Commonwealth v Donnell

“Bearing arms does not mean from your bathroom to your kitchen!”

That little missive was penned by Justice Clarence Thomas in a dissent to the granting of certiorari on a Second Amendment case a few years back.  The gravamen of the case centered around the question:  Does the Second Amendment provide protection for conduct outside the home?  At the time, the Supremes refused to take up the question.

This may seem ridiculously obvious, but since 2008, it has sort of been an open-ended question.

In Heller v DC the court really focused its analysis on protected conduct inside the home.  It squarely found that the Second Amendment is a specifically enumerated individual right, and affords Constitutional protections for people inside their homes.  But it was largely silent… actually, to be fair, completely silent… on conduct outside the home.

As a result of this… oversight?… anti-gun legal scholars began a cottage industry of writing law review articles and other missives to bolster the argument that the Second Amendment ONLY existed inside the home.

In our recent Supreme Court victory in NYSRPA v Bruen, Justice Thomas finally got his chance to correct the record and relegate those anti-gun scholars and their outcome determinative propaganda to the dust bin of history once and for all.  The Second Amendment DOES exist outside the home… and people must have some method to exercise their Second Amendment rights outside the home.

Now, when it comes to carrying a gun, there are essentially only two ways:  open carry and concealed carry.

Bruen leaves the regulatory methodology up to the states.  They have three options:  1) allow for open carry, 2) don’t allow open carry, but allow for concealed carry (Even requiring a license to conceal carry is okay… as long as the license is issued, or denied, based on objective criteria with the presumption the applicant is entitled to the license.  That is a fancy way of saying “shall issue”), or 3) getting out of the business altogether and simply becoming a Constitutional carry state.

This has created an interesting Constitutional conundrum.  Can civil rights… and the carrying of a gun is, in fact, a civil right… be negated or, at the very least, reduced…simply by traveling to another state within the United States?

Let’s look at it this way:

Able is a Nevada resident.  He decides for some misguided reason to vacation in California.  While here, the police get a little annoyed at Able’s presence and decide to barge into his hotel room and look for anything they could arrest him for.  They don’t have a warrant, they don’t even have probable cause; they just don’t like Able, and are looking to annoy him.  Well… turns out Able does have some prescription medications that expired a month ago.  They arrest him for possessing expired prescription medications.

His lawyer moves to have the evidence suppressed at trial (and the case is subsequently dismissed) since Able’s Fourth Amendment rights were clearly violated.  The police engaged in a warrantless search without probable cause.

The State’s argument:  Able is not a California resident; therefore, he does not have Fourth Amendment protections in California.  The lawyer making that argument would probably be held in contempt by the judge.

But that is exactly how the Second Amendment’s protections have been bifurcated.

Let’s take Able again.  He has a CCW in Nevada and, once again, makes the misguided decision to vacation in California.  He wants to carry his gun.  He can’t.  He can keep his gun in his hotel room… that is fine… but he has no statutory architecture that will allow him to carry his gun outside.  California does not recognize any other state’s CCW and they won’t grant CCWs to non-residents.  Able is out of luck.

This rubric is not only unconscionable, it is in direct violation of the mandate of Bruen.

This brings us to Commonwealth v Donnell.

Mr. Donnell is a New Hampshire resident and has a LTC in New Hampshire (license to carry… what they call CCWs).  He travelled to Massachusetts, which is very similar to California in its antagonism to the Second Amendment.  He was carrying his gun… because… I am sure he studied Bruen and came to the same conclusion I did, that he has a Constitutional right to carry a gun, and any state laws to the contrary are invalid.  He obviously had some interaction with law enforcement in Massachusetts, and was subsequently arrested.

His attorney filed a motion to dismiss, claiming the Massachusetts statute barring him from carrying concealed was unconstitutional.  The Superior Court judge, John Coffey, heard his case, and diligently performed a Bruen analysis on the case and agreed…dismissing the case.

Judge Coffey is a genius!  (Well… anyone who agrees with me is clearly a genius.)

Now, this does not mean we now have national reciprocity.  Judge Coffey’s decision does not have controlling legal authority on any other court.  But it does set something up that will be fascinating to watch… does Massachusetts appeal?

If it does, and the First Circuit agrees with Judge Coffey, then to the extent that a state is within the confines of the First Circuit, there will be cross-state reciprocity.  If it overturns Judge Coffey, then I have a sneaking suspicion there will be a filing with the Supreme Court.

I rub my hands in gleeful anticipation.