Yesterday Dr. Morin filed a
petition for rehearing en banc.
As in the original appeal, the question before the court is whether Dr. Morin applied for the least restrict firearms license that would allow him to possess a handgun (firearm) in the home for self defense. The Attorney General has continued (rather disingenuously) to assert that case law established by the Massachusetts Supreme Judicial Court allows exactly that.
In his brief, Dr. Morin clearly articulates the genesis and history of that mistake. The AG has bootstrapped
obiter dicta (a relevant, but not precedential observation or remark), into case law. In doing so, they've created an effective means of suppressing the exercise of the Second Amendment. A person simple cannot possess a handgun with an FID card. But the fact that the courts have bought into this fiction means that there is no right to the one license (LTC) that DOES allow someone to possess a handgun in their home.
In 2014 Comm2A clearly brought this error to the attention of the SJC in our
amicus brief in Gemme v. Holden:
During
oral arguments in Holden, the court asked about this specific issue (Justice Lenk at 2:40). Taken from the transcript:
It is at this point that we believe the SJC realized their mistake. Comm2A raised the FID is okay for handgun possession in our amicus brief and the justices brought it up in oral arguments. However, the
Holden decision doesn't deven mention the FID and doesn't assert that Holden should have applied for one. The SJC has not made this claim since, but the AG continues tell courts that this is the law and the court continue to look the other way.