Gun Law Turning Law Abiding Citizens Into Felons; State Agency Failed to Inform Millions of Rights
Jim Wallace remembers the implementation of the Bartley-Fox law in Massachusetts in the 1970s which imposed a mandatory one-year term in prison for carrying a gun without a permit.
"I was just a kid," Wallace told MassNews, "but I remember that they ran ads all over the place. You couldn't turn around without seeing something about this new law. We knew, beyond a shadow of a doubt, that if we possessed a gun illegally we would be standing in front of a judge and sent to prison."
No such warning was given Massachusetts citizens in 1998 when the legislature enacted Chapter 180 of the Massachusetts General Laws. According to Wallace and the Gun Owners Action League (GOAL), for which he now serves as Legislative Agent, this legislation comprises what most activists, conservative and liberal, consider the most restrictive gun law in the nation.
Among many changes in 1998 was that Firearms Identification cards (FID) had previously been issued for life. Now every FID was given an expiration date. "These people had a valid contract with the state," Wallace claims. When they were issued their FIDs, they were told that, "If they keep out of trouble, this is valid for life."
Not only did the state break this contract when they passed a new law in 1998, Wallace said in a recent interview with MassNews, but they "didn't even notify most of them."
In a report released by the House Post Audit and Oversight Committee it says that the state failed to notify almost three quarters of a million gun owners that their FID Cards would expire prematurely due to the Massachusetts Gun Control Act of 1998.
In the report, the state claimed to have mailed out notices to only 43% of the 1,280,643 FID card holders on file. Of those, only 5% of the original number responded. The agency attempted to justify this by claiming they had no valid addresses for the remaining 57%. The agency went further to claim that of all of the FID card records on file, 68% of them "contained no information relative to the identity of the licensing authority." This action has led to the licensing renewal of only 200,000 of the original 1.5 million gun owners in the state.
Wallace called the excuse that the state didn't have current addresses for more than a million gun owners, "lame." If that's the case, then "the real estate industry has really tanked in the state, because all those people are just gone." Not only were addresses not found, "The agency went further to claim that of all of the FID card records on file, 68% of them 'contained no information relative to the identity of the licensing authority,'" says GOAL.
"By not ensuring that all of our state's gun owners were notified about the licensing changes in 1998, the state has placed almost a fifth of our population in jeopardy of being arrested. In other words, more than a million gun owners who were legally licensed, but have not renewed the licenses they were issued for "life," are now in danger of arrest for the illegal possession of firearms," says Michael Yacino, Executive Director of Gun Owners' Action League.
This creates problems for some politicians, as well as gun owners, Wallace explained. "[Senator] Cheryl Jacques and the [Senate President and Gubernatorial candidate] Tom Birminghams of this world don't want to admit that there are more than a million citizens in the state with guns." On the other hand, he continued, "The people who've become aware that they're in violation of the law aren't going to complain, because they don't want to get caught."
When MassNews asked Wallace whether these people actually can be arrested even if they don't carry guns, he said, "There is no registration law in the state, but you cannot be in possession of a firearm or ammunition without a license. Even an empty shell casing in your house could get you two years in jail."
A Concord man, Alec Costerus, who has already had a run-in with police over the licensing aspect of the new law told MassNews he is glad GOAL has raised the issue. He explained, "One thing that sticks in my mind about Ch. 180 (MGL c. 140, § 131) is that while I heard about the new law on the news back in late1998 or early 1999, and while I went to the station to inquire about the new gun law, the local police officers were not knowledgeable about the law. For example, the Concord Police Department did not know that there was a grandfathering of existing FID cards until the anniversary of the birth beginning July 1, 1999. Thus, my FID card was valid on March 21, 1999 - before any of the FID cards had expired." (See sidebar).
One gun owner MassNews talked to is worried about any kind of emergency taking place at his home. He asks, "What if my house catches fire or there's some other emergency and they find something?" The "something" might be the dismantled shotgun this person owned legally when his FID was issued for life. When the law went into effect, his FID expired on his next birthday. All of a sudden, this law abiding citizen became a lawbreaker. His perspective: "I was made into a criminal with the stroke of a pen." Seeking to remain anonymous, for obvious reasons, this gun owner is in a real quandary. He is applying for a License to Carry. In the meantime, however, he worries about the gun in his home. He said, "I could bring it over to my brother, who has his license. But what if I get stopped on the way over?" Our John Doe was never notified that his FID was going to expire. "Didn't we have a contract?" he asks.
What's to be done? Gun owners have been trying to chip away at the more restrictive elements of Chapter 180 since its enactment. They've met with limited success. Massachusetts politicians are proud of their restrictive law. Attorney General Tom Reilly is so thrilled with the gun laws in Massachusetts that he has traveled to Washington and other state capitols, to try to export them to less fortunate states.
What GOAL would like is for the governor to create a commission to investigate the agency involved and its role in depriving citizens of their rights. According to Wallace, what that would mean is, "investigating just how much effort was put into finding FID holders." He'd also like to find out, "Just what kind of records does the agency have?" Having addressed the possibly criminal actions - or inactions of the agency, Wallace said, then the panel can go on to figure out how to approach the larger problem of a set of gun laws that aren't working.
Just one example, of many, that Wallace used to indicate the inadequacy of the laws is the question of paperwork. He said, "Just for argument's sake, let's say that there are only 500,000 more gun owners who need to get licensed. How would the local authorities possibly keep up? They have a great deal of trouble now handling 200,000. This would require a whole new bureaucracy."
Costerus applied to be heard by the U.S. Supreme Court, but as he put it, "I submitted my Petition for Writ of Certiorari to the U.S. Supreme Court in July. The Court sent it back as my format did not comply in 100% of the requirements. I am reprinting the 40 copies (at 115 pages per copy) right now that I will be sending to Washington by Sept. 9. Meanwhile, back at the USDC in Boston, we are still progressing through discovery, for which I had to seek and obtained an Order to Compel their compliance to my several discovery events."
According to Costerus, "The Fifth Circuit Court of Appeals in U.S. v. Emerson dealt a major blow to gun control advocates. The three justices declared that the constitutional right to bear arms is an individual right, not simply a right of the states. While the decision serves as binding precedent in only those states encompassed by the Fifth Circuit (Texas, Louisiana, and Mississippi), it put the first nail in the "collective rights" theory of the Second Amendment coffin." Costerus may help to broaden its impact.
In early 1999, former state shooting champion Alec S. Costerus, held a valid firearms permit. After local police officers conducted a search of his home without a search warrant and, he contends, illegally confiscated his competitive firearms, Costerus filed a civil rights action in federal district court claiming the officers violated his Fourth Amendment protections from illegal searches and seizures. Costerus also claimed that Massachusetts' new gun control law, Chapter 180 of the Acts of 1998, violated the Second, Fifth and Fourteenth Amendments.
In March, 2001, the U.S. District Court approved the Commonwealth's Motion to Dismiss Costerus' complaint that the Second Amendment does not create an individual right to keep and bear arms. Costerus filed an appeal to the First Circuit Court of Appeals in May, 2001.
The Fifth Circuit's decision bolsters Costerus' contention that states with discretionary statutes - such as Massachusetts' - are unconstitutional as these states have standardless statutes that result in arbitrary denial of citizens' Second Amendment right to keep and bear arms and provide unequal treatment under the law, a Fifth Amendment principle.
The first shot "heard 'round the world" was fired in Concord, Costerus says. With the vast body of scholarly research, legal precedence, and the principles behind individual liberties on which this great country is founded, he told the MassNews, "It's rather ironic that Concord is the infamous stage for this Constitutional fight for our rights especially given that local farmers are the ones who took up their own arms to defend against British aggression some 225 years ago. Massachusetts even goes so far as to display the famous firearm in the State Capitol."
Costerus, who is not a lawyer, has been representing himself in court. "It's natural," he says, "because, after all, this is a fight about individual liberty." The town and its officers are represented by the insurance company's attorneys, with the state represented by Attorney General Tom Reilly.
In addition to the First Circuit's jurisdiction, encompassing Maine, New Hampshire, Rhode Island, Puerto Rico, as well as Massachusetts, a Costerus victory may also impact eleven other states with discretionary statutes plus another seven states that have no permit system, statutorily depriving its citizens of their Second Amendment rights. "It's one thing to have laws with the purpose of preventing deadly weapons from getting into the hands of evildoers and convicted violent felons; it's another thing altogether to deprive citizens of their natural and Constitutional rights to protect themselves and their family. That does not make you a criminal," he explained. "Rather," he says, "that makes you patriotic."
Costerus adds, "It's about time that the onerous laws in Massachusetts are repealed and state court decisions, such as Commonwealth v. Davis, are overturned."
Costerus, who remains upbeat, will not give up the fight he has carried on for three years. He maintains, "The exercise of a federal Constitutional right should not be subject to which state you live in," he says, adding, "The right of the People to keep and bear Arms shall not be infringed. That means 'all of the people.'"
Attorney Robert Forrest of the Massachusetts Arms Legal Association said that "We don't have any idea if [the Supreme Court] will take a case like this right now," he cautioned, but added, "The Emerson decision shows just how muddled the gun rights situation is today."
Costerus says, "For all our sakes, we can only hope that my case extends the Emerson ruling to Massachusetts and beyond."
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