Hightower Decision Released

I think this was not unexpected and will start the train down another track. Will read it later and still not understand the lawyerspeak.
 
Well, you win some, you lose some. While certainly a defeat, I don't think it's a fatal wound in general.

Time to evaluate where we are and drive on.
 
Hard to claim she was denied due process when she did not take advantage of local appeal process, and prior opinions have made it very clear that she had ample opportunity to apply for either FID or LTC A/B as a civilian but chose not to. BPD strongly suggested that had she done so, she probably would have been approved. Hightower's lack of candor when she applied for LTC as a cop doomed that application. I'm not sure what the goal was, to attack "suitability" or "may issue" language, but Hightower never seemed like a great test case in my opinion. Would have been a simple and quick process for her to apply as a civilian. Denial at that point might have turned this into a good test case. Hope they are a little more selective for the next test case.
 
One interesting thing in the decision is that the court clearly states that the 2nd is "different" from the 1st, and that the protections (for example, prohibition on prior restraint) that have evolved to protect the first amendment are not necessarily applicable to the second.
 
One interesting thing in the decision is that the court clearly states that the 2nd is "different" from the 1st, and that the protections (for example, prohibition on prior restraint) that have evolved to protect the first amendment are not necessarily applicable to the second.

Rob: in your opinion will such a distinction pass muster in SCOTUS?
 
One interesting thing in the decision is that the court clearly states that the 2nd is "different" from the 1st, and that the protections (for example, prohibition on prior restraint) that have evolved to protect the first amendment are not necessarily applicable to the second.

Rob: in your opinion will such a distinction pass muster in SCOTUS?

I thought in the recent supreme court cases (Heller, McDonald) 1st amendment analogies were used quite a bit.
 
Pg 17
Hightower asserts that "the Boston police apparently do not
issue unrestricted Class B licenses to openly carry revolvers and
other non-large capacity handguns," and so, de facto, the only way
for her to carry a firearm, openly or not, outside her home is with
an unrestricted Class A license.
Hightower cites no authority for this proposition, aside
from certain comments that do not address the matter made by
defense counsel at a hearing. The statute itself only provides
that Class B licenses "shall not entitle the holder thereof to
carry or possess a loaded firearm in a concealed manner in any
public way or place." Mass. Gen. Laws ch. 140, § 131(b) (emphasis
added). The defendants claim that "a Class B license is sufficient
to keep a regular capacity firearm, rifle, or shotgun in one's home
or to carry it openly in public." The defendants also point out
that Hightower could apply for a restricted Class A license that
would allow her to carry a firearm in public.

Does this interpretation of Class B allowing open carry have any legal weight?

I had posted to this thread earlier but it looks like the post vanished
 
Does this interpretation of Class B allowing open carry have any legal weight?
That's a fascinating question. The court read chap 140 sec 131 very literally:
provided, however, that a Class B license shall not entitle the holder thereof to carry or possess a loaded firearm in a concealed manner in any public way or place
It seems to be an either / or situation and one could easily come to the conclusion that a LTC/B allows for the carrying of a concealed unloaded non-large capacity handgun or the carrying of a loaded handgun carried in other than a concealed manner. See footnote 5:
The statute only prevents the holder of a Class B license from "carry[ing] or possess[ing] a loaded firearm in a concealed
manner in any public way or place." Mass. Gen. Laws ch. 140,§ 131(b) (emphasis added).
You can draw your own conclusions, but you're on your own.
 
The decision is very clear on its interpretation that a Class B License allows for the carry of a loaded firearm in an unconcealed manner for self protection. The unknown is does this decision create case law that would be binding?

BTW: I am not about to volunteer to be the test case.
 
The decision is very clear on its interpretation that a Class B License allows for the carry of a loaded firearm in an unconcealed manner for self protection. The unknown is does this decision create case law that would be binding?

Under MGL it would be no different than an LTC-A holder carrying openly for protection. There is nothing about the "B" that insulates the open carrier from the obvious practical consequences (being found "unsuitable", etc.) of carrying openly except in cases where the public accepts it (armed guards, gunshop sales clerks. etc.).

Rob: in your opinion will such a distinction pass muster in SCOTUS?
It depends on so many things that it is hard to answer that with precision. Two big variables are "who is on the court when the case is heard", "will cert be granted", and "what is the exact aspect of the right being litigated?".

Remember, the court has a relatively new justice who could (pre confirmation) state that Heller was "settled law", but that "nothing in the constitution protects the right to own a handgun" (post confirmation in a vote against McDonald).

SCOTUS is loathe to revisit an identical case, however, lines can be shifted when it decides to hear a similar case.
 
The court also brought up an interesting nugget:

On page 6 of the decision:

Class B licenses "shall not entitle the holder
thereof to carry or possess a loaded firearm in a concealed manner
in any public way or place," "shall not entitle the holder thereof
to possess a large capacity firearm," and are to be issued "subject
to such restrictions relative to the possession, use or carrying of
such firearm as the licensing authority deems proper." Id.
§ 131(b).
[Bold emphasis mine]
And the following quotes found on page 17:

Hightower lacks standing to
raise a claim as to a Class B license; she has never applied for
such a license, been denied one, or had such a license revoked.
Such a license would allow her to carry a non-concealed,[Footnote] 5 non-large
capacity weapon in public [Footnote] 6. For the same reason, she lacks
standing as to an FID card, which would allow her to possess a
firearm in her home or place of business.
[Insertions of the word "footnote" mine]

Footnote 5:
The statute only prevents the holder of a Class B license
from "carry[ing] or possess[ing] a loaded firearm in a concealed
manner in any public way or place." Mass. Gen. Laws ch. 140,
§ 131(b) (emphasis added).

Footnote 6:
Hightower asserts that "the Boston police apparently do not
issue unrestricted Class B licenses to openly carry revolvers and
other non-large capacity handguns," and so, de facto, the only way
for her to carry a firearm, openly or not, outside her home is with
an unrestricted Class A license.
Hightower cites no authority for this proposition, aside
from certain comments that do not address the matter made by
defense counsel at a hearing. The statute itself only provides
that Class B licenses "shall not entitle the holder thereof to
carry or possess a loaded firearm in a concealed manner in any
public way or place." Mass. Gen. Laws ch. 140, § 131(b) (emphasis
added). The defendants claim that "a Class B license is sufficient
to keep a regular capacity firearm, rifle, or shotgun in one's home
or to carry it openly in public." The defendants also point out
that Hightower could apply for a restricted Class A license that
would allow her to carry a firearm in public.


In my opinion, the court is making a distinction that may allow for the concealed carry of an UNLOADED non-large capacity firearm under an LTC-B! They took the care to emphasize the question of whether the firearm was loaded on several occasions in the text quoted above. Do any of our legal scholars wish to address this nugget?

In my interpretation of MA law, loaded magazines not inserted into the magazine well (or speed loaders not loaded into the cylinder of a revolver) do NOT constitute a loaded gun. Would it then not be possible for an LTC-B licensee to have an unloaded 1911 concealed on his right hip and a full magazine in his left pocket and he be in compliance with the law?

Would this extrapolation then apply to restricted LTC-A holders? Does the restriction truly only apply to concealment of a loaded firearm?

ETA: I was slow on my post; I see that we are already discussing this!
 
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One interesting thing in the decision is that the court clearly states that the 2nd is "different" from the 1st, and that the protections (for example, prohibition on prior restraint) that have evolved to protect the first amendment are not necessarily applicable to the second.
This pisses me off more than anything else about the decision.
 
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Once again I will tell you about a friend who had to sue his CoP to get his LTC, he got LTC-B and open carried a S&W 38 stubby all over Boston. Sure, cops would hassle him, call their C.O., and would let him go with his gun, still on his hip, loaded. Does that help?
 
Once again I will tell you about a friend who had to sue his CoP to get his LTC, he got LTC-B and open carried a S&W 38 stubby all over Boston. Sure, cops would hassle him, call their C.O., and would let him go with his gun, still on his hip, loaded. Does that help?

It's never been illegal, the sheep just think it is.
 
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