Commonwealth v. Marquis & Commonwealth v. Donnell: Firearms Licensing for Nonresidents

By Grace Gohlke & Phoebe Fischer-Groban

In two cases decided in March 2025, the Massachusetts Supreme Judicial Court (“SJC”) affirmed the constitutionality of two Massachusetts firearms licensing requirements, as amended after the U.S. Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022): (1) the “suitability” requirement to obtain a license to carry a gun in public; and (2) its application to nonresidents.

Nonresident Firearms Licensing and the Suitability Requirement

Under Massachusetts law, both residents and nonresidents must obtain a license to carry a firearm outside of their home or business and it is a criminal offense under G.L. c. 269, § 10(a) to carry a firearm in public without a license. A nonresident may apply for a license under G.L. c. 140, § 131F (Section 131F).

Prior to Bruen, Section 131F stated that the Colonel of the Massachusetts State Police “may” issue a license to carry to a nonresident “subject to such terms and conditions as said colonel may deem proper . . . ” and also “may” renew a nonresident license “if in his discretion, such renewal is necessary.” Commonwealth v. Donnell, SJC-13561, slip op. at 15 (2025). After Bruen, numerous provisions related to Massachusetts’s firearms licensing scheme were amended. See St. 2022, c. 175, §§ 17B-22 (effective Aug. 10, 2022).

Today, Section 131F states that the Colonel “shall” issue a license to carry to any nonresident “if it appears that the applicant is not a prohibited person and is not determined unsuitable to be issued a license[.]” Commonwealth v. Marquis, SJC-13562, slip op. at 14-20 (2025). Section 131F accordingly incorporates by reference the “suitability” requirements that applies to resident applicants. St. 2024, c. 135, § 74, replacing G.L. c. 140, § 131P. That section provides that an applicant is “unsuitable” if, “based on reliable, articulable and credible information,” they “may create a risk to public safety or a risk of danger to self or others.” See id.

In Marquis, the SJC upheld the current version of Section 131F against a constitutional challenge based upon the Second Amendment, the Equal Protection Clause, and the constitutional right to travel.

The Supreme Court’s Decision in Bruen

In June 2022, the Supreme Court struck down a New York firearms licensing provision that required applicants to “demonstrate a special need for self-protection,” which it referred to as a “may issue” licensing regime. Bruen, 597 U.S. at 12. In doing so, however, the Court clarified that nothing in its decision “should be interpreted to suggest the unconstitutionality of . . . ‘shall-issue’ licensing regimes,” defining “shall issue” regimes as those with licensing requirements “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” Id. at 38 n.9 (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)).

Among the states with firearm licensing schemes the Court characterized as “shall issue” were three states—Connecticut, Delaware, and Rhode Island—that have “suitability” or “good moral character” requirements for licensing. Id. at 13 n.1 (citing Conn. Gen. Stat. § 29-28(b); Del. Code Tit. 11, § 1441; and R.I. Gen. Laws § 11-47-11). As to Connecticut, the Court explained that, “[a]lthough Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a ‘suitable person,’ the ‘suitable person’ standard precludes permits only to those ‘individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon.’” Id. (citations omitted). Similarly, “Rhode Island has a suitability requirement, but the Rhode Island Supreme Court has flatly denied that the ‘[d]emonstration of a proper showing of need’ is a component of that requirement.” Id. (citations omitted) (alteration in original).

Donnell – Prior “May Issue” Regime

In Donnell, the SJC affirmed the dismissal of criminal charges brought against a nonresident, concluding that the prior version of Section 131F was inconsistent with the U.S. Supreme Court’s decision in Bruen.

The SJC held that the dismissal was proper because the prior version of Section 131F violated the Second Amendment, as interpreted in Bruen, by giving a licensing official “unfettered discretion” to deny a nonresident firearms license to a person, even if they were not a “prohibited person” or “unsuitable.” Donnell, slip op. at 18. Three features of Section 131F prior to its amendment in 2022 rendered it impermissibly discretionary: (1) it stated that a nonresident license “may be issued” by the State Police Colonel to a nonresident; (2) the Colonel had discretion to deny an application based on “such terms and conditions as said colonel may deem proper;” and (3) the Colonel had complete discretion to “grant or deny renewal applications.” Donnell, slip op. at 19-20.

Importantly, the SJC clarified that “[o]ur holding today does not . . . preclude [the Commonwealth] from requiring firearm licenses for persons within its borders . . . .,” but the prior version of Section 131F, because of its grant of “unfettered discretion,” violated the Second Amendment. Donnell, slip op. at 22.

Marquis – Application to Nonresidents and Suitability

In Marquis, the Commonwealth again appealed the dismissal of criminal charges against a New Hampshire resident who was carrying a firearm in Massachusetts without a nonresident firearms license. Unlike in Donnell, the charges were brought under the current version of Section 131F, as amended in 2022 after Bruen. Marquis, slip op. at 2-3. The SJC held that the Commonwealth’s current “nonresident firearm licensing scheme is facially consistent with the Second Amendment right to keep and bear arms,” and does not violate nonresidents’ right to travel or equal protection rights. Marquis, slip op. at 4

Importantly, the Marquis decision affects more than just the nonresident licensing scheme. Because Section 131F uses the resident licensee “suitability” requirement from Section 131(d), the SJC’s decision that the “suitability” requirement is consistent with the Supreme Court’s decisions in Bruen and in United States v. Rahimi, 602 U.S. 680 (2024), applies to the resident “suitability” licensing requirement as well. See generally Marquis, slip op. at 31-44. In upholding the requirement, the SJC stated, “[t]o the extent that the Commonwealth restricts the ability of law-abiding citizens to carry firearms within its borders, the justification for so doing is credible, individualized evidence that the person in question would pose a danger if armed. Both case law and the historical record unequivocally indicate that this justification is consistent with ‘the Nation’s historical tradition of firearm regulation.’” Marquis, slip op. at 35-36 (quoting Bruen, 597 U.S. at 24). This holding applies with equal force to facial constitutional challenges to the Commonwealth’s “suitability” requirement for residents and nonresidents alike.

In addressing the equal protection challenge, the SJC explained that the Commonwealth’s interest “in ensuring that persons who publicly carry firearms within the Commonwealth satisfy the statutory criteria of being neither prohibited nor unsuitable” “applies with equal strength to all persons who wish to publicly carry firearms within the Commonwealth regardless of their State of residence.” Marquis, slip op. at 57-58. As a result, nonresidents who wish to carry firearms within Massachusetts must first apply for a nonresident license under Section 131F, which “shall” be granted so long as the nonresident is not a prohibited person or deemed unsuitable.

Additional recent developments in Second Amendment litigation in state and federal courts are discussed in Grace Gohlke & Phoebe Fischer-Groban, Recent Developments in Second Amendment Litigation, 69.1 Bos. Bar J. (Winter 2025).

Grace Gohlke is an Assistant Attorney General in the Constitutional and Administrative Law Division of the Massachusetts Attorney General’s Office. Before joining the AGO in 2020, Grace clerked for Judge William Fletcher on the Ninth Circuit Court of Appeals and Judge Patti Saris in the U.S. District Court for the District of Massachusetts. Grace is a 2018 graduate of the University of California, Berkeley Law School and earned her bachelor’s degree in 2013 from Middlebury College. This article represents the opinions and legal conclusions of its author and not necessarily those of the Attorney General’s Office.

Phoebe Fischer-Groban is the Deputy Chief of the Constitutional and Administrative Law Division of the Massachusetts Attorney General’s Office. Before joining the AGO in 2019, Phoebe worked at Choate Hall & Stewart in Boston, and clerked for Chief Judge Mary Muguia on the Ninth Circuit Court of Appeals and Judge Nancy Torresen in the U.S. District Court for the District of Maine. Phoebe is a 2011 graduate of the University of Michigan Law School and earned her bachelor’s degree in 2006 from Williams College. This article represents the opinions and legal conclusions of its author and not necessarily those of the Attorney General’s Office.