Appeals Court (December 10, 2010)

G.L. c. 269, § 10(a) does not require proof that a defendant "carried" a firearm.

The satisfaction of the firearm identification card exception for new residents set out in G.L. c. 140, § 129C(j), by itself, satisfies the firearm possession exemption set out in G.L. c. 269, § 10(a)(4).

The satisfaction of the firearm identification card exception for new residents set out in G.L. c. 140, § 129C(j) is a defense for a violation of G.L. c. 269, § 10(m).

The defendant drove from his home in Georgia to South Hadley to stay with his girlfriend who was a student at Mount Holyoke College. The defendant planned to move to Massachusetts permanently and was, according to the defendant, in the process of finding an apartment. After searching the defendant's vehicle and finding a number of weapons, including a handgun, a shotgun, and a rifle, he was charged with violating several sections of G.L. c. 269.

During pretrial hearings several questions of law arose that the judge determined to be material to the outcome of the case. The judge report three questions to the Appellate Court:

1. Whether G.L. c. 269, § 10(a) requires proof that a defendant 'carried' a firearm?

2. Whether satisfaction of the firearm identification card exception set out in G.L. c. 140, § 129C(j), by itself, satisfies the firearm possession exemption set out in G.L. c. 269, § 10 (a)(4)?

3. Whether satisfaction of the firearm identification card exception set out in G.L. c. 140, § 129C(j) is a defense for a violation of G.L. c. 269, § 10(m)?

"Whether G.L. c. 269, § 10(a) requires proof that a defendant 'carried' a firearm?"
The first question reported was answered in Commonwealth v. Duncan, 71 Mass. App. Ct. 150 (2008). In Duncan, the court determined that "to establish the defendant's guilt of unlawful possession of a firearm under G.L. c. 269, § 10(a), the Commonwealth was required to prove that the defendant (1) knowingly; (2) had in his possession; (3) a firearm; and (4) without a license." The court noted that in a 1990 amendment the word 'carries' was removed from the language of the statute. Accordingly, G.L. c. 269, § 10(a) does not require proof that a defendant "carried" a firearm.

"Whether satisfaction of the firearm identification card exception set out in G.L. c. 140, § 129C(j), by itself, satisfies the firearm possession exemption set out in G.L. c. 269, § 10(a)(4)?"

Pursuant to G.L. c. 269, § 10(a), a person must either possess a valid license, or qualify for one of the exemptions to the licensing requirements. The defendant argues that because he had recently moved to Massachusetts from Georgia, he fell under G.L. c. 140, § 129C(j) - the new resident exemption.

G.L. c. 140, § 129C(j) states:
The provisions of this section shall not apply to the following exempted persons and uses:

(j) Any new resident moving into the commonwealth, any resident of the commonwealth returning after having been absent from the commonwealth for not less than 180 consecutive days or any resident of the commonwealth upon being released from active service with any of the armed services of the United States with respect to any firearm, rifle or shotgun and any ammunition therefor then in his possession, for 60 days after such release, return or entry into the commonwealth;

The Commonwealth argued that the firearm exemption set out in G.L. c. 269, § 10 (a)(4) is to be read literally, and thus applies only to persons who have complied with the provisions of both G.L. c. 140, §§ 129C and 131G.

The court disagreed relying on Commonwealth v. Wood, 398 Mass. 135 (1986), which answered a similar question in the affirmative based on an earlier version of § 10(a). By satisfying the exception set out in G.L. c. 140, § 129C(j), new residents and certain returning residents thereby satisfy the firearm exemption set out in G.L. c. 269, § 10(a) (4), for a limited period of time, without also complying with the provisions of G.L. c. 140, § 131G.

"Whether satisfaction of the firearm identification card exception set out in G.L. c. 140, § 129C(j) is a defense for a violation of G.L. c. 269, § 10(m)?"

The third question asked the court to determine whether the new resident exemption contained in G.L. c. 140, § 129C(j), provides a defense for violation of G.L. c. 269, § 10(m), by knowingly having in one's possession, or knowingly having control of, in a vehicle, a "large capacity weapon or large capacity feeding device therefor," without being in possession of a valid class A or class B license to carry firearms issued under G.L. c. 140, §§ 131 or 131F.

The court answered, no, finding that satisfaction of G.L. c. 140, § 129C(j), does not provide a defense to a violation of G.L. c. 269, § 10(m).

Section 10(m) states that "[t]he possession of a valid firearm identification card issued under section 129B shall not be a defense for a violation of this subsection[.]" General Laws c. 140, § 129C, provides an exemption only from the firearm identification card requirement set forth in G.L. c. 140, § 129B, not the licensing requirements of G.L. c. 140, §§ 131 or 131F. In addition, G.L. c. 140, § 129C (j), entitles new residents to own or possess "any firearm, rifle or shotgun and any ammunition therefor." A large capacity feeding device is not among the list of items covered by G.L. c. 140, § 129C (j). Also, the definition set forth in G.L. c. 140, § 121, for a "large capacity weapon" includes specific language that "[t]he term 'large capacity weapon' shall be a secondary designation and shall apply to a weapon in addition to its primary designation as a firearm, rifle or shotgun."