The Kickham Comment - Boston Criminal Attorney Blog
Leave it to the federal government to complicate everyday life beyond reason, to make the simple difficult, to make that which should be easy, hard. How? Because an arguably obscure federal law has now caused Massachusetts state officials to encourage local police chiefs to revoke the Licenses To Carry a firearm (LTC) of almost 350 people who have been previously issued lawful TLC’s by their local police chiefs.
Some necessary history:
Back in 2004, Massachusetts created the Firearms License Review Board to hear petitions from residents who were denied an LTC due to prior misdemeanor convictions, such as Massachusetts OI/DUI, but who nonetheless wanted wanted to be issued a license to lawfully carry a firearm.
If applicants were cleared by this board, they then had to still obtain approval from their local police chief (local police chiefs in the 351 cities and towns in Massachusetts are the persons who make decisions on who will and won’t be granted a license to carry a firearm.) Essentially, the Firearms License Review Board was created to reinstate the right to own a gun of a Massachusetts resident who was previously convicted of such a misdemeanor. Those misdemeanors almost exclusively involved non-violent offenses, such as motor vehicle violations. The board has been reviewing these petitions for over 14 years, seemingly without major problems.
However, that all began to change late last year (2017,) when the federal Alcohol, Tobacco & Firearms (ATF) agency contacted Massachusetts officials, advising them that a conflict between federal law and Massachusetts state law, meant that the state was required to now revoke the TLC’s of hundreds of people that had previously had their right to carry restored after a hearing before the Board and a permit application approved by a local police chief. Why? Because of the potential difference between federal and Massachusetts penalties following a conviction of a misdemeanor crime. Federal law mandates that anyone convicted of a misdemeanor offense, or who is convicted of a crime that carries a maximum jail term of two years under state law is not specifically barred from owning a gun. The conflict? Some misdemeanor crimes in Massachusetts, even though classified as misdemeanors, can carry a maximum jail sentence of 2½ years. Federal ATF officials say that this interpretation means that hundreds of people whose rights to carry were restored by the Massachusetts Firearms License Review Board, must now have their Licenses to Carry revoked by the state. This amounts to more than almost 350 people who, prior to this federal interference, were lawfully carrying a firearm. According to an attorney who was previously the Board’s general counsel, that number includes current police officers who, if they lose their license to carry, could potentially lose their jobs.
What’s more so, Massachusetts officials have told the ATF that they agree with ATF’s legal reasoning. This has prompted the state Review Board to suspend its meetings for the foreseeable future. As a Massachusetts gun & Firearms license attorney, I’m not surprised by this – since this action now renders the existence of the board moot. The Board may even be disbanded completely. More so, because the sate has agreed with ATF’s interpretation of this law, Governor Charlie Baker’s administration is now encouraging local police chiefs to revoke the gun licenses of hundreds of people who were previously authorized by the Review Board to carry a firearm.
This is what’s called technical lunacy. If there’s a conflict between federal law and Massachusetts law on this subject – which involves an issue of six months of potential difference in the differing federal and state penalties for a misdemeanor conviction – then federal & state officials should work to resolve the difference rather than punish people who followed the law and were lawfully granted a License to Carry.
As a Boston are criminal defense attorney, I know that the debate surrounding the constitutional right to carry firearms, amidst the increasingly violent society that we live in, is seemingly permanent and growing worse every year. But it is precisely because our culture has grown so violent, that many law-abiding people are justifiably afraid for their safety and the safety of their loved ones, and wish to carry gun. Should we say to them, “Sorry, you’ll just have to live with your fear. You don’t have the legal right to carry a firearm in Massachusetts.”
Is that really the answer? As a criminal defense lawyer, I don’t think so. And if you ask the average person on the street, I think you may see that an increasing number of people feel that way, too. We need smart laws governing guns and firearms. Not foolish ones.