Local Authority to Regulate Firearms in the District of Columbia

Posted on Wednesday, October 7th, 2015

The District of Columbia has broad authority to regulate firearms. The District derives its delegated legislative powers from the Home Rule Act1), enacted in 1973. Section 1-303.43 incorporates an earlier grant of power (formerly § 1-321; originally § 1-227, enacted in 1906) authorizing the District Council to make and enforce laws regulating firearms and ammunition. The statute provides that:

The Council of the District of Columbia is hereby authorized and empowered to make … all such usual and reasonable police regulations…as the Council may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.

In McIntosh v. Washington, 395 A.2d 744 (D.C. 1978), the District of Columbia Court of Appeals rejected a challenge to the District’s Firearms Control Regulations Act of 19752, relating to the use and sale of firearms. Appellants argued that the City Council was without authority to adopt the Act because the legislative history of section 1-147(a)(9)3) of the Home Rule Act, requiring elected Council members to wait 24 months after taking office before enacting certain legislation, demonstrated Congress’ intent to prohibit the District from adopting a comprehensive criminal regulatory scheme. The court rejected this argument, holding that the statute does not limit the District’s authority to enact firearms regulations that do not conflict with existing Congressional regulation for the District.4

The court noted that the federal Gun Control Act of 1968 explicitly provides that Congress has no intent to occupy the field of gun regulation to the exclusion of state law touching on the same subject matter “unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together. [Emphasis added.]”5 Finding no “direct and positive” conflict between the District’s gun control regulations and the Home Rule Act, the court stated:

[A] parallel enactment in a given area cannot be stricken simply because it expands the scope of restrictions imposed by a parent legislative body. The Firearms Act, much like the predecessor gun control regulations upheld in Pistol Ass’n, fits within the general pattern of antecedent congressional enactments.6

In Maryland & District of Columbia Rifle and Pistol Ass’n, Inc. v. Washington, 442 F.2d 123 (D.C. Cir. 1971), a case decided before enactment of the Home Rule Act, the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the District’s local police firearm regulations (D.C. Pol. Reg. Arts. 50-55, subsequently repealed and replaced by D.C. Code Ann. § 7-2501.01 et seq.). The court held that the enactment of firearm legislation for the District by the U.S. Congress did not preempt the District Council’s right to adopt additional firearms regulations pursuant to an act of 1906 authorizing the Council to make and enforce all regulations deemed necessary for the regulation of firearms. The court concluded that the existence of both Congressional and District regulation on the same subject matter was not problematic, as long as the two regulatory schemes did not conflict. The court stated:

The important consideration, we think, is not whether the legislature and municipality have both entered the same field, but whether in doing so they have clashed. Statutory and local regulation may coexist in identical areas although the latter, not inconsistently with the former, exacts additional requirements, or imposes additional penalties.7

In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the U.S. Supreme Court found that the District’s decades-old ban on handgun possession and its requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device were unconstitutional violations of the Second Amendment. In Heller, the Court held that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense). Although Heller did not invalidate other gun control laws enacted by the District of Columbia, Brown v. United States, 979 A.2d 630, 638 (D.C. 2009), the District must now take this right into consideration when adopting new firearm-related laws. For more information on the Heller case, see the Law Center’s materials on the Second Amendment

  1. D.C. Code Ann. § 1-201.01 et seq. Pursuant to Article I, section 8, clause 17 of the Constitution, and the Home Rule Act, Congress retains the power to override legislation enacted by the District of Columbia, either by passing a resolution of disapproval before such legislation becomes law, or by passing a bill to modify or repeal it after goes into effect. §§ 1.206.01 et seq; See Bliley v. Kelly, 23 F.3d 507, 508 (Ct. App. D.C.Cir. 1994 []
  2. § 7-2501.01 et seq. []
  3. § 1-206.02(a)(9 []
  4. McIntosh, 395 A.2d at 753. []
  5. Id. []
  6. McIntosh, 395 A.2d at 753. []
  7. Maryland & District of Columbia Rifle and Pistol Ass’n, Inc., 442 F.2d at 130. []

Local Authority to Regulate Firearms in California

Posted on Tuesday, October 6th, 2015

General Preemption Law in California

Article XI, § 7 of the California Constitution provides that “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Under this provision, a local government’s police power is as broad as the state Legislature’s power, and a city or county may act to protect the welfare of its residents.1 A local government’s police power includes the power to regulate firearms.2

Ordinances enacted pursuant to the police power are valid unless they conflict with state law.3 A conflict exists if the ordinance contradicts, duplicates, or enters an area occupied by general law, either expressly or by legislative implication.4

“An ordinance contradicts state law if it is inimical to state law; i.e., it penalizes conduct that state law expressly authorizes or permits conduct which state law forbids.”5 Local law is duplicative of state law if it is coextensive with state law.6  Finally, “local legislation enters an area that is ‘fully occupied’ by [state] law when the Legislature has expressly manifested its intent to ‘fully occupy’ the area or when it has impliedly done so.”7  

Express Preemption of Local Laws in California

The California Legislature has expressly preempted the following areas of firearms law: 1) licensing or registration of commercially manufactured firearms8;  2) licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business9); and 3) regulation of the manufacture, sale or possession of “imitation firearms.”10

California Government Code § 53071 provides:

It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision … ..

California Penal Code § 25605(b) provides:

No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 … or Chapter 3 of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.

 California Government Code § 53071.5 provides:

By the enforcement of this section, the Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms, as defined in subdivision (a) of Section 16700 of the Penal Code, and that section shall preempt and be exclusive of all regulations relating to the manufacture, sale, or possession of imitation firearms, including regulations governing the manufacture, sale, or possession of BB devices and air rifles as defined in subdivision (a) of Section 16700 of the Penal Code.

In addition, while California generally permits local regulation of sport shooting ranges, local jurisdictions are barred from enforcing new or amended noise control laws on shooting ranges that are in operation and not in violation of existing law at the time of the enactment of the new or amended noise control ordinance, if there has been no substantial change in the nature or use of the range.11

Implied Preemption in California

Courts will not infer preemption unless the circumstances clearly indicate the Legislature intended to preempt the field.12

The Supreme Court of California has held that local regulation may be preempted when the Legislature “has impliedly done so in light of one of the following indicia of intent:”

  1. The subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;
  2. The subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or
  3. The subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the [locality].13

Courts have looked to the Legislature’s response to court rulings as an indicator of legislative intent. Ultimately, the question to be resolved in an implied preemption analysis “is not whether a statute grants [a locality] a power, but whether a statute deprives [a locality] of a power already bestowed upon the [locality] by the Constitution.”14

Suter v. City of Lafayettesupra, involved a preemption challenge to an ordinance regulating the location and operation of firearms dealers.  The court of appeal held that local governments are not generally excluded by state law from imposing additional licensing requirements on firearm dealers. Suter, 67 Cal. Rptr. 2d at 422. The court found that, with one exception (It struck down the portion of the ordinance regulating firearm storage but after the decision, the state legislature passed a statute allowing local governments to enact storage requirements that are stricter than state law), the ordinance provisions did not conflict with, duplicate, or enter into a field fully occupied by state law and were not, therefore, preempted.15

In Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the Court of Appeal held that Gov’t Code § 53071 and Penal Code § 12026 (now section 25605) expressly preempted a local ordinance banning the possession of handguns. Because the ordinance contained an explicit exception for concealed weapons licensees, the court found that the measure had the effect of creating a new class of persons who would be required to obtain a license in order to possess a handgun in their home or place of business,  violating section 53071’s preemption of  “all local regulations … relating to … licensing of commercially manufactured firearms.”16

The court also stated that:

If we were to find in the San Francisco Handgun Ordinance no “licensing” requirement within the express wording of Government Code section 53071 and Penal Code section 12026 (now section 25605), we would still reach the conclusion that state law preempts the San Francisco ordinance under the theory of implied preemption. It is at least arguable that the state Legislature’s adoption of numerous gun regulations has not impliedly preempted all areas of gun regulation. However, we infer from Penal Code section 12026 (now section 25605) that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. A restriction on requiring permits and licenses necessarily implies that possession is lawful without a permit or license.17

Cases subsequent to Doe demonstrate that section 25605 (formerly section 12026) should be read narrowly.18

The Supreme Court of California reaffirmed the authority of local governments to regulate firearms – this time in the context of gun shows – in two related cases: Great Western Shows, Inc. v. County of Los Angeles, 44 P.3d 120 (Cal. 2002) and Nordyke v. King, 44 P.3d 133 (Cal. 2002). Great Western involved a challenge to a Los Angeles County ordinance prohibiting the sale of firearms and ammunition on county-owned property. The County adopted the ordinance after a California Department of Justice undercover operation revealed numerous illegal firearm sales at a gun show held on the county fairgrounds. Legislative findings accompanying the ordinance also recited the high incidence of gun-related deaths and injuries in the County.

Great Western Shows, Inc., a gun show promoter filed suit in the United States District Court for the Central District of California, alleging, among other things, that the ordinance was preempted by state law and violated the First Amendment. The district court granted a preliminary injunction, holding that the complaint raised substantial questions regarding whether state law preempted the ordinance. The County filed an interlocutory appeal in the U.S. Court of Appeals for the Ninth Circuit, which then certified to the state supreme court questions relating to preemption and jurisdiction.

The supreme court rejected plaintiff’s claim that state law has preempted the field of gun show regulation. The court observed that there is no express preemption in this area, noting that, on the contrary, Penal Code sections 12071 (concerning the licensing of firearm dealers, now section 26700, et seq.) and 12071.4 (regulating gun shows, now section 27300, et seq.) explicitly acknowledge the existence of local laws pertaining to gun shows. The court found the ordinance not duplicative of or in conflict with state law, stating that although gun show statutes regulate, inter alia, the sale of guns at gun shows and therefore contemplate gun shows, the statutes do not mandate sales such that a limitation of sales on county property would be in direct conflict with the statutes.19

The court refused to find implied preemption under the three “indicia of intent” detailed in Sherwin-Williams Co.supra, finding first that state law does not clearly indicate that gun show regulation has become exclusively a matter of state concern. The court declined to find a “paramount state concern” that will not tolerate further local action, noting judicial reluctance to find such a concern where there is a significant local interest to be served that may differ from one community to another: “It is true today as it was more than 30 years ago when we stated it in Galvan, ‘[t]hat problems with firearms are likely to require different treatment in San Francisco County than in Mono County.’20

Thus, the court found, the costs and benefits of making firearms more available through gun shows to the populace of a heavily urban county such as Los Angeles may well be different than in rural counties, where violent gun-related crime may not be as prevalent.21

The court also refused to find implied preemption under the third “indicia of intent,” agreeing with previous cases that “[l]aws designed to control the sale, use or possession of firearms in a particular community have very little impact on transient citizens.”22

In addition, the court rejected Great Western’s claim that, while state law may permit local gun show regulations, it would not tolerate a regulation that would have the effect of banning such shows. The court found nothing in state law to indicate a stated purpose of promoting or encouraging gun shows; rather, state law merely acknowledges that such shows take place and regulates them to promote public safety. The court noted further that the ordinance does not affect gun shows countywide, but only disallows gun sales on county-owned property. The court found that none of the gun show statutes implicitly seek to override a county’s ability to manage its property and make fundamental decisions regarding its use.23

The Supreme Court of California issued a similar ruling in Nordyke v. King, 44 P.3d 133 (Cal. 2002), rejecting a challenge to an Alameda County ordinance prohibiting the possession of firearms and ammunition on county-owned property. The County had adopted the ordinance after a mass shooting at the county fairgrounds on July 4, 1998, and recited the epidemic of gunshot fatalities and injuries in the County as additional justification for the ordinance.

Incorporating its analysis and holding in Great Western, the supreme court found that state law did not preempt the Alameda County ordinance. The court held that the ordinance does not duplicate or contradict state law governing the possession of firearms, including Penal Code section 171b, which exempts from its prohibition on gun possession in public buildings persons who lawfully possess firearms at gun shows:

The provision merely exempts gun shows from the state criminal prohibition on possessing guns in public buildings, thereby permitting local government entities to authorize such shows. It does not mandate that local government entities permit such a use, and the Nordykes cite no legislative history indicating otherwise.24

The court noted that the ordinance may be more restrictive than state statutes inasmuch as the latter provide more exceptions to the general prohibition on firearm possession (e.g., those for animal control officers). However, the court stated that “the fact that certain classes of persons are exempt from state criminal prosecution for gun possession does not necessarily mean that they are exempt from local prosecution for possessing the gun on restricted county property.”25  In addition, the court held that even if the ordinance were partially preempted as to persons exempted from prosecution by state law, it would not be invalidated as a whole.

In Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895 (Cal. Ct. App. 2008), the Court of Appeal considered whether a municipal ordinance prohibiting the sale, distribution, transfer and manufacture of all firearms and ammunition in San Francisco and banning possession of handguns by San Francisco residents, was preempted by state law.  The court held that Penal Code section 12026(b) (now section 25605(b)) and Government Code section 53071 preempted the ban on handgun possession. The court also found that section 53071 and Penal Code sections 12026(b) (now section 25605(b)) and 12125-12133 (the state Unsafe Handgun Act, now sections 32000-32030) preempted the transfer and manufacture prohibitions. The California Supreme Court declined to review the case.

In Calguns Foundation, Inc. v. County of San Mateo, 218 Cal. App. 4th 661 (Cal. Ct. App. 2013), the Court of Appeal rejected a preemption challenge to a San Mateo County ordinance prohibiting the possession and use of guns in the county’s parks and recreational areas. In reliance on Great Western and Nordyke the court found no conflict between the ordinance and state law, specifically, Penal Code section 26150 et seq. and Government Code section 53071. The court emphasized that the county ordinance, like the regulations in issue in those cases, was a land use restriction on county-owned property rather than a blanket prohibition on gun possession or use anywhere within the jurisdiction such as the San Francisco municipal ordinance found preempted in Fiscal.26

  1. Candid Enterprises v. Grossmont Union High School District, 705 P.2d 876, 882 (Cal. 1985). []
  2. Galvan v. Superior Court of San Francisco, 452 P.2d 930 (Cal. 1969). []
  3. Sherwin-Williams Co. v. City of Los Angeles, 844 P.2d 534, 536 (Cal. 1993). []
  4. Id. at 536-7. []
  5. Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 428 (Cal. Ct. App. 1997). []
  6. Sherwin-Williams, 844 P.2d at 536. []
  7. Id. at 536-7. (citations omitted). []
  8. Cal. Gov’t Code § 53071 []
  9. Cal. Penal Code § 25605(b []
  10. Cal Gov’t Code § 53071.5.  A 2012 amendment to this statute allows the County of Los Angeles and any city within the County of Los Angeles to adopt regulations more restrictive than state law when it comes to regulating the manufacture, sale, possession, or use of any BB device, toy gun, replica of a firearm, device that expels a firearm no more than 16 millimeters in diameter, or any device that is so substantially similar in appearance to a firearm as to lead a reasonable person to perceive that the device is a firearm. []
  11. Cal. Civ. Code § 3482.1(d). []
  12. California Rifle and Pistol Ass’n, Inc. v. City of West Hollywood, 78 Cal. Rptr. 2d 591, 600 (Cal. Ct. App. 1998) (holding that state law did not preempt a local ordinance banning the sale of Saturday Night Specials). []
  13. Sherwin-Williams Co., 844 P.2d at 537 (citations omitted). []
  14. City of West Hollywood, supra, 78 Cal. Rptr. 2d at 602, 598-601 (California Legislature’s history of selective and narrow preemption in response to court’s holding that the Legislature had not preempted local firearms regulations indicated Legislative intent to leave this area open to local regulation). []
  15. Id. []
  16. Id. at 384. []
  17. Id. at 385 (citation omitted). []
  18. See City of West Hollywood, 78 Cal. Rptr. 2d at 605 (rejecting argument that section 12026, now section 25605, creates a broad right to purchase or possess any handgun not specifically prohibited by state law).] []
  19. Great Western, 44 P.3d at 128. []
  20. Galvansupra, 452 P.2d at 938. []
  21. Great Western, 44 P.3d at 128-129. []
  22. Id. at 129. See Galvan, 452 P.2d at 939. []
  23. Great Western, 44 P.3d at 130-131. []
  24. Nordyke, 44 P.3d at 138. []
  25. Id. []
  26. Calguns Foundation at p. 677. []

The President is Right: Thoughts and Prayers Are Not Enough

Posted on Monday, October 5th, 2015


We find ourselves, yet again, in the aftermath of another tragic school shooting–this time at Umpqua Community College in Roseburg, Oregon. A gunman opened fire on campus last Thursday, killing nine students and injuring seven others. The incident was the 142nd school shooting since the massacre at Sandy Hook Elementary, and the 294th mass shooting in the United States this year–which means we’ve averaged more than one mass shooting per day.

And again we’re left wondering when the political agenda set by our lawmakers will follow the will of the people. We know the vast majority of Americans support commonsense solutions that save lives from gunfire. 92 percent of Americans support universal background checks—and 92 percent of gun owners do too. It’s time our laws and leadership reflected that support, a sentiment our executive director, Robyn Thomas, expressed in a recent New York Times op-ed.

Hours after last week’s tragedy, President Barack Obama spoke of the urgent need for smart gun laws like universal background checks and gun violence protective orders—we applaud his leadership, and the Law Center is proud to stand with President Obama in the fight to bring some sanity to our gun laws.

“And it will require that the American people, individually, whether you are a Democrat or a Republican or an independent, when you decide to vote for somebody, are making a determination as to whether this cause of continuing death for innocent people should be a relevant factor in your decision,” the president said on Thursday. “If you think this is a problem, then you should expect your elected officials to reflect your views.”

We agree—Americans must start holding their lawmakers accountable when it comes to passing the kind of legislation that could help prevent another Roseburg—or Charleston, or Lafayette, or Chattanooga, or any of the other 294 mass shootings this year—from happening.

  • Gun Violence Protective Orders: Also known as gun violence restraining orders, these laws empower families and law enforcement to petition a judge to remove guns from individuals who pose a risk to themselves or others. Shooters often exhibit dangerous warning signs and GVPO laws help keep guns away from people with the intent to harm. California passed a landmark GVPO law last year in response to the shooting at the University of California, Santa Barbara.
  • Limiting bulk purchase of guns and regulating ammunition sales: Firearms purchased in “multiple sales” are more frequently used in crimes, and mass shooters often stockpile ammunition, as seen in the 2012 mass shooting in an Aurora, CO cinema that left 12 dead and 28 injured.

The Law Center has made preventing mass shootings a top priority for over two decades—our organization was founded in the wake of a 1993 assault weapon rampage that killed eight and left six wounded. Our lawyers track gun laws in all 50 states, which we compile into our annual Gun Law State ScorecardIn 2014, we gave Oregon a D+ for their gun laws.

We already know what steps need to be taken to prevent the senseless killings that occur in communities across the United States. And while 117 new smart gun laws have been enacted in 39 states since Newtown, many lawmakers at the state and federal level continue to bow to the gun lobby’s deadly agenda. The Law Center is on the front lines of the battle against gun violence, and we need you to raise your voice in support of smart gun laws. Become a member today and join us in demanding more from the leaders that we elect to represent us—help us save lives. 

For more information about gun laws in Oregon, visit our policy page.

For a comprehensive analysis and state by state ranking of gun laws across the United States, visit our Gun Law State Scorecard.

Fifty Caliber Rifles in Ohio

Posted on Monday, September 21st, 2015

Ohio has no law restricting fifty caliber rifles.

See our Fifty Caliber Rifles policy summary for a comprehensive discussion of this issue.

State Right to Bear Arms in New Jersey

Posted on Monday, September 21st, 2015

The New Jersey Constitution contains no provisions relating to the keeping or bearing of arms.  However, New Jersey courts have generally upheld in-state firearm regulations that were otherwise challenged on Second Amendment grounds.

In the 2010 case Crespo v. Crespo, 989 A.2d 827 (N.J. 2010), the Supreme Court of New Jersey held that the “seizure of a defendant’s firearms upon a finding of domestic violence” did not violate an individual’s Second Amendment right to bear arms.1  The court noted that the Second amendment right to keep and bear arms “is incorporated as against the States by the Fourteenth Amendment,” and that “the right to possess firearms clearly may be subject to reasonable limitations.”2

In 2013, the Superior Court of New Jersey concluded that a statute requiring a showing of justifiable need prior to the issuance of a firearm permit did not violate the Second Amendment right to bear arms.3  The court held that “[the] state law governing permits to carry handguns does not ‘burden any protected conduct’ under the Second Amendment,”4 and noted that it was unclear, in the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), whether the Second Amendment right extended outside the home.5

  1. 989 A.2d at 828. []
  2. Id. []
  3. In re Patano, 60 A.3d 507 (N.J. Super. Ct. App. Div. 2013). []
  4. Id. at 513, quoting Piszczatoski v. Filko, 840 F.Supp.2d 813, 829 (D.N.J. 2012). []
  5. 60 A.3d at 514.  See also In re Wheeler, 81 A.3d 728 (N.J. Super. Ct. App. Div. 2013) (upholding a similar standard of justifiable need for permits authorizing certain retired law enforcement officers to carry handguns). []

Multiple Purchases & Sales of Firearms in Massachusetts

Posted on Monday, September 21st, 2015

Massachusetts has no law restricting sales or purchases of multiple firearms.

See Restrictions on Multiple Purchases or Sales of Firearms for a comprehensive discussion of this issue.


Mental Health Reporting in Massachusetts

Posted on Monday, September 21st, 2015

See our Mental Health Reporting policy for a comprehensive discussion of this issue.

Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 Massachusetts law states that Firearm Identification Cards (“FID”) and licenses to carry handguns may not be issued to applicants who have been committed to any hospital or institution for mental illness, or appointed a guardian or conservator on the grounds that he or she lacks the mental capacity to manage his or her affairs.2 Upon issuing the commitment order, the court must notify the person that he or she is prohibited from obtaining a FID or license to carry.3

No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers. In 2014, Massachusetts enacted a law significantly improving the state’s reporting of mental health information to NICS. The law requires courts to transmit certain mental health records, such as records of involuntary commitments and the appointment of a guardian or conservator, to the state Department of Criminal Justice Information Services for inclusion in NICS.4

The Department of Mental Health must keep records of the admission, treatment, and periodic review of all persons admitted to facilities under its supervision.5 However, the records of the Department of Mental Health are “private and not open to public inspection” except for certain specified purposes.”6 The 2014 law allows the use of such information for the purposes of conducting background checks. ((Mass. Gen. Laws ch. 123, § 36A.))

In addition, the 2014 law requires the Department of Mental Health to transmit to the Department of Criminal Justice Information Services, within 180 days of the effective date of the law, identifying information about anyone known to the Department of Mental Health to have been, within the preceding 20 years, committed to facilities for mental illness or substance/alcohol abuse; or determined by a adjudicative body to “pose a serious risk of harm” as defined by the law.7

For general information on the background check process and categories of prohibited purchasers or possessors, see the Background Checks section and the section entitled Prohibited Purchasers Generally.

  1. 18 U.S.C. § 922(d)(4). []
  2. Mass. Gen. Laws ch. 140, § 129B. []
  3. Mass. Gen. Laws ch. 123, § 35. []
  4. Mass. Gen. Laws ch. 6, § 167A; ch. 123, §§ 35; 36A; ch. 215, § 56C. []
  5. Mass. Gen. Laws ch. 123, § 36. []
  6. Id. []
  7. Act of Aug. 13, 2014, Mass. Pub. L. No. 284-2014, Section 98. []

Background Checks in Massachusetts

Posted on Monday, September 21st, 2015

See our Background Checks Policy Summary for a comprehensive discussion of this issue.

Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the federal National Instant Criminal Background Check System (“NICS”) database. (Note that state files are not always included in the federal database.)

Massachusetts is not a point of contact state for the NICS. As a result, in Massachusetts, firearms dealers must initiate the background check required by federal law by contacting the FBI directly.1 A state administrative regulation confirms this requirement.2

Massachusetts also requires firearms owners to obtain a state license prior to purchase of a firearm, and the applicant for a license must undergo a background check before the license is issued. For more information about these licenses, see Licensing of Gun Owners or Purchasers below. Massachusetts requires firearms dealers to verify the validity of a potential transferee’s license prior to transferring a firearm.3 For licenses issued via the Massachusetts Instant Record Check System (MIRCS), the dealer must electronically submit:

  • The transferee’s license number;
  • The licensing authority that issued the license;
  • The type of firearm being purchased; and
  • Whether or not the firearm is a large capacity weapon.4

The dealer must then verify the transferee’s identity and validity of his or her license by scanning the fingerprint or entering the personal identification number contained on the license.5 If the license presented is expired, suspended or revoked, the dealer must notify the licensing authority and may take possession of it (in the latter case, the dealer must provide the holder with a receipt for the FID, permit or license, notify the holder of the need to renew the FID, permit or license, and forward it to the licensing authority).6

Massachusetts does not allow private sellers (sellers who are not licensed dealers) to sell more than four guns a year.7. Although Massachusetts does not explicitly require private sellers to conduct a background check of prospective purchasers, in 2014, Massachusetts enacted a law requiring the Department of Criminal Justice Information Services to develop a web portal through which private sellers of firearms can conduct a real-time check of the validity of the purchaser’s Firearm Identification Card and other necessary licenses.8

For more information about Massachusetts licensing of gun owners and laws governing private sales, see Licensing of Gun Owners & Purchasers in Massachusetts and Private Sales.


  1. Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at http://www.fbi.gov/about-us/cjis/nics/general-information/participation-map. []
  2. 803 Mass. Code Regs. 10.06(1)(e)(directing a gun dealer to contact the “national instant check system”). []
  3. Mass. Gen. Laws ch. 140, § 123 (Thirteenth). []
  4. 803 Mass. Code Regs. 10.06(1)(a). []
  5. 803 Mass. Code Regs. 10.04, 10.06(1)(c). []
  6. Mass. Gen. Laws ch. 140, § 123 (Thirteenth). []
  7. Mass. Gen. Laws ch. 140, § 128A []
  8. Mass. Gen. Laws ch. 140, § 128A. []

Disarming Prohibited Persons in Massachusetts

Posted on Monday, September 21st, 2015

Massachusetts has no law requiring the removal of firearms from persons who have become prohibited from possessing them. An individual’s firearm identification card must be revoked by the licensing authority following the occurrence of any event that renders the cardholder prohibited from possessing firearms.1 Upon receipt of the written notice of revocation from the licensing authority, the prohibited person must “without delay” deliver or surrender all firearms and ammunition in his or her possession to the licensing authority where he or she resides.2 After taking possession, the licensing authority may transfer possession of any firearms and ammunition to a licensed firearms dealer for storage purposes. The dealer must issue a receipt to the prohibited person, who is liable to the dealer for reasonable storage charges. Through the dealer, the prohibited person may then transfer any relinquished firearms to a person lawfully permitted to purchase or take possession of the weapon. After a year in storage, or 90 days of unpaid storage charges, relinquished firearms must be sold at public auction by the state police. After deduction and payment for storage charges and all costs associated with the surrender and transfer of the firearms, any surplus proceeds must be immediately returned to the prohibited person.3

For information about the 2014 law that allows law enforcement agencies to seek the denial or suspension of a firearm identification card to a person who poses a risk to public safety, see the Massachusetts Licensing of Gun Owners or Purchasers section.

  1. Mass. Gen. Laws ch. 140, § 129B. []
  2. Mass. Gen. Laws ch. 140, § 129D. []
  3. Id. []

Domestic Violence & Firearms in Massachusetts

Posted on Monday, September 21st, 2015

See our Domestic Violence & Firearms policy summary for a comprehensive discussion of this issue.

A 2014 Massachusetts law prohibits individuals convicted of domestic violence misdemeanors from purchasing or possessing firearms or ammunition, however no law requires courts to notify these domestic abusers that they are prohibited from possessing firearms or ammunition under state or federal law.1 The same law also requires courts to transmit records of certain domestic violence offenses to the Department of Criminal Justice Information Services (Department) for inclusion in the National Instant Criminal Background Check System (NICS).2

Massachusetts law also prohibits individuals who are currently subject to a permanent or temporary protection order protecting an adult or minor family or household member of the applicant from abuse from purchasing or possessing firearms.3  The term “family or household members” includes persons who:

  • Are or were married to one another;
  • Are or were residing together in the same household;
  • Are or were related by blood or marriage;
  • Have a child in common regardless of whether they have ever married or lived together; or
  • Are or have been in a substantive dating or engagement relationship, which shall be adjudged by consideration of the following factors:

– The length of time of the relationship;

– The type of relationship;

– The frequency of interaction between the parties; and

– If the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.4

Massachusetts law requires a court that is issuing a temporary or emergency protection order (an order that a court can issue immediately upon the filing of a complaint by a family or household member who seeks protection from abuse) to order the immediate suspension and surrender of any license to carry firearms or firearms identification card which the defendant may hold and order the defendant to surrender all firearms and ammunition which he or she possesses to the appropriate law enforcement official.5 However, this requirement only applies if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse.6

Upon issuing a suspension or surrender order, the court must report the defendant’s identifying information to the Department for inclusion in NICS.7 Law enforcement officials who are serving such orders must immediately take possession of all such firearms, ammunition, licenses, and identification cards.8

Massachusetts law requires any law enforcement officer who has reason to believe that a family or household member has been abused or is in danger of being abused to use all reasonable means to prevent further abuse. 9  Massachusetts law does not, however, specifically authorize or require the law enforcement officer to remove firearms or ammunition in this situation.

  1. Act of Aug. 13, 2014, Mass. Pub. L. No. 284-2014; see also Mass. Gen. Laws ch. 140, §§ 129B; 131; ch. 265 § 13N. []
  2. Mass. Gen. Laws ch. 265 § 13N; see also Mass. Gen. Laws ch. 209A, § 3D. []
  3. Mass. Gen. Laws ch. 140, § 129B; see also Mass. Gen. Laws ch. 140, § 131(d)(vi) (limiting issuance of a license to carry a firearm in the same manner); Mass. Gen. Laws ch. 209A, § 3 (authorizing issuance of a protection order against an adult or minor family or household member). []
  4. Mass. Gen. Laws ch. 209A, § 1. []
  5. Mass. Gen. Laws ch. 209A, § 3B. []
  6. Id. []
  7. Mass. Gen. Laws ch. 209A, § 3D. []
  8. Mass. Gen. Laws ch. 209A, § 3B. []
  9. Mass. Gen. Laws ch. 209A, § 6. []