Goodbye and Thank You!

Skylark Law & Mediation, P.C. will no longer be handling bankruptcy, criminal defense or firearms cases, in order to concentrate our practice on resolving family conflicts.   While this blog will remain available as a resource, we will not be updating or posting new information after today.

If you have a question related to these practice areas, for bankruptcy we recommend The Law Offices of Lee Darst; for criminal defense we recommend Cappetta Law Offices; and for firearms related work we recommend Julie Tolek of Think Pink Law.  Julie recently became an Associate at Skylark Law & Mediation, PC, and will continue to run her own practice as well.

Julie will continue to represent both individual and business clients navigating second amendment compliance, and below is a message from Attorney Tolek regarding her 2nd amendment practice:

I think I was 20 years old when I shot my first gun. It was a Glock of some sort. I didn't pay attention to the model at the time because I was too busy listening to the instructor tell me I was a natural (obviously). We were shooting at a bullet proof glass panel that had been removed from a car. My mom had taken me with her to go shooting since she had worked with this instructor before, so I credit her with introducing me to firearms...although today she denies she had anything to do with it.

I continued to shoot over the years, but it wasn't until the summer that I took the bar exam (over ten years after I had shot my first gun, ever) that I actually applied for and received my License to Carry Firearm in Massachusetts. I took my safety class on my birthday that summer, as my present to myself. Getting my LTC had been on my bucket list since the day I pulled my first trigger so I was floored.

The day I took my firearms qualification exam (as required where I lived at the time) it was a gorgeous day, the sun reflecting in the Boston Harbor. The test was at Boston Police Firearms Range at Moon Island. It was three days before the bar exam. I couldn't have picked a better way to take a break from studying. I was the only girl there.

After my shooting test, I decided I like revolvers. Double action, mostly. To me, they are works of art. Revolvers demand respect (like all firearms.). Cool metal with curves. A revolver is a contradiction in itself; old school, yet modern - a timeless piece of handcrafted machinery, its mechanics unchanged over hundreds of years.

Lucky for me (and you!), my passion for firearms has intertwined itself with my passion for law. That I got my License to Carry AND my license to practice law at the same time is symbolic: I do what I love and I love what I do. Firearms law is a specialized type of law where having a passionate lawyer who just happens to also be a gun enthusiast makes for powerful advocacy for you, our clients.

For more information contact Julie at Think Pink Law.

3-D Printed Firearm Leads to Jail Time

According to Mashable, the first person to go to jail for making a 3-D printed firearm was a 28 year old man from Japan, Yoshitomo Imura.  Read more about the story here.

In Japan gun ownership is heavily restricted and there is no exception for 3-D printed guns, though the arrested man claimed he didn't understand he was breaking the law.

In Massachusetts, a 3-D printed firearm will be treated like any other firearm manufactured in your home.  Just because the technology has made it easier for more people to manufacture firearms doesn't change the legality of doing so.  For more on that subject, and to avoid ending up like Mr. Imura, check out our recent post: Is Making a Firearm in Your Home Legal?

Matthew Trask Accepts Position with Remington Arms Company, LLC

We are very excited to announce that on November 10, 2014, attorney Matthew Trask will assume the role of Compliance Manager for Remington Arms Company, LLC in Ilion, New York.  He will be managing the compliance team for their New York facility, and will be responsible for maintaining Remington’s compliance with the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) regulations, including the NFA, GCA, ITAR and other applicable state and federal laws.

Although this departure from Massachusetts will prevent Attorney Trask from directly representing firearms clients in the Commonwealth, Kelsey & Trask, P.C. remains committed to protecting your rights secured by the Second Amendment.  In addition to collaborative divorce, mediation and bankruptcy, Kelsey & Trask, P.C. has represented the needs and interests of firearms owners, dealers and manufacturers by assisting them in navigating the numerous local, state and federal firearms regulations.

Firearms cases in our firm were primarily managed by Kelsey & Trask, P.C. partner, Matthew P. Trask, Esq., a lifelong firearms enthusiast and 2A advocate.  However, as with any legal endeavor, Attorney Trask was always backed by a team of attorneys, support staff, public interest groups such as Comm2A and GOAL, and fellow colleagues and attorneys sharing similar interests, abilities and devotion to the firearms community.

To continue to serve the firearms community, there are some changes that our clients and prospective clients can expect to see in the coming weeks.  However we will continue to assist clients and potential clients either within the firm or through special relationships we have formed with other respected firearms attorneys in the community.

Although not actively engaging in the practice of law in Massachusetts after November 10, 2014, Attorney Trask will remain a resource to Kelsey & Trask, P.C. for developments in the laws pertaining to firearms, self defense, personal protection and BATFE compliance.   He will continue to be available for consulting by both our referral and in-house attorneys on firearms related issues.

We hope you continue to consider us a resource through this transition and into the future.

It has always been the goal of Kelsey & Trask, P.C. to provide high quality legal representation to resolve our client’s matters.  These changes reflect Kelsey & Trask, PC’s continued commitment to that goal.  If you have any questions, please do not hesitate to contact Kelsey & Trask, P.C. partner Justin L. Kelsey, Esq. at 508.655.5980 with any questions.  

Owning an SBR - Part 2: Complying with Federal, State and Local Regulations

The National Firearms Act of 1934, in conjunction with Title II of the Gun Control Act of 1986, regulates the ownership of certain firearms, including Short Barrel Rifles ("SBR").  A Short Barrel Rifle is defined as any rifle having barrel length of under 16 inches, as measured from the face of the closed bolt to the muzzle, and/or having an overall length of under 26 inches.

This is the story of how and why Kelsey & Trask, P.C. Partner and Holdover Consulting, LLC Principal Matthew Trask legally obtained an SBR.  Although this process was specific to the acquisition of an SBR, the process would be similar for any other Title II firearm.  To read how Matthew chose his SBR read our previous post: Owning an SBR - Part 1: Finding the right SBR for me.

Owning an SBR - Part 2: Complying with Federal, State and Local Regulations

To convert our DF94 into a legally owned SBR, we would next need to obtain the proper tax stamp.  Obtaining a tax stamp to own/manufacture a Title II firearm is theoretically straightforward, although a prospective SBR owner should be aware of a few regulatory considerations at the Federal, State and Local levels:

Federal Regulatory Considerations:  

The National Firearms Act imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms.  These firearms, often referred to as “Title II Firearms” or “NFA Firearms” fall into one of six categories:

a. Short Barrel Rifles
b. Short Barrel Shotguns
c. Destructive Devices
d. Machine Guns
e. Suppressors/Silencers
f. Any Other Weapons (AOW)

The manufacture of any of these types of firearms requires the purchaser or manufacturer to pay the requisite excise tax of $200.00 (or $5.00, for certain AOW’s transferred on a Form 4).  Additionally some manufacture or transfer do not require the payment of the excise tax – only registration – in certain cases, such as manufacture by a federal licensee who has paid a Special Occupational Tax or transfers pursuant to the administration of an estate.  Generally, if a nonlicensee seeks to acquire a Title II firearm, either by manufacture or acquisition from a Title II dealer, the nonlicensee will be required to pay the $200 excise tax.  Submission of registration documents is required in all cases.


The federal government also prohibits the manufacture for civilian sale of new machine guns, and the transfer of any machine gun which was not registered prior to 1986.  As before, there are some very narrow exceptions to this rule, and it is best to contact an attorney or knowledgeable NFA dealer if you are considering the purchase of a machine gun.

State Regulatory Considerations:  

Some states will limit or restrict the possession of firearms regulated by the National Firearms Act under state law.  Some states laws will ban the possession of certain NFA items outright, while other laws will ban the possession of certain NFA firearms indirectly.

For example, legislation in Massachusetts bans the possession of suppressors outright.  Short-barrel shotguns are not specifically banned, but Massachusetts does prohibit the possession of a “Sawed Off Shotgun” (a weapon, made from a shotgun that has a barrel length of less than 18 inches).  The sawed-off shotgun prohibition does not prevent the registration of all SBS’s; but it is illegal to manufacture a SBS and register it in MA on a Form 1.  A purchaser must register an SBS in Massachusetts on a Form 4, and the SBS must have originated from the original manufacturer as a Title II firearm.

In Massachusetts, machine guns are legal, but anyone seeking to obtain a machine gun must hold a MA License to Possess a Machine Gun issued by the Chief Law Enforcement Officer of the purchaser’s town of residence.  AOW’s and Destructive Devices are not specifically prohibited in MA, although a prospective buyer would need to be conversant on Massachusetts laws regarding (a) The MA Assault Weapons Ban; (b) MA laws regarding disguised firearms; and (c) Massachusetts laws regarding the possession of explosives or “infernal machines”.

Before purchasing a Title II firearm or attempting to obtain federal approval, ensure that such firearm will not violate your state's laws.

Local Regulatory Considerations:

As of September 14, 2014, if a Title II firearm is to be acquired by an individual (and not a corporation, trust, or other legal entity), the individual must obtain a law enforcement certification on the Form 1 or Form 4, as appropriate.  Such certification, by federal law, is not intended to be “discretionary” by the CLEO, but many law enforcement officers refuse to sign the certification, thereby preventing the purchaser from obtaining a Title II firearm.  It should be noted that presently purchases of a Title II firearm by a trust, corporation or LLC do not require (a) CLEO certification; (b) fingerprinting of the intended possessor of the firearm; and (c) the submission of photographs to the ATF.

Assuming that you have met all Federal, State and Local requirements, you may now begin the process to make and register your NFA firearm with the following important notes:

NOTE on Form 1:  In the case of registration on an ATF Form 1 (Application to Make and Register a Firearm), you MUST have the approved Form 1 back from ATF with a cancelled tax stamp BEFORE you manufacture your Title II Firearm.

NOTE on Form 4:  In the case of registration on an ATF Form 4 (Application for Tax Paid Transfer and Registration of Firearm), you MUST have the approved Form 4 back from ATF with a cancelled tax stamp BEFORE you take possession of your Title II Firearm.

Essentially, the NFA registration process is done before a firearm is manufacturer or changes hands. Transferring a Title II firearm without an approved Form 4, or manufacturing a Title II firearm without an approved Form 1 is a violation of federal law.

Therefore, although you may be in possession of certain components for your NFA firearm (a lower receiver or host gun for a Title II conversion), that firearm must remain in Title I configuration until you receive your approved registration documents.  Since the Form 1 will request that you provide certain information regarding the firearm, such as overall length, barrel length and caliber, it will be necessary for you to do a bit of research and planning to determine the specifications of the firearm you intend to build.  Remember that the dimensions disclosed in the Form 1 are for the configuration of the final Title II firearm.

Our Form 1 experience:

The appropriate document for manufacturing an NFA firearm from an existing Title I firearm is ATF Form 1 (5320.1).  The form can be downloaded in .pdf form from the ATF’s website, or completed electronically on via the ATF’s eForms system.  If possible, I highly recommend utilizing the ATF eForms system.  Electronically-submitted Form 1’s have been approved in as little as 25 days, while “hard copy” forms take more than six months and 8-12 month waits are not uncommon.

We submitted and Electronic Form 1 for manufacture (conversion) of our SBR, and received approval in thirty-nine days.

The completion of the Form 1 itself is fairly straightforward.  However, forgetting to attach certain documentation will result in the rejection of your Form 1.  In Massachusetts, this additional documentation which should be filed as part of your Form 1 is:

1. All Applications - Copy of your License to Carry Firearms (LTC)
2. If an Individual – 2”x2” photograph
3. If an Individual – Completed Fingerprint Cards, in duplicate
4. If an Individual – Completed Law Enforcement Certification
5. If a Corporation or Trust – Copy of Trust or Articles of Organization
6. All applications – Payment of $200.00

If you would like any assistance regarding the completion of your Form 1 or guidance on the purchase and registration of a Title II firearm, please contact Attorney Matthew Trask at 508.655.5980.

Owning an SBR - Part 1: Finding the right SBR for me.

The National Firearms Act of 1934, in conjunction with Title II of the Gun Control Act of 1986 (codified at Title 26 United States Code, Chapter 53, Internal Revenue Code) ("NFA") regulates the ownership of certain firearms, including, Short Barrel Rifles ("SBR"), Short Barrel Shotguns, Machine Guns, Destructive Devices, Suppressors and AOW's (Any Other Weapon).

A Short Barrel Rifle is defined as any rifle having barrel length of under 16 inches, as measured from the face of the closed bolt to the muzzle, and/or having an overall length of under 26 inches.  This is the story of how and why Kelsey & Trask, P.C. Partner and Holdover Consulting, LLC Principal Matthew Trask legally obtained an SBR.  Although this process was specific to the acquisition of an SBR, the process would be similar for any other Title II firearm.

Owning an SBR - Part 1: Finding the right SBR for me.

Ever since I watched Bruce Willis as John McClane dispatching eastern-European terrorists over the side of the Nakatomi Plaza, I’ve had a soft spot for the MP5.  I wanted one.  With the proper licenses, I could even own one in Massachusetts.  Unfortunately, a transferrable, fully-automatic Title II MP5 will cost upward of $22,000.00.

The next best thing was the semi-automatic carbine version of the MP5 produced by Heckler & Koch and imported into the United States from 1982-1991.  A total of 15,633 HK94 carbines came overseas from Oberndorf am Neckar, the last one in 1991.  HK94 prices have risen steadily, and even a semi-automatic version can fetch close to $5,000.00 today.

After HK stopped importing the semi-automatic derivatives of the MP5, a number of small builders and manufacturers sprang up and started producing clones of the HK94 and HK89.  At about the same time, license-built copies produced in other countries were imported to the U.S.

Early models utilized surplus HK parts which were permitted to be imported, but as those supplies dried up, some builders started manufacturing their own components, often with varying amounts of tolerance and degrees of success.   Put another way, there were good clones and bad clones.  Good builders and bad builders.  High volume guys and low volume guys.  It was tough to tell the difference.  If you chose your builder correctly, you could get a near-perfect clone for around half of what a “genuine” HK cost.  If you chose poorly, you could get a two thousand dollar paperweight.

Recently I was discussing these issues with the owner of my local gun shop, who is also a Title II/Class 3 dealer in Natick, MA.  He immediately suggested I consider a DF94, an MP5/HK94 clone build by Dave Getz of DJ Getz Firearms Co. I looked at one of the new DF94’s he had, and had to agree it was a very well-built, built-to-spec HK clone.  The welds were clean, the machining on the bolt and bolt carrier were smooth and the fit and finish were very nice.  As an added benefit, the DF94 shipped with a tungsten filled bolt carrier and other upgrades, making a more than acceptable sear host if I ever (legally!) wanted to down the road.

A day or so after I picked up the rifle, I had a few questions.  I emailed Dave Getz with a few questions over components and parts compatibility.  Not 15 minutes later, Dave himself called me with an answer to my questions.  We chatted about our affinity for Teutonic steel, rapid-acquisition optics and the direction gun laws seem to be heading at a state and federal level.  Dave didn’t have to call me to answer my questions, but he did.  You don’t see that level of customer service anywhere.  That conversation and 600 flawless rounds later, I was a very happy customer.

There was, of course, one problem.  The National Firearms Act requires that a rifle have a barrel length of 16 inches, and an overall length of 26 inches.  The DF94 I was now the proud owner of had a faux suppressor pinned and welded on the end of the muzzle to bring the overall barrel length of the rifle to over 16 inches.  Detective McClean’s MP5 had a barrel of just under 9 inches, so some work would need to be done.  Time for an SBR.

Part II will discuss the National Firearms Act and the process for legally manufacturing a Short Barrel Rifle as well as our experience Navigating the ATF's E-Forms System.

Part III will involve dragging the Kelsey & Trask, P.C. team out to the range.

What are the Restrictions on a Massachusetts Dealer Selling a Handgun?

Before a licensed dealer in Massachusetts can transfer a handgun they have to answer four questions:

1. Is the buyer a Massachusetts resident or a federally licensed dealer in another state?
2. Does the buyer have a License to Carry, Class A, Large Capacity?
3. Did the buyer pass the NICS background check, if required?
4. . Is the handgun “Mass Complaint?” (i.e. listed on the EOPSS Approved Firearms Roster and compliant with the Attorney General's regulations)

If the answer to all of these questions is "yes", then the handgun transfer is legal in Massachusetts.  However, if the answer to any of these questions is "no", read on, because there are some exceptions described further below.  

Question 1: Is the buyer a Massachusetts resident or a licensed dealer in another state?

There is a federal restriction on interstate transfers of handguns.  This means that handguns can only be transferred between license dealers or manufacturers across state lines.  When selling to an individual, dealers can only sell to residents of their state. 18 U.S.C. 922(a)(3) and (5), 922(b)(3), 27 CFR 478.29 and 478.30.

Exceptions:  The only exception is that a dealer may "return[ ] a firearm or replacement firearm of the same kind and type to a person from whom it was received" 18 U.S.C. 922(a)(2), even if the transferee resides in a different state.  Otherwise a violation of this rule is punishable by up to five years in federal prison. 18 U.S.C. 924(a)(1)(d).

Question 2: Does the buyer have a License to Carry, Class A?

An LTC/A in Massachusetts permits the holder to possess and concealed carry a handgun, subject to potential restrictions listed on the license. M.G.L. c. 140 s. 131(a).

Exceptions:  There are also LTC Class B and Permits to Purchase allowable under the licensing statute, but these are rarely granted. M.G.L. c. 140 s. 131(b); M.G.L. c. 140 s. 131A.  An LTC/B would entitle the holder to purchase large capacity rifles and shotguns, as well as non-high capacity handguns only. M.G.L. c. 140 s. 131(b).

Question 3: Did the buyer pass the NICS background check?

The National Instant Criminal Background Check System ("NICS") is operated by the Federal Bureau of Investigation and is used by licensed dealers to instantly determine whether a prospective buyer is federally prohibited under 18 U.S.C. 922(g) and (n) from receiving or possessing a firearm.  The NICS check is mandated by the Brady Handgun Violence Prevention Act (Brady Law) of 1993 See, 18 U.S.C. 922(t), 27 C.F.R. 478.102.

Exceptions: Limited.  Firearm transfers are exempt from the requirement for a NICS check in three situations. These include transfers: (1) to buyers having a State permit that has been recognized by ATF as an alternative to a NICS check; (2) of National Firearms Act weapons approved by ATF; and (3) certified by ATF as exempt because compliance with the NICS check requirement is impracticable.  18 U.S.C. 922(t), 27 CFR 478.102(d) See also, 27 C.F.R. 478.11.  Also, Transfers of curio or relic firearms to federally licensed curio and relic collectors are not subject to the requirements of the Brady law.  See also, 27 C.F.R. 478.124 (Form 4473 and NICS check not required if upon the return of a firearm delivered to a gunsmith for the sole purpose of repair or customizing when such firearm or a replacement firearm is returned to the person from whom received.)

Question 4: Is the handgun Mass Complaint?

Handguns which are currently "Mass Compliant" are those which appear on the Approved Firearms Roster and comply with the Attorney General regulations.  These represent the majority of handgun transfers between Massachusetts dealers and residents.  However, there are some complicated exceptions which allow for transfers of handguns that are not otherwise "Mass Compliant."

Exceptions: There are three primary exceptions to the requirement that a handgun be Mass Compliant:

Exception: Handguns Documented in MA prior to October 21, 1998 - Any Handgun where the owner can show paperwork (such as an FA-10 form) showing that the handgun was lawfully owned or possessed under a Massachusetts license before October 21, 1998, the transfer of that handgun by a Massachusetts licensed dealer is completely exempt from AG and EOPSS regulations.  It should be noted that there is no requirement that the handgun remain or be continuously present in Massachusetts since October 21, 1998; only that the owner can show it was registered in Massachusetts prior to October 21, 1998. M.G.L. c. 140 s. 123, 940 C.M.R. 16.09.  See also M.G.L. c. 93A s. 2(c).

Exception: Handguns on Approved Firearms Roster and Manufactured prior to October 21, 1998 - Handguns can be sold which appear on the Approved Firearms Roster, but are exempt from the Attorney General’s regulations by virtue of having been manufactured before October 21, 1998.  This category pertains mainly to Glock handguns.  Note that there is no requirement here that the handgun be registered in Massachusetts prior to October 21, 1998, only that it was manufactured before that date.  M.G.L. c. 140 s. 123, 940 C.M.R. 16.09.  See also M.G.L. c. 93A s. 2(c).

Exception: Handguns on Approved Firearms Roster sold to Law Enforcement Officers - Handguns which appear on the Approved Firearms Roster when the buyer is a law enforcement officer exempts the dealer from the Attorney General’s restrictions, but not M.G.L. c. 140 s. 123 requirements.  In this case it doesn't matter when the handgun was manufactured, only that the handgun appears on the Massachusetts Approved Firearms Roster. M.G.L. c. 140 s. 123, 940 C.M.R. 16.09.  See also M.G.L. c. 93A s. 2(c).

Rumors and Lies: How does a Law Abiding Resident Determine if a Firearm is Legal to Purchase in Massachusetts?

On April 27, 2014, @MassGov, the official Twitter account of the Commonwealth of Massachusetts, posted the following:

“Before purchasing a firearm, make sure it is on the roster of ones approved in #MA. 

[Link is a #PDF] ow.ly/wa78k”

This tweet is both a misstatement of the law, and misleading to lawful gun owners in Massachusetts. The link contained in the Twitter post takes you to to the “Commonwealth of Massachusetts Executive Office of Public Safety and Security Approved Firearms Roster”, often referred to as “the EOPSS Roster”.  We’d like to take this opportunity to clear up some myths about this list.

MYTH: Handgun purchasers in Massachusetts must ensure that the handgun they purchase is on the approved roster. 

REALITY: The requirements of M.G.L. c. 140 s. 123 and 940 C.M.R. 16.00 apply only to licensed dealers in Massachusetts, and govern what firearms the dealer may transfer or sell to a Massachusetts resident.  The laws and regulations place no burden on the purchaser of any firearm to ensure that it appears on the Massachusetts Approved Firearms Roster, or is compliant with the Attorney General’s regulations.

MYTH: Anyone selling a handgun in Massachusetts must ensure that the handgun they sell is on the approved roster. 

REALITY: The requirements of M.G.L. c. 140 s. 123 and 940 C.M.R. 16.00 apply only to licensed dealers in Massachusetts, and govern what firearms the dealer may transfer to a Massachusetts resident.  The above laws and regulations do not govern private transactions conducted on an FA-10 or E-FA-10 form. Therefore, it is legal for a private individual to sell a handgun which does not appear on the Approved Firearms Roster or does not meet the Attorney General’s requirements set forth in 940 C.M.R. 16.00.

MYTH: Any handgun which appears on the EOPSS Roster may be sold by a dealer in Massachusetts. 

REALITY: The Approved Firearms Roster is only one-half of the requirements determining what firearms may be sold by a licensed dealer in Massachusetts to a Massachusetts resident.  The transfers of handguns by Massachusetts licensed dealers are also subject to the Attorney General’s Handgun Sales Regulations, 940 CMR 16.00, et seq. Firearms on this Approved Firearms Roster do not necessarily comply with the requirements of the Attorney General’s Handgun Sales Regulations.  Although handguns manufactured by Glock appear on the EOPSS Roster, those same handguns have been refused certification by the Attorney General’s office.

MYTH: Massachusetts Residents may only possess handguns which appear on the EOPSS Roster and/or are AG Complaint. 

REALITY: The requirements of M.G.L. c. 140 s. 123 and 940 C.M.R. 16.00 apply only to licensed dealers in Massachusetts, and govern what firearms may be transferred to a Massachusetts resident.  The above laws and regulations do not restrict the firearms which may be owned or possessed by a resident of Massachusetts.  Therefore, it is completely legal to possess a handgun which does not appear on the Approved Firearms Roster; the only restriction is that a dealer may not transfer an “unapproved” handgun to a Massachusetts resident.

MYTH: A Massachusetts Resident may only purchase a handgun which appears on the EOPSS Roster and is AG Compliant.

REALITY: The requirements of M.G.L. c. 140 s. 123 and 940 C.M.R. 16.00 apply only to licensed dealers in Massachusetts, and govern what firearms the dealer may transfer to a Massachusetts resident.  The laws and regulations do not place any liability on the purchaser of a non-compliant firearm from a Massachusetts dealer, even if the firearm is purchased by a Massachusetts resident.  Therefore, it is not illegal to purchase a handgun which does not appear on the Approved Firearms Roster from a dealer, although the dealer may be violating M.G.L. c. 140 s. 123 or 940 C.M.R. 16.00 by selling it to you.
Additionally, there are many exceptions to the EOPSS Roster and Attorney General regulations.  Those exceptions will be discussed in a future post.

MYTH: The firearms on the Approved Firearm Roster are the only firearms that may be purchased by a Massachusetts Resident. 

REALITY: The M.G.L. c. 140 s. 123 and 940 C.M.R. 16.00 pertain only to the sale of handguns, and not rifles or shotguns which do not fall within the definition of “Firearm” or “Assault Weapon” under M.G.L. c. 140 s. 121.  Rifles and Shotguns which are not “assault weapons” are not regulated under M.G.L. c. 140 s. 123 or 940 C.M.R. 16.00. Handguns which are exempt from the testing requirements of M.G.L. c. 123 and 940 C.M.R. 16.00 nevertheless may not be transferred if the handgun is an “assault weapon” as defined by M.G.L. c. 140 s. 121.

A more accurate version of this tweet might have read:

Dealers: Before selling a handgun, first make sure it is on the roster of ones approved in MA, as well as certified by the Attorney General, if selling to a Massachusetts resident.

Are You on the List? What Makes a Handgun "Mass Compliant?"

There are two lists in Massachusetts that determine whether a handgun is legal to be sold or transferred by a Massachusetts dealer to a Massachusetts resident.  But one of the lists is apparently a secret.

The First List: the EOPPS Roster:

The “Commonwealth of Massachusetts Executive Office of Public Safety and Security Approved Firearms Roster”, often referred to as “the EOPSS Roster” or the “Approved Firearms Roster” is a list of handguns which have met certain statutory criteria governing the manufacture and sale of handguns to be sold in Massachusetts.  The criteria are tested by Massachusetts approved independent testing laboratories to have satisfactorily completed the testing requirements set forth in M.G.L. c. 140, § 123. The reports resulting from those tests are then reviewed by the Massachusetts Gun Control Advisory Board.

In cases where the Gun Control Advisory Board determined that the firearms “passed” the requirements set forth in Section 123,  the tested handgun was subsequently approved by the Secretary of Public Safety and Security as having complied with the statutory handgun testing provisions of M.G.L. c. 140, § 123.

The EOPSS Roster, therefore, is a list of all firearms which have completed and passed the testing requirements set forth in M.G.L. c. 140 s. 123.

The Second (Secret) List: the Attorney General's Roster:

The EOPSS Roster does not take into consideration the similar-but-not-identical requirements set forth in 940 C.M.R. 16.00, often referred to as the “Attorney General Regulations”.

I don’t know anyone who has ever seen the Attorney General “list” of approved firearms, and many (including myself) believe that no list actually exists.  Rather, firearms manufacturers in Massachusetts are required to “certify their own compliance” with the regulations, and are likely at risk for prosecution by the Attorney General’s office under the guise of a consumer protection action if they don't comply.

The EOPSS Roster and the Attorney General’s Regulations have significant implications for Massachusetts licensed firearms dealers and firearms manufactures, as both sets of rules govern (subject to certain exceptions) what handguns may be sold or transferred by a Massachusetts licensed dealer to a Massachusetts resident.

Our next two posts will review this complicated and potentially contradictory regulatory structure in more depth.

Is a sealed criminal record considered in applying for a firearms license?

A sealed criminal record in Massachusetts does not mean the record is sealed for all purposes.  While a potential employer would not be able to view a sealed record, there are exceptions.  One example of an exception is for a "legitimate law enforcement purpose."

Even if your criminal record is sealed, an application for a firearms license in Massachusetts is deemed to be a "legitimate law enforcement purpose", and the reviewing agency would be able to see that there is a sealed record.

In addition, if the sealed record were a conviction for a disqualifying crime, you would remain ineligible by statute to obtain a license.  In addition, if the conviction is not an automatic disqualifier, the existence of that sealed record (and police records pertaining thereto) may still be used by the issuing department to address the issue of the applicant's suitability for a LTC.

Can I qualify for a License to Carry if I've been arrested?

In Massachusetts, only certain criminal convictions are deemed to be disqualifications under M.G.L. c. 140 s. 131.  However, if you are arrested or charged with certain crimes, such as assault and battery, the licensing officer in your town may still consider this in determining an applicant's suitability for a license.

Firearms licensing (with respect to the License to Carry Firearms) in Massachusetts utilizes a two-prong test, and grants significant discretion to the chief law enforcement officer as to whether the license will issue.  Although the offence will not disqualify you as a matter of law under s. 131, the existence of the record and the underlying incident may be considered by the chief as evidence of "unsuitability", which could result in the denial of an LTC/A.

Should the license be denied, you may be able to appeal the denial within 90 days to the local district court.  (M.G.L. c. 140 s. 131).

Additionally, depending on the age of the criminal record, and the circumstances of the case, you could consider applying for a Massachusetts Firearm Identification Card.  The FID will only permit you to posses non-high capacity rifles and shotguns (no handguns), but such license must be issued by the chief law enforcement officer if the applicant is not statutorily disqualified from obtaining said FID.  (See M.G.L. c. 140 s. 129B).  

If I move to Massachusetts, do I need to register my guns?

If you are moving to Massachusetts and bringing firearms, you should first obtain the appropriate license and ensure your firearms are legal to possess as previously outlined in this post: I am moving to Massachusetts from another state, do I need a gun license?

Assuming you have obtained the proper license and your firearms are legal to possess under that license, then you are not required to register firearms you brought with you as a new Massachusetts resident under the current statute.  The E-FA-10 registry system allows you to register your firearms if you want to, as described further in this previous post: Do guns in Massachusetts need to be registered?

Be careful not to confuse a relocation situation with the requirement to register firearms purchased from an out-of-state dealer.  If you are a Massachusetts Resident, and the firearms were directly obtained from an out-of-state dealer, then you would have to register them under this system.

Given the intricacies of Massachusetts firearms laws and the unique legal issues facing firearms owners in the Commonwealth, it is advisable to have an attorney who understands and practices in firearms law, criminal law and civil litigation.

Do guns in Massachusetts need to be registered?

In specific circumstances firearms are required to reported to the Massachusetts Firearms Records Bureau, a division of the Executive Office of Public Safety and Security (EOPSS).  This form of “registration” is handled at a state level, and not by the individual town police departments.

That being said, Massachusetts does not have a firearm registration system, per se.  However, the personal sale, transfer or acquisition of firearms by a Massachusetts resident must be recorded with the Massachusetts Firearms Records Bureau.  Therefore, there is a de facto registration requirement, but it does not apply in all cases.  Registration is accomplished by completing a “FA-10” (hard copy) or “E-FA-10” (electronically-submitted) form.  The submission of an FA-10 or E-FA-10 is required when:

1. You personally buy or sell a firearm in a personal transaction (of which you are permitted only four (4) per calendar year);
2. You are a Massachusetts resident and obtained a firearm from an out-of-state dealer;
3.  The loss or theft of a firearm (additional requirements apply);
4.  You acquire a firearm by inheritance.

Additionally, the E-FA-10 system will permit you to “register” firearms in other circumstances, such as:

1. You moved into Massachusetts from out-of-state, and wish to register your firearms;
2. You are in possession of firearms where no previous FA-10 has been submitted.
3. You have surrendered a firearm to the police.

The launch of the E-FA-10 system in Massachusetts this past year was met with significant opposition from the firearms community, as it inaccurately describes the law, and would seem to coerce registration in circumstances where no registration is required.  For example, there is no current statutory requirement that the firearms, brought in from out of state when a new Massachusetts resident moves from another state, must be “registered” or an FA-10 must be submitted.  Be careful not to confuse a relocation situation, though, with the requirement to register firearms purchased from an out-of-state dealer.

Given the intricacies of Massachusetts firearms laws and the unique legal issues facing firearms owners in the Commonwealth, it is advisable to have an attorney who understands and practices in firearms law, criminal law and civil litigation.

I am moving to Massachusetts from another state, do I need a gun license?

If you wish to bring guns with you from another state to Massachusetts, or to purchase and possess firearms in Massachusetts, then you need to obtain a license.  To obtain an LTC (License to Carry) or an FID (Firearms Identification Card) you need to follow the same process as a current resident of Massachusetts, which we outline in this previous post: How do I obtain a gun license in Massachusetts?

Some firearms or accessories that may be legal in other states may not be legal in Massachusetts or may only be legal to possess if you obtain the full LTC/A.  You should confirm that any firearms you bring in are legal to possess in Massachusetts and that you have applied for the correct license to possess that firearm.

It is also important to note that the law exempts the move in and possession of firearms in the home for new residents for sixty (60) days.  Until you receive the proper license, do not transport any firearms and/or ammunition.

While there is this “grace period” for new residents, new license applications are taking more than the 60 days allotted by statute so you should apply right away.  Additionally, it may be necessary to temporarily store your firearms with a properly-licensed individual or FFL until your license is approved to be in full compliance with the law.

How do I obtain a gun license in Massachusetts?

In Massachusetts to legally possess firearms you need to have an LTC (License to Carry) or a FID (Firearms Identification Card).  Since the LTC allows you to possess more types of firearms than the FID and obtaining an LTC/A (Class A) will also grant you the rights and privileges that attach under the lesser FID, we recommend that everyone apply for an LTC/A.  You do not need to apply for both licenses.  (See M.G.L. c. 140 §§ 129B and 131).

You will need to apply to the Chief of Police of the Massachusetts town in which you reside, or, if you own a business, the Town in which you reside or own a business.  The official state application for an LTC/A is a three-page form; however some towns have additional requirements, such as additional letters of recommendation, or request that you sign a memorandums on the lawful use of force.

We suggest that you contact the police department in the town you intend to reside, and request their “packet”, which will have all the forms required.  The fee to apply for an LTC/A is $100.00.  (See M.G.L. c. 140 § 131).

Before you can submit your application, you will need to take a firearms safety course approved by the Massachusetts State Police.  There are a number of certified courses available, and you should not have any difficulty obtaining a safety course certificate.  Most instructors charge between $60.00 and $100.00 for the basic firearms safety course, and the course generally runs four (4) hours.  When signing up for the course, be sure to confirm beforehand that the course is sufficient to obtain your LTC.

Even once you have your LTC/A there are many restrictions on the types of firearms you can own in Massachusetts and on how you must store and otherwise maintain them.  Given the intricacies of Massachusetts firearms laws and the unique legal issues facing firearms owners in the Commonwealth, it is advisable to have an attorney who understands and practices in firearms law, criminal law and civil litigation.

My Firearms License Application was Denied. Can I appeal?

There are two categories of reasons your application for a firearms license may be denied.

An application for a License to Carry Firearms will be denied if you are disqualified under the terms of M.G.L. c. 140, s. 131. Generally, if you have been convicted of any crime punishable by more than 2 1/2 years in prison, been convicted of a violent crime or crime involving firearms, controlled substances, or any other felony, you are ineligible to obtain a license to carry firearms (LTC). You may also be unable to obtain an LTC if you have been treated for substance abuse addiction, or been confined to an institution for mental illness.

However, even if you have not been convicted of a disqualifying offense, the Chief Law Enforcement Officer in your town must still subjectively determine that you are "suitable" to possess firearms. Even if you are statutorily eligible to obtain an LTC, if the police chief finds you "unsuitable", your license will be denied. The Chief Law Enforcement Officer may consider nearly any evidence at his or her disposal, including police reports, court records that did not result in convictions, sealed records, the applicant's truthfulness on the application, and a number of other subjective factors.

Appeals to District Court

A denial made on the basis of "suitability" must be challenged in the District Court where the applicant resides. The burden of proof is on the applicant to prove that the chief's decision to deny the license to carry firearms was "arbitrary and capricious".

Appeals to the FLRB

A denial made on the basis of the applicant's statutory ineligibility may, in certain cases, petition the Firearm License Review Board for a determination that the conviction is not to be considered a statutory barrier to obtaining the sought after license. The FLRB only has the authority to review certain misdemeanor convictions, and the burden of proof falls on the petitioner to demonstrate that the disqualifying conviction does not impact their suitability to possess a firearm.

It is important that you understand that the Firearms Licensing Board (FLRB) has the authority to review only misdemeanor convictions, and that the FLRB may not review convictions for:

a) an assault or battery on a family or household member, or a person with whom you have had a substantive dating relationship, as defined by G.L. c. 209A, § 1;

b) a crime involving use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or

c) a crime regulating the use, possession or sale of controlled substances.

In addition, the statute specifies that the FLRB may not review a petition if the petitioner:

a) has a disqualifying felony conviction;

b) has multiple misdemeanor convictions, unless the offenses arise from one incident;

c) was denied a license to carry on the basis of suitability rather than a disqualifying conviction (the District Court is the appropriate forum for appeal in this case); or

d) is disqualified for a reason other than a misdemeanor conviction, such as having an active warrant or restraining order.

Finally, the FLRB may not review a petition until after the passage of five (5) years since the misdemeanor conviction or release from supervision, whichever is last occurring.

Also note that a decision by the FLRB in the applicant's favor does not automatically grant a firearms license - the chief of police may still exercise his or her discretion with respect to the applicant's overall suitability. The FLRB can only grant state relief to the issue of statutory ineligibility

Can a "Federally Prohibited Person" still obtain a Massachusetts FID Card?

An applicant seeking to possess certain firearms in Massachusetts may obtain a Massachusetts Firearm Identification Card (FID) even if they have been previously convicted of certain offenses. Under state law, as long as at least five years have passed since the completion of the imposed sentence on certain non-violent felony offenses as either an adult or juvenile; convictions for the use, possession or sale of controlled substances; conviction of certain non-violent misdemeanors punishable by imprisonment for more than two years; or the conviction under any law relating to weapons or ammunition for which imprisonment may be imposed, the Commonwealth of Massachusetts shall issue the applicant a Firearms Identification Card.

However, an applicant with any criminal record should proceed extremely cautiously. Even though Massachusetts has issued an FID, the possession of a firearm by certain individuals convicted of the above offenses may still be federally prohibited from possessing firearms, and doing so is a crime punishable by up to ten years in federal prison.

Every time you purchase a firearm from a licensed dealer, the dealer will complete a form ATF 4473, and will perform a NICS check with the FBI to ensure you are not a "Federally Prohibited Person" as defined in the Brady Handgun Violence Prevention Act (18 U.S.C. § 922(g)). The information supplied on form ATF 4473 will be run through millions of electronic records in state and federal databases to see if the person trying to buy the firearm meets one of nine different categories of reasons for which federal law would prohibit them from being in possession of a firearm. Under federal law, the conviction of many of the crimes described above will create a permanent federal prohibition on firearms ownership.

Should the instant records check discover information which establishes you are ineligible to possess a firearm, your transaction will be denied (i.e., you can't purchase the gun), but the story does not end there.

A Brady denial means it is illegal for you to be in possession of any firearms, even those you already own at home, and even if you were able to obtain a Massachusetts FID Card. If you want to avoid possible seizure and forfeiture of your guns, get them into storage with either an FFL or transferred to a friend or relative who you know is legal to possess firearms and who agrees to hold them and not let you have them until your situation is resolved. You may need to memorialize this transfer on an FA-10 or E-FA-10, if you are in Massachusetts.

Once you get your guns safe and receive the statement of reasons for your denial, you should contact an attorney who is familiar with the field of firearms law.

Expanding the Discussion about Your Freedoms

While it may seem obvious to those of us who live here and sometime take our freedoms for granted, what makes the United States of America such a great place to live is that the design of our government and legal system is based on the protection of freedoms.  The founding fathers recognized, because of their recent violent fight with a tyrannical government, that authority will always seek more authority over the governed.  Therefore, the only government that stood a chance of respecting the freedoms of individuals was one built first on principles that outlined those freedoms.

In the past, this blog has concentrated primarily on debt relief and bankruptcy.  While you might not necessarily associate that subject with other fundamental freedoms, bankruptcy is one of the oldest laws in the United States, and was included in the original 1787 draft of the U.S. Constitution. In fact, the originating language is older than the Bill of Rights. The Founding Fathers recognized that a system of laws was necessary to protect the “honest but unfortunate debtor”, and such laws were in the general interest of the country and its citizens.

While we will continue to cover bankruptcy news and provide information about options for obtaining financial freedom, we will also begin including posts on this blog specific to other freedoms provided for by our Constitution and Bill of Rights.  We hope that you continue to frequent our site for news about financial freedom, criminal defense rights and protections, and freedom from infringement on the individual right to bear firearms.  We also invite you to leave your thoughts and join the debate in the comments section of our posts.

Many people are proud to stand up for, and take advantage of, their constitutional protections – and they should be. From its original incarnation and its amendments over the years, such protections have become the cornerstone of our society, our government and our way of life.

Translating the Second Amendment

As seen in the MetroWest Daily News:


Following the Newtown shooting, people asked for an open and honest discussion about firearms rights and gun control. This has inexorably led to discussions of the meaning and purpose of the Second Amendment. Until we can all at least understand the amendment’s purpose, fruitful discussion is impossible.

So, what does the amendment say? “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Most of the controversy about the Second Amendments stems from the phrase “a well regulated militia”. Many take the position that a well-regulated militia is a military body bound by governmental restrictions, akin to the Armed Forces or the National Guard. However, at the end of the late 18th Century, the term “well regulated”, especially with respect to troops, is more accurately defined as “properly disciplined”. Also, it should be noted that, unlike today, there was no Federal standing army. The defense of the fledgling colonies fell to individual citizens – the people.

If we were to translate the text of the Second Amendment into modern American English: “A properly disciplined body of citizens is necessary for the security of the citizens of a free Country. Therefore, the right of the people to possess and use firearms shall not be infringed.”

Today, the “security of the free state” is maintained by one of the largest professional military organizations in the world. Still, the Supreme Court has recognized the relevance of the Second Amendment. In 2008 and 2010, the Supreme Court issued two landmark decisions officially establishing individuals' rights to possess firearms and employ them for lawful purposes. In District of Columbia v. Heller, the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. In McDonald v. Chicago, the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government. Nevertheless, the Supreme Court has ruled that the modern Second Amendment is not absolute, and holds that some restrictions on firearms are consistent with the Constitution.

Still, I think the Court missed the mark by focusing primarily on personal protection and “militia service”. While certain limitations have practical import, the drafters of the constitution did not intend the amendment to protect an individual’s ability to defend his hearth and home against vagabonds, delinquents and criminals. The founding fathers did not have the Wild West in mind – they feared a much more powerful enemy. The Second Amendment’s purpose is very sobering, very heavy and very real: It is to ensure that the governed have a way to forcibly limit the actions of those who govern them. It is an implicit challenge which states that if representative politics fail, the people still hold the power to exert their collective will on a corrupt or tyrannical governing body. The Second Amendment as it was written never contemplated the rights of sportsmen, hunters, or the potential victim of a crime.

We should not view the importance of the Second Amendment as a partisan political issue. The question is not “should people be allowed to have guns”, but rather “should the people have the ability to protect themselves from an oppressive government”. This cornerstone right protects individuals hailing from all sides of the political divide.

We all want to limit crime, protect our children and protect ourselves. But, we need to be cautious – a knee-jerk reaction to address incidents like Newtown will have long-term and detrimental consequences to all our collective rights. After 9/11, many people responded out of fear and anger, calling on the government to ensure that something like that would “never happen again”. What it got us, though, was a systematic gutting of other rights, liberties and privacy in the interest of safety. We need to ask ourselves if we are willing to go down that road again.

In 221 years since the Second Amendment was ratified, we have thankfully never needed to implement its true purpose, and I hope that we never do. Still, it doesn’t mean it is not important and worth saving.