • Section 5 changes the definition of handgun.
  • Sections 6, 7, 16 creates the “Lawful Citizen Imprisonment Act”
  • Sections 8 and 14 deals with mental health checks.
  • Sections 9, 11, 12 and 15 changes the laws regarding machine guns.
  • Section 10 allows the state police to destroy confiscated guns.
  • Section 18 creates a ten year prison sentence for certain misdemeanors, without conviction.
  • Sections 19 and 20 amend the dangerousness statutes.
  • Section 23 deals with effective dates.

Summary:

Section 1. Creates language mandating that the criminal history systems board transmit information to the Attorney General of the United States required under federal law in regards to the National Instant Background Check System. According to the language in the bill, this information is to be forwarded even if there is a special law or court order against doing so.

Section 2. Currently under the public record laws of the Commonwealth (Section 10 of Chapter 66) the names and addresses of firearm owners are not available as public information. This information was protected through a 1982 legislative action due to a threat from certain media outlets to publish the names of lawful gun owners. This section would make an unnecessary exemption for the release of this information to licensed firearm retailers. The purpose of which is to make available this information as part of the governor’s attempt to imprison lawful citizens who purchase more than on gun or high capacity magazine a month.

 Section 3. This section would mandate that a court forward information to the Criminal History Systems Board (CHSB) regarding person who have been committed against their will for the purposes of alcoholism or drug abuse.

Section 4. This language adds a prevision to the privacy clause in Section 36A of Chapter 123 to allow the court to transmit otherwise private mental health information to the CHSB. The CHSB will then transmit this information to local licensing authorities and the Attorney General of the United States for the purpose of conducting background checks for “firearm sales or licensing.”

The language utilized in this section raises some concern. The first would be to any information going to local licensing authorities for the purpose of conducting checks for “firearm sales.” This is concerning since local licensing authorities do not have any involvement in such sales. The second is the information going to the Attorney General of the United States for the purpose of checks for firearms licensing. Currently the only licensing the federal government covers is manufacturing, selling or such commercial endeavors. This language would appear to imply there are other plans on the horizon.

Section 5. Changes the definition of a handgun actually called a “firearm” in Section 121 of Chapter 140.
“Firearm”, a pistol, revolver or other weapon of any description, loaded or unloaded, would change from (from which a shot or bullet can be discharged) to which will or is designed to or may readily be converted to expel a projectile by action of an explosion and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured…

This newly proposed definition closely resembles the federal definition for the generic term of “firearm”, meaning any type of gun. The confusion lies in Massachusetts law where firearm actually means “handgun”. The interesting point here is that this proposal would only apply to handguns in Massachusetts, but any gun under federal law. This would only make interpreting the laws even more difficult. This is another good example for the need of massive reforms to the state’s gun laws as GOAL is attempting through H.2259 “An Act Relative to Civil Rights and Public Safety”.

Section 6. This section would prohibit firearm retailers from selling more than 1 rifle, shotgun, firearm, machine gun, large capacity weapon or large capacity feeding device to a lawful citizen within a 30 day period. The premise of restricting lawfully licensed under the guise of reducing crime is insulting at best.
Another aspect of this section is the newly proposed definition of handgun in Section 5. Would the language in this section also apply to handgun parts, frames or anything that could make up a handgun?

Section 7. This section is disguised as another portion of the attempt to imprison lawful citizens for purchasing more than one gun in a month. However the insult to lawfully licensed citizens goes even further under this language.

Currently under Massachusetts law, Section 128A of Chapter 140, allows a lawfully licensed citizen to privately transfer up to four guns in a calendar year to another lawfully licensed citizen provided:

…that such resident reports within seven days, in writing to the executive director of the criminal history systems board on forms furnished by said executive director, the names and addresses of the seller and the purchaser of any such large capacity feeding device, firearm, rifle or shotgun, together with a complete description of the firearm, rifle or shotgun, including its designation as a large capacity weapon, if applicable, the caliber, make and serial number and the purchaser’s license to carry firearms number, permit to purchase number and identifying number of such documentation as is used to establish exempt person status in the case of a firearm or the purchaser’s license to carry number or firearm identification card number or said document identity number, in the case of a rifle or shotgun.

This is currently accomplished on what is known as an FA-10 form.

The language in Section 7 would virtually do away with such transfers and force lawfully licensed citizens to conduct all transfers through a licensed firearm retailer. It would also set a fee ceiling of $25 for such transfers.  However, the language specifically states that the fee is in regards to: “…each sale or transfer electronically submitted on behalf of the seller to the criminal history systems board.” This language brings up a whole host of questions.

Does this fee include the federal paperwork, entering into the bound book and NICs checks or can the dealer charge extra for them? Does the language mean that the dealer does not have to conduct the federally required actions? Does this mean that because this a “private sale” conducted through a licensed dealer that so-called noncompliant handguns can be transferred through this process or will this ban all future transfers of such guns? Is there any corporate liability for the products on behalf of the dealer? Will the electronic transfers be done with the dealer information on the FA-10 or the seller?

Once again the Governor clearly is expressing his distrust of lawfully licensed citizens. Even with all of the licensing and reporting requirements, Governor Patrick wants to place even further restrictions on our rights.

Section 8. Removes the language instructing the Colonel of the State Police to conduct a check through the Department of Mental Health. According to the bill, this will now be done through the Criminal History Systems Board.

Section 9. This language amends the exemption clause (m) in Section 129C of Chapter 140 that provides for the ability for unlicensed persons to hold, handle and fire firearms, rifles and shotguns. The new language states that this subsection will not allow any person who is not a licensed machine gun owner or police personnel receiving training from a “… firearm instructor certified by the municipal police training committee or the colonel of the state police.”

According to the Governor’s summary of this section it is supposed to provide for the Secretary of Public Safety and Security to promulgate regulations concerning the licensing and regulation of “gun shows”, but that language does not appear on the copy of the legislation provided to the public.

Section 10. This section would add language to Section 129D of Chapter 140 that would allow the destruction of guns that have been surrendered or confiscated according to the rules already set forth for the auctioning of such guns: “at the direction of: (i) the licensing authority at the expiration of one year following initial surrender or delivery to such licensing authority; or (ii) the dealer then in possession, if the storage charges for such weapon have been in arrears for 90 days”

Section 11. This language amends Section 130 of Chapter 140 to provide for severe penalties for any licensed firearm retailer who “sells or furnishes” a machine gun to anyone under 21. These penalties include up to a $10,000 fine and/or ten years in prison. There is also some legal concern over the term furnishing as to whether it means selling, providing or some other such definition.

Section 12. This language amends Section 130 of Chapter 140 by adding the same restrictions in section 9 of the bill. Most of the media surrounding this bill focused on the fact that the Governor’s bill would restrict anyone under 21 from lawfully handling or firing a machine gun. It appears that the language in the bill is vastly more restrictive. According to the bill’s language the only people who would be eligible to handle and/or fire a machine gun would have to be a minimum of 21 years old and:

  • A person licensed to possess a machine gun under state law Section 131(o) of Chapter 140;
  • Police personnel receiving “instruction” from a firearm instructor certified by the municipal police training committee or the colonel of the state police.

Section 13. This provides extensive language that amends Section 130B of Chapter 140 regarding the Firearm Licensing Review Board established in GOAL’s 2004 reform bill. This language would establish a subcommittee within the Board made up of three persons. 1 member of the current board designated by its chair, 1 person designated by the commissioner of the department of mental health, and 1 person designated by the secretary of public safety and security (this person will chair the subcommittee).

The purpose of the subcommittee is to establish a means of relief for persons who have been formally adjudicated a mental defective in Commonwealth or committed involuntarily to a mental institution in the Commonwealth (within the meaning of federal law 18 U.S.C. § 922). This would appear to be an attempt to bring Massachusetts in line with what has taken place on the federal level over which great controversy has arisen.

One curious note is that the language provides for relief for the national checks systems, it does not provide for any relief from any state issues.

Section 14. Mirrors Section 8 regarding FID cards by removing the language instructing the Colonel of the State Police to conduct a check through the Department of Mental Health for licenses to carry a firearm. According to the bill, this will now be done through the Criminal History Systems Board.

Section 15. This section changes the language in Section 131(o) of a Chapter 140 regarding machine gun licenses. It would mandate that anyone being considered for such a license must first possess a license to carry a firearm.

Under the current law a firearm instructor or a bona fide collector may apply for a machine gun license. The Governor’s proposal would add: “a law enforcement officer employed by such licensing authority or a law enforcement officer employed by or appointed as a special state police officer by the colonel.” This would include special officers of “humane societies” under Section 57 of Chapter 22C.

Section 16. This section represents the main language that would imprison lawful citizens for purchasing, or for a licensed firearm retailer for selling to a licensed citizen more than 1 rifle, shotgun, firearm (handgun), machine gun, large capacity weapon or large capacity feeding device in a 30 day period.

For the record, this is the procedure for a lawfully licensed Massachusetts resident to legally purchase a handgun. This is of course after they have obtained a license through the persecutorial system in Massachusetts:

  1. The individual must possess a License to Carry Firearms under Massachusetts General Law Chapter 140, Section 131. (A felony is an automatic lifetime disqualification for this license.)
  2. The handgun that is to be purchased must meet the manufacturing requirements of 940 CMR 16.00 and MGL Chapter 140, Section 123. These regulations and laws restrict the makes and models of handguns that can legally be sold in Massachusetts.
  3. The handgun must also meet the requirements of MGL Chapter 140, Section 131M which bans the possession, sale or transfer of certain high capacity magazines.
  4. If the handgun is owned by a private citizen or a federally licensed dealer (18 U.S. Code 923) in another state, the handgun must be transferred to a licensed dealer in the state of Massachusetts.
  5. The Massachusetts dealer must be licensed under federal law (18 U.S. Code 923) and state law (Chapter 140, Section 122). Once in possession of the handgun, the information must be recorded in the in-state dealers Bound Book (Bound Book - 27 CFR 178.125).
  6. The proposed Massachusetts buyer must then appear in person to the Massachusetts Dealer and present their valid License to Carry a firearm and identification.
  7. The buyer must complete a federal form ATF 4473 answering about 17 different questions regarding their status as a qualified individual.
  8. The dealer must also fill out a state form FA-10 which contains the information of the seller/dealer, the buyer and a description of the firearm. The form must then be signed by the purchaser.
  9. If more than one handgun is being purchased within a five day period the dealer is required to fill out BATFE Form 3310 and submit a copy to the BATFE and the state agency in charge of licensing before the close of business.
  10. The dealer must then conduct a background check on the proposed buyer through the National Instant Checks System.
  11. If the dealer is equipped through the new Massachusetts Instant Records Checks System (MIRCS), the buyer must submit to a digital scan and recognition of their fingerprints.
  12. If all the checks have passed, the dealer must instruct the buyer on the safe use and operation of the firearm and provide a tamper resistant mechanical locking device that has been approved by the Colonel of the Massachusetts State Police.
  13. If all of the above steps are met, the transaction may take place.

Scenario: A lawfully licensed citizen follows all of the procedures for lawfully purchasing a rifle and a high capacity magazine (A very common lawful transaction.) The citizen lawfully transports the rifle and magazine back to their home and stores them according to Massachusetts law. The rifle and magazine were never loaded, never fired and never taken out of the box. Under this scenario, the Governor’s proposal would imprison the licensed purchaser for up to 2 ½ years and the licensed retailer for up to 2 ½ years.

Section 17. This section mandates that the criminal history systems board provide the National Instant Criminal Background Check System with information regarding any convictions of misdemeanor acts of domestic violence.

Section 18. This section proposes to provide a severe penalty of up to 10 years in prison for a person in possession of a firearm, rifle, or shotgun while in the commission or attempted commission of a misdemeanor for which there was use, attempted use or threatened use of physical force.

The language in this proposed section does not contain the word convicted. In fact the language is so loose that it uses the phrase attempted commission. This begs the question how does one attempt to threaten another without actually committing the act of threatening?

Scenario: A lawfully licensed citizen is heading home from a day of duck hunting. At a traffic signal she is approached by another driver in an act of road rage who is screaming and pounding on her window. The hunter notifies the aggressor that if he doesn’t return to his vehicle she will consider any further offensive movements to be an attack and will defend herself appropriately. Her duck hunting gun is locked in the trunk, but under this proposal the woman duck hunter would now be subject to 10 years in prison for stating she would defend herself
.
Section 19. This section amends the current “dangerousness” statute (Chapter 276, Section 58A) that allows the court to hold defendants without bail or set certain conditions of release if the defendant meets the criteria set forth. The proposed section adds language regarding protection orders, but also adds language that would provide for labeling a defendant dangerous for felony possession, use or trafficking of a firearm.

While there certainly would be conditions under which felony use or trafficking should be considered for not releasing a defendant, the mere possession issue has already been ruled out through a Massachusetts Supreme Judicial Court ruling in Commonwealth v. Young.

 The MSJC in a four to one decision, ruled in favor of the defendant:

Conclusion: In holding that unlicensed possession of a firearm is not a predicate offense for purposes of § 58A, we are not unmindful of the dangers relating to unlicensed possession of firearms. Nevertheless, in the absence of clear legislative intent to the contrary, we cannot rewrite or torture the statute's language to include this offense.

In the official discussion of the case, the court stated the following:

“While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless.”
“Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.”

“The elements of unlicensed possession of a firearm, see note 9, supra, do not require proof that a defendant purposefully evaded firearm licensing requirements, see Commonwealth v. Jackson, supra, let alone proof that a defendant's failure to obtain a license was motivated by a desire to use the firearm for an illicit purpose”.

It is clear from this ruling that simply adding unlawful possession language to 58A would not pass muster with the court.

GOAL would suggest that the legislature instead support our bill “An Act Relative to the Pretrial Detention of Violent Offenders”

Our proposed legislation is intended to give prosecutors and the courts a separate tool, aside from Section 58A. It is clear from reading the existing statute that it was primarily designed to deal with protection order offenders. For that and other reasons of clarity, we believe it would be prudent to provide the courts with a separate tool to hold unlawful firearm offenders with a proven violent past. The language in GOAL’s bill makes the criteria very clear as to who can be held without bail and is stricter than 58A as our language does not provide for any conditions of release. In order to meet the criteria set forth in our bill, the defendant would have to be:

  • Charged with a second or subsequent offense of felony possession of a weapon or machine gun; and
  • Has been previously convicted of a violent crime; and
  • Has served a committed term of imprisonment after sentencing had been carried out for said violent crime.

By setting this very clear criteria we can be assured that the Commonwealth is not labeling people dangerous and holding them without bail for simply not understanding the incomprehensible gun laws in Massachusetts.

Section 20. This section seeks to further amend Section 58A of Chapter 276 by establishing no conditions of release for a defendant who has been charged with a felony offense that has the use, attempted use or threatened use of force that involves a firearm. It is interesting that in sections 19 and 20 of this bill that the proposed language only deals with handguns. “Firearm” in Massachusetts law is a very specific term and actually means a handgun.

The current laws in Massachusetts are so persecutorial towards lawful gun owners that there have been several lawfully licensed gun owners who have faced assault charges simply because someone saw them carrying a concealed firearm that was exposed when a jacket rode up. The person filing the charges had no encounter with the gun owners, just simply noticed the gun.

While we hope the Governor is trying to hold dangerous offenders with this language, it is very difficult to support in light of the other sections of this bill that would put lawful citizens in great jeopardy for no valid reason.

This is also another great example of why the Commonwealth’s gun laws need to be completely reformed. Far too often the laws allow innocent gun owners to be treated the same as violent offenders.

Section 21. This section provides language mandating the criminal history system board provide the National Instant Criminal Background Check System with information regarding persons who have placed under a conservator or guardian due to being incapacitated.

Section 22. This section mandates that the department of mental health forward information regarding anyone who has been confined to a mental hospital or institution over the last 20 years to the criminal history systems board. It further requires the department to update that information on a quarterly basis. This information is to be provided to the National Instant Criminal Background Check System.

Section 23. This section simply states that sections 8 and 14 will take effect 6 months after the effective date of the legislation if passed.

News about H.4102

Lawmakers’ snafu delays vote on Gov. Patrick gun bill A botched legislative vote today on Gov. Deval Patrick’s gun crackdown in the Bay State means the bill is on hold once again.

Governor Patrick blames GOAL (again) for holding up his unconstitutional legislation. 6/3/2010 “We haven’t got any tools in place in terms of how we control the flow of illegal guns, how we deal with these dangerousness hearings, which is something we have proposed, for people who commit crimes using a gun…and the gun lobby is so prominent, so present up on Beacon Hill that we can’t even have a conversation about it, a serious debate in the legislature about it and that bothers me…”

H. 4102. DEVAL PATRICK BLAMES GOAL FOR LACK OF PROGRESS ON GUN BILL  5/10/2010 Gov. Deval Patrick blamed firearms lobbyists Monday for his gun control legislation’s lack of progress amid another murder of a child over the weekend, drawing a quick rebuke from the Gun Owners Action League, who called Patrick’s bill flawed and ineffective

Click here to view the Governor's Bill

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