Gemme v. Holden (Amicus)

Massachusetts Supreme Judicial Court
Comm2A: Amicus Curiae

Amicus brief in a case challenging the constitutionality of the state's licensing law.
Issues Presented
  1. Whether the Second Amendment right to keep and bear arms extends outside of one’s home, thus requiring the license to carry statute, G. L. c. 140, § 131, to be construed and applied in light of that constitutional protection;
  2. Whether the “suitable person” standard in § 131 (d) is unconstitutionally vague and overbroad on its face and as applied to this defendant;
  3. Whether the statute deprives applicants and licensees of procedural due process both before and after licenses are denied, suspended, or revoked.

Gemme v. Holden is probably the most important Second Amendment case to make it's way through the Massachusetts courts system since Comm v. Davis in 1976.  In addition to Comm2A amici briefs have been submitted by GOAL, The Massachusetts Chiefs of Police Association, The Commonwealth of Massachusetts, and the Brady Center.  GOAL, MCOPA and the Commonwealth have also requested to participate in oral arguments.

Oral arguments are scheduled for November 6th and will be webcast live here

Comm2A's brief was submitted by attorney Karen MacNutt.

Conclusion:

On March 11, 2015, the Massachusetts Supreme Judicial Court ruled in favor of Worcester Police Chief Gemme in a case challenging the constitutionality of the suitability standard in Massachusetts’ firearms licensing laws. In this case – for which Comm2A was not party, but did submit an amicus brief – the issue revolved around Chief Gemme’s suspension and revocation of the defendant’s license to carry based on hearsay evidence obtained in a domestic assault and battery case that was dismissed.

By ruling in favor of Chief Gemme, the Massachusetts SJC decided that while an individual has a right to possess a firearm in their home, that same individual does not have a right to the necessary license. The SJC reasoned that because "presumptively lawful" prohibitions and regulations do not burden conduct protected by the Second Amendment, they fall outside the scope of the Second Amendment and are not subject to heightened scrutiny.  As such, the denial of a Class A license to carry a concealed firearm, or the revocation or suspension of a Class A license, falls outside the Second Amendment and is subject only to rational basis analysis, as a matter of substantive due process.

In other words, according to the SJC, possession in the home is not the same as carrying in public. Because the current statutory scheme conflates carrying with possession and Mr. Holden was making a case to carry a firearm, the SJC affirmed Chief Gemme’s decision to revoke Mr. Holden’s license to carry and further deny a new application for a license to carry.

Mr. Holden now has the option of petitioning the US Supreme Court for a grant of certiorari.

History: