Massachusetts’s 2024 Firearms Act: A Sea Change for Criminal Defense
by Benjamin B. Selman
In July of last year, the Legislature passed, and the Governor signed, An Act Modernizing Firearms Laws (“Act”), St. 2024, c. 135. Sprawling and complex, the Act is the most significant legislative amendment to Massachusetts’s firearms statutory scheme since the 2014 Act Relative to the Reduction of Gun Violence, St. 2014, c. 284. While much of the Act was initially set to become effective on October 23, 2024, Governor Healey added an emergency preamble to the Act on October 2, 2024, resulting in most of the Act going into effect on that date.1 Although a comprehensive discussion of the Act is beyond the scope of this article, the most salient features of the Act are worth discussion, particularly from a criminal defense perspective. A helpful way of approaching the thicket of intertwined statutory provisions is to consider them as they affect the commonly encountered law that imposes criminal punishment for various forms of unlicensed possession of guns and carrying weapons that are banned in Massachusetts. See G.L. c. 269, § 10.
Of the Act’s many new definitions and amendments to existing definitions, most notable are the expansive changes to the term “firearm” itself. The previous statutory definition of a “firearm” referred primarily to handguns, and was distinguished from other types of weapons, such as “rifles” and “shotguns.” See G.L. c. 140, § 121 (2022) (definition of “firearm” as referring primarily to a “pistol, revolver, or other weapon” in which “the barrel or barrels is less than 16 inches”); compare id. (definitions of “rifle” and “shotgun”). In the Act, however, the Legislature amended the definition of “firearm” to expressly include “rifle[s], shotgun[s], sawed-off shotgun[s], large capacity firearm[s], assault-style firearm[s] and machine gun[s].” St. 2024, c. 135, § 20. Previously, only handguns—weapons with a barrel length of 16 inches or less—were deemed firearms. Therefore, the many statutes penalizing the possession or use of long guns (rifles and shotguns) use the phrase “firearm, rifle, or shotgun” to encompass both handguns and long guns. By striking the language regarding barrel length from G.L. c. 140, § 121, the Act subsumes long guns into the term “firearm,” as it appears in the first subsection of G.L. c. 269, § 10(a).
Of equal if not greater significance is the Act’s elimination of the requirement that the Commonwealth prove operability at firearm trials. The Act changes the definition of a firearm from one “from which a shot or bullet can be discharged” to one “which is designed to or may readily be converted to expel a shot or bullet.” St. 2024, c. 135, § 20. While the Act excludes “permanently inoperable firearms,” id., it offers no guidance as to where the boundary lies between an item that “may readily be converted” versus an item that is “permanently inoperable.” Id. Further, the Act does not address the category of weapons that could not be made “readily” operable. It is unclear how much effort would render an item “readily converted to expel a shot or bullet,” as opposed to an item that could only be made operable through substantial effort. It remains to be seen whether the Commonwealth will abandon the practice of having weapons test fired by a ballistician to prove that a shot or bullet “can be discharged” from the weapon. In some cases, such testimony will be unnecessary, although ballistician testimony will remain relevant in cases where there is a question of how “readily” an inoperable weapon may be rendered operable.
Related to the general elimination of operability as a requirement from the definition of firearm is the inclusion of “frame” and “receiver” within the definition of firearm. In plain terms, this expansion means that individuals can be punished for possessing component parts of guns that, by themselves, may bear little resemblance to guns themselves. A “frame” relates only to handguns and is the “structure . . . designed to hold back the hammer, striker, bolt or similar primary energized component prior to initiation of the firing sequence.” Id. § 20. A “receiver” is applicable only to long guns and is the “structure . . . designed to block or seal the breech before the initiation of the firing sequence.” Id. § 26. In lay terms, these are components that can be purchased and then combined with other parts by an individual in order to make an unserialized “ghost gun.” Similar to the issue of readiness of convertibility, there may be borderline cases in which expert testimony is relevant to the question of whether a given gun part rises to the level of a “frame” or “receiver” such that it is a firearm under the Act, under G.L. c. 269, § 10(a).
The new definition of a firearm also eliminates certain limitations on the current definition. Previously, the definition of firearm specifically excluded any weapon that is not shaped like a handgun or which was not detectable by an x-ray machine. G.L. c. 140, § 121 (2022). The new definition eliminates these exclusions. St. 2024, c. 135, § 20. By eliminating the requirement that a weapon be shaped like a gun, the Act clears the way for prosecutions involving frames and receivers which, in and of themselves, do not resemble guns. By eliminating the (somewhat vague) “x-ray” exception, the Act brings non-metallic guns (e.g., those constructed of high-density plastics) within the ambit of the “firearm” definition. Finally, with the elimination of the “shape not resembling a handgun” exception, the Legislature appears to have closed the “loophole” at issue in Commonwealth v. Shehadi, 105 Mass. App. Ct. 60 (2024), which held that an electrical weapon (a stun gun) that was not shaped like a gun was not a firearm for purposes of an unlicensed possession prosecution under G.L. c. 269, § 10(a). Shehadi, 105 Mass. App. Ct. at 67. Note, however, that electrical weapons that discharge current from fixed electrodes (as opposed to darts or other projectiles which are launched from the weapon) are still arguably not “firearms” even under the new, expanded definition of firearm, since fixed-electrode weapons are not “designed to . . . expel a shot.”
The Act does not make any changes to the special definition of the term “firearm” contained in G.L. c. 269, § 10(j), which forbids the carrying of weapons in or around schools, even though there are some other significant changes to this subsection. In a sort of foreshadowing of the Act, the special definition at § 10(j) previously subsumed long guns into the definition of “firearm.” See id. (2022) (defining “firearm” for the purposes of unlawful carrying in or around schools to include “rifle or smoothbore [i.e., shotgun] arm[s]”). Notable also is the inclusion of the word “pellet” in the “capable of discharging” clause, which appears to bring air pistols and rifles into the definition of “firearm” for purposes of this subsection—the Act does not change this language. The Legislature did not strike and replace the operability language here as it did with the general definition in G.L. c. 140, § 121. Put another way, it appears that for § 10(j) prosecutions involving guns, the Commonwealth still must prove that the weapon is capable of discharging a shot—or, at least, there is an argument to this effect. Also note that § 10(j) is now expanded to encompass school buses and other “transport” to and from schools. St. 2024, c. 135, § 123.
Another major change to G.L. c. 269, § 10 is the addition of the new subsection (k), which creates the crime of carrying a firearm in a “prohibited area.” St. 2024, c. 135, § 124. This misdemeanor offense defines “prohibited area” broadly, such that it appears to incorporate any place “owned, leased, or under the control of state, county or municipal government and used for the purpose of government administration, judicial or court administrative proceedings, or correctional services, including in or upon any part of the buildings, grounds, or parking areas thereof,” including polling places, but with an exception provided for “state-owned public land available to the public for hunting.” Id. (adding G.L. c. 269, § 10(k)(2)). The statute also authorizes municipal governments to exclude their “administrative buildings” from the definition of “prohibited area”—in other words, municipalities can opt to allow firearms to be carried in their administrative buildings. Id. A license to carry or a firearm identification card is a defense to this subsection only if the firearm is “securely stored in a vehicle” in accordance with G.L. c. 140, §§ 131C and 131L. St. 2024, c. 135, § 124 (adding G.L. c. 269, § 10(k)(4)). Note that the new § 10(k) differs from § 10(j) in that it does not have a special definition for the term “firearm,” and thus the aforementioned “operability” wrinkle is absent from this subsection. Also note that where § 10(j) forbids the carrying of any “other dangerous weapon,” see G.L. c. 269, § 10(j) (2022), § 10(k) is limited to firearms. See St. 2024, c. 135, § 124 (adding G.L. c. 269, § 10(k)(1)).
The Act also makes notable changes to the definition of “large capacity weapons” and to the State’s ban on assault weapons, which impact prosecutions for unlicensed carrying of a large-capacity weapon, and for unlawful possession of a banned assault weapon, under G.L. c. 269, § 10(m). The term “large capacity weapon” in § 10(m) is replaced with the term “large capacity firearm” and is significantly expanded by virtue of a web of definitional provisions of the Act. Previously, large capacity weapons were generally defined as those capable of accepting 10 or more rounds or that were “assault weapons.” G.L. c. 140, § 121 (2022). Banned “assault weapons,” in turn, were defined by incorporating the 1994 federal assault weapons ban, as well as a list of specific types of weapons (such as the Colt AR-15) and “copies or duplicates” of such weapons, while excluding certain specifically identified weapons. Id.
Further, the Act replaces the term “assault weapon” with “assault-style firearm.” See St. 2024, c. 135, § 16. The Act strikes the reference to the federal assault-weapons ban (which expired by its terms in 2004), but retains the list of enumerated weapons, and provides a definition of what makes a weapon a “copy or duplicate” of an enumerated weapon. Id.2 Notably, a weapon also qualifies as a banned “assault-style firearm” if it is a semiautomatic weapon that contains two or more specific features from a checklist depending on whether the weapon is a rifle, pistol, or shotgun. Id. Such features include a “folding or telescopic stock” (for rifles and shotguns), a “protruding grip” that can be held by the “non-trigger hand” (for all weapons), a “threaded barrel” designed to or capable of accommodating a “flash suppressor” (for rifles and pistols), a barrel “shroud” designed to shield the bearer’s hand from hear (for rifles and pistols), and the capacity to accept an ammunition “feeding device.” See id. (sub-paragraphs (a), (b), and (c) of new definition of “assault-style firearm”). Prosecutions under § 10(m), which carry with them a term of imprisonment of not less than 2½ years3 now will involve weapons which do not necessarily accept 10 or more rounds of ammunition; a combination of two or more enumerated features on a semiautomatic rifle, pistol, or shotgun will suffice.
Other portions of the Act not detailed here, but worth mention include: the creation of new crimes relating to the sale or use of 3-D printers used to create firearms, see, e.g., St. 2024, c. 135, § 32 (adding G.L. c. 140, § 121D); an overhaul and expansion of the extreme risk protection order (ERPO) statutes, see id. §§ 76-85 (amending G.L. c. 140, §§ 131R to 131Y); and the incorporation of firearms surrender into harassment prevention orders issued pursuant to G.L. c. 258E, thus applying the same requirement of firearms surrender to harassment prevention orders that already applies to abuse-prevention orders under G.L. c. 209A. See St. 2024, c. 135, § 92 (adding G.L. c. 258E, §§ 4A to 4C).
The Act thus dramatically expands the reach of existing criminal laws relating to firearms, creates new criminal offenses, and fundamentally changes the way the Commonwealth will prove that a given weapon is a “firearm.” In doing so, the Act provides fertile ground for litigation, both in terms of interpretation of new provisions, and with respect to the question of whether various provisions run afoul of the Second Amendment.
Benjamin B. Selman has been a public defender for over twenty years. He is presently a Legal Training Attorney with the Committee for Public Counsel Services Criminal Defense Trainers. Mr. Selman is a graduate of Oberlin College (B.A., 1998), the University of Toronto (M.A., 1999), Boston University School of Law (J.D., 2004), and the National Criminal Defense College Trial Practice Institute (Certificate, 2012).
[1] The addition of an emergency preamble was, it appears, designed to prevent the suspension of the new law pending the ballot-initiative repeal effort that was already underway. See Art. 48, The Referendum, II, of the Amendments to the Massachusetts Constitution; see also, e.g., Anjali Huynh, Governor Healey Plans to Immediately Implement Gun Law, Stopping Opponents from Suspending It, Boston Globe, Oct. 2, 2024.
2 Note, however, that the Act does retain a cross-reference to the federal statute’s exclusion of a long list of specific weapons which are excepted from the definition, https://www.mass.gov/files/documents/2016/08/vw/appendix-a-guns-list.pdf.
3 The 2½ year sentence required by Section 10(m) incorporates one year of mandatory minimum time against which no deductions may be earned nor furlough granted. G.L. c. 269, § 10(m) (2022).
