By Elisabeth Martino
The last two years have been notable ones for Second Amendment jurisprudence, both nationally and locally. The seeds of this dramatic transformation were planted when the United States Supreme Court decided District of Columbia v. Heller, 554 U.S. 570 in 2008, holding for the first time that the Second Amendment to the United States Constitution confers an individual right, unconnected to militia service, to keep an operable firearm in the home for self-defense. Two years later, the Court incorporated that right and made it applicable to the states through the Fourteenth Amendment in McDonald v. City of Chicago, 561 U.S. 742 (2010). In 2022, the Court expanded its holdings in Heller and McDonald in New York Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111 (2022), ruling that the Second Amendment protects an individual right to carry a firearm outside the home for self-defense, and creating a new framework—rooted in the text of the amendment and the “Nation’s historical tradition of firearm regulation”—for assessing Second Amendment challenges to gun laws. Id. at 2139-40.
Since Bruen, civil and criminal litigation has proliferated in Massachusetts’ state and federal courts to flesh out the limits and contours of the right to carry a firearm and other bearable arms. Criminal defendants and civil plaintiffs alike have challenged the constitutionality of Massachusetts statutory schemes criminalizing the possession and carrying of illegal firearms and dangerous weapons as well as the licensing regime for obtaining and maintaining a valid firearm license or identification card. Lawsuits challenging bans on categories of weapons, such as the Massachusetts assault weapons ban, are also increasing in frequency.
During the twelve years between Heller and Bruen, the Supreme Judicial Court decided how the Second Amendment would impact criminal prosecutions for unlicensed possession of firearms and ammunition under G.L. c. 269 § 10, holding in Commonwealth v. Gouse, 461 Mass. 787 (2012), that a defendant charged with illegal firearm possession must furnish evidence of a valid license as an affirmative defense. In Gouse, the defendant challenged his conviction for illegally possessing a firearm under G.L. c. 269 § 10(a), claiming that it violated the due process guarantees of the Fourteenth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights, as well as his Second Amendment right to keep and bear arms. Id. at 799. Specifically, the defendant claimed that the lack of a license was an essential element of the possessory offense under Section 10(a), and that placing on the defendant a burden to affirmatively produce evidence of licensure created a presumption of unauthorized possession that did not pass constitutional muster. The SJC disagreed, reasoning that, because Heller and McDonald established only a right to possess a handgun in the home for the purpose of self-defense, the prohibition against possessing a firearm outside the home did not implicate the defendant’s Second Amendment rights. As a result, a presumption of unauthorized possession where the defendant failed to affirmatively prove he had a license did not infringe on constitutionally protected conduct. Gouse, 461 Mass. at 802. After the Supreme Court in Bruen recognized a Second Amendment right to keep and carry a firearm outside the home, however, the SJC’s decision in Gouse was called into question.
Commonwealth v. Guardado (Guardado I)
In Commonwealth v. Guardado, 491 Mass. 666 (2023) the defendant challenged his illegal firearm convictions under G.L. c. 269, § 10, arguing that the trial judge improperly failed to instruct the jury that the prosecution was required to prove that the defendant did not have a firearms license in its case in chief. Id. at 686. The defendant’s criminal trial occurred in 2021, before the decision in Bruen. During trial, the defendant did not object to the lack of a jury instruction placing on the Commonwealth a burden to prove the defendant lacked a valid license. While the failure to object often results in waiver or a higher standard to make a claim, the SJC invoked the rarely used “clairvoyance exception,” holding that the defendant need not have raised this constitutional issue at trial because “the constitutional theory on which the defendant  relied was not sufficiently developed at the time of trial,” and thus did not “afford the defendant a genuine opportunity to raise his claim.” Id. (citing, e.g., Commonwealth v. Connolly, 454 Mass. 808, 830 (2009)).
The SJC then revisited the question whether “the failure to obtain a valid firearms license is now an essential element of unlawful possession of a firearm,” such that “the defendant’s rights to due process were violated when the judge placed upon him the onus of presenting evidence of licensure.” Id. at 688. The Court concluded that Gouse is no longer valid, noting that because, after Bruen, “possession of a firearm outside the home is constitutionally protected conduct, it cannot, absent some extenuating factor, such as failure to comply with licensing requirements, be punished by the Commonwealth.” Guardado, 491 Mass. at 690 (emphasis added). Thus, the Court overruled Gouse, and so going forward the Commonwealth must prove that the defendant did not possess a valid license to possess the firearm or ammunition as an essential element of firearms offenses, and the jury must be appropriately instructed that the Commonwealth bears that burden of proof.
Further, the SJC found in Guardado I that, because there had been no licensure instruction to the jury at the defendant’s trial, the defendant could only be convicted of unlawful possession of a firearm if the Commonwealth had proved the defendant lacked a valid license during its case in chief and, because no such evidence was in fact admitted, “the defendant was convicted of a crime solely on the ground that he had engaged in the constitutionally protected conduct of possessing a firearm in public.” Id. at 691. The Court thus reversed the defendant’s convictions, ruling that his rights to due process had been impermissibly violated. Relatedly, the SJC also reversed the defendant’s conviction as to possessing ammunition, because that conduct was also protected under the Second Amendment.
The SJC concluded that its holding did not announce a “new constitutional rule” and therefore would not be applied to convictions that became final prior to the Bruen decision on June 23, 2022. This means that the Court’s holding applies only prospectively and to those cases that were active or pending on direct appellate review as of the date of the issuance of Bruen. See id. at 693.
The Remedy in Guardado I
After vacating the defendant’s conviction in Guardado I, the SJC remanded the case to the trial court for entry of a finding of not guilty without any possibility of retrial, which is the usual remedy when a defendant is convicted upon insufficient evidence at their criminal trial.
In May 2023, however, the Commonwealth moved the SJC to reconsider the Guardado I remedy, arguing that the appropriate remedy was to reverse his conviction and allow for retrial, and not to wholly vacate his conviction and bar the possibility of retrial. The SJC granted the Commonwealth’s motion for reconsideration.
The Remedy in Guardado II
In Commonwealth v. Guardado, 493 Mass. 1, 4 (2023) (“Guardado II”), the Court agreed with the Commonwealth that the proper remedy in this case was a reversal of the defendant’s convictions and remand to the Superior Court for a new trial for the defendant. The Court reasoned the lack of a jury instruction on the licensure requirement as part of the Commonwealth’s case in chief did not violate double jeopardy provisions, especially where prior case law from the Court had not put the Commonwealth on notice of this “new” constitutional burden. “In such circumstances, a retrial does not impose on the defendant any of the evils from which the prohibition against double jeopardy is intended to protect.” Id. (citations omitted). The Court again remanded the case to the trial court, this time for a retrial on the defendant’s firearm indictments.
Numerous criminal defendants in Massachusetts courts may be entitled to the benefit of the SJC’s decisions in Guardado I and II. Currently, any active case or direct appeal that had not been decided by June 23, 2023, may be impacted by the Court’s Guardado decisions. Trial judges and litigants are grappling with a myriad of issues going forward at both the trial and appellate levels.
At the appellate level, litigants and the appellate courts are considering what quantum of evidence was sufficient on the issue of non-licensure such that a defendant’s criminal conviction need not be reversed, and a new trial ordered, even when there was no jury instruction that the government needed to prove non-licensure. For example, if there was evidence that the defendant was under the age of twenty-one or a convicted felon–both of which make it impossible to obtain a firearms license as a matter of law, see G.L. c. 140, § 131(d)(i)-(ii), (iv)–is a new trial warranted? Also, when a defendant’s defense at trial was that a firearm was not theirs, are they entitled to a new trial due to lack of instruction on licensure?
The SJC has said that a defendant’s conviction may stand even where the trial judge failed to give a proper licensure instruction at trial in cases where the defendant’s lack of license was never in dispute. For example, in Commonwealth v. Bookman, 492 Mass. 396 (2023)—a decision that post-dates Guardado I—the SJC held that the trial judge’s failure to give a licensure instruction was harmless beyond reasonable doubt where a police officer testified at trial that the defendant did not have a valid firearms license and where “there [was] nothing in the record to suggest that the defendant disputed this testimony.” Id. at 401. Similarly, another unpublished decision that post-dates Guardado I, the Appeals Court held that the lack of licensure instruction was harmless beyond a reasonable doubt where the defendant had admitted to police that he did not have a license and did not dispute his lack of licensure as an issue at trial. See Commonwealth v. Taft , 103 Mass. App. Ct. 1108 (2023). Where the trial record was devoid of any evidence of licensure however, convictions will not stand. See, e.g., Commonwealth v. Souza, 492 Mass. 615, 638 (2023) (where no evidence was admitted at trial that would suggest defendant did not have a license to carry a firearm, the trial judge’s failure to instruct was not harmless beyond a reasonable doubt); Commonwealth v. Gibson, 492 Mass. 559, 579 (2023) (where there was no instruction that required the Commonwealth to disprove that the defendant had a license to possess a firearm and no evidence that defendant’s lack of license was introduced at trial, defendant’s firearm convictions cannot stand).
At the trial level, litigants are contending with evidentiary issues to prove the “new” element of non-licensure, as well as how to object to the prosecution’s evidence to prove the lack of licensure in a particular case. To give just one example: Should the Commonwealth be able to meet its burden of proving a defendant was ineligible for a license because of prior felony convictions, or is such evidence impermissibly prejudicial “prior bad act” evidence? Should a defendant be allowed to object to such evidence on that basis, or is the Commonwealth entitled to the best evidence to prove its case?
Questions abound, and the next few years will likely bring many answers. For now, it seems clear that the government must prove that defendants are unlicensed to hold them criminally liable. But virtually every other question about how to implement this new rule remains to be worked out by Massachusetts courts in the years to come.
Elisabeth Martino is currently the Deputy Chief of the Appeals Unit at the Suffolk County District Attorney’s Office. She has been an appellate attorney with Suffolk County District Attorney’s Office since she received her JD cum laude from Suffolk Law School in 2008, with the exception of a few years when she worked part-time as an adjunct professor of Appellate Research and Writing at New England School of Law while also raising her two young children.
Ms. Martino was not involved in the prosecution of Mr. Guardado either before the Superior Court or the Supreme Judicial Court.
This article represents the opinions and legal conclusions of its author and not necessarily those of the Suffolk County District Attorney’s Office.