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In one of the biggest decisions following the 2022 ruling in New York State Rifle & Pistol Association v. Bruen, a district court in Massachusetts ruled last August that the state’s law barring nonresidents from carrying a firearm in the commonwealth to be unconstitutional.

Now, the case, Commonwealth v. Dean F. Donnell, is set to begin the appeals phase before the State Supreme Judicial Court.

As some background, the case revolves around a New Hampshire man who was arrested and prosecuted for carrying a firearm in Massachusetts without a permit from that state. In an interesting twist, the defendant’s attorneys argued that Massachusetts law requiring a permit to carry “is unconstitutional on its face, is unconstitutional as applied to the defendant, and violated the defendant’s right to be free from cruel and unusual punishment.”

The court chose to use the new Bruen standards, which asks whether the “Second Amendment’s plain text covers an individual’s conduct?” If the answer is yes, it next asks whether there exists a “historical precedent from before, during and even after the founding [that] evidences a comparable tradition of regulation?”

In writing the  opinion, Judge John F. Coffee said the Massachusetts law failed on both accounts.

“The conduct of the defendant in the instant case clearly is covered by the Second Amendment,” Judge Coffee wrote. On the second point, he later concluded, “The Commonwealth points to no historical precedent limiting the reach of one’s exercise to a federal constitutional right only within that resident’s state borders.”

While that was powerful enough in itself, Judge Coffee dropped bombshell after bombshell in explaining the ruling.

“A law-abiding resident of New Hampshire who is exercising his constitutional right should not become a felon by exercising that right while he is traveling through Massachusetts merely because he has not obtained a Massachusetts license to carry, which now, under the holding of Bruen, has to be issued to an applicant unless the applicant is otherwise disqualified,” the judge further wrote. “The court can think of no other constitutional right which a person loses simply by traveling beyond his home state’s border into another state continuing to exercise that right and instantaneously becomes a felon subject to a mandatory minimum sentence of incarceration.”

Of course, Massachusetts appealed the ruling, and the justices are seeking amicus briefs prior to the beginning of the proceedings. According to court records, interested parties filing briefs to date include gun-ban groups the Giffords Law Center to Prevent Gun Violence and the Brady Center to Prevent Gun Violence, along with pro-gun U.S. Rep. Jason Gerhard, R-New Hampshire. It’s likely pro-gun groups like the National Rifle Association and Firearms Policy Coalition will be weighing in with briefs in the near future.

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39 COMMENTS

  1. Build a wall.
    Massholes have no business coming here and NH residents should have more sense than to cross into MA.

  2. This could end up being really huge. I live in Texas and have a concealed carry permit. What if I want to take a drive through California? Or Oregon? Or Illinois?

    This could put reciprocity on its head. Watch the blue states start squealing about this ruling. “Another one bites the dust…” (in my head)

    • Believe it or not, 32 States will honor my CA permit, but CA doesn’t recognize or allow any other States’ permits.

      • Perhaps they figure that if you can afford to jump through all CA’s hoops to get a permit, you probably have tourist dollars to spend in their state.

        • Not after CA bleeds you dry to get it first. My original application two years ago totaled $1600 for L.A. County. The renewal for another two years was almost $600. Sux.

          • Ok yeah got us beat on the renewal fee. Just a assembly session away but for now it doesn’t cost us past typical taxes to keep things running.

  4. Would be nice if this eventually bloomed into national carry reciprocity. Rogue states like NY/NJ/MA shouldn’t have the authority to imprison someone for carrying, let alone possessing a (cased and unloaded) handgun within their borders just because it’s not registered under their blatantly treasonous laws.

  6. No no no no no! This is simply too logical to stand! Boundaries must be recognized along with the RIGHT of each state to control who within its territory is allowed to exercise his/her rights! YOU MUST RESPECT MAH AUTHORITAY!

    • …the whole regulatory gun control apparatus is unconstitutional and needs to go. Shall not be infringed means what it means. They are just thumbing their noses at Bruen and the scrotus. What an embarrassment they have been.

  9. Stop whining! All you need is the universally recognized Gang Banger Carry Card.
    The card also gets you a discount on the Glock switch, AND free transportation at any urban street corner.

    *May not be accepted In A Small Town.

  10. This checks the boxes for being a big case, maybe the biggest.
    Heller, McDonald, Bruen and this next—all about the basic right; not about the mag size or the gun’s “features.”

  11. OK. So the h0m.0sexu.al fa.sc.ist .and c0m.muni.st ho0.0osexu.als who run states like Massachusetts don’t support civil rights.

    I understand that water is wet.

    Move to a real free state. Or sit back and enjoy the lega.l bu.tt se.x and dru.gs.

    btw
    The Mormon people moved west. When their civil rights were being violated.

    • Not a whole lot of frontier left to move to and the coast tends to have the same problems. Besides forcing them to live up to the rules (theirs or ours) is entertaining in a way and makes it easier for free states to remain free or improve. Seeing carry permits and “assault” weapons go from barely in existence to the low end of average in 30 odd years has been amazing and looking forward to the next 10.

      • The “move” argument, at this point, shows itself to be threadbare IMHO, simply because it’s not a sustainable model. (Unfortunately like most of what the Right proposes, it’s not scalable).

        I’ll use “Texas” as a stand-in here for Red States. Mostly because many of the states like Texas don’t have the economy to be viable for mass migration to them. Only a few have the required magic. Also, what’s going on in TX and FL already shows where this is going.

        The economic makeup of these states means mass migration to them rapidly runs into a problem. The state requires an increasingly vibrant state economy in order to support that migration as housing prices skyrocket. Texas and Florida both also have obscene property taxes in this regard.

        Now, property taxes can be changed pretty quick at the state level but this doesn’t change the fact that you need the state to have a very broad-based economy in order to support the migration to the state. It can’t be all based on alt-media, right wing coffee companies, home schooling, modern “entrepreneurship” and tech. It needs everything from a significant agricultural base to a wide ranging manufacturing plant that runs the gamut between light and heavy manufacturing.

        The problem is that DC/Blue states are not going to allow that kind of broad based economy to flourish in a state that’s opposed to DC because it would allow a side by side comparison where DC/the Blues lose. They’re going to use regulatory power to try to crush it. Need ag and electric? Everyone from the Dept. of Energy to the EPA to BLM to Department of Interior is going to be on your like white on rice trying to slice your hamstrings with a kukri. And they’re going to rinse and repeat that for everything. EVERYTHING. If nothing else, the court cases and their associated costs will make this untenable.

        A lower population state like, say, Wyoming or Idaho has this problem in spades because major population influx is something their infrastructure can’t come close to handling. That gives the DoT leverage too. Just look at how FedGov has imposed speed limits on states via extracting tax revenue from the state and then refusing to give it back as DoTbux if the State doesn’t have the “right” speed limit.

        Which means that the states that want to do this will need to find a way to entirely tell FedGov agencies to fuck off. Now, the death of Chevron (hat tip to Geoff) makes that easier but it doesn’t really plow the road as much as we might like and DC can still cut off all fed money while continuing to extract money from the state.

        None of these states actually is going to wholly tell DC to kick rocks because, quite frankly, they can’t.

        And if they did, they’d really be freekicking a hornet’s nest because they’d basically have to use state LE to prevent federal agents from doing their jobs, which is de facto succession from the Union and will be openly stated as such due to the political divide previously mentioned above. Now we’re in a standoff over all those military bases and it’s Ft. Sumpter 2.0 as soon as some idiot makes a mistake.

        Which means that this road gets a lot darker as you walk down it. You’re heading towards that “peaceful divorce” idea, which as I’ve pointed out before, is pure hopium. “Peaceful Divorce” is just a misspelling of “Civil War” and anyone who disagrees with that, quite frankly, doesn’t know what they’re talking about (which is why they never present a cogent and reasoned argument as to the logistics of how it would work, they just state it as a tautology). The Left doesn’t let you walk away. They can’t for a variety of reasons, not the least of which is that they MUST project aggression towards an outside enemy to keep the unstable alliance at the core of Progressivism from going to war with itself.

        Ultimately, this ends one of two ways. Conservatives grow a pair, take power, and then exercise that power to do the right things by drastically downsizing FedGov, and then let the Left sort themselves out as they wish (for the most part) or we fight this out and half or more of the country dies.

        The truly dangerous part of this is that the Right has been passive enough for long enough that the Left truly believes that the Right will never go kinetic. They honestly believe they can push this as far as they want and not suffer serious, physical consequences for it. In that regard they’re like a bully who’s been stealing milk money at the bus stop for years. They’re conditioned to the idea that they never get punched in the mouth and therefore never will be.

        • For most of everything there they can until they can’t then things get interesting. Not good just interesting.

          • It’s kind of a fine line.

            I mean, imagine for a second that the Department of Interior and BLM simply move to legally cut off Texas from riverine water supply.

            Sure, they can’t actually stop the flow of water in most cases but they can bankrupt farmers within a few months by arresting those that continue irrigation measures using “banned” water and they can probably cut Texas’ budget by 40% within a year.

            There’s no real mechanism for Texas to stop them from doing this if push comes to shove without physically preventing the arrest of farmers and ranchers by arresting federal agents and cutting the state budget to the bone. They can’t exact stop the outflow of income taxes.

            At that point, the line’s fine enough not to matter. One step down that road and you’re pretty well predestined to walk to the end.

            Other states are even more vulnerable.

            And then there’s the ripple effects. Just look at what nearly happened up in Idaho in a year old dispute between Senior and Junior water rights. The state got involved there and seems to have a rational plan but if they hadn’t (or this had been enforced by the feds) you’d be losing the equivalent of billions of meals worth of grain and potatoes and that’s just water rights for a few hundred square miles of prime farm land.

      • It’s been a very slow and low boil. As our rights are attacked over the decades now. That is why the “gun community” has always said, “they want to take your guns.”

        And it’s true. Just because it hasn’t happened yet. Doesn’t mean the gun grabbers have given up on that goal.

        I have always believed they want to confiscate guns. The problem is too many are scared to say in public, that the at.heis t ho.m.0sex.u@l. elected poli.ticia.n wants to confiscate guns.

        I’m not politically correct. But sadly a lot of gun owners are.

        Our society has become focused on s.ex.ual pleas.ure. Instead of focusing on civil rights and the responsibilities that go with them.

  12. Jason Gerhard is not a “U.S. Rep”.

    He is a NH State Representative (one of 400) serving Merrimack-25 (Franklin and Northfield).

    No slight to him, but don’t promote him. In NH we send our trash to DC, and keep our good representatives at home.

  13. At a glance, it would appear that if this is allowed to stand then the courts just nuked CCW permits in favor of Constitutional carry.

      • Oh, for an instant SCOTUS decision that *laughs in Clarence Thomas*.

        Too bad that’s not the way any of this actually works.

  14. Neighborhood and Residents Saved (a mass-saving and ‘repelling and defending against’ a ‘terrorist-front’/’terrorist’/’terrorist-sympathizer-supporting violent left wing group) By (use of) 2nd Amendment! (another of hundreds of ‘mass saving’, and millions of defense incidents lives saved or defended, every year by exercising the 2nd Amendment. Its too bad they don’t make the news or don’t make the news in a manner that highlights the lives saved/defended every year).

    https://www.youtube.com/watch?v=pptDxQtVYwQ

  17. We Don’t Have A Gun Problem, We have a Chicago Problem | Over 100 People Shot July 4th Weekend.

    America does not have a Gun Violence Problem; it has a Chicago problem. More specifically, America has an inner-city violence problem, and Chicago is a prime example of this.

    Over the July 4th weekend, over 100 people were shot, with 17 of them being fatal, in anti-YOU-have-a-gun Mayor Brandon Johnson’s Chicago.

    https://www.youtube.com/watch?v=sGkUP6nDa4o

  18. This is an initial rough draft of what an amicus might look like…

    At the time of his arrest, had Mr. Donnell attempted to get a concealed carry permit in MA, he would have been discriminated against based on his right to interstate travel free of discrimination due to his interstate traveling status, based on a chain of four US Supreme Court decisions: Ward v Maryland 1870, Toomer v. Witsell 1948, Shapiro v Thomson 1969 and Saenz v Roe 1999. The first two involved discrimination in business taxes or fees; Toomer for example operated a shrimp boat out of Georgia and was being charged in South Carolina an extreme amount compared to a state-native boat operator. The last two were about reduced welfare payments to people recently arrived in-state.

    Taken together, these four cases form a total ban on cross-border discrimination in any area of law or policy.

    Saenz goes further in 1999, ordering lower courts to apply a strict scrutiny standard of review whenever a cross-border discrimination case is identified, in any area of law, policy or practice.

    At the time of his arrest, Massachusetts law allowed subjective standards for the issuance of concealed carry permits. As we now know from NYSRPA v Bruen 2022, and Bruen’s footnote 9 citation to Shuttlesworth v Birmingham 1969, subjective standards in any permit needed to exercise a basic civil right are utterly forbidden. Bruen fully clarified that “street carry” of a defensive handgun is “not a second class right”.

    Just on that basis alone, Mr. Donnell should be set free with no criminal record stemming from this case.

    The fact that at the time of his arrest people from out of state couldn’t get a general carry permit and instead could obtain only annoyingly brief “transport permits” violates all four of the US Supreme Court decisions banning cross-border discrimination, up through Saenz. Per Saenz this court should do a strict scrutiny analysis on that discrimination and here again, Mr. Donnell wins big, because 30 states as of this writing have now given up on the whole idea of carry permits altogether. In a strict scrutiny analysis this court is required to ask if a lesser restriction will work and 30 states say “yes”. All of those 30 states allow all law abiding US citizens from other states to carry on the same basis as their own residents. (Two briefly experimented with “only our residents can carry without a permit” but once Saenz was pointed out, they fixed that.)

    However, there’s yet another issue in play, one that was present at the time of Mr. Donnell’s arrest and importantly, has NOT been addressed in the post-Bruen reforms to the MA carry permit system!

    First let’s look at how MA law treats visitors who want to carry concealed handguns today. The discrimination is thankfully gone; a resident of NH or any other state can obtain an MA permit on basically the same basis as an MA resident. It’s at least close enough that somebody arrested today probably couldn’t raise a Saenz-based cross-border discrimination claim like Mr. Donnell can based on the wrongful law at the time of his arrest.

    However, that leaves two additional claims:

    A) Under Bruen, in order to prosecute Mr. Donnell or some other armed visitor with no violent intent, the prosecution would have to show a historical analogue law that disarmed anybody who peacefully crossed a state line. There IS one possibility but it’s unusable today. Most of the slave states actually had legal provisions for armed slaves. Yes, that sounds…well, weird. It wasn’t common. But some slaves sort of equivalent to a “trustee” had access to shotguns and birdshot for hunting, guns for “extreme pest control” (protecting livestock from bears or wolves) and there’s some references to at least some slaves being used as armed bodyguards(!).

    So the “slave codes” had provisions for gun permits for slaves, signed off on by local law enforcement and their owners. These discretionary issuance permits ceased to have any legality outside of the state of issuance.

    As Mr. Donnell isn’t a slave (and thankfully, neither is anybody else today!), the authors of this brief don’t believe this would be an effective citation. It’s got “bad optics” written all over it to even try.

    B) Here’s the real kicker. Knowing that a state like NY wouldn’t be happy about widespread carry permit issuance, Justice Thomas wrote down three specific abuses that post-Bruen reformed carry permit systems could not get away with. These are listed at Bruen footnote 9.

    The first is subjective standards, previously banned in Shuttlesworth v Birmingham 1969. We need not harp on that again.

    The other two bans listed at Bruen footnote 9 are against “exorbitant fees” and “excessive delays”.

    So, let’s say Mr. Donnell right now today wanted to be able to exercise his CIVIL RIGHT to carry a concealed loaded handgun for self defense NATIONALLY.

    It’s actually not possible because at least five states (HI, CA, OR, IL and NY) have hard bans on anybody carrying who are from out of state. That’s a big violation of Saenz and the like and that’s being litigated elsewhere. For now we’ll pretend that like MA, Mr. Donnell could score a permit in those states.

    So, in order to get national carry today, Mr. Donnell would need to score his own state’s voluntary permit in NH, which will give him coverage in about four more states that aren’t constitutional carry. He can carry in the other 29 constitutional carry states, NH being the 30th. That still leaves 17 “states” he can’t carry in, Washington DC and Massachusetts included. (We’ll leave out Puerto Rico, Guam and so on for now.)

    To get those 17 permits from all across the country, he’ll need training in most or all. He’ll have to travel to each at least once, multiple trips in some cases. He’ll get 17 more background checks, all based on the same NICS background check process administered by the FBI, the same thing he did to get the NH permit.

    His total costs and delays to do all that will completely detonate the Bruen footnote 9 limitations on fees and delays.

    At the time of his arrest this issue was the same as today, except worse because we’ve added some more constitutional carry states since his arrest.

    Justices of the Massachusetts Supreme Court, we beg you to consider: if no one state can violate the right to be free of exorbitant fees or excessive delays, then neither can any coalition of states.

    While MA has cleaned up the cross-border discrimination issues since the arrest of Mr. Donnell and the US Supreme Court decision in Bruen, the exorbitant fees and excessive delays problems banned at Bruen footnote 9 are absolutely still a problem that your court needs to address.

    Your job is not to fix the issue, your job is to point it out while freeing Mr. Donnell. At that point the legislatures can draft one of two bills:

    1) They can pass an MA bill to honor the concealed carry permits of every US state or territory.

    2) Work at the federal level to create a voluntary access national interstate traveler’s carry permit and then write state legislation to honor that, or force states to honor such a thing within the federal legislation.

    Your court doesn’t have the ability to create either scenario. But by freeing Mr. Donnell and commenting on the need for either solution, you’ll probably kick the state and/or federal legislation into gear.

    Postscript: the issue of the NY-specific hardcore ban on carry by non-residents was challenged at the 2nd Circuit in 2005, case of Bach v Pataki. That panel ruled that since a right to carry isn’t a basic civil right, and because the 2nd Amendment hasn’t been selectively incorporated against the states, the ban on cross-border discrimination in Saenz v Roe and it’s ancestor cases could be ignored. Obviously the 2A has now been established as a basic civil right in Heller 2008, then incorporated against the states in Chicago v McDonald 2010. The Bach case also does interest balancing of a type explicitly banned in Bruen 2022. Bach is therefore completely superceded by later US Supreme Court decisions and is a dead letter in the 2nd Circuit, let alone in the 1st Circuit where you are.

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