You Have the Right to Bear Arms, but Not the Ability? …offerofproof.net/wp-content/uploads/Volumes/Volume 41/41.1/41.1.8... · STIDHAM FINAL 2/13/2015 8:43 PM 137 You Have the Right

STIDHAM FINAL 2/13/2015 8:43 PM

137

You Have the Right to Bear Arms, but Not the Ability? The Evanescence of the Second

Amendment

David A. Stidham*

ABSTRACT

On January 29, 2013, the Massachusetts Supreme Judicial Court (SJC) analyzed the validity of chapter 140, section 131L(a) of the General Laws of Massachusetts (safe storage statute) in Commonwealth v. McGowan. This statute requires a firearm, not carried by or under control of the own-er or other authorized user, to be secured in a locked container or equipped with a safety device that renders the firearm inoperable by any-one other than the owner or other authorized user. This statute was found to be constitutional. The SJC reasoned that the statute falls outside of the scope of the right to bear arms, and thus outside of the scope of the protec-tions of the Second Amendment. Since the statute fell outside of the scope of the Second Amendment, which was incorporated to the states in McDonald v. Chicago, the Court applied a rational basis scrutiny. In doing so, the Court reasoned that the statute easily passed constitutional muster. In light of recent events, many people have called for a total reformation of the gun laws within the United States. Some states adhere to overly protective stat-utes, and, in doing so, have jeopardized a right that was guaranteed to each citizen by the Constitution. This Comment will argue that Massachu-setts’ safe storage statute falls within the scope of the Second Amendment and should be held unconstitutional.

* Candidate for Juris Doctor, New England Law | Boston (2015); M.B.A., Harding University (2011); B.B.A., Marketing, Harding University (2010). I would like to thank my amazing wife, Amanda, for her steadfast love, support, and the numerous sacrifices that have allowed me to pursue my dream of being an attorney. I would also like to thank my parents, Bruce and Karen Stidham, for sacrificing so much over the years to ensure my brother and I had the best possible life and teaching me all of life’s important lessons. “For I can do everything through Christ, who gives me strength.” Philippians 4:13.


138 CRIMINAL AND CIVIL CONFINEMENT Vol. 41:137

I. INTRODUCTION

“[T]he said constitution be never construed . . . to prevent the people of the United States who are peaceable citizens, from keeping their own arms.”1 A list of quotes could be compiled to show that the nation’s found-ers supported the idea that citizens of the United States of America should be armed.2 This would be superfluous since the citizens of the United States trust that the Founding Fathers gleaned the most valuable principles during those countless deliberations and codified them in the Constitution, specifically the Second Amendment.3

The Second Amendment to the United States Constitution states: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”4 This prefatory clause is often narrowly construed to coincide with the militia clause or Congress’ enumerated power to create militias, thus ignoring the operative clause of the Second Amendment.5 The prefatory and operative clauses of the Second Amendment should be read together since they “fit[] perfectly” together and “announce[] the purpose for which the right was codified: to prevent elimination of the militia.”6

Historically, Americans have valued the Second Amendment for more reasons than just preserving the militia.7 Many Americans still value the right to bear arms because they enjoy hunting, recreational shooting, and more importantly, they value their right of self-defense.8 One of the reasons that the Second Amendment was codified in the Constitution was because of the colonists’ fears that the new Federal Government would destroy the citizens’ militia by taking away their arms.9

“The enshrinement of constitutional rights necessarily takes certain poli-cy choices off the table. These include the absolute prohibition of handguns

1. Brief for Respondent at 37, Dist. of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290), 2008 WL 336304, at *37 (emphasis added) (citing Samuel Adams speaking at the Convention of the Commonwealth of Massachusetts in 1856). 2. See generally OrwellianThinker, The Real Meaning of the Second Amendment, DAILY KOS (Jan. 14, 2013, 4:03 PM), http://www.dailykos.com/story/2013/01/14/1178968/-The-Real-Meaning-of-the-Second-Amendment# (listing quotes about the rights of gun own-ers by various Founding Fathers). 3. See U.S. CONST. amend. II. 4. Id. 5. U.S. CONST. art. I, § 8, cl. 12-13, 15-16. See generally Dist. of Columbia v. Heller, 554 U.S. 570 (2008). 6. Heller, 554 U.S. at 599. 7. Id. 8. Id. 9. Id.


2015 THE EVANESCENCE OF THE SECOND AMENDMENT 139

held and used for self-defense in the home.”10 Essential to the heart and true meaning of the Second Amendment is one’s right and personal liberty that is enshrined in the United States Constitution to keep and bear arms in the home for self-defense.11

On January 29, 2013, the Massachusetts Supreme Judicial Court (SJC) handed down a decision in Commonwealth v. McGowan that created a ten-sion with, and possibly ignored, the principle of self-defense in the home that was established in the landmark Supreme Court case of District of Co-lumbia v. Heller.12 The crux of McGowan rests in the Defendant’s chal-lenge of the constitutionality of chapter 140, section 131L(a) of the General Laws of Massachusetts (safe storage statute).13 The statute says:

It shall be unlawful to store or keep any firearm, rifle or shotgun includ-ing, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.14

While one is guaranteed the right to possess and bear arms under the safe storage statute, this certainly does not convey the right to possess any type of firearm.15 The weapon in controversy in McGowan was a handgun that was legally owned and possessed,16 not a “dangerous and unusual weapon[].”17 The Court ultimately held that the safe storage statute fell “outside the scope of the right to bear arms protected by the Second Amendment.”18

This Comment argues that Massachusetts’ safe storage statute falls with-in the scope of the Second Amendment and should be held unconstitution-

10. Id. at 636. 11. See id.; Commonwealth v. McGowan, 982 N.E.2d 495, 496 (Mass. 2013). 12. McGowan, 982 N.E.2d at 496. See generally Heller, 554 U.S. 570. 13. McGowan, 982 N.E.2d at 496; see MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 14. Ch. 140, § 131L(a). 15. Heller, 554 U.S. at 627 (discussing that it is a fair limitation that has been sup-ported throughout history to “prohibit[] the carrying of ‘dangerous and unusual weapons’”); see U.S. CONST. amend. II. 16. McGowan, 982 N.E.2d at 496 (“Defendant owned a Smith & Wesson [.40] caliber semiautomatic handgun . . . .”). 17. Id.; Heller, 554 U.S. at 627-29 (“[T]he American people have considered the handgun to be the quintessential self-defense weapon . . . . [W]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home . . . .”). 18. McGowan, 982 N.E.2d at 500; see ch. 140, § 131L(a).



al.19 While the ultimate purpose of this statute is reasonable and supported by the law, its defense and implementation by the SJC blurred the line be-tween the prevention of access by certain persons and the infringement on a protected constitutional liberty of law-abiding citizens.20 Gun control is currently a heavily debated topic.21 This Comment will take a narrow view on this broad controversy and focus specifically on the safe storage stat-ute’s unconstitutional infringement upon a law-abiding citizens’ Second Amendment right to self-defense within one’s home.22

Part II will discuss the facts, reasoning, and holding of the SJC’s deci-sion in Commonwealth v. McGowan as well as the Supreme Court’s deci-sion in District of Columbia v. Heller.23 Part III will discuss the fallacies of the SJC’s decision in McGowan and why upholding the safe storage statute is unconstitutional.24 It will also include analysis and explanation for why the safe storage statute is within the scope of the Second Amendment, thus warranting its protection. Furthermore, it will provide a hypothetical exam-ple comparing the oppressive nature of the safe storage statue to another constitutionally protected liberty. Part IV will look at the implications that the SJC’s decision will have or is having on lawful gun owners in Massa-chusetts.25 Finally, Part V will conclude this Comment.26

II. COMMONWEALTH V. MCGOWAN

Defendant, John McGowan, was charged in a criminal complaint issued on November 18, 2008, in the Springfield Division of the District Court Department with a violation of the safe storage statute.27 The Defendant moved to dismiss the complaint on the grounds that the statute is unconsti-tutional.28 Due to the complexity of the constitutional issues in this case, the SJC transferred the case with two questions presented.29 The first ques-

19. See generally U.S. CONST. amend. II; ch. 140, § 131L(a). 20. McGowan, 982 N.E.2d at 496 (“[T]he storage requirements are reasonably de-signed to prevent persons who are not licensed to possess or carry a firearm, including fel-ons, the mentally ill, and children, from gaining illegal access to a firearm . . . .”). 21. The Controversy of Gun Control, OPEN DISCUSSIONS ABOUT VARIOUS

CONTROVERSIES, http://openreader.org/the-controversy-of-gun-control/ (last visited Sept. 23, 2013). 22. See U.S. CONST. amend. II; ch. 140, § 131L(a); Heller, 554 U.S. at 636; McGow-an, 982 N.E.2d at 500. 23. Heller, 554 U.S. at 636; McGowan, 982 N.E.2d at 500; see infra Part II. 24. McGowan, 982 N.E.2d at 500; see infra Part III. 25. See infra Part IV. 26. See infra Part V. 27. McGowan, 982 N.E.2d at 496; see ch. 140, § 131L(a). 28. McGowan, 982 N.E.2d at 496. 29. Id.



tion was: “Do the holdings in Heller and McDonald, under the circum-stances of this motion, conflict with the requirements of M.G.L. c. 140, § 131L(a), as to render the Massachusetts statute constitutionally unenforce-able?”30 The second question was: “[D]oes Massachusetts still maintain au-thority to regulate for the protection of its citizens’ health, safety and wel-fare to the extent that § 131L(a) could be enforced?”31

The parties stipulated the following facts. The Defendant owned a semi-automatic handgun, which was kept loaded, unlocked, and stored in a bed-side table on the second floor of his home.32 The Defendant had a valid li-cense to carry a firearm in the Commonwealth of Massachusetts, which the Springfield Police Department issued to him.33 On October 19, 2008, offic-ers responded to a domestic disturbance call that led them to the home of the Defendant.34 Upon arrival, the Defendant explained to the police that he and his roommate had an argument over a ten-dollar loan.35 During the al-tercation the roommate became angry and went upstairs to retrieve the fire-arm that the Defendant stored in the bedside table.36 After retrieving the firearm, the roommate left the house and proceeded to throw the Defend-ant’s firearm into the bushes beside the neighboring house.37 As the De-fendant left the house to retrieve the weapon, the roommate locked the De-fendant outside, which is where he was when the police arrived.38 The police officers secured the firearm and found it to be loaded with nine rounds in the magazine and one in the chamber.39

The SJC ultimately held that the safe storage statute was consistent with the right to bear arms in self-defense of one’s home.40 The Court further explained that the statute was designed to prevent people who are not properly licensed to possess or carry firearms from gaining access to fire-arms.41 In upholding and defending the statute, the Court stated that it fell outside the scope of the Second Amendment and did not warrant constitu-tional protection.42 Because it fell outside the scope of the Second

30. Id.; ch. 140, § 131L(a); see McDonald v. City of Chicago, 561 U.S. 742 (2010); Dist. of Columbia v. Heller, 554 U.S. 570 (2008). 31. McGowan, 982 N.E.2d at 497; see ch. 140, § 131L(a). 32. McGowan, 982 N.E.2d at 496. 33. Id. 34. Id. 35. Id. 36. Id. 37. Id. 38. Id. 39. Id. 40. Id. at 503; see MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 41. McGowan, 982 N.E.2d at 503; ch. 140, § 131L(a). 42. McGowan, 982 N.E.2d at 503.



Amendment, the Court did not apply heightened scrutiny and the statute easily survived rational basis scrutiny.43

The SJC wrongly concluded two important points in the decision.44 First, the safe storage statute does not fall outside the scope of the Second Amendment.45 Second, because the safe storage statute falls within the scope of the Second Amendment, the analysis warrants heightened scrutiny and not rational basis, which is the scrutiny the Court applied.46

A. District of Columbia v. Heller

In 2008, the United States Supreme Court issued a decision in the land-mark case of District of Columbia v. Heller that helped establish the mean-ing of the Second Amendment.47 The statute at issue in Heller “totally ban[ned] handgun possession in the home. It also require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.”48 The Supreme Court characterized this law as one of the most “severe restriction[s]” on firearms in the history of this Na-tion.49 The Supreme Court ultimately held that statutes that ban handgun, or any class of firearm, possession in the home violates the Second Amendment.50

The Supreme Court further stated that statutes that prohibit firearms and require them to be inoperable in the home for immediate self-defense also violate the Second Amendment.51 The safe storage statute does not place

43. Id.; ch. 140, § 131L(a); see Plyler v. Doe, 457 U.S. 202, 215-21 (1982) (explain-ing the three levels of constitutional scrutiny: strict, intermediate/heightened, and rational basis). “[Choosing] between the three levels depends on the nature of the statute . . . . Ra-tional basis review is deemed so minimal that . . . when a law is struck down under a pur-ported rational basis test, the Court is not actually applying ‘true rational basis’ review but . . . employing ‘rational basis with a bite.’” Mary Strauss, Reevaluating Suspect Classifi-cations, 35 SEATTLE U. L. REV. 135, 135-36 n.5, 136 n.8 (2011); see also Suzanne B. Gold-berg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 489 (noting that the Supreme Court has upheld over one hundred rational basis reviews since 1973). See generally Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 416 (1999) (listing the cases decided by the Supreme Court on application of rational basis review in favor of the plaintiff (10) and the defendant (100)). 44. See infra Part III. 45. See infra Part III.A. 46. See infra Part III.B. 47. See generally Dist. of Columbia v. Heller, 554 U.S. 570 (2008). 48. Id. at 628. 49. Id. at 629. 50. Id. at 570. 51. See id.



an absolute prohibition on firearms.52 However, the safe storage statute does require firearms that are not under the immediate control of the owner to be stored or locked in a way that renders them inoperable.53 The SJC erred in holding that the statute was outside the scope and protection of the Second Amendment, because the purpose of the safe storage statute direct-ly conflicts with the core of the Second Amendment.54

III. THE FALLACIES OF THE SUPREME JUDICIAL COURT’S DECISION

According to the SJC, the Supreme Court in Heller declared that the “central component” of the Second Amendment is the right of individuals to use self-defense in protecting one’s home.55 The Second Amendment “surely elevates above all other interests the right of law-abiding, responsi-ble citizens to use arms in defense of hearth and home.”56 “[C]ourts have consistently recognized that Heller established that the possession of opera-tive firearms for use in defense of the home constitutes the ‘core’ of the Se-cond Amendment.”57 This principal has a strong correlation to the issue in the current case.58 In Heller, a law-abiding citizen was licensed to have a firearm in his home and was punished because the statute dictates how one can lawfully possess a firearm inside their own home.59

A. The Safe Storage Statute Falls Within the Scope of the Second Amendment

The statute being enforced in Heller was essentially prohibiting hand-guns from being owned by the residents of the District of Columbia for use inside the home.60 The statute required any lawfully owned firearm that

52. Commonwealth v. McGowan, 982 N.E.2d 495, 499-501 (Mass. 2013). 53. MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 54. See generally McGowan, 982 N.E.2d 495; U.S. CONST. amend. II; ch. 140, § 131L(a). 55. McGowan, 982 N.E.2d at 495. 56. Heller, 554 U.S. at 635. 57. Hightower v. Boston, 693 F.3d 61, 72 (1st Cir. 2012) (citing United States v. Booker, 644 F.3d 12, 25 n.17 (1st Cir. 2011)); see also United States v. Greeno, 679 F.3d 510, 517 (6th Cir. 2012); United States v. Barton, 633 F.3d 168, 170 (3d Cir. 2011); United States v. Staten, 666 F.3d 154, 158 (4th Cir. 2011); United States v. Reese, 627 F.3d 792, 800 (10th Cir. 2010). 58. McGowan, 982 N.E.2d at 495 (“The issue presented by the reported questions is whether § 131L(a) is unconstitutional in light of the United States Supreme Court’s decision . . . in District of Columbia v. Heller . . . which held that the Second Amendment to the United States Constitution guarantees an individual the right to keep and bear arms for self-defense in the home . . . .”); see ch. 140, § 131L(a); Heller, 554 U.S. at 635. 59. See Heller, 554 U.S. at 570. 60. Id. at 628.



was in one’s home to be unloaded and disassembled or bound by a trigger lock at all times, rendering it inoperable.61 By requiring the firearm to be inoperable, this constructively prohibited handgun ownership.62 An inoper-able firearm is completely useless.63

The language used in the safe storage statute says that a weapon should be “secured in a locked container or equipped with a tamper-resistant me-chanical lock or other safety device, properly engaged so as to render such weapon inoperable . . . .”64 The very purpose of the safe storage statue is to ensure that weapons must be inoperable if they are not under the immediate control of the lawful owner.65 This statement is one of the reasons that the statute in Heller was invalidated and ruled unconstitutional.66

In Heller, the Supreme Court concluded that prohibitions on lawful fire-arms in the home that render them inoperable for the purpose of immediate self-defense are unconstitutional.67 “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home oper-able for the purpose of immediate self-defense.”68 The Supreme Court ex-plicitly states twice that requiring trigger locks, or similar equipment, to render a firearm inoperable inside one’s home for the purpose of immediate self-defense is unconstitutional.69 “Similarly, the requirement that any law-ful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.”70

It is exasperating that the SJC upheld a statute and defended it using ex-plicit language that the Supreme Court has previously held unconstitution-al.71 How does the SJC defend this decision? The SJC uses an unmeritori-ous argument to defend the practices of the statute that were explicitly

61. Id. 62. See id. at 618 (quoting JOHN POMEROY, AN INTRODUCTION TO THE

CONSTITUTIONAL LAW OF THE UNITED STATES 152-53 (1868)). 63. See id. 64. MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 65. Id. 66. Heller, 554 U.S. at 628 (holding the statute in controversy unconstitutional be-cause it eliminated an entire class of arms and required lawful firearms to be kept in inoper-able condition). 67. See id. at 571, 635. 68. Id. at 635. 69. Id. at 571, 635. 70. Id. at 571. 71. See Commonwealth v. McGowan, 982 N.E.2d 495, 503 (Mass. 2013); see also Heller, 554 U.S. at 632.



forbidden in Heller.72

1. The SJC’s Incorrect Application of the Holding of Heller to the Facts of Commonwealth v. McGowan

The SJC narrowly focused on these semantic exceptions that the Su-preme Court, in Heller, labeled “presumptively lawful.”73 The SJC, in ex-plaining “presumptively lawful” statutes, focuses on the fact the Supreme Court had a willingness to characterize some long-standing limitations on the right to bear arms.74 Among these are laws that prohibit the possession of firearms by felons, the mentally ill, and laws that regulate the commer-cial sale of arms.75 One of the reasons the SJC grasps onto this language is because a statute that falls outside of the scope of an amendment is consid-ered presumptively lawful and, therefore, only subject to rational basis scrutiny.76

Conveniently for the SJC, this result-oriented decision is exactly what it held in ruling that the safe storage statute was outside the scope of the Se-cond Amendment, and not subject to heightened scrutiny.77 The problem with this logic is that it is wrong.78 “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”79 The SJC ignored this explicit language from Heller, which clearly explains that the scope of con-stitutional rights is defined when an amendment is enshrined.80

The core of the Second Amendment at the time of enshrinement was self-defense of one’s home.81 If the core of the Second Amendment is self-defense of one’s home, then it would be illogical to think that the scope of this amendment does not cover its very core. A statute that severely re-

72. See McGowan, 982 N.E.2d at 503; see also Heller, 554 U.S. at 632. 73. McGowan, 982 N.E.2d at 499-502; see Heller, 554 U.S. at 627 n.26. 74. McGowan, 982 N.E.2d at 499. 75. Id. 76. Id. at 499. 77. Id. at 503. 78. See infra Part III.B (discussing the SJC’s application of the wrong level of scruti-ny). 79. Dist. of Columbia v. Heller, 554 U.S. 570, 634-35 (2008). 80. See Id. 81. Id.; Hightower v. Boston, 693 F.3d 61, 72 (1st Cir. 2012) (citing United States v. Booker, 644 F.3d 12, 25 n.17 (1st Cir. 2011)); United States v. Greeno, 679 F.3d 510, 517 (6th Cir. 2012); United States v. Barton, 633 F.3d 168, 170 (3d Cir. 2011); United States v. Staten, 666 F.3d 154, 158 (4th Cir. 2011); United States v. Reese, 627 F.3d 792, 800 (10th Cir. 2010).



stricts the core of an amendment cannot be upheld because the statute is in direct conflict with the purpose and core of the amendment.82 Regardless of whether the SJC agrees with the opinion of Heller, it is the law, and it should be enforced, even if this means invalidating an unconstitutional statute that has been wrongfully enforced against the law-abiding citizens of the Commonwealth of Massachusetts. Firearms that are in the home and required to be inoperable will “make[] it impossible for citizens to use them for the core lawful purpose of self-defense.”83

2. The SJC’s Reasonable Restriction Language Is Overreaching

The SJC, on numerous occasions, defends the safe storage statute on the grounds that it is allowed to place limitations on the possession of weapons to keep firearms out of the hands of felons and the mentally ill.84 This is a legitimate reason to place prohibitions on firearms, but the safe storage statute does more than that: it restricts a law-abiding citizen’s right to pos-sess a firearm within his or her home for self-defense by requiring the fire-arms to be inoperable.85 The SJC tries to use the presumptively lawful clas-sification as an excuse.86 In Heller, the language of the statute prevented the mentally ill and felons from obtaining firearms, and also regulated the commercial sale of firearms.87 The safe storage statute certainly does not regulate the commercial sale of firearms,88 but it does something quite the opposite. It regulates what the consumer who lawfully purchased a firearm can do with it once the weapon is inside his or her home.89

The safe storage statute does not mention the regulation of the commer-cial sale of firearms.90 Since the statute is silent on the regulation of the commercial sale of firearms, the SJC must prove there is still a presump-tively lawful classification: limiting felons and the mentally ill’s access to firearms.91 The exact language of the safe storage statute says, “so as to render such weapon inoperable by any person other than the owner or other

82. See Heller, 554 U.S. at 629 (citing Andrews v. State, 50 Tenn. (3 Heisk.) 165, 187 (1871); State v. Reid, 1 Ala. 612, 616-17 (1840)). 83. Heller, 554 U.S. at 630. 84. See Commonwealth v. McGowan, 982 N.E.2d 495, 496, 499-500, 502 (Mass. 2013) (referencing the restriction of access to firearms to prevent felons and the mentally ill from obtaining them). 85. See MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 86. See McGowan, 982 N.E.2d at 500. 87. Heller, 554 U.S. at 634-35; see McGowan, 982 N.E.2d at 499-500. 88. See ch. 140, § 131L(a). 89. See McGowan, 982 N.E.2d at 503. 90. See ch. 140, § 131L(a). 91. McGowan, 982 N.E.2d at 502.



lawfully authorized user.”92 While it is clear that felons, the mentally ill, and children fit into this “any other person” category, the statute is de-signed to restrict the access to law-abiding citizens’ firearms inside their home as a preventative measure of ensuring that these types of persons are not able to obtain a firearm.93

The safe storage statute is trying to protect society from unauthorized persons by restricting the constitutional rights of those following the law. Due to the fear of unauthorized persons obtaining guns, the statute over-reaches and infringes on a law-abiding citizens’ Second Amendment right. How is this accomplished? The SJC defends and supports this statute with an unmeritorious argument, and also a method—the use of trigger locks—to restrict a lawful person’s protected Second Amendment right by using one of the explicit tactics that was ruled unconstitutional in Heller.94 The SJC blatantly disregarded the Supreme Court’s prohibition of using trigger locks to render firearms inoperable, which is compelling evidence that the statute falls within the scope of the Second Amendment.95

3. The Limiting Language Used by the SJC Was an Attempt to Diminish the Overreaching Unconstitutionality of the Safe Storage Statute

The SJC added limiting language to the safe storage statute by saying this statute only applies to weapons out of the “control” of the lawful own-er.96 The safe storage statute uses the language “under the control of the owner . . . .”97 However, the SJC refers to the type of control that is needed by the owner as “immediate” throughout the opinion in McGowan to help make this statute seem less restrictive.98 Control is a word that can be broadly interpreted.99 By adding the adjective “immediate” to modify con-trol, this helps to narrow the parameters of how to define control.100

It seems odd that the Court adds the adjective “immediate” and reads it into the statute.101 The word immediate is not found anywhere within the

92. Ch. 140, § 131L(a). 93. Id. 94. McGowan, 982 N.E.2d at 502-03; see Dist. of Columbia v. Heller, 554 U.S. 570, 628 (2008). 95. McGowan, 982 N.E.2d at 502-03; see Heller, at 571, 628. 96. McGowan, 982 N.E.2d at 496; see ch. 140, § 131L(a). 97. Ch. 140, § 131L(a) (emphasis added). 98. McGowan, 982 N.E.2d at 496, 502-03 (using the term “immediate control” to re-fer to a firearm). 99. Id. at 502. 100. Id. 101. Id.



safe storage statute.102 Even within the opinion, the SJC misquotes the safe storage statute by adding the adjective “immediate” to modify the type of control necessary.103 It is used to modify the type of control necessary six times throughout the opinion, including misquoting the safe storage statute in full.104 The SJC does correctly quote the entire safe storage statute, but that appears in a footnote of the opinion.105

There is no apparent reason for this inconsistency, but it is troubling and seems to further restrict the already diminished rights to which a lawful gun owner was entitled. The SJC’s decision to use this limiting language in the statute is another poor attempt at protecting and defending an unconstitu-tional statute. This ambiguous limitation that the SJC continually refer-ences—the “immediate control” language—further infringes upon the con-stitutional rights of law-abiding citizens.106 This leads lawful possessors of firearms in Massachusetts to a slippery slope that tends to further favor the violation of the Second Amendment. Due to the amount of ambiguity in-volved in this phrase, law-abiding citizens would likely have a hard time interpreting the limitations it places on them.

4. The Reason Lawful Gun Owners Are Exposed to a Slippery Slope

Since the SJC has now read the word “immediate” into the safe storage statute, there are two types of control that must be ascertained to know whether one is in compliance with the statute: control and immediate con-trol.107 It is unrealistic to assume that everything in a person’s home is al-ways under their immediate control. A person is to an extent, however, in control of the contents of one’s home.108 While the contents of one’s home might not be under the owner’s immediate control, they are certainly under the owner’s control.109 Immediate means “existing without intervening space or substance” and also “being near at hand.”110 Immediate indicates a more intimate relationship and exemplifies a close proximity.111 Control

102. See ch. 140, § 131L(a). 103. McGowan, 982 N.E.2d at 502. 104. See id.; ch. 140, § 131L(a). 105. See McGowan, 982 N.E.2d at 498 n.4. 106. Id. at 496, 502-03. 107. See id.; ch. 140, § 131L(a). 108. See Thomas K. Clancy, What Does The Fourth Amendment Protect: Property, Privacy, or Security?, 33 WAKE FOREST L. REV. 307, 319 (1998). 109. See id. at 360 (citing Segura v. United States, 468 U.S. 796, 827 (1984) (Stevens, J., dissenting)). 110. Immediate Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/immediate (last visited Nov. 24, 2013). 111. Id.



means “to have power over.”112 The definition of control still implies pos-session, but the intimate proximity is not quintessential to the meaning of the word.113

There would be two arguments if a person were arrested and prosecuted for violating the safe storage statute. The prosecution would argue that the firearm was not under the defendant’s immediate control and the defendant would argue that the firearm was indeed under his or her control. Where does one draw the line to distinguish the type of control? If the gun is car-ried around the home on one’s person, this surely satisfies both arguments because it is under the owner’s control and their immediate control.114 If the owner is on the other side of the room from the weapon, but still in the same room, is this immediate control or just control? When the weapon is on the same floor of a home as the owner, which type of control is this? What happens when the owner and the weapon are on different floors? The SJC used the terms immediate control and control interchangeably to dis-cuss when the statute applies.115

Ignoring other potential charges and violations of the law, a violation of the safe storage statute in this scenario arguably places the onus on a de-fendant to prove that he or she had immediate control. If a small child is severely injured or killed due to a parent’s violation of the safe storage statute, it seems unlikely that a defendant would be able to convince any-one that the weapon was under his or her immediate control. The parent could have negligently placed the firearm on a table and turned around to do something else, but in the meantime a child might have been able to ob-tain the gun and cause an accident. Many people would agree that a person placing a weapon, or any item, on a table and turning around, would have immediate control of the item that is only feet away from them.

This begs the question, what is immediate control? Where should the

112. Control Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/control (last visited Nov. 24, 2013). 113. See id. 114. See id.; MERRIAM-WEBSTER, supra note 110. 115. See Commonwealth v. McGowan, 982 N.E.2d 495, 502 (Mass. 2013) (citing Commonwealth v. Runyan, 922 N.E.2d 794 (Mass. 2010)).

Under [G.L. c. 140, § 131L (a)], an individual with a valid firearms identification card issued under G.L. c. 140, § 129C, is not obliged to secure or render inopera-ble a firearm while the individual carries it or while it remains otherwise under the individual’s control. A gun owner may therefore carry or keep a loaded firearm under one’s control in their home without securing it with a trigger lock or compa-rable safety device. The gun owner’s obligation to secure the firearm in accord-ance with the statute arises only when the firearm is stored or otherwise outside the owner’s immediate control.

Id. (emphasis added).



line be drawn? Is it practical to make a hard and fast rule that defines im-mediate control? Would this rule have exceptions? Is it more practical to create a rule but have limitations and exceptions in place? If an unauthor-ized user (e.g., felons, the mentally ill, or children) obtains possession of a firearm from a lawful user, the type of possession that the owner had will be superfluous because an unauthorized user obtained possession.116 The lawful owner will be prosecuted under the safe storage statute regardless of the type of possession they had over the weapon.117

How can the SJC rely on this limiting language that seems, in reality, to be prejudicial to a lawful gun owner? The SJC’s defense of this unconstitu-tional statute stands on nothing more than mere semantics and a prejudicial and ambiguous standard. While these scenarios may seem very impractical and almost comical, they illustrate the tension that the SJC created by de-claring this statute constitutional. The SJC states that one of the reasons this statute is in place is to ensure that children do not gain access to a fire-arm.118 If this is part of the defense as to why this statute is constitutional, it has to consider these uncommon scenarios and take into account the ten-sions that are created by this decision.

5. Practical Concerns of the Safe Storage Statute

In order for someone to be able to use self-defense of his or her home with a firearm, it would seem plausible that this person would readily need access to a firearm. Criminals thrive on the element of surprise.119 “The criminal understands that he or she has the advantage of the element of sur-prise, making it very difficult for a potential victim to react quickly and ef-fectively.”120 The element of surprise is not something that is required be-fore a criminal attack; however, since it is a tactic that predators utilize, preying on someone inside their home might be the best way to ensure that element of surprise.

Depending upon the geographical location, the fear of an attack inside one’s home might be inconsequential.121 Even in a high crime area, an at-tack inside one’s home seems unlikely.122 Unless someone stayed in his or

116. See Commonwealth v. Reyes, 982 N.E.2d 504, 514 (Mass. 2013) (discussing the purpose of the storage statute). 117. McGowan, 982 N.E.2d at 502. 118. Id. at 496; MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 119. See generally Safety, WITNESS JUST., http://www.witnessjustice.org/resources/safety.cfm (last updated Nov. 15, 2011). 120. Id. 121. See Ronald E. Wilson & Timothy H. Brown, Preventing Neighborhood Crime: Geography Matters, 263 NAT’L INST. JUST. J. 30, 32 (2009). 122. Ta-Nehisi Coates, Gun Violence and the Irrational Fear of Home Invasion,



her home in utter anticipation of an attack, armed and ready, he or she would most likely always fall victim to the element of surprise.123 Potential criminals like this fact because the victims cannot react quickly and effec-tively.124 It would make sense that, should the need arise, a person who has a firearm more readily available would be able to react more quickly and effectively.

The SJC suggests that if the need for self-defense inside one’s home arises, actually retrieving a firearm from a locked container and/or unlock-ing the trigger lock does not really hinder or slow down this process, at least not enough to interfere with one’s Second Amendment right.125 “Any law regulating the storage of firearms will delay to some degree the ability of a firearm owner to retrieve and fire the firearm in self-defense.”126 While this quote has merit, there is a difference between storing a firearm and being required by law to store a firearm in a way and manner that ren-ders the weapon inoperable, which is the manner required by the safe stor-age statute.127 The statute requires that the firearm either be in a locked container or have a trigger lock, both of which require locks.128 If locks are required, this means that a key will be needed to open these locks.129 Since it seems counterintuitive to keep a key next to the lock, locating the keys will also require some time. One would have to, in the moment of panic and surprise, remember where the keys are, retrieve the keys, go to wher-ever the weapon is, unlock the weapon, and protect the home. All of these steps would have to be done carefully and strategically in order not to cross paths with the intruder.

Theoretically, if citizens of the Commonwealth of Massachusetts were able to store their loaded weapons in the unlocked drawer of their bedside table, this would allow retrieval and use of the firearm much more speedily and efficiently. At least while someone is trying to figure out the element of surprise, they are armed in the process. Requiring a firearm to be kept inoperable is a violation of the core concept of the Second Amendment.130 The safe storage statute places additional steps and burdens upon the poten-

THE ATLANTIC (Dec. 23, 2012, 4:00 PM), http://www.theatlantic.com/national/archive/ 2012/12/gun-violence-and-the-irrational-fear-of-home-invasion/266613/. 123. See Safety, supra note 119. 124. Id. 125. Commonwealth v. McGowan, 982 N.E.2d 495, 497 (Mass. 2013). 126. Id. 127. See MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 128. See id. 129. See id. 130. See id.



tial victim to exercise their protected Second Amendment right.131

6. Comparing Two Protected Liberties

Restricting a person’s right to bear arms in their home can be seen more clearly when it is equated to restricting a person’s freedom of religion and being able to practice religion in a place of worship.132 The safe storage statute attempts to keep firearms out of the hands of people that society has deemed dangerous or too immature to have a firearm.133 Similarly, a dis-criminatory statute that targets Christian radicals, people that society has deemed dangerous or immature, based on their religion might have a tough time passing constitutional muster. It would face the ramifications of vio-lating the First and Fourteenth Amendments.134 Based on the theoretical reasoning of the SJC, allowing a Christian radical to exercise their right to the freedom of religion could not be done without unreasonable re-strictions, much like having to keep your firearm “inoperable.”135 Christian radicals could only exercise their freedom of religion inside a place of wor-ship, and once there, one could only worship in a way that was useless or inoperable.136 In this hypothetical example, there are two constitutionally protected rights: the freedom of religion and the right to bear arms.137 If these restrictions were satisfactory, it would be incomprehensible to say that this theoretical oppressive Christian statute would fall outside of the scope of the protections of the First and Fourteenth Amendments.138

If this same hypothetical statute that heavily restricts a person’s right to freedom of religion existed, it would surely be struck down; it only targets

131. See generally id. 132. See U.S CONST. amend. I. 133. Ch. 140, § 131L(a). 134. See U.S. CONST. amend. I (freedom of religion); U.S. CONST. amend. XIV (Equal Protection Clause). This is not an attempt to say that the freedom of religion and the right to bear arms are a perfect equation, but it is to present them as equals as both are protected rights under the Constitution. Guns have killed people, as have radicals from numerous reli-gions in the name of their religion. Regardless of agreeing or disagreeing with certain reli-gious practices, the freedom of religion and the right to bear arms are both protected rights. This example may seem outlandish, much like the fight for civil rights and the current struggle for same-sex marriage were, and are viewed. Politics must be pushed aside to see how the facts of these various issues are being treated in light of the Constitution. The rule of law should never bend. 135. Ch. 140, § 131L(a). 136. See generally Commonwealth v. McGowan, 982 N.E.2d 495, 497 (Mass. 2013) (analogizing the SJC’s reasoning to a religious scenario). 137. U.S. CONST. amend. I, II. 138. See U.S. CONST. amend. I, XIV.



a select group of people and restricts personal rights.139 It would mandate how to practice within the confines of a designated place of worship.140 If this statute were not struck down, it would be perplexing to understand how it fell outside the scope of the First and Fourteenth Amendments. Placing this extreme example aside, it would be unfathomable that a statute restrict-ing an integral part of the First and Fourteenth Amendments would fall out-side of the scope of the protections of these amendments.

Similarly, it is nonsensical to say that a statute that restricts the very core of the Second Amendment falls outside the scope of the protections en-sured by the Constitution.141 “These signify about all there is of the princi-ple that ours is a government of laws, not of men, and that we submit our-selves to rulers only if under rules.”142 Therefore, for the foregoing reasons, the SJC erred in concluding that the safe storage statute fell outside the scope and protections of the Second Amendment.143 “To the end it may be a government of laws and not of men.”144

B. The SJC Applied the Wrong Scrutiny Because the Statute Falls Within the Scope of the Second Amendment

Since the SJC wrongly concluded that the safe storage statute fell out-side the scope of the Second Amendment, it ultimately applied the wrong level of scrutiny.145 The SJC applied rational basis scrutiny, which gives the most deference to the legislature, and this means that a majority of time the statute in controversy will be deemed constitutional.146 It is very clear from the opinions in both Heller and McGowan that if a law infringes on one’s right to bear arms in self-defense, the law is subject to some level of heightened scrutiny.147 This debate remains unsettled: what is the appropri-

139. See generally McGowan, 982 N.E.2d 495 (analogizing the SJC’s reasoning to a religious scenario). 140. See generally id. 141. See MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 142. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring). 143. See McGowan, 982 N.E.2d at 496. 144. MASS. CONST. pt. I, art. XXX. 145. See McGowan, 982 N.E.2d at 496. 146. Id.; see McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (“Let the end be legiti-mate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”); see also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985) (“The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.”) 147. McGowan, 982 N.E.2d at 499 (quoting Dist. of Columbia v. Heller, 554 U.S. 570,



ate level of scrutiny that should be applied?148 There is also a debate about what the different levels of scrutiny even mean and how the Court noncha-lantly uses different terms for the same tests.149

While the exact level of scrutiny has not been decided and for this analy-sis is irrelevant, some level of heightened scrutiny is applicable.150 This echelon of analysis would make it more difficult for the safe storage statute to pass constitutional muster.151 There is no guarantee that a statute is go-ing to be struck down under heightened scrutiny, but it is certainly more likely than a statute that is subject to rational basis review.152

When applying heightened scrutiny, “[f]irst the Court looks for evidence of the actual purpose of a law.”153 In this case, the actual purpose of the law is explicitly stated within the language of the statute: locks are to be “properly engaged so as to render such weapon inoperable . . . .”154 “The Court carefully evaluates this purpose to determine whether it is permissi-ble. Frequently, the Court will invalidate the law because the purpose turns out to be impermissible.”155 Requiring weapons to be rendered inoperable by a trigger lock frustrates what Heller enumerated as impermissible.156 Since the purpose of the safe storage statute is impermissible, “the Court will [frequently] invalidate the law.”157 Therefore, when applying height-ened scrutiny, this statute easily fails constitutional muster.

In light of this analysis, it is evident that the safe storage statute should

628 n.27 (2008)) (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”). 148. Id. (citing Heller, 554 U.S. at 628 n.27) (“The Supreme Court made clear that a law that infringes the right to bear arms in self-defense within the scope of the Second Amendment is subject to some level of heightened scrutiny, rejecting the notion that rational basis scrutiny would suffice.”); see sources cited supra note 43. 149. See Plyler v. Doe, 457 U.S. 202, 215-21 (1982) (explaining the three levels of scrutiny: strict, intermediate/heightened, and rational basis); Strauss, supra note 43. 150. See sources cited supra note 149. 151. See generally McGowan, 982 N.E.2d 495 (illustrating the difficulty for the safe storage statute to be considered constitutional). 152. See Goldberg, supra note 43 (noting that the Supreme Court has upheld over one hundred rational basis reviews since 1973); Farrell, supra note 43. 153. Farrell, supra note 43; see, e.g., United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 154. MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 155. Farrell, supra note 43; see, e.g., Moreno, 413 U.S. at 534. 156. Dist. of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]he District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”). 157. Farrell, supra note 43.



not have been allowed to pass constitutional muster. This is because the statute falls within the scope of the Second Amendment, in turn warranting an application of heightened scrutiny.158 The SJC misinterpreted the Court’s analysis in Heller, and because of this has set a negative precedent within the Commonwealth of Massachusetts that upholds the constitution-ality of an unconstitutional statute.

IV. IMPLICATIONS FOR LAWFUL GUN OWNERS IN MASSACHUSETTS

The ramifications that lawful gun owners will face throughout Massa-chusetts are quite troubling. The Commonwealth of Massachusetts is se-verely restricting a right that was assured by the Constitution.159 It has also been established that the Second Amendment has been incorporated to the States through the Fourteenth Amendment.160 A law-abiding citizen who is a resident of the Commonwealth of Massachusetts is guaranteed the protec-tions of the Second Amendment due to this incorporation.161 This was not the case in McGowan, and it will not be the case for future prosecutions under the safe storage statute.162 Having this particular right infringed upon may not mean anything to many of the residents of the Commonwealth be-cause this is an area of the United States that does not often seek the protec-tion of the Second Amendment. Even though this could theoretically be the least important constitutional protection a resident of the Commonwealth is afforded, there are residents who are directly affected by the misapplication of Heller to the facts of McGowan.163 Depending on the type of weapon, some residents have been prosecuted and convicted of a crime that, in some cases, should have been prevented by the Second Amendment’s protec-tion.164

By allowing the safe storage statute to withstand opposition, the door opens for further abuse and overburdening of residents’ Second Amend-

158. See Heller, 554 U.S. at 635. 159. U.S. CONST. amend. II. 160. U.S. CONST. amend. XIV. See generally McDonald v. City of Chicago, 561 U.S. 742 (2010) (explaining there are differing opinions as to which clause under the Fourteenth Amendment the Second Amendment should be incorporated under). 161. See McDonald, 561 U.S. at 791. 162. See generally Commonwealth v. McGowan, 982 N.E.2d 495, 496 (Mass. 2013); MASS. GEN. LAWS ch. 140, § 131L(a) (1998). 163. See generally Heller, 554 U.S. 570; McGowan, 982 N.E.2d 496. 164. Ch. 140, § 131L(b) (“A violation of this section shall be punished, in the case of a firearm, rifle, or shotgun that is not a large capacity weapon, by a fine of not less than $500 nor more than $5000 or by imprisonment for not more than one year, or by both such fine and imprisonment, and in the case of a large capacity weapon or machine gun, by a fine of not less than $1000 nor more than $10,000 or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment.”).



ment right. It is plausible to conclude that because this particular statute has been defended and upheld with constant success,165 future legislative action could continue to place more restrictions upon those who are law-abiding citizens. In light of recent tragedies, it may become easier and easier to continue to infringe upon this right.166 While the threat of gun related vio-lence is a heavily debated topic and very sensitive to many American citi-zens, it is still a protected right under the United States Constitution.167 Jus-tice Scalia eloquently addressed this concern in the Heller opinion.168

[T]he enshrinement of constitutional rights necessarily takes certain pol-icy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment ex-tinct.169

The United States Constitution was drafted in way to endure the test of time.170 The text of this document has ensured and protected the liberties that the colonists viewed as most important.171 The Founding Fathers, flee-ing oppressive rule, envisioned a society that was to be utopian.172 While a perfect society is nothing more than a dream, some societies do function better and come closer to being faultless more so than others.

It seems unfathomable that any laws, rules, or regulations could receive complete approval of every citizen of the United States. Different people feel different passions and have differing opinions about laws. However,

165. Id. 166. Michael D. Shear & Michael S. Schmidt, Gunman and 12 Victims Killed in Shooting at D.C. Navy Yard, N.Y. TIMES (Sept. 16, 2013), http://www.nytimes.com/2013/09/17/us/shooting-reported-at-washington-navy-yard.html?pagewanted=all&_r=0; see also Susan Candiotti, Greg Botelho & Tom Watkins, Newtown Shooting Details Revealed in Newly Released Documents, CNN (Mar. 29, 2013, 9:53 AM), http://www.cnn.com/2013/03/28/us/connecticut-shooting-documents/index.html; Dan Frosch & Kirk Johnson, Gunman Kills 12 in Colorado, Reviving Gun Debate, N.Y. TIMES (July 20, 2012), http://www.nytimes.com/2012/07/21/us/shooting-at-colorado-theater-showing-batman-movie.html?pagewanted=all. 167. U.S. CONST. amend. II. 168. See Heller, 554 U.S. at 636. 169. Id. 170. See William H. Rehnquist, The Notion of a Living Constitution, 29 HARV. J.L. &

PUB POL’Y, 401, 402 (2006) (quoting Justice Holmes). 171. See id. 172. See id.



the rule of law does not have opinions; it does not bend or waiver in the face of adversity.173 It does not compromise for popular political propa-ganda and the unrealistic fears the media can heave upon the masses.174 The rule of law stands firm and ensures that the law applies equally to all.175

“There is a principle that [states] ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.”176 It is possible that the leaders of the United States might not always submit to the rules that are in place. During these times, it is the job of American citizens to ensure the rule of law continues to apply its unwavering protections to each and every citizen equally.177 “No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”178

V. CONCLUSION

The SJC ultimately concluded that the safe storage statute fell outside the scope of the Second Amendment and did not warrant heighted scruti-ny.179 The SJC attempted to distinguish these facts from District of Colum-bia v. Heller by saying that Commonwealth v. McGowan was not like that case, which is binding precedent.180 The SJC should have found the safe storage statute to fall within the scope of the Second Amendment because the language of the safe storage statute is in direct contradiction with Hel-ler.181 Had the SJC correctly followed the precedent established in Heller, the safe storage statute would have been held unconstitutional because of the application of heightened scrutiny. Because of this ruling, the SJC has established a poor and unconstitutional precedent for the Commonwealth of

173. See Dean J. Spader, Megatrends in Criminal Justice Theory, 13 AM. J. CRIM. L. 157, 188-89 (1986). 174. Id. 175. Id. 176. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring). 177. The Responsibility of Citizens, NAT’L CENTER FOR CONST. STUD., http://www.nccs.net/the-responsibility-of-citizens.php (last visited Oct. 30, 2014) (“Gov-ernment is the people’s creation, not their master. Thus, if the people are sovereigns, it is the citizens’ responsibility to take upon their shoulders the task of seeing the order, justice, and freedom are maintained.”). 178. 1 THOMAS JEFFERSON, THE PAPERS OF THOMAS JEFFERSON 334 (Julian P. Boyd, ed., 1950). 179. Commonwealth v. McGowan, 982 N.E.2d 495, 496 (Mass. 2013). 180. See generally Dist. of Columbia v. Heller, 554 U.S. 570 (2008). 181. See supra Part III.



Massachusetts. Law-abiding citizens throughout the Commonwealth should be apprehensive because they are witnessing the evanescence of the Second Amendment.