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Dear Secretary Barry: | Dear Secretary Barry: | ||
You have asked my opinion on whether the implementation of the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 455, will preempt<ref>I do not ordinarily issue opinions dealing with the question of federal preemption of state law. Under the state constitution no member of the executive branch of state government can suspend the operation of a law; that is exclusively the prerogative of the General Court, Mass. Const. pt. 1, art. 20. Here I opine not that the state law is preempted by the federal law, but that the federal law provides a defense to state prosecution.</ref> | You have asked my opinion on whether the implementation of the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 455, will preempt<ref>fn1. I do not ordinarily issue opinions dealing with the question of federal preemption of state law. Under the state constitution no member of the executive branch of state government can suspend the operation of a law; that is exclusively the prerogative of the General Court, Mass. Const. pt. 1, art. 20. Here I opine not that the state law is preempted by the federal law, but that the federal law provides a defense to state prosecution.</ref> enforcement of G.L. c. 269, § 10, (1984 ed.), the Commonwealth's Bartley/Fox gun law. Specifically, your concern is with Section 107 of the Act, which amended Title 18 of the United States Code by adding a new section 926A.<ref>fn.2 As inserted by the Firearms Owners' Protection Act, Pub. L. 99-308, 100 Stat. 455 (1986), 18 U.S.C. § 926A provided: | ||
Any person not prohibited by this chapter from the transporting, shipping, or receiving a firearm shall be entitled to transport an unloaded, not readily accessible firearm in interstate commerce notwithstanding any provision of any legislation enacted, or any rule or regulation prescribed by any State or political subdivision thereof.</ref> Before I could address your inquiry though, Congress superseded even this new statute with the enactment of the Interstate Transportation of Firearms Act, Pub. L. No. 99-360, 100 Stat. 766 (1986). This latter Act was adopted to technically refine the Firearms Owners' Protection Act. Among its refinements was a provision modifying new section 926A so that it expressly sanctions interstate transportation of firearms. | |||
As modified, 18 U.S.C. § 926A provides: | As modified, 18 U.S.C. § 926A provides: | ||
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully, possess and carry such firearms, if during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. | Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully, possess and carry such firearms, if during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. | ||
For the reasons set forth below, I conclude that as a result of these new federal laws, a non-resident in lawful possession of a handgun is exempt from the licensing requirements imposed by the Commonwealth while he is transporting that weapon and that he has a defense to prosecution for failure to possess a Massachusetts license, provided, that the handgun is unloaded and inaccessible throughout his travels in Massachusetts. In all other situations, however, I conclude that the laws of this Commonwealth are unaffected by these federal enactments. I begin my analysis with an overview of the state statutory scheme. | For the reasons set forth below, I conclude that as a result of these new federal laws, a non-resident in lawful possession of a handgun is exempt from the licensing requirements imposed by the Commonwealth while he is transporting that weapon and that he has a defense to prosecution for failure to possess a Massachusetts license, provided, that the handgun is unloaded and inaccessible throughout his travels in Massachusetts. In all other situations, however, I conclude that the laws of this Commonwealth are unaffected by these federal enactments. I begin my analysis with an overview of the state statutory scheme. | ||
In Massachusetts, to lawfully carry a firearm a person must obtain a license to do so issued pursuant to G.L. c. 140, § 131 (1984 ed.), or be exempt from the requirement. The non-resident who may wish for some reason to carry a firearm while traveling through the Commonwealth must either obtain a temporary license to do so, pursuant to G.L. c. 140, § 131F (1984 ed.), or be allowed by the provisions of G.L. c. 140, § 131(G) (1984 ed.), to carry a pistol or revolver without a license for the purpose of taking part in competition, or attending a meeting or exhibition of collectors or for the purpose of hunting. These exceptions are subject to the further qualification that the non-resident be licensed in another state and, in the case of the hunter, he also must have a valid hunting license issued by the Commonwealth or the state of his destination. Except in these limited instances, an individual found with a firearm in his possession or in his control in a vehicle, may be prosecuted under the provisions of G.L. c. 269, § 10(a). | In Massachusetts, to lawfully carry a firearm a person must obtain a license to do so issued pursuant to G.L. c. 140, § 131 (1984 ed.), or be exempt from the requirement. The non-resident who may wish for some reason to carry a firearm while traveling through the Commonwealth must either obtain a temporary license to do so, pursuant to G.L. c. 140, § 131F (1984 ed.), or be allowed by the provisions of G.L. c. 140, § 131(G) (1984 ed.), to carry a pistol or revolver without a license for the purpose of taking part in competition, or attending a meeting or exhibition of collectors or for the purpose of hunting. These exceptions are subject to the further qualification that the non-resident be licensed in another state and, in the case of the hunter, he also must have a valid hunting license issued by the Commonwealth or the state of his destination. Except in these limited instances, an individual found with a firearm in his possession or in his control in a vehicle, may be prosecuted under the provisions of G.L. c. 269, § 10(a). | ||
While the provisions noted above regulate the “carrying” of a firearm, a qualified individual may lawfully own or possess a firearm in Massachusetts, if he holds a firearm identification card under G.L. c. 140, § 129B (1984 ed.), or is otherwise exempt from the requirement. Commonwealth v. Morse, 12 Mass. App. Ct. 426, 428 (1981). Possession is also regulated by the immediately following sections of chapter 140. | |||
Currently, G.L. c. 140, § 129C (1984 ed.) provides: “No person, other than . . . one who has been issued a license to carry a pistol or revolver or an exempt person as herein described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card . . . .” An individual in possession of a firearm without such a card may be prosecuted under the provisions of G.L. c. 269, § 10(h). The exemptions noted make § 129C inapplicable to “[p]ossession of rifles and shotguns and ammunition therefor by nonresidents traveling in or through the commonwealth, provided that any rifles or shotguns are unloaded and enclosed in a case.” G.L. c. 269, § 129C(h). Similar exemptions for rifles and shotguns are provided for nonresident hunters, § 129C(f), and non-residents engaged on a firing or shooting range, § 129C(g). | Currently, G.L. c. 140, § 129C (1984 ed.) provides: “No person, other than . . . one who has been issued a license to carry a pistol or revolver or an exempt person as herein described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card . . . .” An individual in possession of a firearm without such a card may be prosecuted under the provisions of G.L. c. 269, § 10(h). The exemptions noted make § 129C inapplicable to “[p]ossession of rifles and shotguns and ammunition therefor by nonresidents traveling in or through the commonwealth, provided that any rifles or shotguns are unloaded and enclosed in a case.” G.L. c. 269, § 129C(h). Similar exemptions for rifles and shotguns are provided for nonresident hunters, § 129C(f), and non-residents engaged on a firing or shooting range, § 129C(g). | ||
While Massachusetts has provided for non-residents transporting rifles and shotguns, corresponding provisions for nonresidents transporting handguns have not been adopted by the General Court. Under Massachusetts law those individuals must either be licensed to carry a handgun as noted earlier in this opinion or fall within one of the following narrowly drawn exemptions: a federally licensed manufacturer, § 129C(b); a common carrier transporting firearms in the course of regular and ordinary business, § 129C(d); a person voluntarily surrendering a firearm with prior written notice given, § 129C(c); a new resident of the Commonwealth who has been here less than sixty days, § 129C(j); a participant in a trial where a handgun is an exhibit, § 129C(m); an heir or legatee who gained possession of a handgun within the previous one hundred and eighty days, § 129C(n); or a person in the military or other service. § 129C(o). | While Massachusetts has provided for non-residents transporting rifles and shotguns, corresponding provisions for nonresidents transporting handguns have not been adopted by the General Court. Under Massachusetts law those individuals must either be licensed to carry a handgun as noted earlier in this opinion or fall within one of the following narrowly drawn exemptions: a federally licensed manufacturer, § 129C(b); a common carrier transporting firearms in the course of regular and ordinary business, § 129C(d); a person voluntarily surrendering a firearm with prior written notice given, § 129C(c); a new resident of the Commonwealth who has been here less than sixty days, § 129C(j); a participant in a trial where a handgun is an exhibit, § 129C(m); an heir or legatee who gained possession of a handgun within the previous one hundred and eighty days, § 129C(n); or a person in the military or other service. § 129C(o). | ||
To understand the effect the new federal law will have on the Commonwealth's statutory scheme, it is important to look first at the articulated purpose of the federal legislation which amends the Gun Control Act of 1968, codified in Chapter 44 of Title 18 of the United States Code. The articulated purpose is dual: first, to strengthen the provisions regulating the unlawful sale, possession or taking receipt of firearms and ammunition, and second, to protect the interests of legitimate sportsmen. In furtherance of the latter purpose, Congress sought to ensure that legitimate sportsmen could travel freely from state to state without running afoul of any state or local licensing laws or regulations.3 | |||
To understand the effect the new federal law will have on the Commonwealth's statutory scheme, it is important to look first at the articulated purpose of the federal legislation which amends the Gun Control Act of 1968, codified in Chapter 44 of Title 18 of the United States Code. The articulated purpose is dual: first, to strengthen the provisions regulating the unlawful sale, possession or taking receipt of firearms and ammunition, and second, to protect the interests of legitimate sportsmen. In furtherance of the latter purpose, Congress sought to ensure that legitimate sportsmen could travel freely from state to state without running afoul of any state or local licensing laws or regulations. <ref>fn. 3 Massachusetts was often cited during consideration of these bills as one of the states with local laws that are oppressive to the legitimate sportsmen. See, e.g., 132 Cong. Rec. S9116 (daily ed. July 9, 1985) (statement of Senator Hatch)</ref> | |||
The allowance for interstate transportation of firearms created by Congress is not without limits. By its plain words the federal legislation is limited to firearms that are unloaded and inaccessible. Therefore, those provisions of state law which regulate the carrying of a firearm either on the person, or within his control in a vehicle, are unaffected. | The allowance for interstate transportation of firearms created by Congress is not without limits. By its plain words the federal legislation is limited to firearms that are unloaded and inaccessible. Therefore, those provisions of state law which regulate the carrying of a firearm either on the person, or within his control in a vehicle, are unaffected. | ||
Moreover, the federal legislation does not affect the ability of the Commonwealth to regulate its own residents. Any individual utilizing the federal provision must, by the terms of section 926A, comply with the laws of his state of origin as well as the laws of the state at his trip's end. Thus, the Massachusetts resident leaving the state, returning, or traveling within its borders, must comply with all state regulations. <ref>fn. 4 Senator Kennedy, in his remarks on the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 455 (1986), is most explicit on this point: | |||
In addition, Mr. President, the Senate language makes it clear that a state or locality's right to regulate the carrying of firearms by its residents is not affected in any way of the provisions of this Bill. 132 Cong. Rec. S5367 (daily ed. May 6, 1986) (statement of Sen. Kennedy).</ref> | |||
Where the federal legislation will affect enforcement of Massachusetts gun control efforts is in the limited area of the transportation of handguns by non-residents. As I interpret the new federal provision, it creates one further exemption to the licensing requirement imposed by G.L. c. 140, § 129(c), similar to the exemption already provided to those transporting rifles, for the non-resident in “lawful possession” of a handgun, unloaded and inaccessible who travels in or through the Commonwealth. As noted earlier, lawful possession means the traveler must comply with the laws of his state of origin as well as the laws of the jurisdiction at his trip's end. See, e.g., 132 Cong. Rec. H4103 (daily ed. June 24, 1986) (statement of Rep. Marlenee). | Where the federal legislation will affect enforcement of Massachusetts gun control efforts is in the limited area of the transportation of handguns by non-residents. As I interpret the new federal provision, it creates one further exemption to the licensing requirement imposed by G.L. c. 140, § 129(c), similar to the exemption already provided to those transporting rifles, for the non-resident in “lawful possession” of a handgun, unloaded and inaccessible who travels in or through the Commonwealth. As noted earlier, lawful possession means the traveler must comply with the laws of his state of origin as well as the laws of the jurisdiction at his trip's end. See, e.g., 132 Cong. Rec. H4103 (daily ed. June 24, 1986) (statement of Rep. Marlenee). | ||
Any traveler who complies with these requirements of section 926A has a defense to any prosecution under the provision of G.L. c. 269, § 10(h). | Any traveler who complies with these requirements of section 926A has a defense to any prosecution under the provision of G.L. c. 269, § 10(h). | ||
I stress the phrase “defense” in the preceding sentence because I stated at the outset that the federal law does not preempt the state law in this case, rather it creates a defense to state prosecution. This approach also finds direct support in the legislative history. One of the two sponsors of the original § 926A, said of his bill: | I stress the phrase “defense” in the preceding sentence because I stated at the outset that the federal law does not preempt the state law in this case, rather it creates a defense to state prosecution. This approach also finds direct support in the legislative history. One of the two sponsors of the original § 926A, said of his bill: | ||
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Revision as of 21:59, 9 April 2022
Firearm Owners' Protection Act of 1986
Public Law 99-308, 100 Stat 449
SECTION 1. SHORT TITLE AND CONGRESSIONAL FINDINGS.
(a) SHORT TITLE. — This Act may be cited as the “Firearms Owners' Protection Act”.
(b) CONGRESSIONAL FINDINGS. — The Congress finds that —
(1) the rights of citizens —
(A) to keep and bear arms under the second amendment to the United States Constitution;
(B) to security against illegal and unreasonable searches and seizures under the fourth amendment;
(C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and
(D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and
(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that “it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law–abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law–abiding citizens for lawful purposes.”.
SEC. 107. TRANSPORTATION OF FIREARMS.
(a) IN GENERAL. — Chapter 44 of title 18, United States Code, is amended by inserting between section 926 and section 927 the following new section: “Section 926A. Interstate transportation of firearms “Any person not prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport an unloaded, not readily accessible firearm in interstate commerce notwithstanding any provision of any legislation enacted, or any rule or regulation prescribed by any State or political subdivision thereof.”.
(b) CLERICAL AMENDMENT. — The table of sections for chapter 44 of title 18, United States Code, is amended by inserting between the item relating to section 926 and the item relating to section 927 the following new item: “926A. Interstate transportation of firearms.”.
Public Law 99-360, 100 Stat 766
SECTION 1. (a) Strike out section 926A of title 18, United States Code, and insert in lieu thereof the following new section: “Section 926A. Interstate transportation of firearms
“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”.
(b) Section 921(a)(22) of title 18, United States Code, is amended by inserting before the period at the end thereof the following: “: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. For purposes of this paragraph, the term ‘terrorism’ means activity, directed against United States persons, which —
“(A) is committed by an individual who is not a national or permanent resident alien of the United States;
“(B) involves violent acts or acts dangerous to human life which would be a criminal violation if committed within the jurisdiction of the United States; and
“(C) is intended —
“(i) to intimidate or coerce a civilian population;
“(ii) to influence the policy of a government by intimidation or coercion; or
“(iii) to affect the conduct of a government by assassination or kidnaping”.
(c) Section 923(c) of title 18, United States Code, is amended by adding before the period at the end thereof the following: “, except that any licensed manufacturer, importer, or dealer who has maintained a firearm as part of a personal collection for one year and who sells or otherwise disposes of such firearm shall record the description of the firearm in a bound volume, containing the name and place of residence and date of birth of the transferee if the transferee is an individual, or the identity and principal and local places of business of the transferee if the transferee is a corporation or other business entity: Provided, That no other recordkeeping shall be required”.
SEC. 2. This Act and the amendments made by this Act, intended to amend the Firearms Owners' Protection Act, shall become effective on the date on which the section they are intended to amend in such Firearms Owners' Protection Act becomes effective and shall apply to the amendments to title 18, United States Code, made by such Act.
1986-87 Mass. Op. Atty. Gen. No. 4 (Mass.A.G.), 1986-87 Mass. Op. Atty. Gen. 61, 1986 WL 288992
Charles V. Barry
Secretary
Executive Office of Public Safety
One Ashburton Place - 21st Floor
Boston, Massachusetts 02108
Dear Secretary Barry:
You have asked my opinion on whether the implementation of the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 455, will preempt[1] enforcement of G.L. c. 269, § 10, (1984 ed.), the Commonwealth's Bartley/Fox gun law. Specifically, your concern is with Section 107 of the Act, which amended Title 18 of the United States Code by adding a new section 926A.[2] Before I could address your inquiry though, Congress superseded even this new statute with the enactment of the Interstate Transportation of Firearms Act, Pub. L. No. 99-360, 100 Stat. 766 (1986). This latter Act was adopted to technically refine the Firearms Owners' Protection Act. Among its refinements was a provision modifying new section 926A so that it expressly sanctions interstate transportation of firearms.
As modified, 18 U.S.C. § 926A provides:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully, possess and carry such firearms, if during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
For the reasons set forth below, I conclude that as a result of these new federal laws, a non-resident in lawful possession of a handgun is exempt from the licensing requirements imposed by the Commonwealth while he is transporting that weapon and that he has a defense to prosecution for failure to possess a Massachusetts license, provided, that the handgun is unloaded and inaccessible throughout his travels in Massachusetts. In all other situations, however, I conclude that the laws of this Commonwealth are unaffected by these federal enactments. I begin my analysis with an overview of the state statutory scheme.
In Massachusetts, to lawfully carry a firearm a person must obtain a license to do so issued pursuant to G.L. c. 140, § 131 (1984 ed.), or be exempt from the requirement. The non-resident who may wish for some reason to carry a firearm while traveling through the Commonwealth must either obtain a temporary license to do so, pursuant to G.L. c. 140, § 131F (1984 ed.), or be allowed by the provisions of G.L. c. 140, § 131(G) (1984 ed.), to carry a pistol or revolver without a license for the purpose of taking part in competition, or attending a meeting or exhibition of collectors or for the purpose of hunting. These exceptions are subject to the further qualification that the non-resident be licensed in another state and, in the case of the hunter, he also must have a valid hunting license issued by the Commonwealth or the state of his destination. Except in these limited instances, an individual found with a firearm in his possession or in his control in a vehicle, may be prosecuted under the provisions of G.L. c. 269, § 10(a).
While the provisions noted above regulate the “carrying” of a firearm, a qualified individual may lawfully own or possess a firearm in Massachusetts, if he holds a firearm identification card under G.L. c. 140, § 129B (1984 ed.), or is otherwise exempt from the requirement. Commonwealth v. Morse, 12 Mass. App. Ct. 426, 428 (1981). Possession is also regulated by the immediately following sections of chapter 140.
Currently, G.L. c. 140, § 129C (1984 ed.) provides: “No person, other than . . . one who has been issued a license to carry a pistol or revolver or an exempt person as herein described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card . . . .” An individual in possession of a firearm without such a card may be prosecuted under the provisions of G.L. c. 269, § 10(h). The exemptions noted make § 129C inapplicable to “[p]ossession of rifles and shotguns and ammunition therefor by nonresidents traveling in or through the commonwealth, provided that any rifles or shotguns are unloaded and enclosed in a case.” G.L. c. 269, § 129C(h). Similar exemptions for rifles and shotguns are provided for nonresident hunters, § 129C(f), and non-residents engaged on a firing or shooting range, § 129C(g).
While Massachusetts has provided for non-residents transporting rifles and shotguns, corresponding provisions for nonresidents transporting handguns have not been adopted by the General Court. Under Massachusetts law those individuals must either be licensed to carry a handgun as noted earlier in this opinion or fall within one of the following narrowly drawn exemptions: a federally licensed manufacturer, § 129C(b); a common carrier transporting firearms in the course of regular and ordinary business, § 129C(d); a person voluntarily surrendering a firearm with prior written notice given, § 129C(c); a new resident of the Commonwealth who has been here less than sixty days, § 129C(j); a participant in a trial where a handgun is an exhibit, § 129C(m); an heir or legatee who gained possession of a handgun within the previous one hundred and eighty days, § 129C(n); or a person in the military or other service. § 129C(o).
To understand the effect the new federal law will have on the Commonwealth's statutory scheme, it is important to look first at the articulated purpose of the federal legislation which amends the Gun Control Act of 1968, codified in Chapter 44 of Title 18 of the United States Code. The articulated purpose is dual: first, to strengthen the provisions regulating the unlawful sale, possession or taking receipt of firearms and ammunition, and second, to protect the interests of legitimate sportsmen. In furtherance of the latter purpose, Congress sought to ensure that legitimate sportsmen could travel freely from state to state without running afoul of any state or local licensing laws or regulations. [3]
The allowance for interstate transportation of firearms created by Congress is not without limits. By its plain words the federal legislation is limited to firearms that are unloaded and inaccessible. Therefore, those provisions of state law which regulate the carrying of a firearm either on the person, or within his control in a vehicle, are unaffected.
Moreover, the federal legislation does not affect the ability of the Commonwealth to regulate its own residents. Any individual utilizing the federal provision must, by the terms of section 926A, comply with the laws of his state of origin as well as the laws of the state at his trip's end. Thus, the Massachusetts resident leaving the state, returning, or traveling within its borders, must comply with all state regulations. [4]
Where the federal legislation will affect enforcement of Massachusetts gun control efforts is in the limited area of the transportation of handguns by non-residents. As I interpret the new federal provision, it creates one further exemption to the licensing requirement imposed by G.L. c. 140, § 129(c), similar to the exemption already provided to those transporting rifles, for the non-resident in “lawful possession” of a handgun, unloaded and inaccessible who travels in or through the Commonwealth. As noted earlier, lawful possession means the traveler must comply with the laws of his state of origin as well as the laws of the jurisdiction at his trip's end. See, e.g., 132 Cong. Rec. H4103 (daily ed. June 24, 1986) (statement of Rep. Marlenee).
Any traveler who complies with these requirements of section 926A has a defense to any prosecution under the provision of G.L. c. 269, § 10(h). I stress the phrase “defense” in the preceding sentence because I stated at the outset that the federal law does not preempt the state law in this case, rather it creates a defense to state prosecution. This approach also finds direct support in the legislative history. One of the two sponsors of the original § 926A, said of his bill: The purpose of this amendment is to make it clear that it is the intention of Congress that state and local statutes and regulations shall remain in effect, except that in certain narrow circumstances involving travel through one or more states other than the state of residence, a defense is available to prosecutions under State and local gun control laws. The circumstances under which a defense would be created under this amendment are limited . . . . 131 Cong. Rec. S.9117 (daily ed. July 9, 1985) (statement of Sen. Metzenbaum).
In conclusion, I emphasize that the new federal provision does not affect the Commonwealth's right to regulate its own residents and to prosecute those who do not comply with our statutory requirements. Nor does it prevent the Commonwealth from prosecuting those non-residents found carrying a firearm either on their person or within their control in a vehicle without proper state authority. It does, however, entitle the non-resident who can own and legally transport firearms under the laws of his jurisdiction to transport an unloaded and inaccessible firearm through the Commonwealth, and provides him a defense against prosecution by the Commonwealth for certain violations of our gun control law.
Very truly yours,
Francis X. Bellotti
Attorney General
- ↑ fn1. I do not ordinarily issue opinions dealing with the question of federal preemption of state law. Under the state constitution no member of the executive branch of state government can suspend the operation of a law; that is exclusively the prerogative of the General Court, Mass. Const. pt. 1, art. 20. Here I opine not that the state law is preempted by the federal law, but that the federal law provides a defense to state prosecution.
- ↑ fn.2 As inserted by the Firearms Owners' Protection Act, Pub. L. 99-308, 100 Stat. 455 (1986), 18 U.S.C. § 926A provided: Any person not prohibited by this chapter from the transporting, shipping, or receiving a firearm shall be entitled to transport an unloaded, not readily accessible firearm in interstate commerce notwithstanding any provision of any legislation enacted, or any rule or regulation prescribed by any State or political subdivision thereof.
- ↑ fn. 3 Massachusetts was often cited during consideration of these bills as one of the states with local laws that are oppressive to the legitimate sportsmen. See, e.g., 132 Cong. Rec. S9116 (daily ed. July 9, 1985) (statement of Senator Hatch)
- ↑ fn. 4 Senator Kennedy, in his remarks on the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 455 (1986), is most explicit on this point: In addition, Mr. President, the Senate language makes it clear that a state or locality's right to regulate the carrying of firearms by its residents is not affected in any way of the provisions of this Bill. 132 Cong. Rec. S5367 (daily ed. May 6, 1986) (statement of Sen. Kennedy).