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MASSACHUSETTS HOUSE OF REPRESENTATIVES OVERVIEW AND POLICY OF GUN CONTROL LEGISLATION
Note: This document has been prepared by Representative Paul Casey, Chairman of the Committee on Public Safety.
Title: An Act Relative to Gun Control in the Commonwealth
Overview of Conference Report (enacted as Chapter 180 of the laws of 1998)
I. Assault And Other Weapons Banned
At the outset, the legislation imposes an assault weapons ban which parallels the language of the Federal Assault Weapons Ban, formally known as the Federal Gun Control Act, 18 U.S.C. 921, et seq., as amended (the “Federal Ban”). This will ensure greater enforcement against the unlawful possession, use, sale and transfer of the “federally” banned weapons on the state and local level.
In addition, the prohibits the possession, sale, transfer, use, etc., of “gadget” guns (called “covert” weapons) which are undetectable by metal detectors and x-ray machines and are disguised as other innocuous items as key-chains, cigarette lighters and pens Sawed-off shotguns are also banned and cannot be possessed, used or transferred even by law-fully licensed gun owners.
Finally, the law addresses the proliferation of the cheaply made, so-called “Saturday Night Specials” by prohibiting the future sale of those types of inferior guns (which fail certain standards and performance tests such as tensile strength, metallurgical qualities, proneness to accidental discharge, etc.) which are not lawfully owned or possessed as of the date of passage of the act. Those guns already lawfully owned by licensed individuals or lawful dealers will not be affected by this provision.
II. Enhanced Regulation Aspects
Briefly, the Federal Ban, which is incorporated into this law, bans the manufacture, importation, sale, etc., of all Assault Weapons (as defined thereunder) that did not enter the stream of commerce prior to September 13, 1994. Prohibiting the transfer of those assault weapons that are currently lawfully owned, significantly devalues the weapons and is confiscatory in nature. Banning the lawful transfer to even strictly screened license holders also closes off the legal market for indi-vidual owners and gun dealers to distribute these types of guns and therefore, encourages sales on the secondary or illicit underground market where authorities cannot track them. By allowing the continued possession, use and transfer of lawfully owned, non-banned weapons, restricted by tighter licensing requirements and an enhanced record keeping system, this law encourages transfers to remain in the open, while assuring only properly licensed persons will be able to own such weapons. This tracking also enables officials to immediately screen out unsuitable persons, or persons whose license has been, or should have been revoked or suspended. Tracking will also allow police to pinpoint the last lawful owner of any weapon transferred or sold illegally, that was used to perpetrate a crime. The system discourages the illegal transfer or sale by imposing tougher penalties on those who distribute a weapon underground which is later confiscated by law enforcement authorities.
Notwithstanding the incorporation of the Federal Ban, a number of “assault weapons” have been grandfathered or exempt from the ban. As evidenced by President Clinton’s recent executive order seeking to add 58 guns to the ban list, manufacturers have found ways to circumvent the ban language, yet still manufacture and sell weapons with similar or greater firepower than the so-called “Assault Weapons.” Therefore, assault weapons—even those types listed in the federal—remain
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prevalent and are lawfully owned in our society today. To address this issue, the legislation imposes a tight regulatory scheme regarding the possession, use, and transfer of all “Large Capacity Semiau-tomatic Weapons” [hereinafter “Large Capacity Weapons”]—which are basically those semi-auto-matic guns which are capable of accepting a magazine or clip with more than 10 rounds of ammunition, or more than 5 rounds in the case of shotguns. In addition, the law contains provisions to reconcile aspects of our state law with Federal gun control laws.
The new law establishes a new licensing system (essentially bifurcating the former License to Carry into Class A and Class B) to distinguish the types of guns one may lawfully possess, use or purchase, including “Large Capacity Weapons.” This primarily affects the current Firearm Identification (FIDs) card scheme which presently allows persons to purchase all rifles or shotguns, including Large Capacity or Assault rifles and shotguns without discretion. Under the changes, one must possess either class of LTC to possess any Large Capacity rifle or shotgun and must possess a Class A LTC to possess a Large Capacity firearm. The new law also enhances penalties for unlawful gun-related conduct, including the unlawful possession, use, purchase or sale of rifles, shotguns and firearms. Penalties for these violations are greater when the weapon involved is a Large Capacity weapon.
The new regulatory scheme coupled with the anticipated networking of the computer firearm record keeping database (to be funded by the new FID, LTC, and Permit to Purchase (PTP) fees), will limit the number of persons permitted to possess, purchase or use Large Capacity weapons, and will keep law enforcement authorities updated as to who possesses Large Capacity weapons, and other types of weapons and the number of weapons each person has. This information is necessary for the safety of police and other government officials who confront gun owners in their homes and automobiles. The enhanced record keeping system will also better enable law enforcement officials to confirm that all weapons have been confiscated when so required under 140 MGL § 129D (e.g. per G.L. c.209A restraining order). The letter of the law will be enforced through tougher penalties for the illegal transfer or sale of all weapons, including large capacity weapons, by licensed gun dealers and individual owners who fail to record transfers with the Criminal History Systems Board, as is already required by law.
III. Brief Overview of Current FID, PTP and LTC Privileges
A. FID Cards: Currently, anyone over the age of 18 (or between 15 and 18 with the consent of a parent or guardian) may apply for an FID which shall be issued provided the applicant does not meet certain disqualifications listed in the statute (“disabling factors”). 140 MGL § 129B. The FID has no date of expiration and can only be revoked or suspended upon the occurrence of one of the disabling factors. There are no gradations of FID cards, and a current FID entitles one to possess, use or purchase all types and styles or rifles, shotguns, mace or ammunition for the same, including rifles or shotguns designated as “Assault Weapons” under the federal ban, which were manufactured and on the shelves prior to Sept. 13, 1994.
B. Permits to Purchase: An FID holder may apply for and may be granted a Permit to Purchase subject to the stricter LTC criteria and discretion of the licensing authority (typically the local police chief). The PTP allows a one time purchase of a handgun by an FID holder solely for home protection. The applicant may not carry the handgun outside the home for any purpose.
C. LTC: A License to Carry is required for one to own, possess, purchase or carry (where approved) any firearm (ie, handguns—revolvers, semiautomatic pistols, etc.)(unless, of course the gun is purchased via a PTP and FID). An LTC holder may also possess, own, or purchase rifles or shotguns, including Large Capacity guns. In order to obtain an LTC, an applicant must satisfy certain disqualifying criteria (no prior felony conviction, institutionalized for mental illness, not an alien, etc.), must provide a proper purpose for needing the handgun (ie., protection, sport), and must be found to be a proper purpose for needing the handgun (ie., protection, sport), and must be found to be a “suitable person” subject to the discretion of the licensing authority. Moreover, the police chief may place restrictions on the license regarding the purpose for which the LTC holder may carry or use his or her handgun(s). See, Ruggerio v. Police Commissioner of Boston, 18 Mass.
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App. Ct. 256 (1984).
IV. The Focus: Large Capacity Semiautomatic Weapons, Not just Assault Weapons
Recognizing that the real danger of weapons is in their fire power capacity, and seeing the infirmities in targeting a limited class of specifically identified guns, the new law enhances the control on Large Capacity weapons while squeezing underground sales and transfers. This is done primarily by the restructuring of the current licensing system to account for the greater threat these weapons pose to the public. Enhanced penalties are also added to a number of areas to send the message that crimes involving guns will not be tolerated.
A. Definitions: By incorporating the Federal Ban, the legislation included certain definitions from the Federal law such as “Assault Weapon.” Since the new law goes further, it provides additional definitions for the following terms: “Large Capacity Weapon” is defined as any semiauto-matic weapon equipped with a fixed “Large Capacity Ammunition Feeding Device,” or is capable of accepting, or is readily modifiable to accept a "Large Capacity Ammunition Feeding Device." A Large Capacity Ammunition Feeding Device shall mean any belt, drum or magazine that holds more than 10 rounds of ammunition, but shall not include an attached tubular device capable of operating only with .22 caliber ammunition. (See 18 U.S.C. s. 921). Thus, a Large Capacity Weapon could be any rifle or handgun that accepts a clip or magazine of more than 10 rounds, or shotguns capable of accepting more than 5 rounds, which would encompass all assault weapons, as well as most semiau-tomatic weapons of all shapes and sizes, regardless of the presence of the other bizarre features that qualify a weapon as an “assault weapon” under 18 U.S.C. s. 921 (e.g. bayonet mount, grenade launcher, flash suppresser, etc.).
In addition, the legislation provides for a definition of “violent crime” for purposes of the issu-ance or denial of licenses or PTPs, and enhanced penalties when appropriate. B. Rationale: The true danger in these weapons is the ability they create for one person to fire multiple rounds in a brief time span, not the hightech, scary appearance or the generic name of the weapon. Thus, it is more appropriate from the public safety standpoint to target all Large Capacity Weapons as opposed to a limited class of “Assault Weapons.”
V. The New Licensing Scheme
The legislation revamps the current state licensing procedures by restricting the type(s) of rifles or shotguns one may own with an FID to non-Large Capacity types only, and establishing two (2) classes of LTCs to ensure that persons seeking to purchase or possess Large Capacity firearms, rifles or shotguns meet more rigorous standards and are found suitable under the discretion of their local police chief. To wit, the law establishes a Class A and Class B LTC to distinguish between those persons entitled to possess, or purchase (a) all types of weapons, including Large Capacity rifles, shotguns or firearms [Class A LTC], (b) only Large Capacity rifles or shotguns (hunting guns) and non-Large Capacity firearms [Class B LTC], and (c) those entitled to possess non-Large Capacity rifles and shotguns (e.g., single-shot, bolt action hunting guns) [FID].
A. Class A and Class B LTC
Class A LTC: A Class A LTC allows the holder to possess, purchase, rent, use, borrow, lease and carry all types of lawful firearms, rifles and shotguns, including Large Capacity weapons. Only persons with a Class A LTC will be lawfully entitled to carry such weapon on his or her person in public. Further restrictions on said license may be imposed by the licensing authority, and a viola-tion of any restriction shall be grounds for suspension or revocation, or fine of $1,000 to $10,000, although the provisions of c.10, s.269 shall not apply.
Class B LTC: In contrast, a Class B LTC entitles one to possess, use, rent, purchase, borrow, lease and carry non-large capacity firearms and revolvers (with rotating cylinders of less than 10 rounds), as well as any rifle or shotgun, including Large Capacity rifles and shotguns. Persons
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issued a Class B LTC are not permitted to carry a loaded concealed weapon in public. Restrictions on said license may be imposed by the licensing authority, and a violation of any restriction shall be grounds for suspension or revocation, or fine of $1,000 to $10,000. Possession of a Class B LTC is not a defense to unlawful possession of a Large Capacity firearm however, said person shall be subject to a fine of $1000.00 to $10.000, and shall not be subject to the mandatory minimum sen-tence under c.269 s.10.
LTC Application Criteria: Issuance of either a Class A or Class B LTC shall be discretionary and shall be subject to a number of “disabling” factors, which both licenses share. In short, an applicant for a Class A or Class B LTC cannot (1) ever have been convicted or adjudicated a youth-ful offender for the commission of a (a) felony; (b) misdemeanor punishable by greater than 2 years (see, 18 U.S.C. s. 922(g) and 921(20)); (c) violent crime (as defined in the act); (d) violation of any law regarding the use, possession, ownership, purchase, sale, etc., or weapons or ammunition pun-ishable by imprisonment; or (e) the violation of any law regulating the use, possession or sale of narcotics; nor may the applicant have been (2) institutionalized or hospitalized for a mental illness (unless cleared by qualified physician); (3) treated or confined for drug or alcohol addiction (unless deemed cured by a licensed physician); or is not (4) under 21 years old; (5) an alien; (6) subject to a restraining order (e.g., c.209A); or (7) subject to an outstanding warrant.
A person applying for either a Class A or Class B LTC will also be subject to a more rigorous background check. Additional steps involve fingerprinting of the applicant which will be sent to the colonel of the State Police, as well as requiring the State Police to check the National Instant Criminal Background Check System (the NICS) and other nationwide databases for information regarding restraining orders and arrests. (Note: this is to maintain exemption from “Brady II” which becomes effective Nov. 30, 1998). The law also requires all persons seeking a license (or FID) to complete a firearms safety course certified by the colonel of the State Police. Hunting and safety courses offered by the Department of Fisheries and Wildlife shall satisfy this requirement.
Because the criteria are identical as between Class A and Class B LTCs, the licensing authority’s discretion takes a greater role. This scheme retains the critical discretion and allows police chiefs to restrict the number of persons entitled to own, use or carry Large Capacity firearms. (Note: the law includes grandfathering provisions to prevent current lawful owners of Large Capacity firearms from being denied Class A LTCs under the new procedures. This is because the applicant was subject to the police chief’s discretion upon his or her initial application for the LTC).
Renewal: Both the Class A and Class B LTCs shall be valid for a period of four (4) years. The cost for renewing either LTC shall be $25 with the licensing authority (local Police) retaining $12.50 and the remaining $12.50 deposited in the Firearm Record Keeping Fund (the “Fund”), created under this law, administered by EOPS, subject to appropriation, and used to facilitate the networking of the application and licensing procedure. (See Below for more information on the Fund). Persons over 70 years of age are exempt from the fees.
Club Licenses: A shooting club or facility may apply for, and may be granted a Class A LTC by the colonel of the State Police so long as the club is lawfully organized under the laws of the Com-monwealth, and at least one shareholder is qualified to be issued such a license. All members of the club would be permitted to use any type of gun, including large capacity rifles, shotguns and fire-arms at the range under the club or facility license so long as they possess either an FID or LTC. Unlicensed persons may also use such weapons at a shooting club so long as that person is under the direct supervision of a properly licensed member (e.g., a Class A LTC holder if unlicensed person is shooting a Large Capacity firearm) or a certified firearms instructor. No weapon may be removed from the premises except for repair or transfer to another licensed gun dealer, target shooting on the premises of another club’s premises, use at an educational seminar, use for hunting in accordance with current laws, or surrendering such weapon under 129D.
Expired LTCs: Since LTCs currently incorporate some discretion by the licensing authority,
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treatment of expired LTCs is somewhat different than expired FIDs. Any person who lawfully owns a Large Capacity firearm and possesses a valid LTC at the time of enactment, shall be deemed to have a Class A LTC for purposes of enforcement of our gun laws. Upon the expiration of the LTC, the holder shall apply for its renewal, which shall be reissued so long as the applicant does not meet any of the disqualifying criteria (in which case his LTC would have been revoked or suspended anyway).
Anyone whose LTC is invalid solely for the reason that it has expired shall not be subject to mandatory prison sentence under c.269 s.10 if arrested for unlawful possession of a firearm, rifle or shotgun. Rather, the person shall be subject to a stiff fine of $500 to $5000. This provision does not protect those LTC holders otherwise disqualified from prosecution under c.269 s.10, unless the suspension is due solely for failure to report a change of address. As noted above, possession of a Class B LTC shall not be a defense to the unlawful possession of a Large Capacity firearm, although such persons shall be subject to fine and not the one year mandatory minimum sentence imposed under c. 269 s.10.
B. FID Cards
One who does not wish to obtain an LTC, or does not qualify for, or is denied a Class A or Class B LTC may apply for and obtain an FID. An FID entitles a person to possess rifles or shotguns which are not Large Capacity (e.g., bolt or slide action rifles, hinge action shotguns, or other nonlarge Capacity rifles or shotguns) and mace, pepper spray or other similarly propelled liquid, powder or gas designed to temporarily incapacitate. One who holds an FID may also use a Large Capacity weapon at a properly licensed shooting club or facility, or under the direct supervision of a properly licensed companion or certified safety instructor. Finally, an FID holder may apply for a PTP to purchase a firearm, subject to the discretion and limiting orders of the licensing authority, for possession in the home only. The PTP application parallels that of LTCs which set more rigorous standards.
FID Application Criteria: The FID application and approval is essentially equivalent to the current FID application process, with certain changes to account for the Federal law. An FID shall be mandatorily issued to applicants unless said applicant has (1) within the last five years been released from conviction, probation or parole for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than 2 years (see, 18 U.S.C. s.922(g) and 921 (20)); (c) a violent crime (as defined in the act); (d) a violation of any law regarding the use, possession, ownership, purchase, sale, etc., of weapons or ammunition for which a prison term can be imposed; or (e) a violation of any law regulating the use, possession or sale of drugs; nor may the applicant have been (2) confined or institutionalized for mental illness (unless cleared by qualified physician); (3) treated for drug or alcohol abuse (unless deemed cured by licensed physician); or (4) is under 15 years old (except that persons between 15 and 18 need parental consent to obtain an FID); (5) is an alien; (6) is subject to a restraining order (under c.209A); or (7) is subject of an outstanding warrant for arrest. In order to avoid possible entrapment for the violation of Federal law, the legislation expressly restores one’s right to obtain an FID for one disqualified under subsection (1) for a conviction in Massachusetts of a non-violent crime after the passage of 5 years form the passage of the date of conviction, or release of confinement, probation or parole, whichever last occurs. This restoration of rights shall not apply to persons convicted of any drug or gun trafficking offense either. Restoration of one’s rights to possess a non-Large Capacity rifle or shotgun for convictions of crimes in other states shall be treated according to the laws of those states.
Expiration of FIDs: FID cards shall be valid for a period of four (4) years and therefore, require renewal. The cost for an FID (and its renewal) is $25 with the licensing authority (local police) retaining $12.50 and the remaining $12.50 deposited in “Fund.”
Expired FID Cards: Since the legislation imposes this new expiration provision for FIDs (currently valid for life unless revoked), there are new provisions governing the treatment of expired FIDs. At the time the legislation takes effect, persons who hold an FID and own one or more Large Capacity rifles or shotguns, (including those grandfathered Assault Weapons), will be deemed to
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hold a Class B LTC for purposes of possessing the Large Capacity Weapons already owned (not purchasing new large capacity guns), until renewal of their FID is required under the scheme. The Executive Office of Public Safety is directed to administer these interim provisions.
Upon the expiration of that card under the terms of this legislation, the individual must apply for at least a Class B LTC in order to lawfully keep those Large Capacity rifles or shotguns. The LTC may be issued subject to the new disqualifying factors and the discretion of the licensing authority. Accordingly, one who does not meet the new criteria, or is denied a Class A or Class B LTC for other reasons, must transfer, sell or surrender his or her Large Capacity weapons.
The rationale for requiring FID holders who currently own Large Capacity rifles or shotguns to apply for a Class A or B LTC subject to the discretion of the licensing autnority, is justified by the present FID system coupled with the recognition of the powerful nature of Large Capacity weapons. As noted, FIDs are currently mandatorily issued so long as the applicant does not meet one of the limited disqualifying factors. Anyone who holds an FID can get any number of LArge Capacity weapons legally (including the grandfathered Assault Weapons). Recognizing the dangerousness of these weapons and the need for tighter control on who may or may not possess such weapons, it is logical and necessary to give the licensing authority some ability to review the applicant more thoroughly when it comes to Large Capacity weapons.
An FID holder whose card is invalid for the sole reason that it has expired will not be subject to the mandatory-minimum sentence under the Bartley-Fox Act (c.269 § 10) if arrested for unlawful possession of a non-Large Capacity rifle or shotgun. Rather, one holding an expired FID (which is not deemed a Class B LTC at the time of enactment), who is otherwise not disqualified under the new provisions of the act will be subject to a fine of $500 to $5,000. However, those persons who violate one or more of the criteria and therefore, whose FIDs are deemed revoked or suspended, are not protected from prosecution under c.269 §10, unless such suspension is due solely to one’s failure to give proper notice of a change of address. Moreover, except as provided by the “temporary grandfathering” provisions, possession of an FID is no defense to prosecution for unlawful posses-sion of a Large Capacity rifle or shotgun, or any firearm, although such persons will not be subject to the mandatory minimum sentence under chapter 269.
Expiration and renewal of FID cards will be completed over a two (2) year period according to a step system based upon the month of the holders’ dates of birth. This is to spread out the impact of the new law.
Consistent with the current law, the new law provides that one who has a valid FID may apply for a Permit to Purchase to consummate a onetime purchase of a firearm to be used solely for protection in the home . The application criteria are identical to the new LTC, and the licensing authority may impose restrictions regarding the caliber and capacity of weapon that the applicant may pur-chase. The applicant must meet the higher PTP standard and must provide a sufficient reason to the licensing authority for the need for protection and the licensing authorities will have discretion in issuing any PTP. A PTP shall continue to remain valid for a period of 10 days, as is under current law. The cost for a PTP shall be $25 with the licensing authority (local police) retaining $12.50 and the remainder deposited in the Fund.
VI. Effect on Gun Dealers
In order to ensure maximum effectiveness of the tighter controls, gun dealers will also be subject to several new sections requiring dealers to take greater responsibility with respect to the sale of not only Large Capacity weapons, (including Assault Weapons) but all guns. Those dealers who fail to adhere to the new standards will face stiffer fines or possible imprisonment.
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At the outset, gun dealers will be subject to local enforcement of the Federal Ban. Moreover, gun dealers are not permitted to sell or transfer any Large Capacity weapon to anyone who does not possess the proper Class A or B LTC (although no Large Capacity handgun may be sold to one without a Class A LTC). Moreover, the act prohibits gun dealers from selling cheaply made “Saturday Night Specials” that are not on the shelves as of the date of enactment. Those types of guns lawfully possessed at the time of enactment will be grandfathered and not subject to the above prohibitions.
The legislation sets forth additional steps to be taken by gun dealers in the record-keeping pro-cess and the verification of the FID or LTC of their customers at the time of purchase. By September, 1999, all dealers must purchase or access the necessary computer equipment and/or software (or other on-line link) to connect the dealer with the CHSB. Gun dealers will be required to specifically record in their sales books (eventually, computer database), which sales involve Large Capacity weapons. (This is also required by individuals who may sell or transfer up to 4 guns per year without having to register as a licensed dealer). These records, which must be recorded and stored on a computer network tied in with CHSB by September, 1999, and the business premises will be subject to annual, random inspection by the licensing authorities to ensure compliance with new recordkeeping procedures. These types of administrative inspections are already permitted by federal law (FBI inspections) and are supported constitutionally by state case law. It is intended that these searches encourage gun dealers to adequately track the sale of Large Capacity (and other) weapons, and refrain from underground or “back door” sales, typically done at trade shows.
In order to facilitate proper inspection, the law requires that all gun dealers maintain a business address, separate from their residential address if they are to be licensed in the Commonwealth, although a separate structure is not required so long a there is sufficient separation between the business and residence.
Fourth, gun dealers are required to take a more active role in the inspection and verification of their customers’ FIDs and LTCs. Before selling a gun to a potential purchaser, the dealer must verify the current validity of the FID or LTC upon presentment. Much of the details of verification will depend upon the system ultimately utilized by CHSB. Should the FID or LTC prove invalid for any reason, the dealer must notify the licensing authority, and may confiscate the card or license and (i) inform the customer, (ii) issue a receipt (which will act as a valid substitute for the FID or LTC and provide immunity from Bartley-Fox for that day only), and (iii) forward the expired license to the local police chief. This verification process, facilitated by the networking system, will significantly reduce improper sales and sales to unlicensed persons at trade shows. Moreover, to conform with the concept embraced by the federal law, dealers are prohibited from selling Large Capacity weapons, whether rifles, shotguns or firearms, to anyone under the age of 21 years.
Fifth, gun dealers are expressly prohibited from completing intrastate “mail order” sales of all guns by requiring the in-person presentment of the FID, LTC or PTP by the purchaser. Interstate mail order sales to consumers (across state lines) are presently banned under the Federal law. Transactions between licensed dealers (either federally or state licensed dealers) are exempt from this provision.
The new legislation also requires that gun dealers affirmatively inform their customers by visible, written notice, conspicuously located, of the Safe Storage Laws. An additional written notice must be delivered to each customer upon sale.
To encourage compliance with the new and existing laws, the law provides tougher penalties by increasing the fines and subjecting gun dealers to possible jail time for first offenses. A dealer who violates any of the above or existing provisions could face fines between $1,000 to $10,000, and/or imprisonment for 1 to 10 years for a first offense.
VII. Safe Storage, Sale to Minors
Over the past few months we have seen an alarming increase in incidents of children using guns
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against their peers, teachers and parents. This new law includes several provisions aimed at protecting minors and preventing irresponsible adolescent gun use.
Sale to minors: The use of guns demands responsibility. The Federal law recognizes this by prohibiting the sale of handguns to anyone under 21 years. This legislation likewise prohibits the sale of any firearm and all Large Capacity weapons (whether firearms, rifles or shotguns) to persons under 21. Penalties for violation of these provisions are enhanced and could result in imprisonment for up to 10 years, or a fine of $1,000 to $10,000.
Sale of a Large Capacity weapon to a minor (under 18 years of age) will subject the seller (or transferor) to even greater penalties, including a 5 year mandatory-minimum sentence.
Safe Storage of Guns (Owners): The legislation demands that adult owners of guns keep those weapons away from children under the age of 18 by storing them in places not accessible to such children or securing them in locked containers. This requirement does not apply where the gun is under the direct control of the gun owner. Violation of this section will result in possible fines or imprisonment. For non-Large Capacity weapons, violations of these provisions are punishable by fine of $500 to $5,000 or imprisonment for not more than one year. In the case of improperly stored Large Capacity weapons, violators face fines of $1,000 to $10,000 or imprisonment of 1 to 10 years.
Moreover, improper storage shall be evidence of “wanton or reckless” conduct (the involuntary manslaughter standard) in cases where the failure to safely store the weapon leads to the injury or death of another committed by a minor under 18 who is not properly licensed. This evidentiary standard may be used against the gun owner in both a criminal and civil action.
Consumer Protection & Trigger Locks (Manufacturers): The law incorporates the Attorney General ‘s regulations creating liability in tort upon manufacturers, wholesalers, importers or dealers of guns who fail to install a commercially available safety device such as mechanical locks or user recognition devices (radio frequency tags, automated fingerprint ID systems, or voice recognition features), approved by the Colonel of the State Police. Failure to install such devices will constitute a breach of warranty and a violation of the Consumer Protection Act. Liability is joint and several among the members of the distributive chain, and contributory or comparative negligence is no defense.
These conditions are not applicable to weapons issued to law enforcement agencies, U.S. armed services or the organized militia of the Commonwealth; or where the injury is self-inflicted (unless the injured is under 18), if the injury is inflicted by the lawful owner, or is inflicted in self-defense, or by a co-conspirator during the commission of a crime. Finally, this provision is not retroactive.
VIII. Tougher Penalties through Mandatory Minimum Sentencing for Illegal Possession and Use in Crime of Large Capacity Semiautomatic Weapons
In conjunction with the enhanced licensing procedures, the legislation establishes tougher en-forcement and penalties for violations of our state gun laws. The law raises current penalties for crimes involving the use of guns and provide even greater penalties in cases where the weapon involved is a Large Capacity weapon.
Local Enforcement of Assault Weapons Ban: First and foremost, the law sets forth strict penalties for violation of the (Federal) Assault Weapons Ban. Under the proposed law, anyone who transfers, sells or possesses an Assault Weapons Ban. Under proposed law, anyone who transfers, sells or possesses an Assault Weapon (as defined) or a Large Capacity Magazine not otherwise lawfully possessed before September 13, 1994, shall, for a first offense, be subject to a fine between $1,000 and $10,000 or by imprisonment for 1 to 10 years or both. A second offense will result in a fine of not less than $5,000 nor more than $15,000, or by imprisonment of between 5 and 15 years. These provisions allow state and local enforcement of the Federal Ban prohibitions.
Police officers and law enforcement retirees in possession of their weapon upon retiring from
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service who other wise satisfy the licensing criteria, are exempt from this provision of the law.
Gun dealers who transfer or sell such banned weapons (not lawfully owned prior to September 13, 1994), shall also be subject to fine or imprisonment for 1 to 10 years).
The law also penalizes the sale, transfer or possession of covert gadget guns (such as those that resemble key chains, pens, lighters, etc.), or that are undetectable by metal detectors or x-ray ma-chines. A first offense of this provision could result in a fine of $1,000 to $10,000, or imprisonment for 1-10 years. Penalties for a second offense are fine between $5,000 and $15,000 or imprisonment for 5 to 15 years.
Unlawful Possession of Guns: In addition to existing “Bartley-Fox” (c.269 § 10) penalties for the unlawful (ie., unlicensed) possession of a gun (1 year mandatory-minimum), the legislation establishes enhanced sentencing guidelines in cases where the gun illegally possessed is a Large Capacity Weapon (e.g., where the possessor is not properly licensed). Currently, illegal possession of a gun carries a sentence of 1 to 5 years. Unlawful possession of a Large Capacity weapon is punishable by imprisonment for 2 1/2 to 10 years, one year of which is mandatory term.
Note that a holder of a Class B LTC will not be subject to imprisonment for illegal possession of a Large Capacity firearm, but will be subject to a fine only ($1,000 - $10,000), and the holder of a valid FID card will not be subject to a mandatory-minimum sentence under chapter 269. This is because the determinative factor between a Class A and Class B LTC is the discretion of the police chief (while issuance of an FID card is not subject to the discretion of a police chief).
The new law also prohibits the unlawful transfer or sale of a Large Capacity weapon or feeding device to anyone under 21, or over 21 and not properly licensed. Such illegal transfers carry a potential sentence of 2 ½ years to 10 years (mandatory minimum of 2 ½) for a first offense, and 5 to 15 years for a subsequent offense (mandatory minimum 5 years). As noted above, sale or transfer of such weapons to persons under 18 years carries an even greater sentence for a fist offense (5 to 15 years; 5 year mandatory minimum). Large Capacity weapons have the capability of firing multiple shots in a short period of time. These seemingly strict penalties for the unlawful sale of these weapons recognizes the dangerousness of the guns and sends the message that violation will not be tolerated.
Use of Gun in Commission of Felony: The law increases the penalty for using a firearm, rifle, shotgun or machine gun in the commission of a felony from the current 2 years to 5 years for a first offense. However, where a defendant commits the felony using a Large Capacity weapon or a machine gun, the punishment shall be not less than 10 years. The section imposes tough mandatory minimum sentences for second offenses; 20 years when the offense involves a non-Large Capacity weapon and 25 years if defendant uses a Large Capacity gun. Persons who commit crimes using guns are particularly dangerous, and those who employ Large Capacity weapons pose a greater threat to society. The message here is that hose who choose to use guns for violence will be taken off the street for a long time.
Use of Gun in Certain Crimes as Sentence Enhancer: The law enhances the penalty for sev-eral violent crimes (e.g., assault, rape, home invasion, robbery, etc.) where the weapon used by the perpetrator is a gun.
Possession of Weapon While Intoxicated: The law creates a general prohibition for anyone to carry a loaded firearm (whether Large Capacity or not) while under the influence of intoxicating liquor or drugs. The penalty for a violation of this section shall be a fine of not more than $5,000, or imprisonment for not more than 2 ½ years, or both.
Loaded Weapon on Public Way: This section enhances the penalties for anyone carrying a loaded rifle or shotgun on a public way (unless the person is engaged in hunting and is the holder of a valid FID). Violation of this section carries a possible fine of $500 to $5,000, or imprisonment for not more than 2 years. However, where the weapon involved is a Large Capacity, and the person is
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simultaneously in possession of a partially or fully loaded Large Capacity magazine, the fine shall be form $1,000 to $10,000, and/or imprisonment for 1 to 10 years. Officers will be permitted to make warrantless arrests for violations of this section. (currently, carrying a loaded rifle or shotgun on a public way carries a mere fine of $50—$500).
Moreover, to prevent unnecessary threats and fear, the legislation requires that persons carrying an unloaded rifle or shotgun on a public way, must enclose said weapon in a case, unless the person is hunting. Violation of this section shall be punishable by fine of $100 to $1,000, or $500 to $5,000 where the rifle or shotgun s Large Capacity.
Loaded weapon in Motor Vehicle By Licensed Individuals: The legislation addresses the possession of a weapons in motor vehicles from a few angles. First, any person with a Class A LTC may carry his or her firearm in a vehicle so long as said weapon is under the direct control of the properly licensed owner. Failure to have said control is punishable by fine of $500.
A person properly licensed for a Class B LTC may not carry a firearm under their direct control in a motor vehicle, whether unloaded or loaded. Said weapon must be unloaded and locked in a secured container or in the trunk. Again, violation of this provision is punishable by fine of $500.
Finally, one in lawful possession of a Large Capacity rifle or shotgun in a vehicle, must ensure that such weapon(s) are (1) unloaded; and (2) locked in the trunk, or otherwise properly locked in a case or other secure container. Violations of this provision carry a fine of $500 to $5,000.
Police officers, federal officers, members of the military, and the like are exempt from these provisions.
Armed Career Criminal Act: Similar to the Federal “Three Strikes, You’re Out” law, the act sets forth greatly enhanced penalties for persons who have been previously convicted of a serious drug offense, a violent felony, or both, who are subsequently arrested for unlawful possession of a firearm or rifle. Under the scheme, unlawful possession of a gun by one having previously been convicted of a serious drug offense, or a violent crime, faces an additional sentence of 3 to 15 years. After a combination of three such crimes, the defendant will face an additional 15 to 20 years in jail. The minimum term for each shall be a mandatory minimum sentence.
IX. Firearms Record Keeping Fund
The law creates a Record Keeping Fund which shall be funded by appropriation as needed, for the implementation, enhancement and maintenance of a state firearms information system. The Fund shall be funded primarily from fees collected from FID, LTC, and PTP issuances and renew-als. Revenues collected form these fees shall be appropriated under a grant program administered by EOPS to local licensing authorities for the purchase, implementation and maintenance of a com-puter network system to be tied in with the CHSB statewide network. Additional revenues (not exceeding $400,000 per year) shall be appropriated to CHSB and the department of State Police for the implementation of this system and administrative and personnel costs. Finally, subject to appropriation, EOPS shall expend $250,000 for police training programs to educate and train licensing authorities on the use of the network system with CHSB. EOPS is authorized to promulgate regula-tions for these grant programs and shall work in consultation with CHSB to maximize efficiencies.
X. Firearm Amnesty Program
The law seek to implement a firearms surrender program under which persons may return fire-arms, rifles, shotguns or machine guns to the Commonwealth anonymously and shall receive immunity from criminal prosecution for the unlawful possession of any firearms returned by that person.
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XI. Commercial Storage (Bonded Warehouses)
Under the current law, an individual whose FID card or LTC is revoked, suspended or denied must surrender all his or her guns and ammunition to the licensing authority (the local police department) where that person resides. As of 1994, police departments have been required to seize any guns or ammunition of persons subject to restraining orders issued under chapter 209A of the Gen-eral Laws and who are deemed dangerous. This has greatly increased the number of confiscated guns causing problems for many local police departments and the State Police.
The legislation contains provisions that would authorize the police, after seizing any such guns or ammunition, to transfer possession to licensed dealers who operate properly equipped, bonded ware-houses for storage. This would not only increase available storage space for police, but would also secure these weapons in central and safe locations.
MASSACHUSETTS HOUSE OF REPRESENTATIVES EXECUTIVE BILL SUMMARY (Section by Section) CHAPTER 180 (of the acts of the Commonwealth 1998)
Note: This document has been prepared by Representative Paul Casey, Chairman of the Committee on Public Safety.
Bill No: S.2276 (Report of Conference Committee on S.1985)
Title An Act Relative to Gun Control in the Commonwealth.
Section 1. Criminal History Systems Board (CHSB): [Technical Amendment] provides that the rules and regulations of the Executive Director of the Criminal History Systems Board, relating to firearm information, and it’s dissemination, shall be extended to the added Sections 131K through 131P of Chapter 140.
Section 2. Firearms Record Keeping Fund (FRKF): sets upon the books said Fund for pur-pose of implementing an enhanced, computerized network between CHSB, Police/Licensing Authorities and Gun Dealers to track, monitor and facilitate the flow of information regarding gun transactions and licenses. The Fund will receive one-half of all fees collected for FID, LTC or Permit to Purchase Applications.
Creates grant program for EOPS to meet associated state costs.
Section 3. Local License Fees: Provides that statutory fees relating to the application and re-newal of FID cards, Licenses to Carry, and Permits to purchase may not be superseded by fees set by the local licensing authorities (typically, the Chief of Police).
Current: Notwithstanding statutory fees for FID cards (no less than $2), Li-censes to Carry (no less than $10), and Permits to Purchase (no less than $2), the licensing authority may set a reasonable, higher fee for such card, license or per-mit. Section 4. Dept. of Public Health—Weapons-Related Injury Reporting: [Technical Amend-ment] strikes G.L.c. 111 § 200, which is made moot by Bill Section 5, infra.
Section 5. Dept. of Public Health—Weapons—Related Injury Reporting: Requires State Police to make available to Dept. of Public Health reports regarding gunshot wounds, significant burns (5% of body) and crime-related knife/sharp object wounds.
Sections 6 and 7. Hunting Sporting & Fishing License: Amends G.L., c. 131 § 11 to provide that any holder of an FID or LTC (any class) shall automatically qualify for a sporting, hunting, fishing or trapping license.
Section 8. Definitions: [Technical Amendment] makes weapons-related definition section applicable to the added Sections 131K through 131P of Chapter 140.
Removes from definition of “Firearm” covert weapons that are disguised as common accessories (e.g. pens, cigarette packs & lighters, key chains, ...) or that are undetectable as weapons by x-rays and metal detectors.
Adds the following new definitions:
Weapon: Generic term for any rifle, shotgun or firearm.
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Semiautomatic: uses energy of fired round to chamber next live round; fires once per trigger pull.
Large Capacity Weapon: assault weapon or any weapon capable of firing >10 rounds without reloading; >5 shells in case of shotgun.
Large Capacity Feeding Device: fixed or detachable magazine, belt or drum that holds >10 rounds;>5 shotgun shells.
Assault Weapon: exact same as Federal definition. Violent Crime: any crime involving the use, or attempted or threatened use of force against the person, or explosives, or is burglary, arson, extortion, kidnapping, or poses serious risk of injury to another and punishable by > 1 yr
Section 9. Gun Dealer Licenses— Investigation Into Applicant’s History: Amends Section 122 of Chapter 140 by specifying that the “investigation” currently required of an applicant seeking to obtain a license to sell, rent or lease firearms, rifles, shotguns or machine guns, or to be in the gunsmith business shall include that of any criminal history.
Section 10. Gun Dealer Licenses—Place of Business: [Technical Amendment} Requires that all gun dealers maintain a business address separate and apart from their residential address, to be state on application.
Section 11. Gun Dealer Licenses—CHSB: Requires the licensing authority to send one copy of an application to obtain a gun shop or gunsmith license to the executive director of the Criminal History Systems Board (CHSB).
Section 12. License to Sell Ammunition—Application: Investigation into Criminal History: Requires investigation into criminal history of an applicant seeking to obtain a license to sell ammunition.
Section 13. License to Sell Ammunition—Approved Application: CHSB: Requires the li-censing authority to whom an application to sell ammunition is made to send one copy of any approved application to the Executive Director of the Criminal History Systems Board.
Section 14. Gun Dealer License—Conditions: Sales of Large Capacity Weapons: This section amends Section 123 of chapter 140 by requiring a gun dealer to identify in records currently required to be sent to CHSB which sales involve Large Capacity Weapons.
Section 15. Gun Dealer Licenses—Conditions: Sales Records: Requires gun dealers to submit sales records to CHSB via modem or other on-line link (requires dealers to acquire computers by September 1, 1999).
Section 16. Gun Dealer Licenses—Conditions: Prohibit Sale of Large Capacity Weapon to Unlicensed Person: This section prohibits gun dealers from delivering Large Capacity Weapons to persons who do not possess the proper Class “A” or “B” License to carry or Posses Firearms (LTC) issued under Section 131 of Chapter 140.
Section 17. Gun Dealer Licenses—Conditions; Sales to Persons Buying under PTP: This section requires gun dealers to observe restrictions on buyers’ Permit to Purchase (PTP).
Section 18. Gun Dealer Licenses - Conditions; Sales of Large Capacity Rifles Shotguns, Firearms & Magazines: This section prohibits the sale or rental of any Large Capacity Rifle, Shotgun or Firearm or LArge Capacity Magazine to anyone without the appropriate LTC or PTP issued under Sections 131 or 131A of Chapter 140, respectively.
Section 19. Gun Dealer Licenses - Conditions; Verification of Licenses. Confiscation Notification: This section adds six new conditions to dealer’s license:
(13) verify current validity of FID or LTC upon presentment and report invalid FIDs or LTCs to
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licensing authority, and may confiscate expired FIDs or LTCs; issue a receipt for said card; in-form licensee of his duty to renew said card; and forward expired card to appropriate licensing authority;
[This condition contemplates implementation of computerized firearm informa-tion network which will be used to facilitate sales authorizations or disapprovals from CHSB electronically.]
(14) post at the purchase counter a notice of law relating to the safe storage of weapons (added by this act). The dealer shall also provide the same notice to every purchaser or transferee on paper;
Section 20.Gun Dealer Licenses—Conditions; Sales Restrictions: This section prohibits dealers from selling any weapons to persons that they are not entitled to possess under the restrictions of their FID, LTC or PTP; places duty on dealer to recognize and comply with buyer’s restrictions.
Section 21.Gun Dealer Licenses—Conditions; Dealers Restrictions: Prohibits “mail-order” sales to non-commercial purchasers and requires “in-person” presentment of required FID, LTC or PTP (exemption for Dealer-to Dealer transactions) at time of purchase.
NOTE: Also authorizes annual administrative inspections of commercial premises by Licensing Authority.
Section 22. Gun/Ammunition Dealer Licenses—Conditions; Sales at Gun Shows (Weapons & Ammunition): Conditions weapons and ammunition sales by dealers at gun shows on obser-vance of buyers’ FID & LTC.
Section 23. Penalty for Violating Certain Conditions of Gun Dealer License: Extends penalties imposed upon gun dealers for violation of new conditions on gun dealers’ license as set forth in c.140, § 123—(prohibiting sale of Federally banned Assault Weapons (16th) and “Saturday Night Specials (18th- 21st).
Section 24. Penalty for Violating Certain Conditions of Gun Dealer License: Enhances penalties imposed upon gun dealers who violate certain conditions of their licenses as set forth in Section 123 of Chapter 140, or persons who sell, rent or lease a firearm, rifle, shotgun or machine gun without the appropriate dealer license. Under the new law, such a person is subject to imprisonment for not more than 2 1/2 years in a house of correction, nor more than 10 years in a state prison; or by a fine of not less than $1,000 nor more than $10,000, or both.
Section 25. Private Sales Permitted Without Gun Dealer License: Amends the section per-mitting citizens of the Commonwealth to sell or transfer up to four weapons within any calendar year, without requiring said persons to obtain a gun dealer license, by requiring that the same record that must be submitted to CHSB by non-commercial seller be so submitted for any transfer.
Current: Only records of sales must be so submitted, not gifts.
Section 26. Private Sales Permitted Without Gun Dealer License—Sale or Transfer of Large Capacity Magazines: Requires record to be sent to CHSB for transfer of Large Capacity Maga-
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zines, as well as weapons.
Section 27. Private Sales Permitted Without Gun Dealer License—Form Must Include Des-ignation as a Large Capacity Weapon: Requires persons who sell or transfer weapons to another under Section 128A of Chapter 140 to include on the “proof of sale” form provided by the Executive Director of CHSB, the weapon’s designation as a Large Capacity Weapon if applicable.
Section 28. Sales From Unauthorized Sellers: This section increases the penalty for the buyer who purchases a weapon from an unauthorized source and neglects to inform the Executive Director of the CHSB of said purchase. The increased penalty is not a fine of $500 - $1000 for a first offense; and imprisonment for up to 10 years for a subsequent offense.
Currently: 1st offense = up to $100; 2nd offense = up to 2 1/2 yrs
Section 29. Firearm Identification Cards: This section creates new standards for FID cards and permits, under them, the possession of only:
Non-Large Capacity Rifles & Shotguns: Mandatorily issued unless disqualified. Disqualify-ing factors are:
1. convict or youthful offender in MA (w/ same criteria as above), unless conviction or release from incarceration, parole or probation, whichever is last occurring,occurred more than 5 years ago (*No restoration if conviction was for Violent Crime or Drug Trafficking);
BACKGROUND CHECK: For all FID Cards, fingerprints sent to State Police for background check, who must check Nation Instant Criminal Background Check System (NICS) and other nationwide database files for protection orders and warrants. (Note: the NICS check is required to maintain exemption from Brady II, which becomes effective Nov. 30, 1998.)
FIREARMS SAFETY COURSE: All applicants must also complete a firearms safety course approved by Colonel of State Police, unless FID issued solely for Mace or Pepper Spray.
Holder may possess non-Large Capacity Rifles & Shotguns as under current law; and may pos-sess Large Capacity Rifles & Shotguns, as well as Firearms, only at a gun club under its Class “A” License issued under Section 131, or at a range or club under direct supervision of person w/ proper Class “A” or “B” License to Cary issued under Section 131.
NO PURCHASE: An FID Card shall not allow the holder to purchase any Firearm (e.g. Hand-gun) or an Large Capacity Weapon. LIMITED ISSUANCE PERMISSIBLE: Further, an FID card may be issued solely for the purchase and possession of Mace or Pepper Spray.
NO DEFENSE TO BARTLEY-FOX: An FID Card is no defense to prosecution under Section
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10 of Chapter 269 (“Bartley-Fox Act”) for unlawful possession of a Large Capacity Rifles or Shotgun, due to non-discretionary issue of the FID Card, but will exempt such person from the mandatory 1 year minimum provided under G. L., c. 269 § 10.
REVOCATION: A card may be revoked or suspended by the licensing authority for the occurrence of any event that would have disqualified the holder from being issued the card initially. Upon revocation, said card holder shall immediately surrender the card to the prosecuting officer who shall forward the card to the licensing authority. An appeal does not stay the effect of the revocation.
APPEAL: An applicant or holder aggrieved by a denial, revocation or suspension of a card may appeal to the district court within 90 days of receipt of notice of the decision, unless the revoca-tion is due to the imposition of a restraining order and the applicant has been afforded a hearing pursuant to such order.
FID CARD FORM: FID cards shall be in the form prescribed by the Executive Director of CHSB, and shall now include a photograph & fingerprint of the applicant. Knowingly Filing Application w/ False Information: $500 - $1,000 and/or 6 mos. -2 yrs.
4 Year Validity and Fees: FID cards issued under this section shall be valid for four years and shall expire on the holder’s birthday which occurs on or before 4 years from the date of issuance. The fee for an application for an FID is increased to $25 with the licensing authority retaining $12.50 and the remaining deposited in the Firearms Record Keeping Fund (FRKF), created under and other section of th chapter. Record Keeping Fund (FRKF), created under another section of the chapter.
* No fee for persons 70+ years of age; ** One time fee of $25 on initial application for FID issued solely for pepper spray or mace only (or similarly propelled liquid, powder or gas designed to temporarily incapacitate), thereafter, no fee upon renewal of application. (Current fee is $2, but can be increased by licensing authority; valid for life.)
CHANGE OF RESIDENCE: Upon moving a cardholder must notify the chief of police into whose jurisdiction he moves, in addition to the persons currently entitled to notice under 129B, and requires that notice of the new address shall be made by certified mail. Failure to notify shall be cause for suspension of the holder’s FID card. (Same as current.)
TREATMENT OF EXPIRED FIDs: The section provides for a fine of $500 - $5000 for per-sons in possession of a weapon whose FID cars are invalid solely because of expiration—rather than subjecting such persons to penalties under Bartley-Fox (mandatory min. 1 yr.).
IMPORTANT NOTE: The section does not, however, protect those whose FID cards have been suspended or revoked form the imposition of Bartley-Fox penal-ties; unless such suspension is due solely to one’s failure to give proper notice of change of residence.
Section 30. Lost or Stolen Weapons - Report to CHSB & Licensing Authority: Provides that failure to so report is cause for suspension or permanent revocation of FID or LTC; also provides penalties for failure to so report as required of individuals (non-dealers) under Section 129C of Chapter 140:
1st Offense = $200 - $1,000
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Section 31. Grace Period for Renewal for Residents Who Are Absent from the Common-wealth for Extended Periods of Time: This section amends 129C(j) by granting a new resident or any returning Massachusetts resident who has been out of the commonwealth for a period of 180 consecutive days or more, 60 days to renew or obtain an FID or LTC upon returning to the commonwealth before being subject to fines or imprisonment under Section 10 of Chapter 269 (Bartley-Fox). The law currently provides this 60 grace period for new residents and persons returning from military service.
Section 32. Purchase of Guns in MA by Nonresidents: Struck out provision in G.L., c. 140, §129C which exempted those licensed in other states from the FID requirement for the purchasing of rifles & shotguns within Commonwealth; said provision conflicted with other provision requiring such other state to impose licensing requirement no less stringent than those of the Commonwealth.
Section 33. Sale of Firearm to a Minor: Further amends 129C of chapter 140 by prohibiting the sale of a firearm to anyone under the age of 21 (raising from 18). This brings Massachusetts law into compliance with the Federal law on the sale of firearms to minors.
Section 34. Sale or Transfer of Large Capacity Weapons: This section prohibits the sale or transfer of Large Capacity Weapons to any person not in possession of a proper Class “A” or “B” License to Carry.
Section 35. Large Capacity Rifles & Shotgun - FID No Defense to Prosecution Under Added Provision of Section 10 of Chapter 269: This section affirmatively states that possession of an FID shall not entitle a person to possess a large capacity rifle or shotgun in violation of newly created subsection (m) of Section 10 of Chapter 269. A violation under this section, however, shall not subject the FID holder to the mandatory minimum sentence under c.269 Section 10(m),[See Section 70 of the bill].
Section 36. Commercial Storage of Surrendered or Confiscated Weapons: Amends section 129D of chapter 140 by allowing a licensing authority to deliver all firearms, rifles, shotguns or machine guns surrendered or confiscated due to FID & LTC denials, revocations or suspensions to a licensed firearms dealer operating a bonded warehouse, on the condition that said licensing authority lacks adequate storage capacity. Storage charges are borne by the weapon owner.
Section 37.Commercial Storage of Surrendered or Confiscated Weapons: Any weapon stored in a bonded warehouse may be auctioned, at the direction of the licensing authority following 1 year from date of surrender, or the dealer when storage has exceeded fair market value of weapon.
Section 38. Sale or Transfer to Minors or Aliens: This section prohibits the sale or transfer of a firearm (handgun) or ammunition therefor to anyone under 21 ( raises from 18). Brings Common-wealth into compliance with Federal law.
Section 39. Sale or transfer to Minors or Aliens—Penalties: Amends section 130 of chapter 140 by increasing the penalty for persons engaged in the unlawful sale or furnishing of a rifle, shotgun or ammunition to any alien who does not hold a proper permit card, or the sale or furnishings to an alien or minor of a firearm, rifle, shotgun, machine gun or ammunition. The new penalty shall be imprisonment for not more than 2½ years in a house of correction, nor more than 10 years in a state prison; or a fine of not less than $1,000, nor more than $10,000, or both (current: $500 -$ 1,000).
Section 40. Supervised use of Weapons: This section amends section 130, which allows a parent or guardian to furnish their child or ward who is at least 15 years of age a rifle or shotgun, by prohibiting such transfer of Large Capacity Weapons.
Section 41. Licenses to Carry (“LTC”): This section creates a dual class of licenses to carry: Class “A” and Class “B”
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CLASS A: A Class “A” LTC shall entitle the holder to purchase, rent, borrow, possess or carry Large Capacity Firearms, Rifles and Shotguns* and all Non-Large Capacity Weapons.
CLASS B: A Class “B” LTC shall allow carrying of only revolvers and other non-Large Capac-ity Firearms, unable to accept a Large Capacity Magazine (the word “Clip,” though often used, is a misnomer), but allows the carrying or possession of Large Capacity Rifles and Shotguns.* (*Rifles and shotguns may be carried for lawful purposes only such as hunting or sporting, but shall not otherwise be carried loaded on a public way.)
ISSUANCE: The licensing authority may issue a license, of either class, subject to restrictions as he deems proper, to a “suitable person” unless the person meets one of the following disqualify-ing conditions. The conditions are as follows:
1. ever convicted of, or adjudicated a youthful offender, anywhere for:
(a) commission of a felony, misdemeanor with a sentence greater than 2 years or violent crime,
2. ever institutionalized for mental illness (waived w/ physician’s affidavit that illness should not affect ability to safely possess weapons);
RESTRICTIONS PERMISSIBLE: Class “A: may possess any Large Capacity Weapon for all lawful purposes, subject to restrictions imposed by licensing authority (e.g., sport & target only).
RESTRICTIONS PERMISSIBLE: Class “B”: may possess non-Large Capacity Firearms (e.g. revolvers) and Large Capacity Rifles & Shotguns, subject to restrictions imposed by licensing authority (e.g., sport & target only).
IMPORTANT NOTE ON CONCEALMENT: The holder of a CLASS B LTC may not carry loaded Firearm in concealed manner.
LARGE CAPACITY FIREARMS: May possess Large Capacity Firearms only at a gun club under its Class “A” LTC, or at a range or club under direct supervision of person w/ Class ‘A: LTC or certified firearms instructor.
PURCHASES: A Class “B” LTC shall not allow the holder to purchase any Large Capacity Firearm (e.g. Handgun)
SHOOTING GALLERY: The Colonel of State Police may grant a Class “A” LTC to a lawfully incorporated shooting club or facility for the purposes of, but not limited to, the possession, storage and use of Large Capacity Firearms. At least one shareholder must be qualified to be issued such license. No Large Capacity Firearm shall be removed from the premises, except, to transfer to a licensed dealer, transport to a gunsmith for repair, transport to another incorporated shooting club, attend an educational or historical event, hunt or surrender the firearm as provided under 129D.
HUMAN LIKE TARGETS PROSCRIBED: No shooting club shall permit firing at human-like targets, except by police in training.
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NOTIFICATION: The licensing authority shall, with in 30 days, respond to the applicant by either approving or denying the application. If applicant is aggrieved by a denial, revocation or suspension, he may, within 90 days file to obtain judicial review in the district court having jurisdiction over the city or town where the application was filed.
CIVIL VIOLATION UPON EXPIRATION: Imposes a fine, in lieu of imprisonment under Bartley-Fox, of $500 - $5,000 for a Class “A: or “B” LTC, upon any individual who is in posses-sion of a Firearm and whose license has expired, and who would otherwise be entitled to renewal.
CONFISCATION: Any person fond by a law enforcement officer to have an expired license and is in possession of a Firearm shall have said Firearm confis-cated by said law enforcement officer. Any confiscated weapon shall be returned to the owner only upon the renewal of expired license.
BARTLEY-FOX EXEMPTION: The provision also exempts from Bartley-Fox those persons whose LTCs have been suspended solely on account of their failure to give proper notice of change of residence.
4 YEAR VALIDITY AND FEES: LTCs issued under this section shall be valid for four years and shall expire on the holder’s birthday which occurs on or before 4 years from the date of issuance. The fee for an application for an LTC is set at $25 with the licensing authority retaining $12.50 and the remaining deposited in the Firearms Record Keeping Fund (FRKF), created under another section of the chapter.
(Current fee is no less than $10, but can, and is increased by licensing authority; valid for 5 years.)
Advisory Board to Publish List of Large Capacity Weapons: A Gun Control Advisory Board shall be established to advise the Executive Office of Public Safety (EOPS) in the implementa-tion of the new licensing scheme, and shall assist in the compilation and publication of a roster of Large Capacity Rifles, Shotguns, Firearms and Feeding Devices (e.g., magazines) subject to en-hanced regulatory provisions of this Act.
Section 42. Permits to Purchase (PTP): Amends section 131A of chapter 140 by allowing Licensing Authority to impose restrictions on the Firearm to be purchased w/ the PTP w/ regard to caliber & capacity
Section 43. Permits to purchase—Fees: this section provides a fee for a PTP of $25, with the licensing authority retaining $12.50, and the remaining to the Firearms Record Keeping Fund (FRKF). (Current fee is $2, but can be increased by licensing authority, valid for 10 days.) No fee for persons 70 years of age or older.
Section 44. Carrying of Firearms in a vehicle: This section:
(a) increases the fine from $100 to $500 for those who unlawfully carry a firearm (not under direct control) in their vehicle; e.g., leaving said firearm on the seat of the vehicle;
Section 45. Rights of Residents to Purchase Weapon:
Rifles & Shotguns: Any 18 yr. old may purchase any non-Large Capacity Rifle, Shotgun or appropriate feeding de-
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vice (Magazine) only upon presentment of:
1. FID (or proof of exempt status under 129C), OR
Large Capacity Rifles, Shotguns and Magazines shall only be purchased with :
1. Class “A” or “B” LTC.
NOTE: No rifle, shotgun or feeding device shall be sold to anyone under 18; and no large capacity rifle, shotgun or feeding device shall be sold to anyone under 21.
Any 21 yr. old resident may purchase a non-Large Capacity Firearm or appropriate Magazine only upon presentment of:
1. Class “A” or “B” LTC, OR
Section 46. Temporarily Licenses for Nonresidents and Aliens: This section allows the Colonel of State Police to issue to nonresidents and aliens a Class “A” or “B” LTC for the purposes of competition. The Colonel may impose any restriction(s) he deems proper. No license shall be issued to any person who meets one of the following disabling conditions:
1. ever convicted of, or adjudicated a youthful offender, anywhere for :
(a) commission of a felony, misdemeanor with a sentence greater than 2 years or violent crime,
3. ever treated or confined for drug addiction or habitual drunkenness (waived w/ physician’s affidavit of cure, effective 5 yrs. After such treatment or confinement);
4. subject to any Chapter 209A protective order or similar order in other state; or
5. subject of an outstanding arrest warrant
NOTE: A license issued under this section shall not be used to purchase firearms in the Commonwealth.
NOTE: In order for a person to carry a Large Capacity Weapon or Large Capacity Feeding Device, the Colonel must issue a Class “A” license, however, the Colonel may issue a Class “A” License to Possess Large Capacity Rifles, Shotguns or both, as well as Firearms.
NOTE: This section also allows Colonel to issue Temporary License to any person (e.g. persons under 18 or 21) for sports competition only.
Section 47: Manufacturer’s Liability For Defective Weapons: Safe Storage of Weapons; Weapons; Weapons Recordkeeping Trust Fund; Penalty for Possession of Federally Banned Assault Weapons: Ban of and Penalty for Possession of Covert Weapons:
This creates a new sections in chapter 140 for the above subjects
Section 131K. Breach of Warranty: Consumer Protection: Section 131K to be added imposes liability in tort upon a manufacturer, wholesaler, importer or dealer who fails to install a commercially available safety device designed to prevent the discharge of such weapon by unauthorized users. The failure to install said device shall constitute a breach of warranty under Article 2 of
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the Massachusetts UCC and shall trigger The Consumer Protection Act (G.L. c. 93A). Liability is joint and several among members of distributive chain, and contributory or comparative negligence is no defense.
Exceptions to Liability: No manufacturer, wholesaler, importer or dealer shall be liable for the failure to incorporate a safety device if the injury:
(1) is self-inflicted, unless the injured is under the age of 15;
No weapon issued to any law enforcement agency, member of the United States armed forces, or the organized militia of the commonwealth shall be subject to this provision; provided the weapon is distributed solely for use in connection with said duties and further said person is authorized to acquire, possess or carry such a weapon.
Section 131L. Liability; Safe Storage of Weapons: Section 131L imposes a requirement that any person who stores a firearm, rifle, shotgun, including but not limited to a large capacity weapon, or machine gun shall store said weapons in a locked container or equipped with a tamper-resistant trigger lock. If the violation of this section leads to the personal injury or death of the person as the result a person under 18 gaining access to the weapon, and such access was foreseeable, said viola-tion shall be evidence of wanton or reckless conduct (involuntary manslaughter standard) in a criminal or civil action brought against said violator. Penalties are as follows:
Non-Large Capacity Weapon = $500 - $5,000; 0-10 yrs.
Section 131 M. Penalties for Possession of Federally Banned Assault Weapons: Provides penalties for non-dealers only (dealers treated under 123 & 128):
1st Offense: $1,000 - $10,000 or 1-10 yrs., or both;
Section 131 N. Covert Weapons Ban: Penalties: Ban possession and sale of guns that are not detectable as weapons by x-rays, walk-through metal detectors or visual inspection (e.g. guns disguised as cigarette packs or lighters, pens, key chains,...)
1st Offense: $1,000 - $10,000 or 1-10 yrs., or both;
Section 131 0. Firearm Amnesty Program: This section creates a state-wide, firearms surren-der program under which persons may return firearms to the commonwealth anonymously. The Colonel of the Massachusetts State Police shall promulgate rules and regulation governing the implementation of the program. Any citizen complying with the terms and conditions of this program shall be granted immunity by the Attorney General from criminal prosecution for the unlawful pos-session of said firearm. However, no other promises or representations are made by the attorney general or department of the state police. Any firearm surrendered under the program shall be test fired, and if any firearm is suspected to be evidence of a crime shall remain in police custody. If however no such evidence becomes apparent, said firearm shall be returned to its lawful owner, or destroyed if the lawful owner can not be located.
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