COMMONWEALTH vs. John McGOWAN.
Hampden. October 1, 2012. - January
Firearms. Constitutional Law, Right to bear arms. Statute, Validity.
COMPLAINTS received and sworn to in the Springfield Division of the
District Court Department on November 18, 2008.
A motion to dismiss was heard by Jacques C. Leroy, J., and questions of
law were reported to the Appeals Court by him. The Supreme Judicial
Court on its own initiative transferred the case from the Appeals Court.
John A. Rasmussen for the defendant.
Katherine Robertson, Assistant District Attorney, for the Commonwealth.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, &
General Laws c. 140, § 131L (a ), makes it unlawful to store a
firearm that is not carried by or under the immediate control of the
owner or other authorized user unless the firearm is secured in a
locked container or equipped with a safety device that renders the
firearm inoperable by anyone other than the owner or other authorized
user. The issue presented by the reported questions is whether §
131L (a ) is unconstitutional in light of the United States Supreme
Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 635
(2008) (Heller ), which held that the Second Amendment to the United
States Constitution guarantees an individual the right to keep and bear
arms for self-defense in the home, and McDonald v. Chicago, 130 S.Ct.
3020, 3036, 3050 (2010) (McDonald ), which incorporated the guarantees
of the Second Amendment into the Fourteenth Amendment to the United
States Constitution, making the Second Amendment applicable to the
States. We conclude that, where § 131L (a ) allows the owner of a
firearm to carry or otherwise keep the firearm under the owner's
immediate control within the home, and where the storage requirements
are reasonably designed to prevent persons who are not licensed to
possess or carry a firearm, including felons, the mentally ill, and
children, from gaining illegal access to a firearm, § 131L (a )
falls outside the scope of the right to bear arms protected by the
Background. The parties stipulated to the following facts, which are
contained in a stipulation and a police report dated October 19, 2008.
[FN1] The defendant owned a Smith & Wesson 40 caliber semiautomatic
handgun, which he kept loaded and unlocked in a bedroom side table
drawer on the second floor of his home. The defendant had a valid
license to carry a firearm in Massachusetts, issued by the Springfield
police department. On October 19, at approximately 5:42 P.M., officers
were dispatched to the defendant's house in response to a telephone
call he made about a domestic disturbance. When the police arrived, the
defendant reported that he had an argument with his female "roommate"
over a ten-dollar loan, and that his roommate became angry, went into
the defendant's bedroom, retrieved his loaded handgun from the unlocked
drawer, left the house, threw the firearm into the bushes beside the
neighboring house, and locked the defendant out of the house when he
left to retrieve the weapon. The officers secured the handgun, which
was loaded with ten rounds, one in the chamber and the remainder in the
magazine. The defendant told police that the firearm was loaded that
way when the roommate took it.
The defendant was charged in a criminal complaint issued on November
18, 2008, in the Springfield Division of the District Court Department
with a violation of § 131L (a ). The defendant moved to dismiss
the complaint, claiming the statute is unconstitutional. Recognizing
that the issues raised in the motion were "of immense constitutional
depth and seriousness," the motion judge reported two questions to the
"1. Do the holdings in Heller and McDonald, under the circumstances of
this motion, so conflict with the requirements of G.L. c. 140, §
131L (a ), as to render the Massachusetts statute constitutionally
"2. More broadly but quite specifically, with respect to rights
protected by the Second Amendment ... does Massachusetts still maintain
authority to regulate for the protection of its citizens' health,
safety and welfare to the extent that [§ ]131L (a ) could be
See Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004). We
transferred the case to this court on our own motion.
Discussion. In Heller, the United States Supreme Court held that the
Second Amendment to the United States Constitution "protects the right
to possess a handgun in the home for the purpose of self-defense."
[FN2] McDonald, supra at 3050. Heller, supra at 635. Heller struck down
the District of Columbia's "ban on handgun possession in the home" and
its "prohibition against rendering any lawful firearm in the home
operable for the purpose of immediate self-defense." [FN3] Id. The
Court declared that individual self-defense is the "central component "
of the Second Amendment right and the Second Amendment "surely elevates
above all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home" (emphasis in
original). Id. at 599, 635. Since Heller, "[c]ourts have consistently
recognized that Heller established that the possession of operative
firearms for use in defense of the home constitutes the 'core' of the
Second Amendment." Hightower v. Boston, 693 F.3d 61, 72 (1st Cir.2012),
citing United States v. Booker, 644 F.3d 12, 25 n. 17 (1st Cir.2011),
cert. denied, 132 S.Ct. 1538 (2012); United States v. Greeno, 679 F.3d
510, 517 (6th Cir.), cert. denied, 133 S.Ct. 375 (2012); United States
v. Barton, 633 F.3d 168, 170 (3d Cir.2011); United States v. Staten,
666 F.3d 154, 158 (4th Cir.2011), cert. denied, 132 S.Ct. 1937 (2012);
United States v. Reese, 627 F.3d 792, 800 (10th Cir.2010), cert.
denied, 131 S.Ct. 2476 (2011).
The Court in Heller acknowledged that its own precedents dictated that
"the Second Amendment does not by its own force apply to anyone other
than the Federal Government." Heller, supra at 619. See United States
v. Cruikshank, 92 U.S. 542, 553 (1875) (Cruikshank ). See also
Commonwealth v. Runyan, 456 Mass. 230, 233-234 (2010) (Runyan ).
Because Heller dealt with a District of Columbia ordinance, the Court
did not reach the question whether to incorporate the newly confirmed
Second Amendment right into the Fourteenth Amendment's due process
clause. Heller, supra at 620 n. 23.
After the Heller decision, but before the Supreme Court's decision in
McDonald, we upheld the constitutionality of § 131L (a ). [FN4]
Runyan, supra at 237. We distinguished § 131L (a ) from the
District of Columbia regulation invalidated in Heller because §
131L (a ) "does not require that firearms in the home be rendered and
kept inoperable at all times" and "does not make it impossible for
those persons licensed to possess firearms to rely on them for lawful
self-defense." Id. at 236-237. However, we deferred to the Supreme
Court's unwillingness in Heller to overturn Cruikshank. Id. at 233-234.
We determined that Runyan's Second Amendment challenge must fail
because "the Second Amendment is not incorporated under the Fourteenth
Amendment's guarantee of substantive due process and therefore does not
apply to the States." Id. at 235. We did not decide whether Runyan's
alleged violation of § 131L (a ) could survive a motion to dismiss
if the Second Amendment were made applicable to the States through
incorporation under the Fourteenth Amendment's due process clause. Id.
at 237 n. 7.
In McDonald, five members of the Court determined that the individual
right to keep and bear arms in self-defense is protected from
infringement by the States. Four members of the Court agreed that "the
Framers and ratifiers of the Fourteenth Amendment counted the right to
keep and bear arms among those fundamental rights necessary to our
system of ordered liberty" and concluded that "the Due Process Clause
of the Fourteenth Amendment incorporates the Second Amendment right
recognized in Heller." McDonald, supra at 3042, 3050 (plurality
opinion). Justice Thomas, while agreeing with the plurality result that
the Fourteenth Amendment makes the right to keep and bear arms fully
applicable to the States, did not concur that a clause speaking only of
"process" could guarantee a substantive right. Id. at 3058-3059
(Thomas, J., concurring in part and concurring in the judgment).
Instead, Justice Thomas concluded that the right to keep and bear arms
is a "privilege of American citizenship that applies to the States
through the Fourteenth Amendment's Privileges and Immunities Clause."
Id. at 3059 (Thomas, J., concurring in part and concurring in the
judgment). Despite the absence of a majority as to the specific
provision in the Fourteenth Amendment that makes the Second Amendment
applicable to the States, it is clear from the McDonald decision that
States cannot infringe on an individual's right to keep and bear arms
in self-defense of the home. [FN5] Accordingly, we must now address the
question left undecided in Runyan: whether enforcement of § 131L
(a ) constitutes impermissible State infringement on an individual's
right to keep and bear arms for self-defense in the home.
While holding that the Second Amendment provides an individual right to
keep and bear arms in self-defense in the home, the Supreme Court in
Heller made clear that the Second Amendment right is "not unlimited."
Heller, supra at 595. "From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in any manner whatsoever
and for whatever purpose." Id. at 626. See McDonald, supra at 3047.
Accord Commonwealth v. Gouse, 461 Mass. 787, 801 (2012). The Court
"Although we do not undertake an exhaustive historical analysis today
of the full scope of the Second Amendment, nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms."
Heller, supra at 626-627. In a footnote, the Court added, "We identify
these presumptively lawful regulatory measures only as examples; our
list does not purport to be exhaustive." Id. at 627 n. 26.
The Supreme Court made clear that a law that infringes the right to
bear arms in self-defense within the scope of the Second Amendment is
subject to some level of heightened scrutiny, rejecting the notion that
rational basis scrutiny would suffice. Id. at 628 n. 27 ("If all that
was required to overcome the right to keep and bear arms was a rational
basis, the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have no
effect"). But it did not identify precisely what level of heightened
scrutiny is appropriate because it concluded that the District of
Columbia's outright ban on handguns would fail under any level of
scrutiny. Id. at 628-629. See Ezell v. Chicago, 651 F.3d 684, 701 (7th
Cir.2011) ( "Heller's reference to 'any standard of scrutiny' means any
heightened standard of scrutiny" [emphasis in original] ). The Court
rejected, however, Justice Breyer's proposal in his dissenting opinion
that such laws be subject to an " 'interest-balancing inquiry' that
asks 'whether the statute burdens a protected interest in a way or to
an extent that is out of proportion to the statute's salutary effects
upon other important governmental interests." Heller, supra at 634,
quoting id. at 689-690 (Breyer, J., dissenting). In rejecting the
interest-balancing test, the Court drew an analogy to First Amendment
freedom of speech:
"The First Amendment contains the freedom-of-speech guarantee that the
people ratified, which included exceptions for obscenity, libel, and
disclosure of state secrets, but not for the expression of extremely
unpopular and wrong-headed views. The Second Amendment is no different.
Like the First, it is the very product of an interest balancing by the
people ..." (emphasis in original).
Heller, supra at 635.
We appreciate that the "full significance of these pronouncements is
far from self-evident." United States v. Booker, 644 F.3d 12, 23 (1st
Cir.2011). But we discern meaning from the Supreme Court's willingness
to characterize some long-standing limitations on the right to bear
arms, such as the prohibition of the possession of firearms by felons
and the mentally ill, and the regulation of the commercial sale of
arms, as "presumptively lawful" without subjecting these laws to
heightened scrutiny, or identifying the level of heightened scrutiny
that would apply. These laws could be presumptively lawful without such
heightened scrutiny only if they fell outside the scope of the Second
Amendment and therefore were not subject to heightened scrutiny. This
conclusion is supported by the Supreme Court's analogy to the First
Amendment right to freedom of speech, where it noted that obscenity,
libel, and the disclosure of State secrets were excluded from the scope
of the protection provided by this amendment through the "interest
balancing" of those that enacted the right. Heller, supra at 634-635.
The inference we draw from the Supreme Court's analysis is that the
"presumptively lawful" prohibitions and regulations do not burden
conduct that falls within the scope of the Second Amendment and
therefore are not subject to the heightened scrutiny required where
protected conduct within the scope of the Second Amendment is
infringed. See Ezell v. Chicago, supra at 702, quoting United States v.
Stevens, 130 S.Ct. 1577, 1584-1585 (2010) ("The Supreme Court's
free-speech jurisprudence contains a parallel for this kind of
threshold 'scope' inquiry. The Court has long recognized that certain
'well-defined and narrowly limited classes of speech'--e.g., obscenity,
defamation, fraud, incitement--are categorically 'outside the reach' of
the First Amendment"). See generally, Volokh, Implementing the Right to
Keep and Bear Arms for Self-Defense: An Analytical Framework and a
Research Agenda, 56 UCLA L.Rev. 1443, 1449-1453 (2009).
The inference we draw from Heller is shared by many of the circuit
courts of the United States Court of Appeals that have concluded that "
'longstanding' regulations" are "presumed not to burden conduct within
the scope of the Second Amendment." Heller v. District of Columbia, 670
F.3d 1244, 1253 (D.C.Cir.2011). See United States v. Marzzarella, 614
F.3d 85, 91 (3d Cir.2010), cert. denied, 131 S.Ct. 958 (2011)
("longstanding limitations are exceptions to the right to bear arms").
See also United States v. Booker, supra at 22-23; United States v.
Chester, 628 F.3d 673, 679-680 (4th Cir.2010); United States v. Skoien,
614 F.3d 638, 640 (7th Cir.2010) (en banc), cert. denied, 131 S.Ct.
1674 (2011); United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009),
cert. denied, 130 S.Ct. 1109 (2010). [FN6]
The "presumptively lawful" prohibitions and regulations that burden
conduct outside the scope of the Second Amendment and therefore are not
subject to heightened scrutiny under the Second Amendment are not
limited to those that existed at the time of ratification in 1791. As
the United States Court of Appeals for the First Circuit noted:
"The felony firearm disqualification, which numbers among Heller's list
of 'presumptively lawful' measures, presents a case in point. Though
there may be some historical predicates for restricting the gun rights
of those who have been convicted of a crime ... the modern federal
felony firearm disqualification law, 18 U.S.C. § 922(g)(1), is
firmly rooted in the twentieth century and likely bears little
resemblance to laws in effect at the time the Second Amendment was
ratified" (citations and footnote omitted).
United States v. Booker, supra at 23-24. See National Rifle Ass'n of
Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700
F.3d 185, 196 (5th Cir.2012) ("Heller demonstrates that a regulation
can be deemed 'longstanding' even if it cannot boast a precise
founding-era analogue"); United States v. Skoien, supra at 641
("exclusions need not mirror limits that were on the books in 1791").
Nonetheless, laws prohibiting certain classes of people from gaining
access to firearms predate the enactment of the Second Amendment. See
United States v. Rene E., supra at 15-16. For example, in the early
days of the American Revolution, Massachusetts and Pennsylvania passed
acts that disarmed anyone who refused to swear an oath of allegiance to
the new nation. See St. 1776, c. 7; 1778 Pa. Laws c. 51, §§
5, 6. In 1787, Massachusetts again limited access to firearms, this
time by requiring individuals who participated in Shays' Rebellion to
relinquish their arms for three years in order to obtain a pardon. See
St. 1787, c. 6. See also Kates, Second Amendment Limitations and
Criminological Considerations, 60 Hastings L.J. 1339, 1360 (2009)
("from time immemorial, various jurisdictions recognizing a right to
arms have nevertheless taken the step of forbidding suspect groups from
having arms"); Cornell, "Don't Know Much About History": The Current
Crisis in Second Amendment Scholarship, 29 N. Ky. L.Rev. 657, 679
(2002) (during "Founding era," right to bear arms understood as "not
something that all persons could claim, but was limited to those
members of the polity who were deemed capable of exercising it in a
We have consistently held, without applying any level of heightened
scrutiny, that the decisions in Heller and McDonald did not invalidate
laws that require a person to have a firearm identification card to
possess a firearm in one's home or place of business, and to have a
license to carry in order to possess a firearm elsewhere. See
Commonwealth v. Johnson, 461 Mass. 44, 58 (2011); Commonwealth v.
Loadholt, 460 Mass. 723, 726 (2011); Commonwealth v. Powell, 459 Mass.
572, 589-590 (2011). Accord People v. Perkins, 62 A.D.3d 1160, 1161
(N.Y.2009) (New York firearm licensing regulations do not violate
Second Amendment). We are not alone. For example, in Heller v. District
of Columbia, supra at 1254, the United States Court of Appeals for the
District of Columbia Circuit held that "the basic requirement to
register a handgun is longstanding in American law" and is
presumptively lawful. Similarly, in United States v. Rene E., supra at
15, the United States Court of Appeals for the First Circuit upheld a
Federal statute prohibiting juveniles from possessing handguns because
it was part of a "longstanding practice of prohibiting certain classes
of individuals from possessing firearms--those whose possession poses a
particular danger to the public." Contrast Heller v. District of
Columbia, supra at 1255-1256 (applying heightened scrutiny to "novel"
registration requirements); United States v. Chester, 628 F.3d 673,
681, 682 (4th Cir.2010) (intermediate scrutiny appropriate because "we
are certainly not able to say that the Second Amendment, as
historically understood, did not apply to persons convicted of domestic
Nor did the decisions in Heller and McDonald invalidate laws that
prevent the sale of firearms to persons who have no firearms
identification card and therefore are not authorized to possess a
firearm. The Supreme Court in Heller specifically recognized that "laws
imposing conditions and qualifications on the commercial sale of arms"
are among the "presumptively lawful regulatory measures." Heller, supra
at 626-627 & n. 26. Laws that prohibit the sale of firearms to
unauthorized users are similar in purpose to laws, such as § 131L
(a ), that require those authorized to possess a firearm, when they are
not carrying or otherwise immediately controlling the firearm, to
secure it to ensure that those who are not authorized to possess a
firearm do not gain access to their firearm. Both types of laws are
designed to keep firearms out of the hands of those not authorized by
law to possess a firearm, including but not limited to felons, the
mentally ill, and children. See Commonwealth v. Reyes, post at & n.
4 (2012); Jupin v. Kask, 447 Mass. 141, 154 (2006) (§ 131L [a ]
"is illustrative of the societal concern with weapons reaching the
hands of unauthorized users"); Commonwealth v. Patterson, 79
Mass.App.Ct. 316, 319 (2011) (purpose of § 131L [a ] is "to guard
against the use of firearms by unauthorized, incompetent, or
irresponsible persons"). Without § 131L (a ) or a comparable
statute, those prohibited from purchasing a firearm may nonetheless
gain ready access to an unsecured firearm that is not under the
immediate control of the owner. [FN7]
Where a firearm is stored in the home, however, restrictions on the
sale or storage of firearms must be consistent with the Second
Amendment right of self-defense in the home. The provision of the
District of Columbia Code at issue in Heller, D.C.Code § 7-2507.02
(2008), was not consistent with the right of self-defense in the home.
As we noted in Runyan, supra at 236:
"Under this provision, a person registered to keep a firearm (apart
from law enforcement personnel) was prohibited in any circumstance from
carrying or keeping a loaded firearm in his or her home. The ordinance
prohibited a registered gun owner from keeping even an unloaded firearm
in his or her home unless it was disassembled or rendered inoperable by
a trigger lock or similar device."
In contrast, as we also noted, id.:
"Under [G.L. c. 140, § 131L (a ) ], an individual with a valid
firearms identification card issued under G.L. c. 140, § 129C, is
not obliged to secure or render inoperable a firearm while the
individual carries it or while it remains otherwise under the
individual's control. A gun owner may therefore carry or keep a loaded
firearm under his or her control in his or her home without securing it
with a trigger lock or comparable safety device. The gun owner's
obligation to secure the firearm in accordance with the statute arises
only when the firearm is stored or otherwise outside the owner's
Therefore, unlike the provision declared unconstitutional in Heller,
§ 131L (a ) is consistent with the right of self-defense in the
home because it does not interfere with the ability of a licensed gun
owner to carry or keep a loaded firearm under his immediate control for
self-defense. See Commonwealth v. Reyes, supra at; Commonwealth v.
Patterson, supra at 318 ("statute's storage requirement placed no
meaningful restraint on the defendant's ability to use the gun in
lawful self-defense if for no other reason than that he himself placed
it where it could not be quickly reached"); Jackson vs. City &
County of San Francisco, U.S. Dist. Ct., No. C 09-2143 RS, slip op. at
4 (N.D.Cal. Aug. 17, 2012), quoting Heller, supra at 576 (regulation
that allows residents to carry unsecured firearms freely in their
homes, but requires them to apply trigger locks or to store handguns in
locked containers when the guns are not under direct, personal control,
"permits individuals the very right the plaintiff in Heller was
seeking: 'to render a firearm operable and carry it about his home in
that condition' ").
Even though the obligation to secure a firearm in § 131L (a )
applies only where the gun owner chooses not to carry a firearm or keep
it under his immediate control, the defendant suggests that the brief
period of delay needed to unlock a secure storage container or trigger
lock suffices to render this requirement in violation of the Second
Amendment's right to self-defense in one's home. We disagree. The
Supreme Court in Heller specifically noted that its analysis did not
"suggest the invalidity of laws regulating the storage of firearms to
prevent accidents." Heller, supra at 632. The prevention of accidents
by those not authorized to use firearms, as well as the prevention of
crimes of violence and suicide by those not authorized to possess
firearms, are among the evils that § 131L (a ) is intended to
prevent. See Commonwealth v. Reyes, supra at & n. 4. Any law
regulating the storage of firearms will delay to some degree the
ability of a firearm owner to retrieve and fire the firearm in
self-defense. If such a brief period of delay were sufficient to render
the law unconstitutional, the Supreme Court in Heller would not have
declared that its analysis did not suggest the invalidity of firearm
storage laws. [FN8]
We hold that, because § 131L (a ) is consistent with the right to
bear arms in self-defense in one's home and is designed to prevent
those who are not licensed to possess or carry firearms from gaining
access to firearms, it falls outside the scope of the Second Amendment.
As a result, it is subject only to rational basis analysis, which it
easily survives. Therefore, we conclude that § 131L (a ) is
constitutional under the Supreme Court's holdings and analysis in
Heller and McDonald, and that Massachusetts may enforce § 131L (a
) to protect the health, safety, and welfare of its citizens. [FN9]
Conclusion. We answer, "No," to the first reported question, and,
"Yes," to the second reported question. The case is remanded to the
District Court for further proceedings consistent with this decision.
FN1. The parties also agreed to the submission of
the defendant's United States Air Force service record, which reflects
that he was honorably discharged from the Air Force, having attained
the rank of captain.
FN2. The Second Amendment to the United States
Constitution 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."
FN3. The provision of the District of Columbia Code
declared unconstitutional by the Court in District of Columbia. v.
U.S. 570 (2008), provided:
"Except for law enforcement personnel described in
§ 7-2502.01(b)(1), each registrant shall keep any firearm in his
possession unloaded and disassembled or bound by a trigger lock or
similar device unless such firearm is kept at his place of business, or
while being used for lawful recreational purposes within the District
D.C.Code § 7-2507.02 (2008).
FN4. General Laws c. 140, § 131L (a ), states:
"It shall be unlawful to store or keep any firearm,
rifle or shotgun including, but not limited to, large capacity weapons,
or machine gun in any place unless such weapon is secured in a locked
container or equipped with a tamper-resistant mechanical lock or other
safety device, properly engaged so as to render such weapon inoperable
by any person other than the owner or other lawfully authorized user.
For purposes of this section, such weapon shall not be deemed stored or
kept if carried by or under the control of the owner or other lawfully
FN5. The only consequential difference between the
two approaches to incorporation in § 1 of the Fourteenth Amendment
to the United States Constitution is that the privileges and immunities
clause provides that States shall not abridge the "privileges or
immunities of citizens of the United States," while the due process
clause applies to "any person" (emphasis added). Neither party disputes
that McGowan is a citizen of the United States. Thus, any distinction
between the plurality's and Justice Thomas's approach to incorporation
is immaterial where, as here, the defendant is both a person and a
citizen of the United States.
FN6. "Though we always treat their decisions with
deference, we are not bound by decisions of Federal courts except the
decisions of the United States Supreme Court on questions of Federal
law." Commonwealth v. Montanez, 388 Mass. 603, 604 (1983).
FN7. The dangers posed when firearms are made
accessible to unauthorized users cannot be understated. For example, in
2009, 800 children and teenagers in the United States committed suicide
with a firearm, and firearm accidents killed an additional 114 children
and teenagers. Children's Defense Fund, Protect Children Not Guns 2012,
FN8. We also note, as we did in Commonwealth v.
Runyan, 456 Mass. 230, 237 n. 8 (2010) that, "even if a firearm were
secured in the manner required by G.L. c. 140, § 131L (a ), a gun
owner threatened in his or her home today would be able to fire the
weapon in self-defense at least as quickly as would a gun owner in
1791, when the Second Amendment was adopted. At that time, laws were in
effect requiring that gunpowder be stored separately from firearms,
which meant that a law-abiding homeowner acting in self-defense would
need time to load and fire a musket or flintlock pistol. See [District
of Columbia v. Heller, 554 U.S. 570, 684-686 (2008) ] (Breyer, J.,
dissenting). A skilled soldier of that time using specially prepared
cartridges required a minimum of fifteen to twenty seconds to load and
fire a musket; a less skilled soldier could fire no more quickly than
once per minute. Hicks, United States Military Shoulder Arms,
1795-1935, 1 Am. Military Hist. Found. 23, 30-31 (1937). A gun owner
today could remove a firearm from a locked container or release a
trigger lock more quickly than that."
FN9. Because we conclude that § 131L (a ) falls
outside the scope of the Second Amendment, we need not delve into the
unsettled waters surrounding the level of heightened scrutiny
applicable to statutes within its scope that infringe on the right to
bear arms in self-defense in the home. See Ashwander v. Tennessee
Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring),
quoting Burton v. United States, 196 U.S. 283, 295 (1905) ("It is not
the habit of the court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case"). Declining to
address this issue is particularly appropriate in a case, such as this,
where neither party briefed the question.