In Massachusetts, to "carry" a firearm, an individual must
possess a license to carry or a firearms identification card (FID
card), which is issued by the appropriate licensing authority
(e.g., a chief of police or their designee), unless the individual
is exempt.1 In order to obtain and hold a Class A or B
license, an individual cannot be automatically disqualified under
M.G.L. c. 140, § 131 and must be a "suitable
The Second Amendment to the United States Constitution provides
that "[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." In recent years, the United States Supreme
Court has defined limits to government regulation of firearms
vis-à-vis the Second Amendment.3
In Heller, the United States Supreme Court recognized
that "the right of law-abiding, responsible citizens to use arms in
defense of hearth and home" was protected by the Second
Amendment.4 Accordingly, a complete ban on handguns
inside the home and a trigger-lock requirement, which prevented
immediate self-defense, violated the Second Amendment. Still,
Heller recognized that the Second Amendment was "not
unlimited" and "presumptively lawful regulatory measures" were
Subsequently, in McDonald, a plurality of the United
States Supreme Court held that the Second Amendment applied to the
States, through the Due Process Clause of the Fourteenth
Amendment.6 McDonald recognized that "the right
to keep and bear arms [is] among those fundamental rights necessary
to our system of ordered liberty," and included the "right to
possess a handgun in the home for the purposes of
self-defense."7 While the McDonald plurality
recognized that the Second Amendment right could be reasonably
regulated, it concluded that local laws that effectively prohibited
handgun possession by nearly all private citizens violated the
Second and Fourteenth Amendments.
Recent judicial recognition of the applicability of the Second
Amendment creates the potential for increased scrutiny of the
"suitable person" standard. Significantly, in Firearms Records
Bureau v. Simkin, 466 Mass. 168 (2013), the Supreme Judicial
Court held that an individual's conduct, even if ostensibly
unusual, did not constitute a proper basis for revoking a license
to carry firearms on the basis of the "suitable person" standard.
The holding of Simkin, particularly in light of recent
Second Amendment precedent, creates the possibility of judicial
limitations on the otherwise broad discretion of licensing
authorities over licenses to carry firearms.
Overview of procedures for
licenses to carry firearms
Class A and Class B licenses to carry firearms allow
individuals to acquire, possess and carry non-large capacity
firearms, and rifles and shotguns (including large capacity rifles
and shotguns).8 However, unlike a Class B license, a
Class A license also allows an individual to hold "large capacity
firearms" and to possess or carry concealed firearms in
In order for an individual to receive and hold a Class A or
Class B license, the individual must: (1) be a "suitable person,"
(2) have a "proper purpose" and (3) not be statutorily
disqualified.10 Currently, there is no statutory or
regulatory definition of a "suitable person" - the parameters of
the standard have been judicially created.
The "suitable person" standard is consistent with the judicial
recognition that firearms control legislation serves the objective
of restricting "access to deadly weapons by irresponsible
persons."11 Accordingly, the "suitable person" standard
is considered on a case-by-case basis by the licensing authority.
For example, in Gemme v. Smith, No. WOCV201100977D, 30
Mass. L. Rptr. 439, 2012 WL 6616936 (Mass. Super. Nov. 13, 2012), a
revocation of a license to carry firearms was upheld because of the
license holder's involvement in a domestic altercation and his lack
of cooperation when the police responded to the incident.
In determining that an individual is not a "suitable person,"
the licensing authority has "broad discretion" and "considerable
latitude."12 However, the licensing authority must issue
his or her decision in writing, along with the supporting
The decision of the licensing authority is subject to judicial
review in state District Court.14 To overturn the
denial, suspension or revocation of a license to carry firearms, a
plaintiff must demonstrate that "no reasonable ground" existed for
the decision by the licensing authority and that the decision was
"arbitrary, capricious, or an abuse of discretion."15
Further appeal is to the Superior Court via a petition for
certiorari under M.G.L. c. 249, § 4.
Simkin and its potential
for narrowing discretion
Simkin may reflect a retreat from the broad
discretion conferred upon a licensing authority, as the plaintiff's
license to carry firearms in that case was improperly revoked on
the basis of the "suitable person" standard. In Simkin,
Jay E. Simkin, the plaintiff, a nonresident and federally licensed
firearms dealer, held an unrestricted license to carry firearms in
Massachusetts. In his license application, Simkin represented that
he traveled in Massachusetts for business reasons, with firearms,
ammunition and cash, and that he needed to conceal firearms for
Simkin's license to carry was revoked as a result of his visit
to a medical appointment and subsequent events. Simkin informed
staff at the medical office that he was armed, as he brought with
him firearms, ammunition, and knives. The employees at the medical
office were "alarmed" and "concerned for their
safety."16 During a subsequent investigation, the local
police learned that Simkin provided the medical office with a
pseudonym and an address in Maryland to cover up his identity, even
though he actually resided in New Hampshire, and he paid in cash,
which seemed unusual.
Simkin's license to carry firearms was revoked because: (1) he
was "heavily armed" at the medical office, (2) "fear and alarm"
resulted from his visit to the medical office and (3) he provided a
pseudonym to the medical office, paid $1,500 in cash for medical
services and did not provide other information about his identity.
The Massachusetts Firearms Records Bureau essentially used a
totality of the circumstances approach to determining that Simkin
was not a "suitable person."
While recognizing that the phrase "suitable person" was
undefined, the Supreme Judicial Court acknowledged that a person
may not satisfy this licensing requirement under certain
circumstances, including acts that do not violate the statutory
disqualifiers for holding a license to carry firearms and
non-criminal conduct. However, the "suitable person" standard was
not unlimited, and the Supreme Judicial Court held that Simkin's
conduct did not render him unsuitable to hold a license to carry
The Supreme Judicial Court characterized Simkin's conduct as
"innocuous," even if "arguably unusual," and based on the
circumstances no "reasonable ground" prohibited him from being a
"suitable person" for the license to carry firearms.17
The Supreme Judicial Court placed particular emphasis on the
absence of any state regulations concerning suitability, leaving
applicants and license holders without any guidance on how to be a
"suitable person." For example, there were no regulations
prohibiting the use of a pseudonym in connection with carrying
concealed firearms, which was the precise conduct Simkin engaged in
when he visited the medical office. Without some regulatory
parameters or other official guidance, the Supreme Judicial Court
cautioned that licensing decisions could be more exposed to
challenges as arbitrary and capricious.
On the facts, the conduct involved did not render Simkin
"unsuitable." The Supreme Judicial Court declined to credit the
observations and reactions of the medical office staff, essentially
faulting the medical office staff, rather than Simkin, for being
"alarmed" upon learning about his concealed weapons, and it instead
recognized that Simkin did not violate the terms of his
unrestricted license to carry firearms "for all lawful
purposes."18 Moreover, Simkin was upfront with the
medical office staff about his concealed weapons, cooperated with
the law enforcement authorities and did not attempt to participate
in a crime or carry out a fraud.
Simkin serves as a warning that, especially in
combination with evolving Second Amendment jurisprudence, the
discretion of licensing authorities may ultimately have limits,
particularly in the absence of a statutory or regulatory definition
of what constitutes a "suitable person." Because suitability is not
confined to solely criminal conduct or the six categories of
statutory disqualifiers, it instead remains susceptible to
individualized interpretation on a case-specific basis. By that
same token, Simkin creates an increased risk for
individual licensing decisions to be challenged as arbitrary,
capricious, or an abuse of discretion.
Simkin underscores the need for licensing authorities
to more fully evaluate and consider the grounds for each individual
licensing decision. The focus may need to be based on objectivity,
rather than subjectivity, invoking consideration of whether an
underlying incident renders an individual an improper person to
hold a license to carry firearms, and including evaluation of the
scope of the license itself and its use restrictions.
'Suitability' remains intact
Simkin did not invalidate the "suitable person"
standard. To the contrary, Massachusetts courts considering the
"suitable person" standard in the aftermath of Heller and
McDonald have recognized that this standard passes
Indeed, the United States Court of Appeals for the First Circuit
upheld the constitutionality of the "suitable person" standard in
Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012),
both on a facial basis and as applied to the revocation of the
Hightower plaintiff's license to carry firearms.
Hightower specifically held that the "suitable person"
standard was not subjective, nor did it bestow overbroad discretion
on the licensing authority.
Hightower involved circumstances where false
information on the license application, rather than to a third
party, constituted a reasonable basis for holding that an applicant
or license holder is unsuitable. The First Circuit acknowledged
that the revocation was not a general determination in
Hightower, and instead related to the grounds for which
the firearms license was sought.
Moreover, in Ferrill v. Chief of Police of Sandwich, 83
Mass. App. Ct. 1114 (Feb. 19, 2013), a Rule 1:28 decision, the
Massachusetts Appeals Court, in dicta, rejected the
plaintiff's challenge to the constitutionality of the "suitable
person" standard. In Ferrill, the Massachusetts Appeals
Court upheld the denial of a firearms license to a plaintiff with a
criminal record, who failed to disclose prior court appearances,
was associated with a known felon and who provided a pseudonym
during a police investigation. Ferrill demonstrates the
continued validity of criminal conduct as a consideration for
Similarly, in Michaud v. Chief of Police of Kingston,
85 Mass. App. Ct. 1111 (Apr. 3, 2014), also a Rule 1:28 decision,
the Massachusetts Appeals Court rejected the plaintiff's argument
that the revocation of his firearms license contravened the limits
on reasonable regulation under the Second Amendment and its focus
on self-defense in the home. The license revocation in
Michaud was upheld because the plaintiff overreacted to
employees of a repossession company who approached his property, by
discharging his firearm in their proximity and instilling fear in
them. The repossession company employees had not attempted to enter
the license holder's residence, nor did they threaten the license
holder or his family with bodily harm, notwithstanding the license
Significantly, in Michaud, the Massachusetts Appeals
Court recognized that neither self-defense nor any other
justification existed for the plaintiff's conduct. Michaud
suggests that the Second Amendment considerations for protecting
the "hearth and home" - a "core right" - may be appropriate for the
"suitable person" analysis and whether an incident renders an
individual unsuitable. Thus, in examining whether any incident is
relevant to the suitability analysis, a licensing authority, and a
reviewing court, may consider that incident in light of the
protections of the Second Amendment.
Second Amendment jurisprudence will likely contribute to
defining the limits on licensing decisions under the "suitable
person" standard, such as the relevance of activities outside the
home. The consequence is a potential for judicial reassessment of
the suitability standard, on a case-by-case basis, and a more
focused and involved analysis on the conduct used to determine
whether an individual is unsuitable.
1See M.G.L. c. 140, §§ 121, 129B, 131; M.G.L. c. 269,
2 See M.G.L. c. 140, § 131(d), (f).
3See District of Columbia v. Heller, 554 U.S. 570
(2008); McDonald v. City of Chicago, 130 S.Ct. 3020 (2010)
4See Heller, 554 U.S. at 635.
5See id. at 596 & n.26.
6See McDonald, 130 S. Ct. at 3042, 3050
7See id. at 3042.
8See M.G.L. c. 140, § 131(a), (b).
9See id., § 131(a).
10See id., § 131(d), (f).
11Ruggiero v. Police Comm'r of Boston, 18 Mass.
App. Ct. 256, 258 (1984).
12Ruggiero, 18 Mass. App. Ct. at 259.
13See M.G.L. c. 140, § 131(f).
14See M.G.L. c. 140, § 131(f); Chief of Police of
Shelburne v. Moyer, 16 Mass. App. Ct. 543, 544 (1983).
15See Howard v. Chief of Police of Wakefield, 59
Mass. App. Ct. 901, 902 (2003); Godfrey v. Chief of Police of
Wellesley, 35 Mass. App. Ct. 46-47 (1993).
16See 466 Mass. at 170.
17See id. at 182.
19See Wesson v. Town of Salisbury, C.A. No.
13-10469-RGS, 2014 WL 1509562, at *4 (D. Mass. Apr. 18, 2014)
(recognizing, on an as applied basis, the plaintiffs' "Second
Amendment right to possess firearms in the home for