Post-Heller Litigation Summary

Posted on Friday, November 21st, 2014

Updated November 21, 2014

The Law Center’s Post-Heller Litigation Summary surveys the landscape of Second Amendment challenges to federal, state and local gun laws asserted in the aftermath of the United States Supreme Court’s controversial landmark decision in District of Columbia v. Heller.

Download our November 2014 Post-Heller Litigation Summary or read it below.

The Law Center’s Recent Developments in Second Amendment Litigation, provides updates on the latest court decisions and lawsuits related to the Second Amendment.  Download our October 2014 Recent Developments In Second Amendment Litigation or read it below.

Guns in Vehicles in Colorado

Posted on Thursday, November 20th, 2014

In Colorado, a person may carry a concealed firearm, regardless of a permit, while in a private automobile or other private conveyance, for lawful protection while traveling.1 Colorado law provides that local governments may not restrict a person’s ability to travel in a private automobile or other private conveyance while in possession of a firearm for hunting or lawful protection while traveling.2

Colorado prohibits any person from possessing or having under his or her control any firearm other than a handgun in or on any motor vehicle unless the chamber of the firearm is unloaded.3

Subject to limited exceptions, the state prohibits any person from operating or riding on any snowmobile with a firearm in his or her possession, unless the firearm is unloaded and enclosed in a carrying case.4

  1. Colo. Rev. Stat. § 18-12-105(2)(b). See also Colo. Rev. Stat. § 18-12-204(3), providing that no permit is required to carry a handgun within a private automobile or other private conveyance if the handgun is carried for a legal use and the possessor is not prohibited from possessing a firearm by law. []
  2. Colo. Rev. Stat. § 18-12-105.6(2)(b). []
  3. Colo. Rev. Stat. § 33-6-125. []
  4. Colo. Rev. Stat. § 33-14-117(1)(b). []

Background Checks in Colorado

Posted on Thursday, November 20th, 2014

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 National Instant Criminal Background Check System (NICS) database. (Note that state files are not always included in the federal database.)

Colorado is a point of contact state for firearm purchaser background checks.1 In Colorado, all firearm transfers by licensed dealers are processed by the Colorado Bureau of Investigation (CBI), which enforces federal, as well as state, purchaser prohibitions.2

Colorado requires CBI to transmit a request for a background check in connection with the prospective transfer of a firearm to the NICS system and authorizes CBI to search other databases. CBI must deny a transfer of a firearm to a prospective transferee if the transfer would violate federal or state law.3

Colorado denies a prospective firearm purchaser’s application if the background check cannot be completed within the three-day default period. More specifically, Colorado law provides that an application for a firearm purchase must be denied in cases in which there has been no final disposition or the final disposition is not noted in the NICS or state databases, where the applicant:  1) has been arrested for or charged with a crime that would prohibit him or her from purchasing, receiving or possessing a firearm under state or federal law; or 2) is the subject of an indictment, an information, or a felony complaint alleging that the prospective transferee has committed a crime punishable by imprisonment for a term exceeding one year.4 However, “the inability of the bureau to obtain the final disposition of a case that is no longer pending shall not constitute the basis for the continued denial of the transfer.”5

Colorado law explicitly provides access to juvenile delinquency court and probation records for firearm background check purposes.6 Colorado law also provides procedures for appeal of a denial of a firearm transfer.7

CBI must adopt rules to carry out these duties.8

Colorado requires private sellers (sellers who are not federally licensed dealers) to initiate a background check when transferring a firearm. Any private person who seeks to transfer possession of a firearm to a prospective transferee must:  1) require that a background check is conducted on the prospective transferee by a licensed gun dealer; and 2) obtain approval of the transfer from CBI after a background check has been requested by a licensed gun dealer.9

When a licensed dealer obtains a background check on a prospective transferee, the dealer must record the transfer and retain the records as the same manner as when conducting a sale, rental, or exchange at retail.  The dealer must also provide the transferor and transferee with a copy of the results of the background check, including the CBI’s approval or disapproval of the transfer.10

A transferee cannot accept possession of the firearm from a private seller until CBI approves a transfer.  The transfer must be completed within 30 days of that approval.11

A transferee is prohibited from knowingly providing false information to a prospective transferor or to a licensed dealer for the purpose of acquiring a firearm.12

See Private Sales in Colorado for further information.  Also see our Private Sales policy summary for related information.

  1. Colo. Rev. Stat. § 24-33.5-424(2). Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at []
  2. Colo. Rev. Stat. § 24-33.5-424(2). []
  3. Colo. Rev. Stat. § 24-33.5-424(3)(a). []
  4. Colo. Rev. Stat. § 24-33.5-424(3)(b). []
  5. Colo. Rev. Stat. § 24-33.5-424(5)(c). []
  6. Colo. Rev. Stat. §§ 19-1-304(1)(a)(VII.5), (1)(c)(II.5), (2)(a)(II.5). []
  7. Colo. Rev. Stat. § 24-33.5-424(5). []
  8. Colo. Rev. Stat. § 24-33.5-424(7). See 8 Colo. Code Regs. § 1507-20. []
  9. Colo. Rev. Stat § 18-12-112(1)(a). If the transferee is an entity (e.g. a business), then a background check must be conducted on each person who is authorized by the entity to possess a firearm. Colo. Rev. Stat § 18-12-112(1)(b), (2)(A). []
  10. Colo. Rev. Stat § 18-12-112(2)(b), (c). []
  11. Colo. Rev. Stat § 18-12-112(3)(a), (4). []
  12. Colo. Rev. Stat § 18-12-112(3)(b). []

Don’t Let the Gun Lobby Keep Us from Having a Surgeon General

Posted on Thursday, November 13th, 2014

SWV-TopDocNowThe surgeon general plays an essential role in American society, advising top government officials and educating the general public on critical public health issues. Yet even in the face of the Ebola crisis, the United States has gone without its top doctor for nearly a year and a half. This is largely because the president’s nominee for the post, Dr. Vivek Murthy, a Harvard graduate who holds both an MD and an MBA from Yale, believes that gun violence is a public health issue. The gun lobby says this makes him an “antigun radical” and has pressured Congress to oppose his confirmation.

It’s time to send a message to Congress that Americans refuse to be bullied out of having an honest conversation about the public health impact of guns. Call your senators today and urge them to confirm Dr. Murthy as surgeon general.

Dr. Murthy’s position that firearms are a public health issue should not be controversial, given that more than 30,000 Americans lose their lives to gun-related violence each year, a number that rivals deaths from traffic accidents. Nor is this the first time that a top American health official has taken such a stance. C. Everett Koop, who was surgeon general under both Ronald Reagan and George H. W. Bush, described gun violence as “a public health emergency.” Louis W. Sullivan, health and human services secretary under George H. W. Bush, called gun violence “a public health problem.” Sullivan was confirmed in the Senate by a vote of 98 to 1.

Yet earlier this year, as the confirmation process for Dr. Murthy was unfolding, the NRA sent an alert to its members, asking them to contact their representatives and “oppose the nomination of President Obama’s radically antigun nominee.” The NRA also announced that it would “score” the confirmation vote, meaning that a senator voting for confirmation would likely receive a lower grade. In the face of this vocal opposition, the process stalled for months, leaving Dr. Murthy just one vote shy of becoming America’s next surgeon general.


2013 Annual Report

Posted on Thursday, November 6th, 2014

The Law Center is excited to present the 2013 Annual Report. We often say that 2013 will be remembered as the year our nation woke up to the gravity of America’s gun violence epidemic. Following the tragedy at Sandy Hook Elementary School, legislators and advocates stepped up to make 2013 a watershed year for smart gun laws.

In 2013 the Law Center also commemorated the 20th Anniversary of our organization’s founding. We are deeply thankful to our courageous and loyal donors, members, partners, and friends. With your support, we have become a national leader in the movement for smart gun laws and we will not stop fighting to end America’s gun violence epidemic.

Download the full report.

Regulating Guns in America: 2014 Edition

Posted on Friday, October 31st, 2014

The Law Center to Prevent Gun Violence is proud to release the 2014 edition of our seminal publication, Regulating Guns in America: A Comprehensive Analysis of Gun Laws Nationwide.

This one-of-a-kind report on federal, state, and local gun laws is an invaluable resource for lawmakers, activists, and others seeking in-depth information on firearms regulation in a single publication. In addition to summarizing existing law and providing background information on gun policy, Regulating Guns in America offers common-sense, actionable legislative recommendations to prevent gun violence and save lives.

Topics covered include:

  • Background Checks & Access to Firearms
  • Gun Dealer Sales & Other Transfers
  • Gun Owner Responsibilities
  • Classes of Weapons
  • Consumer and Child Safety
  • Guns in Public Places
  • Investigating Gun Crimes
  • Local Authority to Regulate Firearms
  • Dangerous Trends in State Legislation
  • The Second Amendment

Download your copy of Regulating Guns in America today. Those interested in a print copy should email [email protected] for more information.

For the latest information on firearms regulations in all 50 states and the smart gun laws that can save lives, be sure to bookmark the Laws and Policies section of our website:

California’s New Gun Violence Restraining Order Law

Posted on Thursday, October 30th, 2014


On September 30, Governor Jerry Brown signed California AB 1014, a new law that allows family members and law enforcement officers to seek a Gun Violence Restraining Order (GVRO) against people who pose a threat to themselves or others.

The Law Center to Prevent Gun Violence has written a comprehensive memo detailing the specifics of this important new legislation. We believe the GVRO law will help lead the way to more states enacting similar smart gun laws to empower families and keep communities safe.

As learned from the tragic Isla Vista shooting, shooters may exhibit certain warning signs of impending violence, but those behaviors may not be severe enough to allow authorities to take preventive action. Those in the best position to see and recognize these warning signs—immediate family members—are left without legal means to intervene. The GVRO law addresses this glaring problem by allowing concerned family members, as well as law enforcement officers, to obtain a Gun Violence Restraining Order, which is modeled on California’s effective domestic violence prevention laws.

If a judge determines someone to be a risk and issues a GVRO, that order will:

  • Temporarily prohibit that person from purchasing or possessing firearms or ammunition
  • Allow law enforcement to temporarily remove any firearms or ammunition already in that person’s possession
  • Include procedures to allow the person have his or her guns and ammunition returned

The bill, endorsed by the Law Center and sponsored by Assemblymember Nancy Skinner, passed by a wide margin in the state legislature in August. It joins a growing number of smart, common-sense gun policies that continue to give California the strongest gun laws in the United States.

Listen to one of our staff attorneys, Lindsey Zwicker, discuss the importance of California’s GVRO law on Airtalk with Larry Mantle.

Read the Law Center’s comprehensive legal memo on the new GVRO law.

MEMO: California’s New Gun Violence Restraining Order Law

Posted on Thursday, October 30th, 2014

On September 30, 2014, Governor Jerry Brown signed into law AB 1014, a bill to allow concerned family members or law enforcement officers to petition a court for a Gun Violence Restraining Order (GVRO). In situations where there is sufficient evidence for a judge to believe that an individual poses a danger to self or others, the GVRO will temporarily prohibit the individual from purchasing or possessing firearms or ammunition and allow law enforcement to remove any firearms or ammunition already in the individual’s possession. The new law, modeled after California’s existing domestic violence restraining order laws, goes into effect on January 1, 2016.1

AB1014 was introduced in response to the tragic shooting in Isla Vista in May 2014. The shooter there had exhibited warning signs of impending violence, yet no legal mechanism was available to his parents or law enforcement to take preventive action. Under California law, a variety of dangerous people are prohibited from purchasing or possessing firearms or ammunition, including domestic abusers, as well as persons who have been involuntarily committed to a mental health facility “as a result of a mental health disorder” which makes them a danger to themselves or others. AB 1014 expands these protections by restricting access to firearms or ammunition by persons who exhibit dangerous or threatening behaviors, but who are not otherwise prohibited from possessing them.

Overview of the Three Types of GVROs
AB 1014 establishes three types of GVRO: a temporary emergency GVRO, an ex parte GVRO and a GVRO issued after notice and hearing. The law requires the Judicial Council to prescribe the form of the petitions, orders, and other relevant documents, and promulgate instructions for applying for all GVROs. When bringing a petition for any type of GVRO, the petitioner must describe in the petition the number, types, and locations of any firearms and ammunition presently believed to be in the subject of the petition’s possession or control. When any GVRO is issued, the presiding court is authorized—but not required—to issue a warrant instructing law enforcement to search and remove all firearms in the individual’s possession.

  • Temporary Emergency GVRO: Only a law enforcement officer may seek a temporary emergency GVRO by submitting a written petition to or calling a judicial officer to request an order at any time of day or night.
    • Standard for Issuing a Temporary Emergency GVRO: A temporary emergency GVRO may be issued if a law enforcement officer asserts, and a judicial officer finds, there is reasonable cause to believe that a person poses an immediate and present danger of injury to self or others by having a firearm in his or her possession and less restrictive alternatives have been ineffective, inadequate, or inappropriate.
    • Duration of a Temporary Emergency GVRO:  A temporary emergency GVRO is effective for 21 days from the date of issuance. A law enforcement officer may bring a petition for either an ex parte GVRO or more permanent GVRO (issued after notice and hearing) if he or she believes an extended restriction on a person’s access to firearms and ammunition is warranted.
  • Ex Parte GVRO: An immediate family member2 or law enforcement officer may request an ex parte GVRO.  Unlike a temporary emergency GVRO, a petition for an ex parte GVRO may only be brought during normal court hours.
    • Search of Firearm Ownership Records: Before a hearing to issue an ex parte GVRO, the court must ensure that a search of available databases and records is conducted to determine if the subject of the order owns a firearm.
    • Evidence for the Court’s Determination:The affidavit supporting a petition for the order must set forth the facts establishing the grounds for the petition. The court may consider the testimony from the petitioner and any witness for the petitioner before issuing the ex parte order.The court must consider the following types of evidence to determine whether to issue an ex parte GVRO:
      • Recent3 threat of violence or act of violence directed at another
      • Recent threat or act of violence directed toward himself or herself
      • Recent violation of a protective order of any kind
      • A conviction of a violent offense
      • A pattern of violent acts or threats within the past 12 months
      A court may also consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
      • The unlawful and reckless use, display, or brandishing of a firearm
      • The history of use, attempted use, or threatened use of physical force against another person
      • Any prior arrest for a felony offense
      • Any history of a violation of any protective order
      • Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses that involve controlled substances or alcohol, or ongoing abuse of controlled substances or alcohol
      • Evidence of recent acquisition of firearms, ammunition, or other deadly weapons
    • Standard for Issuing an Ex Parte GVRO: A court may issue an ex parte GVRO against a person if the petitioner shows good cause to believe there is a substantial likelihood that the subject of the petition will, in the near future, cause personal injury to self or others by owning or possessing a firearm, and an ex parte GVRO is necessary to prevent such injury because less restrictive alternatives have been deemed ineffective, inadequate, or inappropriate.
    • Duration and Hearing for an Ex Parte GVRO: An ex parte GVRO may be ordered without a hearing and remains effective for 21 days. The court must provide a hearing for the restrained person within the 21-day effective period to determine whether a more permanent GVRO is warranted or if the order is no longer necessary and the firearms should be returned to the subject of the order.
  • GVRO after Notice and Hearing: At the hearing subsequent to issuing the ex parte GVRO, the court may consider further evidence and testimony from the restrained person seeking to terminate the order, the petitioner who sought the ex parte GVRO, and any witnesses produced by the petitioner to determine whether to issue a GVRO for one year. The evidentiary requirements and standard of review are similar to those required for an ex parte GVRO.
  • Surrender of Guns for all GVROs: A person who is served with a GVRO is required to immediately surrender all firearms and ammunition in his or her possession. If a law enforcement officer is serving the order, all firearms and ammunition in the restrained person’s possession must be immediately surrendered to the law enforcement officer. The law enforcement officer must also take custody of any firearm or other deadly weapon in plain sight. If someone other than a law enforcement officer is serving the order, the respondent must either surrender his or her firearms to the local law enforcement agency or sell them to a federally licensed firearms dealer within 24 hours of receiving the order.
  • Search Warrant for all GVROs: A court issuing any kind of GVRO is authorized to issue a search warrant instructing law enforcement officers to perform a search for any firearms or ammunition in the person’s possession.
  • Reporting Requirements for all GVROs: The court must electronically notify the California Department of Justice (DOJ) and local district attorney within one court day of issuing a GVRO. The court must notify DOJ when the GVRO has been dissolved or terminated within five court days. DOJ must then note the updated status of any GVRO within fifteen days of receiving notice. The court must also notify the district attorney of the jurisdiction when a GVRO has been issued as well as when it has been dissolved or terminated.
  • Protections for Cohabitants:  Firearms and ammunition may not be seized pursuant to a warrant if they are owned by someone other than the subject of the GVRO and stored so that the subject doesn’t have access to them.  Also, a gun safe owned solely by someone else may not be searched without the owner’s consent.
  • Return of firearms after any GVRO Terminates or Expires: If the restrained person’s firearms are surrendered to law enforcement (instead of being sold to a dealer), law enforcement must retain the firearms or ammunition for the duration of the order and return them to the restrained person when the order expires, terminates, or dissolves.
  • Penalty for False Petitions:  The bill creates a misdemeanor penalty for any person who files a petition for a GVRO that contains statements the person knows are false, or with intent to harass the subject of the petition.

Legal Issues

  • Second Amendment: The GVRO process does not violate the Second Amendment. In the landmark case District of Columbia v. Heller, the Supreme Court determined that the Second Amendment guarantees the right of law-abiding, responsible citizens to keep a firearm in the home for self-defense. 554 U.S. 570, 679 (2008). However, the Supreme Court stated that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and  made clear that a variety of laws are permissible under the Second Amendment, including those prohibiting firearm possession by felons and the mentally ill. Id. at626.
    In California, the courts have specifically held that “the state may ensure that firearms are not in the hands of someone who may use them dangerously” and dangerous people may be prohibited from possessing firearms consistent with their Second Amendment rights, as long as they are afforded adequate due process. See City of San Diego v. Boggess, 216 Cal. App. 4th 1494 (2013); People v. Jason K., 188 Cal. App. 4th 1545 (2010). In 2013, an Indiana Court of Appeals upheld a similar gun violence restraining order law against a Second Amendment challenge and ruled that the state may restrict access to firearms by dangerous persons in the interest of public safety and welfare. Redington v. Indiana, 992 N.E.2d 823 (Ind. Ct. App. 2013). AB 1014 provides a mechanism to do exactly that&mdsash;keep deadly firearms out of the hands of dangerous persons in the interest of public safety and welfare.
  • Due Process: The procedures for obtaining temporary emergency and ex parte GVROs provide sufficient due process to protect Californians’ important constitutional rights. The law provides for a temporary (21 day) or a more permanent GVRO, which is effective for one year. However, the more permanent (one year) GVRO will only be issued after a full hearing before a judge. At this hearing, the burden is on the person bringing the petition for the order to prove by clear and convincing evidence that the named person poses a substantial likelihood of causing harm to self or others by possessing firearms or ammunition. If this burden is not met, the person may then regain the right to possess firearms or ammunition. In addition, the named individual may seek another hearing to terminate the order during the one-year period of its duration. Similar procedures are in place in the domestic violence restraining order context and courts across the nation have uniformly upheld these procedures. See, e.g., Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D.C. Mass. 2000); Blazel v. Bradley, 698 F. Supp. 756 (W.D. Wis. 1988); Baker v. Baker, 494 N.W.2d 282 (Minn. 1992).


Nothing contained in this document is intended as legal advice to any person or entity and should not be regarded as such. The Law Center to Prevent Gun Violence and its attorneys provide general information about gun laws to interested groups, individuals and legislators. Law Center attorneys do not represent clients and do not form attorney-client relationships. You should not consider communications with the Law Center or its attorneys to be confidential unless we have agreed to such confidentiality.

Copyright 2014 by the Law Center to Prevent Gun Violence.

All rights reserved. Unauthorized use or distribution is prohibited.

  1. Connecticut and Indiana have enacted similar laws; however, in those states, only law enforcement may seek to remove firearms from dangerous individuals. California is the first state to adopt a law enabling immediate family members to bring a petition for a GVRO. []
  2. “Immediate family member” is defined as “any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.” Cal. Pen. Code § 422.4. []
  3. “Recent” is defined as within six months prior to the date the petition is filed. []

Marysville School Shooting Highlights Importance of Universal Background Checks Ballot Initiative in Washington State

Posted on Friday, October 24th, 2014


Today’s tragic shooting at Marysville-Pilchuck High School elicits the sadness and outrage that every story of gun violence at our schools does. And it’s magnified by the horrific fact that school shootings have become so common in America, with 87 since Newtown alone.

While it is not yet known how the Marysville shooter obtained the handgun used to attack his fellow students, the incident raises the important question of how access to firearms is regulated in the United States. After Newtown, Congress failed to pass a universal background checks bill, and the gun violence prevention movement shifted its focus to enacting smart gun laws at the state level.

In Washington State, where Marysville-Pilchuck High School is located, two competing initiatives are on the ballot this November that deal with background checks. One initiative, I-594, requires private sellers to conduct background checks on private purchasers of firearms. The Law Center is proud to have offered guidance to the group that drafted the bill, the Washington Alliance for Gun Responsibility, by providing them with our model law and sharing research and legal analysis.

If passed, Washington’s new law (I-594) will:

  • Require unlicensed sellers to conduct a sale through a licensed firearms dealer who will perform a background check on the buyer
  • Ensure that a licensed dealer keeps a record of the private transaction


Local Authority to Regulate Firearms in Massachusetts

Posted on Thursday, October 16th, 2014

Municipal Regulatory Authority

Massachusetts grants regulatory authority to municipalities via the Home Rule Amendment (“Amendment”), Mass. Const. amend. art. II, §§ 1-9 (as amended by Mass. Const. amend. article LXXXIX).

The Amendment provides cities and towns with broad regulatory power:

It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.1

(Please note: the term “general court” in the Massachusetts Constitution and state statutes refers to the Massachusetts state legislature.)

The Amendment empowers cities and towns to enact local ordinances that do not conflict with the general laws of Massachusetts.2 The Amendment does not, however, permit localities to criminalize behavior legalized by the legislature.3

The substance of the Amendment is rooted in Mass. Const. amend. art. II, § 6:

Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by [Const. amend. art. II, § 8], and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to [Const. amend. art. II, § 3].

Massachusetts General Laws ch. 43B, § 13, which defines the parameters of a municipality’s powers, is virtually identical in substance to Mass. Const. amend. art. II, § 6.

Under the Amendment, municipal actions are presumed valid, and municipalities may undertake any action that is not inconsistent with state law.4 The Massachusetts Supreme Judicial Court has set forth the following guidelines for determining whether a municipal ordinance is inconsistent with state law:

  • If there is an express legislative intent to forbid local activity on the same subject, state law preempts local law;
  • If the local regulation would frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject, state law preempts local law. Courts may infer that the Legislature intended to preempt the field of regulation if legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose; or
  • State law preempts local law if there is a “sharp conflict” between the state legislation and the local law, which happens when the legislative intent to preclude local action is clear or the purpose of the statute cannot be achieved in the face of the local law.5

In Town of Amherst v. Attorney General, 502 N.E.2d 128, 130 (Mass. 1986), the Massachusetts Supreme Judicial Court interpreted several provisions of Mass. Const. amend. art. II in the context of a firearms discharge by-law, holding that when a town exercises a right to govern locally, it “exceeds its power only when it passes a by-law inconsistent with the Constitution or laws of the Commonwealth” per Mass. Const. amend. art. II, § 6.

In Town of Amherst, the court found that a town by-law prohibiting the discharge of specified firearms within town limits under various circumstances was not inconsistent with state statutes regarding hunting and the safe use of firearms and was therefore valid.6 The Massachusetts Attorney General had disapproved of the by-law on the basis that it constituted an undue restriction of firearm use in a rural town.7

The court disagreed, stating that the existence of state law addressing the same subject a local government seeks to regulate does not necessarily result in preemption of local authority. Rather, if the state’s “legislative purpose can be achieved in the face of a local [regulation]…on the same subject, the [local regulation] … is not inconsistent with the State legislation.”8 .)) The court determined that the local law did not frustrate the purpose of state laws regarding hunting and therefore did not conflict with state substantive or procedural laws.9

Massachusetts Constitutional amendment art. II, § 7 limits cities and towns from exercising the authority granted in Mass. Const. amend. art. II, §§ 1 and 6 in specified areas unless such authority is granted by the general court as provided for in Mass. Const. amend. art. II, § 8. For example, municipalities are prohibited from providing “for the punishment of a felony or to impose imprisonment as a punishment for any violation of law.”10 In addition, Mass. Const. amend. art. II, § 7(2) prohibits cities and towns from levying, assessing or collecting taxes.

A city or town may petition the state to enact special legislation pertaining only to that city or town pursuant to Mass. Const. amend. art. II, § 8. Boston’s assault weapon ban is an example of regulation that was enacted through this process.11

Finally, under the Amendment, municipalities generally are no longer required to seek authority from the state legislature to impose controls relative to zoning.12 Chapter 40A expressly recognizes local autonomy in dealing with land use and zoning issues.13

Towns in Massachusetts may, under ch. 40, § 21, “make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits.” Specifically, towns may enact ordinances and by-laws “[f]or directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.”14

County Regulatory Authority

Although the Massachusetts Constitution does not grant any explicit power to counties, those counties adopting a charter under ch. 34A, § 15 have the power to “[a]dopt, amend, enforce, and repeal ordinances and resolutions notwithstanding the effect of any referendum conducted prior to the county’s adoption of its charter pursuant to” Chapter 34A.15 With respect to regulations for the general health, safety and welfare, however, “[c]ities and towns are and shall remain the broad repository of local police power in terms of the right and power to legislate” in these areas.16

  1. Mass. Const. amend. art. II, § 1. []
  2. Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 741 N.E.2d 37, 43 (Mass. 2001). []
  3. American Motorcyclist Ass’n v. Park Comm’n of Brockton, 592 N.E.2d 1314 (Mass. 1992) (invalidating local regulation banning use of motorcycles because regulation inconsistent with statute giving persons the right to operate motor vehicle). []
  4. Connors v. City of Boston, 714 N.E.2d 335 (Mass. 1999). []
  5. Id. at 337-38. []
  6. Town of Amherst, 502 N.E.2d at 131-32. []
  7. Id. at 129. []
  8. Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass. 1973 []
  9. Id. at 131. []
  10. Mass. Const. amend. art. II, § 7(6). []
  11. 1989 Mass. Acts 596, §§ 1-7. []
  12. Baldiga v. Board of Appeals of Uxbridge, 482 N.E.2d 809, 812 n.5 (Mass. 1985). []
  13. Id. at 812, Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. L.P., 767 N.E.2d 584, 593 n.22 (Mass. 2002). []
  14. Ch. 40, § 21(1). See Brown v. Town of Carlisle, 142 N.E.2d. 891 (Mass. 1957) (holding that ch. 40, § 21(1) permits a local jurisdiction to prohibit the discharge of a firearm on any private property except with the permission of the land owner or legal occupant of the land). []
  15. Ch. 34A, § 16(A)(ii). []
  16. Ch. 34A, § 16(B). []