America's Toughest Gun Law

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NEWTON, Mass. ― A thirtysomething man sought to buy a rifle here last September, and if he had been living in almost any other part of the country, he could have done so easily.

His record was free of arrests, involuntary psychiatric commitments or anything else that might automatically disqualify him from owning firearms under federal law. He could have walked into a gun store, filled out a form and walked out with a weapon in less than an hour.

But he couldn’t do that in Massachusetts because the state requires would-be buyers to get a permit first. That means going through a much longer process and undergoing a lot more scrutiny.

Each applicant must complete a four-hour gun safety course, get character references from two people, and show up at the local police department for fingerprinting and a one-on-one interview with a specially designated officer. Police must also do some work on their own, searching department records for information that wouldn’t show up on the official background check.

If the police come to believe an applicant is a possible threat to public safety, they can refuse to grant the permit. And that is what happened in the case of this man from Newton.

Police records showed eight visits to his home from 2008 to 2012, each time in response to calls from family members concerned about his behavior. On one occasion, according to the police account, the man had punched a picture frame and lacerated his hand; another time, he had been wielding a knife and threatening to commit suicide. Officers took the man into protective custody after three of the visits, the reports said, and at nearly all of them he was intoxicated.

This December, following a procedure that Massachusetts law lays out, Newton’s chief filed a five-page memo with a state district court. It summarized the incident reports, one by one, and concluded that the man “had exhibited or engaged in behavior that could potentially create a risk to public safety.”

The man, who declined to comment for this article and whose name HuffPost is not publishing, challenged the police decision in court, as the law allows applicants to do. A written filing stated that he has completed treatment for alcohol addiction, as a physician independently confirmed. It also said that he has a steady job and noted that there have been no incidents since 2012.

It’s crazy that some states just give out these guns with very few requirements.William Evans, Boston Police Commissioner
A district judge considered the argument and, a few weeks later, upheld the police department’s decision. The man from Newton is now appealing that decision. But whether or not he ultimately gets his permit, his story illustrates just how aggressively Massachusetts regulates gun ownership. No other state requires a permit for any kind of gun purchase while also giving police some discretion to deny those permits.

The combination could help explain why the state’s mortality rate from firearms incidents is relatively low, according to some experts who have studied these types of laws. That makes the Massachusetts permit system a potential model for legislation in other states, or even the country as a whole, at a time when the massacre at a high school in Parkland, Florida, has put gun violence back on the political agenda.

But replicating the Massachusetts program would require persuading or overcoming resistance from gun rights advocates, starting with the members of the National Rifle Association who are meeting in Dallas this weekend. They are convinced that permit systems like the one in Massachusetts do little to deter violence, while doing a lot to undermine the Second Amendment.

Tight Gun Regulations Are A Massachusetts Tradition
Massachusetts has required that gun owners get permits since 1968, although initially the state approved permits automatically for anybody without major crime convictions or other disqualifying factors. In the parlance of gun control, it was a “shall issue” system rather than a “may issue” system, in which officials or law enforcement would have had leeway to deny licenses in certain circumstances.

That changed in 1998, when state lawmakers gave police broad discretion to withhold handgun licenses for people who were, in the police department’s judgment, “unsuitable.” In 2014, following the massacre at Sandy Hook Elementary School in Connecticut, Massachusetts lawmakers, led by House Speaker Robert DeLeo, strengthened its gun laws yet again, expanding police discretion so that it applied to rifles and shotguns, too.

The permit process for rifles and shotguns is slightly different than the process for handguns, but they lead to the same basic result: Today, police can deny ownership of any kind of firearm, subject to court review. That made Massachusetts unique. The other two states with police discretion over ownership, New Jersey and New York, apply that method only to handguns.

a close up of a gun© Illustration: Damon Dahlen/HuffPost; Photos: Getty Images
The 2014 law also clarified, somewhat, when and how police in Massachusetts should use their discretion. By law, the police can restrict a license or deny one outright anytime they have credible evidence that somebody may pose a threat to public safety.

The “credible” part is supposed to keep the police from acting arbitrarily; police actually have to file papers with a local court justifying denials. The “may” part is supposed to make it clear that the police can limit or withhold a license anytime they believe a mere threat exists. They don’t have to wait until they are certain or even nearly certain an applicant would use a gun for crime or self-harm.

One way to think of the system is that it places the burden of proof for denying a license on the police while making it clear that the proof does not have to be overwhelming. And, although the state still does not specify exactly what constitutes a threat and what doesn’t, that’s precisely the sort of judgment call best left to city and town officials, supporters of the law say.

“Gun violence is usually local, among people who know each other,” John Rosenthal, co-founder of the organization Stop Handgun Violence and a longtime advocate for tighter gun laws, said in an interview with HuffPost. “Who better than the local police chief to issue renewable licenses and be able to have that discretion every six years?”

Many experts agree. “Local police chiefs typically know more about the people in their community than does a national computer,” David Hemenway, a well-respected gun violence researcher at Harvard, told The Trace.

In Small Towns And Big Cities, Police Look For The Same Things
Even with the new system in place, the vast majority of people who apply for licenses get them, according to a 2017 evaluation that a panel of experts conducted for the state’s Executive Office of Public Safety and Security. But 1 to 3 percent do not, depending on the year, the panel determined.

That number doesn’t account for the people who don’t even try to get licenses, because they know police would not grant them. And even among those residents who get licenses, many will have restrictions on how they may use their guns. They might not have freedom to carry a firearm outside the home, for example, except for transporting it to firing ranges or hunting grounds. (This is one way in the Massachusetts practice is more typical. Many states give the police discretion over who gets to carry a gun outside of the home.)

In general, police from rural parts of Massachusetts are a lot less likely to issue restrictions than the departments in cities and surrounding suburbs, according to a compilation of 2016 statistics by Commonwealth Second Amendment, which advocates for gun rights. Police say such differentials are largely a byproduct of the very different way departments operate depending on the size and closeness of their communities.

The ones who get our attention are the ones we’ve had to see before, to come to their houses, with incidents that don’t rise up to arrests but tell us, ‘Hey, something is not right here.'Lu-Ann Czapala, Ware Police Department
“Most people we know one way or another ― it’s a neighbor, or a neighbor’s friend or co-worker, or somebody you deal with on the job,” Lu-Ann Czapala, the firearms officer in Ware, said during an interview at the city’s headquarters. Ware, a former mill town in the rural area between Worcester and Springfield, has a population just shy of 10,000. “Very few people who come in and apply have anything in their background that would cause a problem.”

That’s not to say it never happens. “The ones who get our attention,” Czapala said, “are the ones we’ve had to see before, to come to their houses, with incidents that don’t rise up to arrests but tell us, ‘Hey, something is not right here. Gee, we’ve been to this house so many times.’”

And, in that respect, the process is quite similar to Newton’s. The big difference is that George McManus, the lieutenant who handles firearms permits there, may have to investigate applicants ― by, for example, calling neighbors or family. That’s because, in a city whose population is just under 90,000, McManus is less likely than Czapala to know the applicant personally.

McManus said investigating incident reports is especially important for revealing histories of domestic violence, because even repeated visits can result in no formal charges and, thus, no automatic disqualifications for gun ownership even under the unusually tight standards Massachusetts has in place.

It’s not surprising he would say that. In a 2013 survey, Massachusetts police departments said incidents of domestic violence were among the most likely reasons for them to restrict or deny a license, or to suspend one they had approved.

At the same time, McManus said, police officers work hard to distinguish between “somebody arrested for disorderly conduct when he was in college, on a Friday night, 15 years ago, versus somebody who has a record of being involved with domestic situations with his significant other.”

McManus, who has been handling Newton’s permits for two years, says that is one reason every license rejection during his tenure has held up in court. “That goes to show that the chief does put a lot of thought into his denials,” McManus said.

What The Evidence Shows ― And Doesn’t Show
Gun homicides and suicides still happen in Massachusetts, in part because people without licenses still manage to get guns. But gun violence happens a lot less frequently than it does in most states.

Adjusted for age and population, the gun fatality rate in Massachusetts for 2016 was the lowest in the U.S. And that’s how it’s been for most of the last 30 years, although sometimes another state, like Hawaii, ends up with a slightly lower rate.

Just how much that low rate has to do with the state’s gun laws is a matter of ongoing debate, even among experts. Pretty much any legitimate study is going to rely on assumptions that will be open to valid criticism; separating out cause and effect can be virtually impossible. But the available research provides a good reason to think Massachusetts laws in general and the permit system in particular have made violence less likely.

Police investigate a gun homicide in Kansas City, Missouri. A group of researchers said that violence in the state became more common after lawmakers repealed a permit system there.© Tammy Ljungblad/Kansas City Star via Getty Images Police investigate a gun homicide in Kansas City, Missouri. A group of researchers said that violence in the state became more common after lawmakers repealed a permit system there.
Some of the most widely cited work, by Daniel Webster of Johns Hopkins University, has focused on two states that have had similar, albeit weaker, permit schemes: Missouri, which got rid of its license program a decade ago, and Connecticut, which added one in the 1990s. Using a variety of methods designed to estimate what might have happened if those states hadn’t changed their laws, Webster and his colleagues concluded that getting rid of gun licenses in Missouri led to more gun violence, while introducing licenses in Connecticut led to less.

Additional research, including a study the Journal of Urban Health published last month, has shown that gun crimes in states with permit schemes tend to involve guns that criminals obtained more easily elsewhere.

That suggests the laws are at the very least forcing would-be perpetrators to change their behavior. It also suggests permit systems could have a bigger effect on violence if more states had them.

Police officials in Massachusetts make that argument all the time. “It’s crazy that some states just give out these guns with very few requirements,” William Evans, commissioner of the Boston police and a champion of tighter gun laws, said in an interview.

“We have tough gun laws here, and to me it makes a difference,” Evans said. “But if we had them nationally, if other states had universal background checks and strong licensing like our state does, there would be less violence.”

It’s Not Clear How A Court Challenge Would Go
The other big question about the Massachusetts system is the constitutional one. The Supreme Court, in a controversial 2008 ruling known as D.C. v. Heller, upheld the government’s ability to regulate firearm possession and usage. But it also recognized, for the first time, a constitutional right to gun ownership.

To Jim Wallace, executive director of the Gun Owners Action League and outspoken critic of Massachusetts regulations, the state’s licensing system clearly infringes on that right. “We always have to be careful about how much authority we give to law enforcement,” Wallace said. “Their jobs ― God bless them ― is to enforce the law, not decide on somebody’s civil rights.”

Jason Guida, an attorney and former state firearms official who now represents people appealing license denials, has a similar view. “Once we go down the road of giving police discretion, we are not just stepping on the other side of that line, we are jumping over it and dancing.”

We always have to be careful about how much authority we give to law enforcement. Their jobs ― God bless them ― is to enforce the law, not decide on somebody’s civil rights.Jim Wallace, executive director of the Gun Owners Action League in Massachusetts
Guida represents that man from Newton who is appealing his license denial, and he thinks the case is an example of how the law gives police too much authority. When the man wrote a letter requesting the gun permit, he addressed his history with police head-on, Guida noted. The incidents all occurred during a difficult period in his life, the man wrote, and since that time he has stayed dry, gotten a steady job and even done volunteer work at a local food bank. He also promised to use the gun lawfully, saying he wanted it only for bird hunting and target practice.

“Most of my clients have never been convicted, never even been charged with a crime, but a chief has decided that they are not safe with firearms,” Guida said. “That’s the rub right here, how Massachusetts may have gone beyond what the Second Amendment allows.”

Supporters of the Massachusetts law see things differently. Public safety is a constitutionally permissible reason for restricting gun ownership, they say, and local police are ideally situated to make that call, at least initially.

“In the context of gun rights, where the Supreme Court has said limitations based on public safety principles are appropriate, we want law enforcement to make those decisions, because they are the ones on the ground, who see the behavior,” Hannah Shearer, a staff attorney at the Giffords Law Center, said.

Most of my clients have never been convicted, never even been charged with a crime, but a chief has decided that they are not safe with firearms."Jason Guida, an attorney who represents applicants appealing license denials
There is also the appeals process, which can serve as a safeguard for constitutional rights. Although police discretion over gun ownership can be “constitutionally problematic,” says Adam Winkler, a UCLA constitutional law professor, “if more than 90 percent of applicants are getting permits, there is an appeals process in place and government has to provide actual evidence that’s reviewed by a neutral arbiter, that seems to me a system that the courts might uphold.”

“No right is absolute ― Heller makes that clear,” Winkler, who is the author of the book Gunfight: The Battle Over the Right to Bear Arms in America, added. “If the question is ‘Should there be enough discretion to target certain behaviors that fall short of criminal conviction but are highly probative of danger from firearms?’ a court is likely to say that kind of review is acceptable.”

What’s Coming Next In Washington ― And In Massachusetts
In Washington, a handful of lawmakers have held up the Massachusetts system as a prototype for the rest of the country. One of them is the state’s junior Democratic senator, Ed Markey, who has sponsored a bill that would give states strong financial incentives to introduce their own licensing programs.

“The involvement of police chiefs in the licensing process is key,” Markey said at a news conference in March, when he formally unveiled the proposal. “We can’t overstate that enough.” Democratic lawmakers from other states with their own variations on permit systems, including Connecticut, Maryland and New Jersey, have introduced similar measures.

Those lawmakers have a lot of work to do. Gun violence is getting more political attention than at any time since 2013, and the aftermath of the Sandy Hook shootings, which not coincidentally is the last time Congress came close to passing meaningful gun legislation. And if the odds of enacting significant new measures now are long, they will improve if supporters of tighter gun laws win more seats in Congress, starting with this year’s midterm elections.

We want law enforcement to make those decisions, because they are the ones on the ground, who see the behavior.Hannah Shearer, staff attorney at the Giffords Law Center
But most of the focus so far has been on banning assault-style weapons or extending background checks to private sales, the two ideas that have gotten the most attention in the past. Although many experts believe these measures can also help, there’s reason to think that they would work best in combination with a full-fledged permit system that involved police discretion.

State lawmakers in Massachusetts appear to agree. The state already has a ban on many assault-style weapons, and it already applies its laws to all sales, not just those that licensed dealers make. That’s actually one reason advocates think a permit system could win over some gun rights advocates. It spares private dealers the administrative hassle of performing background checks; all they have to do is check for the state-issued permit.

Now many of the same lawmakers responsible for the 2014 law are looking to build on it. They are pushing for a “red flag” law in which family members could ask judges to issue emergency restraining orders when they fear a loved one is about to commit an act of violence. These orders would automatically suspend any existing gun licenses and allow police to seize weapons.

Although this would be a separate policy from the permitting system, the underlying impulse is the same: to identify people likely to hurt themselves or others and keep guns out of their hands before it happens.

This article originally appeared on HuffPost.