by Grace Gohlke & Phoebe Fischer-Groban
Over two years ago, the U.S. Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), invalidating a key provision of New York’s firearm licensing law, which required “good cause” to obtain a license to carry a firearm, and articulating a new “text and history” test for the Second Amendment. This test represents a significant change in the way courts assess Second Amendment claims. It places a substantial burden on the state to demonstrate that its firearms regulations are consistent with laws enacted in the 18th and 19th centuries. After Bruen, there has been a wave of new challenges to weapons regulations across the country. In Massachusetts, which has some of the lowest rates of gun violence in the country due at least in part to its robust firearms regulations,1 there have been many new challenges to these regulations, including some that were upheld against constitutional challenges before Bruen. This article reviews the Court’s evolving Second Amendment jurisprudence, and summarizes recent federal and state litigation in Massachusetts after Bruen.
Background
Since 2008, Second Amendment jurisprudence has undergone several sea changes, beginning with the Supreme Court’s holding, in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment’s right to bear arms is an individual right not tied to militia service.2 In Heller, the Court concluded that the “central component” of the right to bear arms was “self-defense.” Id. at 599. When a D.C. law “totally ban[ned] handgun possession in the home,” the Court held it deprived D.C. residents of “the quintessential self-defense weapon,” and could not survive “any of the standards of scrutiny” historically applied “to enumerated constitutional rights.” Id. at 628-29. Nonetheless, the Heller Court cautioned that the Second Amendment is “not unlimited” and does not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. For example, the Court explained, the Second Amendment protects only weapons “in common use,” and not “dangerous and unusual weapons,” without defining those terms. Id. at 627; see also id. at 626-27 & n.26 (noting that Court’s decision did not cast doubt on other “longstanding” regulations of firearms and including a non-exhaustive list of “presumptively lawful regulatory measures”).
Two years later, the Court held that the Fourteenth Amendment incorporates the Second Amendment as to the states. McDonald v. City of Chicago, 561 U.S. 742 (2010). Because Heller and McDonald did not articulate how lower courts should evaluate Second Amendment claims, the First Circuit and other circuit courts coalesced around a two-step inquiry for Second Amendment challenges. First, courts evaluated whether the challenged regulation burdened “the core right protected by the Second Amendment,” defined with reference to Heller as the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Gould v. Morgan, 907 F.3d 659, 672 (1st Cir. 2018), abrogated by Bruen, 597 U.S. 1. Second, for laws that “burden[ed] the periphery of the Second Amendment right but not its core,” courts applied intermediate scrutiny, under which a state law would survive if it was “substantially relate[d] to one or more important governmental interests.” Id. at 673. Applying this test, the First Circuit upheld Massachusetts’ public carry licensing regime in Gould, and, later, its ban on civilian possession of assault weapons and large capacity magazines (LCMs) in Worman v. Healey, 922 F.3d 26 (1st Cir. 2019).
The next upheaval came in 2022, when the Bruen Court rejected the post-Heller two-step framework. Instead, the Bruen Court held that, if the Second Amendment’s “plain text covers an individual’s conduct,” then the government bears the burden to show the modern regulation “is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 17. Specifically, the government must proffer historical regulations that are “relevantly similar” to the modern restriction under “at least two metrics”: (1) the “how,” meaning “whether modern and historical regulations impose a comparable burden on the right of armed self-defense,” and (2) the “why,” meaning “whether that burden is comparably justified.” Id. at 29. But, according to the Court, a “more nuanced approach” to this analogical reasoning may be required for cases “implicating unprecedented societal concerns or dramatic technological changes.” Id. at 27. This “historical” inquiry should be “neither a regulatory straightjacket nor a regulatory blank check.” Id. at 30.
Two years after Bruen, the Court clarified the proper application of its text-and-history test in United States v. Rahimi, 602 U.S. 680 (2024). In Rahimi, the Court concluded that criminalizing possession of a firearm by a person subject to a domestic violence restraining order was consistent with the Second Amendment because “[o]ur tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.” Id. at 700.3 The Rahimi Court explained that some lower courts—including the Fifth Circuit, which decided the case on review—were applying Bruen’s historical inquiry too narrowly by demanding a “historical twin” rather than a “historical analogue,” contrary to Bruen’s instruction. Id. at 701 (quoting Bruen, 597 U.S. at 30). The Court also explained that several strains of historical tradition—“surety” laws and the “going armed” laws that were also part of a common-law tradition—could combine to form “principles” that support a modern regulation consistent with the Second Amendment. Id. at 692, 698. The Court further affirmed that a facial challenge under the Second Amendment remains subject to the “no set of circumstances” standard described in United States v. Salerno, 481 U.S. 739, 745 (1987), which is “most difficult challenge to mount successfully.” Id. at 693.
Recent Cases Involving Massachusetts Laws in Federal Court
Granata v. Campbell
In Granata, plaintiffs challenged Massachusetts’ statutory and regulatory requirements prohibiting the commercial sale by firearms dealers of handguns that have not passed certain safety tests (for example, to ensure they are not prone to malfunction or accidental discharge during normal use or are equipped with basic safety features). See G.L. c. 140, § 123; 940 C.M.R. §§ 16.01 et seq. The procedural history of the case shows that Bruen has changed how courts can approach firearms cases, and introduced new questions for litigants and courts alike.
Granata was filed before Bruen, and the Commonwealth had already prevailed on a motion to dismiss under the First Circuit’s pre-Bruen two-step inquiry. Specifically, the district court held that the challenged restrictions “place, at most, a modest burden on the core Second Amendment right” because they “do not restrict possession” and because prohibiting the commercial sale of “specific makes and models of handguns for safety reasons” is not comparable to Heller’s “total ban.” Granata v. Healey, 603 F. Supp. 3d 8, 15 (D. Mass. 2022). As a result, the district court applied intermediate scrutiny and dismissed the case, holding that “[e]ach individual safety requirement” in the handgun sales restrictions “buttresses the important governmental interests” of “[p]ublic safety and preventing accidental firearm injuries.” Id. at 15-17.
One month later, while the dismissal order was on appeal, the Supreme Court decided Bruen. After argument, the First Circuit summarily remanded the case to the district court for further proceedings in light of Bruen, taking “no position on the outcome previously reached by the district court.” Granata v. Campbell, No. 22-1478, at *1 (1st Cir. Apr. 7, 2023). Following remand, the case is now proceeding on an amended complaint to summary judgment, where the parties will present their positions under the framework of Bruen and Rahimi. A summary judgment hearing is scheduled for March 26, 2025.
Capen v. Campbell
In Capen, plaintiffs challenged the Massachusetts statutes that ban civilian possession of assault weapons and LCMs, which were enacted in 1998 and extended in 2004. G.L. c. 140, §§ 121, 131M.
Like in Granata, in Capen, the Commonwealth had already successfully defended the same laws before the First Circuit under the means-end scrutiny approach, in Worman v. Healey. Pre-Bruen, the First Circuit decided the laws did “not heavily burden the core Second Amendment right of self-defense within the home” because the proscribed assault weapons and large-capacity magazines were not “well-suited” to self-defense in the home and none of the plaintiffs or their experts could “identify even a single example of the use of an assault weapon for home self-defense, nor . . . a single example of a self-defense episode in which ten or more shots were fired.” Worman, 922 F.3d at 37. Because the law therefore “arguably implicate[d]” Second Amendment rights but did so only “modest[ly],” the First Circuit applied intermediate scrutiny and found the law was “substantially related” to the Commonwealth’s “indubitably” compelling interests “in both public safety and crime prevention.” Id. at 39.
After Bruen, plaintiffs again challenged these same statutes. They are not alone: plaintiffs across the country are challenging similar state bans on assault weapons and LCMs.4
In Capen, plaintiffs moved for a preliminary injunction. In his opinion denying the motion, Chief Judge Saylor held that plaintiffs were unlikely to succeed on the merits of their Second Amendment challenge under the Bruen framework. Capen v. Campbell, 708 F. Supp. 3d 65, 92 (D. Mass. 2023). The Court assumed without deciding that the proscribed assault weapons and LCMs are “arms” within the meaning of the Second Amendment, though it expressed skepticism that “all magazines, regardless of capacity, fall within the protection of the Second Amendment” given that magazines are not themselves “arms” and that LCMs “as a specific subset of that class are never necessary for a firearm to function.” Id. at 81, 89. The court also held that assault weapons and LCMs represent a “dramatic technological change” from “the technology that existed in the founding era.” Id. at 82-83, 90. The court then held that the challenged laws fall within the “history and tradition of regulating ‘dangerous and unusual’ weapons” already recognized by the Supreme Court. Id. at 83, 90-91. Notably, like the historical analogues within that tradition, the challenged laws “impose a minimal burden on the right of self-defense,” and restrict weapons that have destructive power far beyond a typical handgun. Id. at 84, 91. Thus, like the weapons restricted in historical regulations, the proscribed weapons and LCMs are “unreasonably dangerous and unusual for ordinary citizens to use for lawful purposes, particularly self-defense.” Id. at 80 (emphasis in original).
Plaintiffs appealed. While the appeal was pending, the First Circuit ruled on a similar challenge to Rhode Island’s LCM limitation, which, like the Massachusetts statute, capped magazines at ten rounds. Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38 (1st Cir. 2024). In that decision, the First Circuit also assumed without deciding that LCMs are “arms,” but found that the capacity limitation “very likely” fits within a historical tradition of “bans on other arms found to pose growing threats to public safety,” including bans on sawed-off shotguns and machine guns, and “severe restrictions” on Bowie knives in the nineteenth century. Id. at 46, 49-50. Thus, in the First Circuit, where a firearm “is virtually never used in self-defense” and poses “greater dangers” than typical self-defense weapons like handguns, banning civilian possession of that arm is unlikely to violate the Second Amendment. Id. at 49, 50.
Capen was argued in the First Circuit on October 10, 2024, and at this writing, a decision is pending. In the meantime, the appellants in Ocean State Tactical have filed a petition for a writ of certiorari with the Supreme Court. The Third, Fourth, Seventh, and D.C. Circuits have similarly rejected challenges to bans on assault weapons and/or LCMs, and although the Supreme Court denied a petition for certiorari in a Seventh Circuit case that had upheld an assault weapons ban at the preliminary-injunction stage, the Court may decide to take up this issue in the coming years in review of a final judgment.
Recent Cases Involving Massachusetts Laws in State Court
Commonwealth v. Canjura
Like in Capen, the challenge in Commonwealth v. Canjura, 494 Mass. 508 (2024), involved a weapon-specific regulation—this time, a ban on the possession and carry of switchblades contained in G.L. c. 269, § 10(b). Notably, though, the procedural posture in Canjura was different. Unlike Capen, a civil action, Canjura involved a defendant invoking the Second Amendment as a defense to a criminal charge. When Second Amendment challenges are raised in criminal cases, the Commonwealth has a limited opportunity to develop the record on “history and tradition” that Bruen now demands. While a civil litigant is allotted time to develop discovery, including expert reports, a similar opportunity is not usually afforded to the Commonwealth when it is opposing a motion to dismiss a criminal indictment. On this basis, the Attorney General’s Office filed an amicus brief in Canjura, encouraging the Supreme Judicial Court (SJC) to remand the case for further factual development.
The SJC declined to remand. Canjura, 494 Mass. at 517-18. Instead, based on the limited record before it, the SJC determined that the switchblade ban did not comport with the Second Amendment. Applying the two-part analysis from Bruen, the Court first decided that “the drafters would have intended” for the Second Amendment’s definition of “arms” to include knives, which were “ubiquitous among colonists” for purposes that included self-defense. Id. at 512-13. However, the SJC concluded that “even where a class of weapons constitutes bearable arms presumptively protected by the Second Amendment, the government may still justify its regulation by demonstrating the regulation is consistent with our nation’s historical tradition.” Id. at 513. Yet in Canjura, the SJC found the historical record insufficient to support a possession ban on switchblades because “folding pocketknives”—which it deemed to be the “most apt historical analogue of a modern-day switchblade”—were never regulated, despite having been in existence since the Founding. Id. at 514. Notably, this SJC decision came before the Rahimi Court’s admonition that courts should not construe the historical inquiry too narrowly by demanding a “historical twin.” See Rahimi, 602 U.S. at 701.
Finally, the SJC addressed the Commonwealth’s argument that the Second Amendment does not extend to modern weapons that are “not in common use today for self-defense” and that are “dangerous and unusual.” Canjura, 494 Mass. at 515. Assuming without deciding that these are two separate inquiries, the SJC first noted that other courts have employed three different “statistical approaches” to the “common use” test:
(1) raw numerical commonality, examining “the total number of a particular weapon”; (2) proportionate commonality, examining the proportion of a broader class of weapons that are the specific weapon in question, such as the percentage of firearms that are assault rifles; and (3) jurisdictional commonality, examining the number of States that allow the possession or carrying of the subject weapon.
Id. at 515. Without deciding which test should be employed in Massachusetts, the SJC decided to “infer” that “switchblades are weapons in common use today by law-abiding citizens for lawful purposes.” Id. at 516.
As to whether switchblades are “dangerous and unusual,” the SJC explained that, because all arms are arguably dangerous, there must be something “uniquely dangerous” for an arm to qualify as “dangerous and unusual.” Id. at 516-17. “At the very least, . . . ‘dangerous’ weapons must feature uniquely dangerous qualities that are disproportionate to their use for self-defense.” Id. at 517. The SJC did not consider the “physical qualities” of switchblades—namely, their spring action mechanism—to make them “uniquely dangerous when compared to a broader category of manual folding pocketknives.” Id. at 517.
Because the SJC held that switchblades are “arms” and that the Commonwealth did not meet its burden to show that a ban on their possession is “consistent with this Nation’s historical tradition of [arms] regulation,” the Court invalidated G.L. c. 269, § 10(b) “with respect to the prohibitions regarding switchblade knives,” leaving the remaining restrictions on other types of weapons intact.
Commonwealth v. Donnell & Commonwealth v. Marquis
The SJC heard argument in October 2024 in two consolidated cases related to whether Massachusetts may, consistent with the Second Amendment, require that non-residents obtain temporary licenses to carry a firearm within Massachusetts borders. See Commonwealth v. Dean F. Donnell, Jr., SJC-13561; Commonwealth v. Philip J. Marquis, SJC-13562. Like Canjura, these cases arose out of criminal indictments. In both, New Hampshire residents traveled into Massachusetts with a firearm, and were charged with carrying it without a license. In both cases, a state district court dismissed the charges based on the Second Amendment, and the Commonwealth appealed. The two appeals present different factual and legal questions—notably, one defendant was charged under a prior version of the licensing law that was then amended in response to Bruen, while the other was charged under the new version of the law.
Although these two cases could be resolved on one of several narrow grounds, the most consequential question that the SJC could resolve is whether Massachusetts may require nonresidents to acquire a license to carry within the state, or whether it must recognize a nonresident as functionally “licensed” if he or she has the right to carry in his or her home state. Notably, states vary widely in licensing requirements. New Hampshire, for example, is considered a “constitutional carry” state, meaning someone may carry a firearm without a license, so long as the person is not disqualified under state or federal law. Other states, like Massachusetts, have robust licensing regimes that require confirmation that the individual is not disqualified from carrying. Both approaches have been cited favorably by the Supreme Court in Bruen as permissible legislative choices in the area of licensing. Bruen, 597 U.S. at 15 n.1, 38 n.9. The Commonwealth argued that Massachusetts has the right to enforce its own permissible licensing choices within its borders as applied to residents and nonresidents alike, consistent with a long historical tradition of permitting and licensing. The decision in these cases will also provide the Court opportunities to apply Rahimi, which had not been issued at the time of its decision in Canjura, and to provide further guidance to lower courts and litigants addressing Second Amendment challenges in the state courts.
Suitability Challenges
Challenges to the Commonwealth’s “suitability” requirement for recipients of a license to carry (LTC) are also working their way through the state courts. In Massachusetts, under G.L. c. 140, § 121F(k), a person who wishes to purchase or possess a large-capacity firearm or to carry any firearm outside his or her home or business must apply for an LTC from the local licensing authority, typically, the local chief of police. Licensing authorities “shall” issue an LTC to an applicant, provided that the applicant is free of any statutory disqualification such as a felony or violent crime conviction, an outstanding arrest warrant or abuse protection order, or being under the age of 21; and provided that the applicant is not deemed “unsuitable” to receive an LTC by the licensing authority. Under the statute, a licensing authority’s determination of unsuitability “shall be based on reliable, articulable and credible information that the applicant has exhibited or engaged in behavior that suggests that, if issued a license, the applicant []may create a risk to public safety or a risk of danger to self or others.” The statute also permits licensing authorities to suspend or revoke an LTC “if it appears the holder is no longer a suitable person to possess” the LTC.
Increasingly, individuals denied an LTC on suitability grounds, or whose LTC has been suspended or revoked based on unsuitability, are raising Second Amendment challenges to the suitability requirement as part of their appeal of the denial in state district court. These challengers generally argue that the Second Amendment does not permit licensing authorities to determine whether an applicant is “unsuitable” to carry a weapon, or that the licensing authority’s determination in their case violates the Second Amendment. District courts, based on the limited record before them, have been split on the constitutionality of the “suitability requirement,” despite Bruen’s citation with approval to other states’ licensing regimes that contain similar provisions. See Bruen, 597 U.S. at 15 n.1 (considering Connecticut’s and Rhode Island’s “suitable person” provision to operate as a “shall issue” licensing regime); id. at 13 n.1, 38 n.9 (approving “shall issue” regimes).
However, in a recent unpublished decision in Commonwealth v. Mancevice, No. 23-P-909, the Appeals Court rejected a Second Amendment challenge to the 2018 version of the suitability requirement. And, the first Superior Court decision on one of these challenges as of the date of publication likewise rejected the plaintiff’s as-applied challenge to the statute. See Dupras v. Deputy Chief of Police of Fall River, Bristol Superior No. 2173CV00881.
Lessons and Future Implications
The Supreme Court’s rejection of means-end scrutiny and adoption of a text-and-history test in Bruen, which it subsequently refined in Rahimi, has dramatically changed the way courts must assess the constitutionality of firearms regulations. Courts may no longer engage in means-ends scrutiny of firearms regulations to decide whether they satisfy various tiers of scrutiny applicable to other constitutional claims. Instead, they must examine whether the modern regulations are analogous to relevant historical precedents. This shift has significant practical consequences for the Commonwealth, which bears the burden under Bruen of demonstrating that its weapons regulations are sufficiently analogous to historical laws enacted by governments with different social concerns and administrative capacities. Notably, Second Amendment jurisprudence arises through two distinct pathways: challenges to criminal charges and affirmative challenges to statutes or regulations. These two pathways may yield different results because the Commonwealth’s time and resources to meet its burden under Bruen will be different in those two contexts.
The Massachusetts Legislature passed significant gun reform during the summer of 2024, and there are already new challenges to various aspects of that law. Second Amendment litigation is likely to remain a steady presence in the state and federal courts of Massachusetts and is a rapidly evolving area of law, with each new case bringing greater clarity to an area where the Supreme Court has in many ways left more questions than answers.
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.
[1] See U.S. Centers for Disease Control and Prevention, National Center for Health Statistics, Firearms Mortality by State, https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm.
2 The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.
3 As the Court’s most recent discussion of the Second Amendment, Rahimi provides the framework for courts going forward in these cases, although several of the cases discussed below were decided prior to Rahimi.
4 Currently, ten states plus the District of Columbia have some type of assault weapons ban. https://giffords.org/lawcenter/gun-laws/policy-areas/hardware-ammunition/assault-weapons/. Fourteen states plus the District of Columbia limit magazine capacities, with additional county and municipal ordinances around the country. https://giffords.org/lawcenter/gun-laws/policy-areas/hardware-ammunition/large-capacity-magazines/.
