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SJC-11682

CHIEF OF POLICE OF THE CITY OF WORCESTER vs. RAYMOND J. 

HOLDEN, JR.

Worcester. November 6, 2014. - March 11, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Firearms. License. Constitutional Law, Right to bear arms, 

Vagueness of statute. Due Process of Law, Revocation of 

license, Vagueness of statute. Words, "Suitable person."

Civil action commenced in the Superior Court Department on 

December 6, 2011.

The case was heard by James R. Lemire, J., on motions for 

judgment on the pleadings.

The Supreme Judicial Court granted an application for 

direct appellate review.

Mel L. Greenberg for the defendant.

Kevin M. Gould, Assistant City Solicitor (David M. Moore, 

City Solicitor, with him) for the plaintiff.

Julia Kobick, Assistant Attorney General, for the 

Commonwealth, amicus curiae.

The following submitted briefs for amici curiae:

Jonathan E. Lowy, Kelly Sampson, Elizabeth Burke, Jonathan 

L. Diesenhaus, James W. Clayton, & Anna M. Kelly, of the 

District of Columbia, & Kathy B. Weinman for Brady Center to 

Prevent Gun Violence.
2

Ben T. Clements & Lila E. Slovak for Massachusetts Chiefs 

of Police Association, Inc., & others.

Edward F. George, Jr., & Susan Chu for Gun Owners' Action 

League, Inc.

Karen L. MacNutt for Commonwealth Second Amendment, Inc.

SPINA, J. This case mounts a challenge under the Second 

Amendment to the United States Constitution1 to the

constitutionality of the "suitable person" standard in G. L. 

c. 140, § 131 (d) and (f), as amended through St. 1998, c. 180, 

§ 41, by which licenses to carry firearms were issued, 

suspended, or revoked between 2005 and 2010.

2 The chief of 

police of the city of Worcester (chief) determined, based on the

history of domestic violence of Raymond J. Holden, Jr., against 

his wife, that Holden was not a suitable person to have such a 

license. Holden sought judicial review of three separate 

adverse decisions of the chief: suspension of his license, then 

revocation of his license, and finally denial of his application 

for a new license to carry. After a complex history of District 

Court litigation that was consolidated and resolved largely in 

favor of Holden, the chief sought certiorari review in the 

Superior Court. On cross motions for judgment on the pleadings,

 

1 The Second Amendment to the United States Constitution 

states: "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."

2 The statute was further amended in 2014. See notes 5, 6, 

8, and 10, infra.
3

a judge in the Superior Court ruled in favor of the chief. 

Holden appealed, and we granted his petition for direct 

appellate review. On appeal, Holden argues that (1) the 

"suitable person" standard violates the Second Amendment, both 

facially and as applied; (2) the statutory scheme as to the 

suspension and revocation of licenses and the denial of license 

applications violates procedural due process because it is 

devoid of any provision for a hearing before the chief, and 

because it makes no provision for an aggrieved person to 

confront and cross-examine witnesses in the District Court; (3)

the "suitable person" standard is unconstitutional as applied to 

him because it allows the chief to disqualify him permanently 

from licensure as an unsuitable person without current cause; 

and (4) the decisions of the chief were not supported by 

substantial evidence. We reject Holden's claims, and we affirm 

the judgment of the Superior Court.3

1. Background. On the evening of September 10, 2005, 

Holden's daughter telephoned the Shrewsbury police department 

911 dispatch to report that her father had just beaten her 

 

3 We acknowledge the amicus briefs of the Attorney General;

Brady Center to Prevent Gun Violence; and Massachusetts Chiefs 

of Police Association, Inc.; Stop Handgun Violence; Educational 

Fund to Stop Gun Violence; and Jewish Alliance for Law & Social 

Action, in support of the chief of police of the city of 

Worcester (chief), and the amicus briefs of Commonwealth Second 

Amendment, Inc., and Gun Owners Action League, Inc., in support 

of Raymond J. Holden, Jr.
4

mother and thrown her out of his vehicle in front of the 

daughter's house in Shrewsbury. She reported that her mother 

was crying and that she was requesting police assistance. 

Police arrived at the daughter's home. Holden's wife prepared 

and signed a written statement, witnessed by her daughter, in 

which she described what occurred. She indicated that she and 

Holden were at a restaurant that evening. After consuming a few 

cocktails they began to argue. She did not want to create a 

scene, so she asked the bartender to arrange for a taxicab to 

take her home. Eventually she left with Holden, who verbally 

assaulted her and said he was going to leave her at their 

daughter's home. Upon arrival, Holden punched his wife in the 

face, walked around to the passenger's side door, and pulled her 

out of the vehicle. He threw her to the pavement and then drove 

away. She suffered a swollen lip, a scratch over her right eye, 

and scrapes and bruises on her left arm.

On September 12, 2005, Holden was arraigned in the 

Westborough Division of the District Court Department 

(Westborough District Court) on a complaint alleging assault and 

battery on his wife. On September 14, 2005, the chief, acting 

in his capacity as licensing authority for the city of 

Worcester, suspended Holden's license on the ground that he was 

not suitable to carry firearms. His decision was based on

Holden's arraignment on the assault and battery complaint. The 
5

complaint was dismissed two weeks later at the request of the 

complainant, Holden's wife.

On December 6, 2005, Holden filed a complaint for judicial 

review of his suspension in the Worcester Division of the 

District Court Department (Worcester District Court), pursuant 

to G. L. c. 140, § 131 (f). After an evidentiary hearing, the 

judge ordered the restoration of Holden's license because the 

sole ground for the suspension was the pending charge of assault 

and battery, which had been dismissed. The judge ruled that the 

suspension was "arbitrary and capricious in that the withholding 

of the license [was] not predicated upon any factual 

determination by [the licensing authority]." On January 30, 

2006, the chief reinstated the suspended license.

However, on that same day, immediately after restoring 

Holden's suspended license, the chief revoked the license. 

Instead of relying on Holden's arraignment on the then-dismissed 

complaint for assault and battery, the chief's written decision

set forth specific findings based on the police incident report 

of September 10, 2005, which contained details of the assault 

and battery as reported by Holden's wife. The chief explained 

that the credible information in the incident report, and not 

the mere existence of a criminal charge, were the grounds on

which he determined Holden to be unsuitable. On March 1, 2006, 

Holden filed a complaint for judicial review in the Worcester 
6

District Court. A different judge found facts and ruled, 

without an evidentiary hearing, that the subsequent action by 

the chief was based on the same evidence that was presented in 

the earlier action. He ordered the license reinstated. The

chief filed a complaint for certiorari in the Superior Court. 

On May 21, 2007, a judge of the Superior Court determined that 

the failure to conduct an evidentiary hearing was error, and he 

remanded the case to the District Court for an evidentiary

hearing on the revocation. Holden sought appellate review, but 

the appeal was dismissed by the Appeals Court on June 30, 2008, 

on the ground that the Superior Court's order of remand was 

interlocutory, from which there was no right of appeal.

The case lay dormant for nearly two years. On June 17, 

2010, Holden requested a hearing.4 On September 21, 2010, 

Holden's revoked license to carry firearms expired. On 

October 18, 2010, Holden applied to the Worcester police 

department licensing division for a new license to carry 

firearms. On November 18, 2010, the chief denied the 

application on the ground that Holden was not a suitable person 

to hold such a license. The chief relied upon and cited details 

from the police incident report of September 10, 2005; the 

 

4 Although Holden's motion regarding this request does not 

appear on the Worcester District Court docket, the docket states 

that a memorandum and order issued on that motion on August 10, 

2010.
7

statement signed by Holden's wife on September 10, 2005; and the 

911 dispatch call from Holden's daughter. On January 6, 2011, 

Holden filed a complaint for judicial review of the denial of 

his application, pursuant to G. L. c. 140, § 131 (f), in 

Worcester District Court. He also filed a motion to consolidate 

all three cases, which was allowed. It is not clear why the 

first case was included, as it had been decided and no notice of 

appeal had been filed.

A full evidentiary hearing was held before a third judge of 

the District Court on February 7 and 9, 2011. On October 21, 

2011, the judge ruled that the chief had a reasonable ground to 

suspend and revoke Holden's license in 2005 and 2006, 

respectively, based upon the reported domestic assault and 

battery by Holden on his wife on September 10, 2005, 

notwithstanding dismissal of the criminal charges in the 

Westborough District Court on October 3, 2005. The judge 

concluded that the chief had authority to rely on reported 

behavior of a licensee, even if there had not been any criminal 

charges. However, the judge vacated the November 18, 2010, 

denial of Holden's application for a license to carry a firearm 

and directed that a license to carry be issued to Holden. The 

judge determined that the chief did not have a reasonable ground 

for denying the 2010 application where there had been a 

significant passage of time with no intervening incidents. He 
8

further ruled that a 2006 directive of the chief to the effect 

that a revocation of license operated as a "permanent loss" 

constituted an abuse of discretion.

On December 6, 2011, the chief filed a complaint for 

certiorari review in the Superior Court. The parties filed 

cross motions for judgment on the pleadings. After a hearing, a 

judge of the Superior Court granted the chief's motion for 

judgment on the pleadings, and he denied Holden's motion. The 

judge reasoned that "[t]he passage of time without interaction 

with the law . . . does not preclude a finding of unsuitability 

. . . [but is a] factor that [a licensing authority] is entitled 

to take into consideration. . . . [I]t is not appropriate 

grounds for the District Court to overrule [the chief in this 

case]." The judge also concluded that the District Court judge 

erred in relying on the 2006 directive where there was no 

evidence that the chief had relied on the directive or that a 

revoked license actually would result in a lifetime ban. 

Finally, the judge determined that the "core of the Second 

Amendment, the right of an individual to keep and bear arms in 

the home, was not implicated in [Holden's] case."

2. As-applied challenge. Holden argues that the Second 

Amendment secures for him the right to carry a handgun for selfdefense outside the home, and that this right cannot be made 

subject to a determination by the chief that he is a suitable 
9

person to carry a handgun. He contends that the "suitable 

person" standard in G. L. c. 140, § 131 (d) and (f), violates 

the Second Amendment, and that it violates constitutional 

principles of vagueness. There are several parts to this 

challenge, which we address in turn.

As an initial matter, it is important to note that the 

record is silent as to whether Holden had held a Class A license 

or a Class B license, and whether he applied for a Class A or a 

Class B license after his revoked license expired. For purposes 

of this appeal the relevant difference between the two types of 

licenses is that a Class A license entitles a holder to possess 

and carry a concealed firearm for all lawful purposes, subject 

to such restrictions as the licensing authority deems proper. 

See G. L. c. 140, § 131 (a).5 A Class B license entitles a 

holder to "possess and carry . . . non-large capacity firearms 

. . . for all lawful purposes, subject to such restrictions 

. . . as the licensing authority deems proper; provided, 

however, that a Class B license shall not entitle the holder 

thereof to carry or possess a loaded firearm in a concealed 

 

5 General Laws c. 140, § 131 (a), was amended by St. 2014, 

c. 284, § 47, effective January 1, 2021. Under the amended 

statute there will be no Class A and Class B licenses, but a 

unitary license to carry.
10

manner in any public way or place." G. L. c. 140, § 131 (b).6 

The analysis is somewhat different for each type of license. We 

begin with the Class A license.

a. Class A license. Holden's argument begins with a 

statement from District of Columbia v. Heller, 554 U.S. 570 

(2008), made applicable to the States by McDonald v. Chicago, 

561 U.S. 742, 791 (2010), where the United States Supreme Court 

declared self-defense to be "the central component of the

[Second Amendment] right itself" (emphasis in original).

Heller, supra at 599. The Court was addressing, and rejected,

Justice Breyer's dissent where he described individual selfdefense as being merely a "subsidiary interest" to the Second 

Amendment's right to keep and bear arms. Id. at 714 (Breyer, 

J., dissenting). Holden acknowledges that the Supreme Court 

also said in Heller that the "need for defense of self, family, 

and property is most acute" in the home, id. at 628, but he 

maintains nevertheless that the right of self-defense is the 

core holding of Heller. He reasons that nothing in Heller

suggests that the right to bear arms for self-defense is limited 

to the home. Relying on Moore v. Madigan, 702 F.3d 933, 942 

(7th Cir. 2013), Holden maintains that the right to keep and 

bear arms to defend oneself is at least as important outside the 

 

6 General Laws c. 140, § 131 (b), was amended by St. 2014, 

c. 284, § 47, effective January 1, 2021. See note 5, supra.
11

home as it is inside the home. His argument culminates in the 

following statement: "By noting that restrictions on carrying 

firearms 'in sensitive places such as schools and government 

buildings' . . . were 'presumptively lawful' under the Second 

Amendment . . . the Court at least suggested that restrictions 

on carrying firearms outside the home in less 'sensitive' places 

would violate the right to keep and bear arms," quoting Heller, 

supra at 626, 627 n.26.

In Heller, 554 U.S. at 635, the Court held that the 

District of Columbia's total ban on handgun possession in the 

home violates the Second Amendment. The Court did not say or 

imply, as Holden argues, that the right of self-defense is as 

great outside the home as it is inside the home. Indeed, the 

Court expressed something to the contrary. It said "the need 

for defense of self, family, and property is most acute" in the 

home. Id. at 628. The United States Court of Appeals for the 

First Circuit has observed that, with respect to this language 

from Heller, "[c]ourts have consistently recognized that Heller

established that the possession of operative firearms for use in 

defense of the home constitutes the 'core' of the Second 

Amendment." Hightower v. Boston, 693 F.3d 61, 72 (1st Cir. 

2012).

Moreover, mindful of the problem of handgun violence 

throughout the country, the Supreme Court said that "[t]he 
12

Constitution leaves the District of Columbia a variety of tools 

for combating that problem, including some measures regulating 

handguns, see supra at 624-627, and n.26." Heller, 554 U.S. at 

636. As to those measures, the Court observed that "[l]ike most 

rights, the right secured by the Second Amendment is not 

unlimited. From Blackstone through the [Nineteenth Century]

cases, commentators and courts routinely explained that the 

right was not a right to keep and carry any weapon whatsoever in 

any manner whatsoever and for whatever purpose." Id. at 626. 

The Court identified a nonexhaustive list of prohibitions and 

restrictions on the Second Amendment right, including 

"prohibitions on carrying concealed weapons[,] . . .

longstanding prohibitions on the possession of firearms by 

felons and the mentally ill, . . . laws forbidding the carrying 

of firearms in sensitive places such as schools and government 

buildings, . . . [and] laws imposing conditions and 

qualifications on the commercial sale of arms." Id. at 626-627.

Conspicuously absent from Holden's argument is the Supreme 

Court's inclusion of "prohibitions on carrying concealed 

weapons" among the "tools" available to combat gun violence. 

Heller, 554 U.S. at 626, 636. This particular prohibition 

applies to the possession of firearms outside the home. 

Significantly, the Court referred to this tool as a

"prohibition" on carrying firearms, not merely a restriction. 
13

Moreover, the Court emphasized that prohibitions on carrying 

concealed weapons and other prohibitions specifically mentioned 

(and others not specified) were "presumptively lawful." Id. at 

626-627 & n.26. See Hightower, 693 F.3d at 73.

Because a prohibition against carrying concealed weapons is

presumptively lawful, it follows that licensing the carrying of 

such weapons, a less restrictive measure, also must be 

presumptively lawful. See id. at 74. "Presumptively lawful" 

prohibitions and regulations do not burden conduct protected by 

the Second Amendment. As such, they fall outside the scope of 

the Second Amendment and are not subject to heightened scrutiny. 

See Commonwealth v. McGowan, 464 Mass. 232, 239, 244 (2013). 

For these reasons, we conclude that the denial of a Class A 

license to carry a concealed firearm, or the revocation or 

suspension of a Class A license, falls outside the Second 

Amendment and is subject only to rational basis analysis, as a 

matter of substantive due process. See id.

i. Rational basis. Those who challenge the 

constitutionality of a statute that neither burdens a suspect 

group nor a fundamental constitutional right bear a heavy burden 

in overcoming the presumption of constitutionality in favor of a

statute's validity. See English v. New England Med. Ctr., Inc., 

405 Mass. 423, 427 (1989), cert. denied, 493 U.S. 1056 (1990). 

Under the Federal Constitution, the rational basis test under 
14

principles of due process is "'whether the statute bears a 

reasonable relation to a permissible legislative objective' 

. . . and, under the . . . State Constitution [is] whether the 

statute 'bears real and substantial relation to public health, 

safety, morals, or some other phase of the general welfare'" 

(citations omitted). Id. at 430. Holden offers nothing to 

overcome the presumption of constitutionality with respect to 

the regulation of concealed weapons. He relies exclusively on 

the application of strict scrutiny. Nevertheless, we undertake 

the analysis.

The purpose of G. L. c. 140, § 131, is to "limit access to 

deadly weapons by irresponsible persons." Ruggerio v. Police 

Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984). "From a 

realization that prevention of harm is often preferable to 

meting out punishment after an unfortunate event, [§ 131] was 

enacted as a first-line measure in the regulatory scheme. It 

has been said about § 131 that it was intended 'to have local 

licensing authorities employ every conceivable means of 

preventing deadly weapons in the form of firearms [from] coming 

into the hands of evildoers.'" Id. at 258-259, quoting Rep. 

A.G., Pub. Doc. No. 12, at 233-234 (1964). Section 131, in 

addition to excluding certain classes of persons from licensure, 

requires that the licensing authority ascertain whether an 

applicant is a "suitable person" to carry firearms and has a 
15

proper purpose for carrying a firearm, and that someone who has 

been issued such a license remains suitable. G. L. c. 140, 

§ 131 (d), (f). The Supreme Court acknowledged precisely the 

need for such determinations when it said of the Second 

Amendment, "whatever else it leaves to future evaluation, it 

surely elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth 

and home" (emphasis added). Heller, 554 U.S. at 635. Although

the statute has been amended,

7 the "suitable person" standard 

still confers upon a licensing authority "'considerable 

latitude' or broad discretion in making a licensing decision." 

Chardin v. Police Comm'r of Boston, 465 Mass. 314, 316, cert. 

denied sub nom. Chardin v. Davis, 134 S. Ct. 525 (2013), quoting 

Ruggiero, supra at 259. Specifically, it allows licensing 

authorities to keep firearms out of the hands of persons who are 

not categorically disqualified, e.g., convicted felons, but who 

nevertheless pose a palpable risk that they would not use a 

firearm responsibly if allowed to carry in public. The statute, 

broadly speaking, bears a reasonable, as well as a real and 

substantial, relation to public health and safety. As such, the 

"suitable person" standard passes muster under the United States 

and the Massachusetts Constitutions under rational basis 

analysis.

 

7 See note 8, infra.
16

Even if Holden had a Second Amendment interest in carrying 

a concealed weapon, the suspension and revocation of his 

license, and the denial of his application for a new license,

would survive heightened scrutiny, which we discuss infra.

ii. Vagueness. Holden also contends that the "suitable 

person" standard is inherently subjective and unconstitutionally 

vague. "A law is void for vagueness if persons 'of common 

intelligence must necessarily guess at its meaning and differ as 

to its application,'" Caswell v. Licensing Comm'n for Brockton, 

387 Mass. 864, 873 (1983), quoting Connally v. General Constr. 

Co., 269 U.S. 385, 391 (1926), or if it "subjects people to an 

unascertainable standard." Brookline v. Commissioner of the 

Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378 (1982), S.C., 

398 Mass. 404 (1986). The degree of vagueness that is 

permissible under principles of due process varies with the 

interests involved. See Hoffman Estates v. Flipside, Hoffman 

Estates, Inc., 455 U.S. 489, 498-499 (1982); Brookline, supra. 

Flexibility in a statute is necessary to respond to individual 

cases. See Custody of a Minor (No. 2), 378 Mass. 712, 719 

(1979) (to survive vagueness challenge Legislature need not 

"anticipate and codify every parental shortcoming or handicap 

that might place an exposed child in danger"). "Ambiguities

. . . may be clarified by resort to the administrative process 

so as to cure a vagueness claim." Brookline, supra.
17

The term "suitable person" is not defined in the statute as 

it existed prior to 2015.

8 Nor is it defined by any regulation 

promulgated by the Executive Office of Public Safety and 

Security or its designee, despite the Appeals Court's 

suggestions that guidelines would be beneficial. See MacNutt v. 

Police Comm'r of Boston, 30 Mass. App. Ct. 632, 636 n.6 (1991); 

Ruggiero, 18 Mass. App. Ct. at 261 n.7. Other States have 

"suitable person" standards in their firearms licensing laws. 

See, e.g., Conn. Gen. Stat. § 29-28(b); Hawaii Rev. Stat. Ann. 

§ 134-9(b)(2); N.H. Rev. Stat. Ann. § 159:6(I); R.I. Gen. Laws 

§ 11-47-11(a). Our decisions have served to help clarify the 

meaning of the term and limit the scope of discretion of a 

licensing authority.

For example, in DeLuca v. Chief of Police of Newton, 415 

Mass. 155, 159-160 (1993), this court held that a finding of 

unsuitability properly could be made based on acts underlying 

convictions even after pardon. The court reasoned that although 

a pardon removed the disqualifying feature of a conviction, 

because "character is a necessary qualification and the 

 

8 General Laws c. 140, § 131 (d), was amended by St. 2014, 

c. 284, § 48, effective January 1, 2015, and now provides in 

relevant part: "A determination of unsuitability shall be based 

on: (i) reliable and credible information that the applicant or 

licensee has exhibited or engaged in behavior that suggests 

that, if issued a license, the applicant or licensee may create 

a risk to public safety; or (ii) existing factors that suggest 

that, if issued a license, the applicant or license may create a 

risk to public safety."
18

commission of a crime would disqualify even though there had 

been no criminal prosecution for the crime, the fact that the 

criminal has been convicted and pardoned does not make him any 

more eligible" (citations omitted). Id. In Howard v. Chief of 

Police of Wakefield, 59 Mass. App. Ct. 901, 902 (2003), the 

Appeals Court upheld a finding of unsuitability based on an 

abuse prevention order that had expired. Moreover, in Godfrey

v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 43, 47-48 

(1993), the Appeals Court upheld a finding of unsuitability 

based on a licensee's refusal to cooperate with a police 

investigation in the face of what the police chief reasonably 

deemed to be a continuing and serious danger to public safety, 

particularly young children, where police had reason to believe 

that a gun used to fire bullets into a school, a private 

residence, and an automobile might have belonged to the 

licensee. These cases provide adequate guidance to persons of 

common intelligence that conduct which is criminal and violent, 

regardless whether it has resulted in a criminal conviction, is 

grounds for denial, revocation, or suspension of a license to 

carry a firearm on the basis of unsuitability.

Holden's license was revoked, and his application for 

renewal of his license was denied, based not on a generalized, 

subjective determination of unsuitability, but on specific and 

reliable information that he had assaulted and beaten his wife. 
19

The information on which the chief relied was the type of 

information on which judges rely when revoking a criminal 

defendant's probation. See Commonwealth v. Durling, 407 Mass. 

108, 120-122 (1990). The punishment for assault and battery 

includes imprisonment of up to two and one-half years. See 

G. L. c. 265, § 13A. Had Holden been convicted of this offense, 

he would have been disqualified from firearm licensure. See 

G. L. c. 140, § 131 (d) (i), (f). The fact that there was no 

conviction removes the incident as a license disqualifier, but 

it does not remove the chief's consideration of the incident on 

the question of Holden's suitability. Whatever ambiguities may 

be imbedded in the term "suitable person," our jurisprudence

puts people on notice that uncharged and untried criminal 

conduct amounting to an assault and battery is not among them. 

See Deluca, 415 Mass. at 159-160; Howard, 59 Mass. App. Ct. at 

902. See also G. L. c. 140, § 121 (definition of "violent 

crime"). A person of common intelligence would understand that 

an assault and battery could render him or her unsuitable for 

purposes of § 131. As applied to a Class A license holder in 

Holden's situation, his vagueness challenge fails.

b. Class B license. Practical wisdom cautions that the 

law of possession of firearms outside of the home is a "vast 

terra incognita that courts should enter only upon necessity and 

only then by small degree." Hightower, 693 F.3d at 74, quoting 
20

United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir.), 

cert. denied, 132 S. Ct. 756 (2011). After acknowledging that 

the Constitution allows "some measure [for] regulating 

handguns,"9 in one of the few definitive statements in Heller, 

the Supreme Court said "certain policy choices [are] off the 

table. These include the absolute prohibition of handguns held 

and used for self-defense in the home" (emphasis added). 

Heller, 554 U.S. at 636. In the instant case we have neither an 

absolute prohibition of handguns in the home nor the regulation 

of handguns in the home. We also are not faced with an absolute 

ban on carrying ready-to-use firearms in public. See Moore, 702 

F.3d at 940. Although the exact parameters of the Second 

Amendment are far from clear with respect to openly carrying

firearms outside the home, and the law is similarly unsettled as 

to which standard of scrutiny applies, we may nevertheless 

engage in a meaningful analysis based on some assumptions.

To begin, if we assume that Holden had a Class B license or 

that he had applied for a Class B license, and if we further 

assume that he had an interest protected by the Second 

Amendment, in that context that interest would not necessarily 

enjoy the same level of protection as keeping and bearing a 

handgun for self-defense in the home, which has been 

 

9 The prefatory clause of the Second Amendment ("well 

regulated Militia") anticipates some regulation.
21

increasingly recognized as the "core" of the Second Amendment. 

See Hightower, 693 F.3d at 72. We said recently that some 

measure of regulation is permissible even in the home "to 

prevent those who are not licensed to possess or carry firearms 

from gaining access to firearms." McGowan, 464 Mass. at 244. 

In that case, we held that G. L. c. 140, § 131L (a), was 

"consistent with the right of self-defense in the home because 

it does not interfere with the ability of a licensed gun owner 

to carry or keep a loaded firearm under his immediate control 

for self-defense," but requires him to store the firearm in a 

locked container or apply a safety device that renders the 

weapon inoperable by someone who is not lawfully authorized when 

not being carried or kept under the direct personal control of 

the owner or a lawfully authorized user. Id. at 243. Where the 

Commonwealth has not totally banned the open carrying of 

firearms in public but has subjected such activity to licensing, 

the question becomes not whether any regulation is permissible 

under the Second Amendment but whether the particular regulation 

is permissible. See Hightower, 693 F.3d at 73.

Federal Circuit Courts of Appeals that have considered the 

question of regulation of firearms in public have observed that 

historically such regulation has been more prevalent than 

regulation of firearms in the home, and that the right to carry 

in public implicates more peripheral Second Amendment concerns 
22

than keeping and bearing arms in the home. See, e.g., Drake v. 

Filko, 724 F.3d 426, 430 n.5 (3d Cir. 2013), cert. denied sub 

nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014); Kachalsky v. 

County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012), cert. 

denied sub nom. Kachalsky v. Cacace, 133 S. Ct. 1806 (2013);

Hightower, 693 F.3d at 72; Masciandaro, 638 F.3d at 470. A 

majority of those courts has applied intermediate scrutiny to 

laws regulating firearms in public because the regulating 

authority did not totally prohibit carrying firearms in public 

and because the right to carry a firearm in public was not at 

the core of the Second Amendment. See Drake, supra at 436; 

Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.), cert. 

denied, 134 S. Ct. 422 (2013); Kachalsky, supra at 93-96. 

Compare Hightower, supra at 74 (plaintiff's "claim fails 

whatever standard of scrutiny is used"). Under intermediate

scrutiny the question is whether the challenged statute is 

"substantially related to an important governmental objective." 

Clark v. Jeter, 486 U.S. 456, 461 (1988). See Brackett v. Civil 

Serv. Comm'n, 447 Mass. 233, 246 (2006).

The governmental objective here has been stated variously 

as the promotion of public safety by "limit[ing] access to 

deadly weapons by irresponsible persons," Ruggiero, 18 Mass. 

App. Ct. at 258; assuaging "the societal concern with weapons 

reaching the hands of unauthorized users," Jupin v. Kask, 447 
23

Mass. 141, 154 (2006); and "prevent[ing] the temptation and the 

ability to use firearms to inflict harm, be it negligently or 

intentionally, on another or on oneself." Commonwealth v. Lee, 

10 Mass. App. Ct. 518, 523 (1980). General Laws c. 140, § 131, 

"was enacted as a first-line measure in the regulatory scheme," 

arising from the obvious and unassailable "realization that 

prevention of harm is often preferable to meting out punishment 

after an unfortunate event." Ruggiero, supra at 258-259. The 

Supreme Court has recognized that the government interest in 

public safety is both "compelling," United States v. Salerno, 

481 U.S. 739, 745 (1987), and "significant." Schenck v. ProChoice Network of W. N.Y., 519 U.S. 357, 376 (1997). The

Commonwealth's interest in firearms control regulation is of the 

"utmost importance, as the statute governing who may lawfully 

carry a firearm directly affects the physical safety of the 

citizenry." Dupont v. Chief of Police of Pepperell, 57 Mass. 

App. Ct. 690, 693 (2003).

The suitable person standard in G. L. c. 140, § 131 (d) and

(f), is substantially related to these important governmental 

interests. As the Attorney General explained in 1926, this 

standard ensures that "the traffic of firearms shall be exposed 

to the scrutiny of the proper authorities and that criminals and 

irresponsible persons shall be unable to obtain firearms 

easily." Rep. A.G., Pub. Doc. No. 12, at 160 (1926). That 
24

purpose remained essentially unchanged nearly forty years later, 

when the Attorney General stated: "the intent of the General 

Court is to have local licensing authorities employ every 

conceivable means of preventing deadly weapons in the form of 

firearms coming into the hands of evildoers." Rep. A.G., Pub. 

Doc. No. 12, at 233-234 (1964). That purpose remains firm 

today. As one Federal District Court judge observed about the 

Connecticut counterpart to the suitable person standard in G. L. 

c. 140, § 131 (d) and (f): "it is impossible for the 

[L]egislature to conceive in advance each and every circumstance 

in which a person could pose an unacceptable danger to the 

public if entrusted with a firearm." Kuck v. Danaher, 822 F. 

Supp. 2d 109, 129 (D. Conn. 2011). That standard, with 

"circumscribed discretion," was deemed to be constitutional. 

Id.

As discussed above with respect to the discussion of the 

Class A license, there is nothing vague about the application of 

the suitable person standard to Holden's circumstances. There 

has been no showing that the chief's decision was arbitrary or 

capricious. And there has been no showing of heavy-handedness 

on the part of the chief. To the contrary, the District Court 

judge found after an evidentiary hearing that in approximately 

six years since 2006, the chief granted approximately 3,200 
25

applications for licenses to carry and denied or suspended 

approximately 200 such applications and licenses.

As previously discussed, Holden's conduct in punching his 

wife in the face, dragging her out of his vehicle, and throwing 

her to the ground constitutes criminal conduct that would have 

disqualified him from licensure had he been convicted. The 

absence of a conviction does not prevent such conduct from 

consideration by the chief on the question of Holden's 

suitability. Holden's acts of domestic violence provide 

precisely the kind and quality of evidence that rationally 

support a finding of unsuitability. The suitability standard 

works in tandem with the disqualifying provisions of the statute 

to reasonably prevent lethal firearms from falling into the 

hands of persons likely to misuse them. This standard is 

substantially related to the Commonwealth's important interests 

in promoting public safety and preventing violence. For these 

reasons Holden's as-applied challenge fails.

3. Facial challenge. Holden's facial challenge, on Second 

Amendment grounds, focuses on the discretion conferred by the 

"suitability" requirement. He contends that G. L. c. 140, § 131 

(d) and (f), is unconstitutionally vague on its face because it 

confers excessive discretion in determinations of suitability. 

Holden maintains that the statute permits determinations of 

unsuitability that are inherently subjective. For his facial 
26

attack to succeed Holden "would have to establish 'that no set 

of circumstances exists under which [the suitability standard] 

would be valid,' United States v. Salerno, 481 U.S. at 745, or 

that the statute lacks any 'plainly legitimate sweep,' 

Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997)." United 

States v. Stevens, 559 U.S. 460, 472 (2010). Although which of 

these standards controls is a question that is unresolved, see

id., Holden's challenge fails under both.

A "plaintiff who engages in some conduct that is clearly 

proscribed cannot complain of the vagueness of the law as 

applied to the conduct of others." United States v. Williams, 

553 U.S. 285, 304 (2008). "[E]ven when the outer boundaries of 

a law are imprecise, such imprecision does not permit a facial 

attack on the entire law by one whose conduct 'falls squarely 

within the "hard core" of the [law's] proscriptions.'" 

Commonwealth v. Orlando, 371 Mass. 732, 734 (1977), quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973). As discussed

supra, people of common intelligence are on notice that 

uncharged and untried criminal conduct amounting to an assault 

and battery may render someone unsuitable for purposes of G. L. 

c. 131, § 131 (d) and (f). Holden's domestic abuse of his wife 

falls squarely within the hard core of the suitability standard, 

and it renders him unsuitable to carry firearms in public. 

Because Holden's as-applied vagueness challenge fails, his 
27

facial vagueness challenge necessarily fails both standards 

identified in Stevens. See Hoffman Estates, 455 U.S. at 497. 

See also Hightower, 693 F.3d at 76-80.

Holden also makes a facial challenge based on the 

overbreadth doctrine. Under this doctrine a law may be 

invalidated under the First Amendment "as overbroad if 'a 

substantial number of its applications are unconstitutional, 

judged in relation to the statute's plainly legitimate sweep.'" 

Stevens, 559 U.S. at 473, quoting Washington State Grange v. 

Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008). 

We need not dwell on this point because "every court to have 

expressly considered the issue" has rejected the applicability 

of the overbreadth doctrine in the context of the Second 

Amendment (citations omitted). Hightower, 693 F.3d at 81-83 

(citations omitted). The reason for this is that the Supreme 

Court has recognized facial attacks alleging overbreadth in 

limited circumstances that do not include the Second Amendment 

context. See id. at 82. Holden's facial attack fails.

4. Due process. Holden raises a number of procedural due 

process claims that we now address. First, he claims that G. L. 

c. 140, § 131 (f), is flawed because it does not provide for a 

prerevocation or presuspension hearing before the licensing 

authority. Generally, such a hearing is required, but not 

always. The Supreme Court has recognized that "on many 
28

occasions . . . where a State must act quickly, or where it 

would be impractical to provide predeprivation process, 

postdeprivation process satisfies the requirement of the Due 

Process Clause." Gilbert v. Homar, 520 U.S. 924, 930 (1997). 

"Protection of the health and safety of the public is a 

paramount governmental interest which justifies administrative 

action. Indeed, deprivation of property to protect the public 

health and safety is '[one] of the oldest examples' of 

permissible summary action." Hodel v. Virginia Surface Mining & 

Reclamation Ass'n, 452 U.S. 264, 300 (1981), quoting Ewing v. 

Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950). The 

Court has "traditionally accorded the [S]tates great leeway in 

adopting summary procedures to protect public health and 

safety." Mackey v. Montrym, 443 U.S. 1, 17 (1979). In such 

circumstances, full predeprivation process is not required, 

provided "prompt postdeprivation review is available for 

correction of administrative error." Id. at 13. We conclude 

that revocation of a license to carry without a predeprivation 

hearing is justified by concerns of public health and safety. 

See Kuck v. Danaher, 600 F.3d 159, 166 (2d Cir. 2010); Rabbitt

v. Leonard, 36 Conn. Supp. 108, 111, 115-116 (1979).

General Laws c. 140, § 131 (f), provides that an "applicant 

or holder aggrieved by a denial, revocation or suspension of a 

license . . . may, within . . . 90 days after receiving notice 
29

of such denial, revocation or suspension . . . , file a petition 

to obtain judicial review in the district court having 

jurisdiction. . . . A justice of such court, after a hearing, 

may direct that a license be issued or reinstated to the 

petitioner if such justice finds that there was no reasonable 

ground for denying, suspending or revoking such license and that 

the petitioner is not prohibited by law from possessing same." 

The Appeals Court has interpreted the statute to require an 

evidentiary hearing. See Godfrey, 35 Mass. App. Ct. at 44-45; 

Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 

547 (1983). Section 131 (f) affords prompt, comprehensive 

postdeprivation review. Contrary to Holden's assertion, 

unsupported by any authority, a District Court judge is not 

limited to review of an administrative record established by the 

summary action of the licensing authority. In this respect,

review under § 131 (f) is broader than review under G. L. 

c. 30A, § 14. An aggrieved person may present relevant evidence 

tending to show that he or she is a proper person to hold a 

license to carry a firearm, or that the action of the licensing 

authority was arbitrary or capricious, or an abuse of 

discretion. Moyer, supra at 546. Indeed, the evidentiary 

hearing in this case was extensive, and new evidence was 

offered.
30

Holden contends that the burden of proof in cases under 

G. L. c. 140, § 131 (f), shifted from the applicant or the 

license holder to the licensing authority as a result of the 

Supreme Court's decision in McDonald, 561 U.S. at 791, which 

made Heller applicable to the States. His reliance on Highland 

Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 244 

(1988), is misplaced. That was a case involving the First 

Amendment, and we see no reason to extend the holding in the

Highland Tap decision beyond the facts of that case. 

Significantly, the Supreme Court has said that "[o]utside the 

criminal law area, where special concerns attend, the locus of 

the burden of persuasion is normally not an issue of [F]ederal 

constitutional moment." Schaffer ex rel. Schaffer v. Weast, 546 

U.S. 49, 58 (2005), quoting Lavine v. Milne, 424 U.S. 577, 585 

(1976). As the United States Court of Appeals for the First 

Circuit said on precisely this issue, "[t]he Massachusetts 

legislature could have reasonably concluded that, on review in 

the district court, the burden should be placed on the aggrieved 

individual, who would be in the best position to present 

relevant evidence as to the suitability requirement." 

Hightower, 693 F.3d at 87. For example, Holden could have shown

(but did not here) that he benefited from any number of 

therapies, such as marital counselling, anger management, or 

psychiatric or psychological counselling, in which he 
31

successfully addressed whatever issues gave rise to the domestic 

abuse that resulted in the finding of his unsuitability. See, 

e.g., G. L. c. 140, § 131 (d) (ii), (iii) (allowing persons 

confined for mental illness or treated for substance abuse to 

present affidavit of physician indicating person is no longer 

disabled, or is cured).

10

Holden next argues that the chief's reliance on hearsay 

evidence, both in his summary actions and in his testimony at 

the evidentiary hearing, violates due process. In particular, 

Holden contends he was deprived of the right to be heard "at a 

meaningful time and in a meaningful manner." Armstrong v. 

Manzo, 380 U.S. 545, 552 (1965). The hearsay evidence on which

the chief relied was reliable and relevant, and it was the kind 

and quality of evidence on which judges often rely in probation 

revocation hearings. See Durling, 407 Mass. at 120-122. The 

chief testified, and he was subjected to lengthy crossexamination. The police officer who responded to the domestic 

abuse call testified to what he observed about the condition of 

Holden's wife, as well as the information he received from 

 

10 General Laws c. 140, § 131 (d) (ii) and (iii), was 

amended by St. 2014, c. 284, § 48, effective January 1, 2015. 

Section (d) (iii) now provides in part that a person committed 

for mental illness or alcohol or substance abuse may, after five 

years from the date of confinement, submit the affidavit of a 

licensed physician or clinical psychologist stating that the 

person is not disabled in a manner that shall prevent the 

applicant from possessing a firearm, rifle, or shotgun. 

Reference to the statute should be had for further details.
32

Holden's wife and daughter. He, too, was cross-examined. "The 

full panoply of procedures usually available at a trial is not 

required in the review by a District Court in a case of this 

nature. The hearsay rule should not be applied to evidence 

proffered by a chief of police in support of the reasonableness 

of his denial. The test should be one of relevance." Moyer, 16 

Mass. App. Ct. at 547. We discern nothing in the proceedings 

before the District Court to suggest that Holden did not receive

a hearing conformably within the requirements of due process.

Holden's final claim is a reassertion of the argument that 

the suitability standard permits unbridled discretion. For 

reasons previously stated, we reject this claim.

5. Current cause. Holden argues that, as a matter of 

substantive due process, the chief must show that he is 

currently unsuitable, and that the chief's 2006 policy 

impermissibly transforms the domestic abuse incident in question 

into a permanent disqualification. Compare Commonwealth v. 

Bruno, 432 Mass. 489, 503 (2000) (commitment of person as 

sexually dangerous person turns on his "current mental 

condition"); Acting Supt. of Bournewood Hosp. v. Baker, 431 

Mass. 101, 105 (2000) ("aspect of immediacy of harm [in context 

of civil commitment proceeding] arises from the imminency of 

discharge as well as from the mental illness"); Hill, 

petitioner, 422 Mass. 147, 154, cert. denied sub nom. Hill v. 
33

Massachusetts, 519 U.S. 867 (1996) (continued commitment of 

person as sexually dangerous requires proof that he is "still 

sexually dangerous").

Although the chief denied Holden's application five years 

after the domestic abuse incident, the basis for denial on the 

ground of unsuitability was Holden's "violent proclivities, 

anger management issues and poor decision-making." Based on the 

chief's twenty-seven-year career as a police officer as of the 

time he denied Holden's application in 2010, and based on 

published estimates that suggest the recidivism rate among 

domestic abusers ranges from forty per cent to eighty per cent, 

"implying that there are substantial benefits in keeping the 

most deadly weapons out of the hands" of abusers, a period of

five years following an incident of domestic abuse without 

professional intervention is hardly stale evidence. United 

States v. Skoien, 614 F.3d 638, 644 (7th Cir. 2010), cert. 

denied, 131 S. Ct. 1674 (2011). See United States v. Booker, 

644 F.3d 12, 26 (1st Cir. 2011), cert. denied, 132 S. Ct. 1538 

(2012) ("Statistics bear out the Supreme Court's observation 

that '[f]irearms and domestic strife are a potentially deadly 

combination nationwide,'" quoting United States v. Hayes, 555 

U.S. 415, 427 [2009]). We cannot say that the passage of five 

years from Holden's domestic abuse of his wife, without 

incident, automatically precluded the chief from relying on the 
34

incident of September 10, 2005, when he denied Holden's 

application on November 18, 2010. Had Holden been convicted of 

assault and battery, that conviction would have disqualified him 

from licensure permanently. See G. L. c. 140, § 131 (d) (i). 

We are not prepared to determine, on this record, what period of 

time must pass before the chief may no longer consider that 

event. We note that it is within Holden's grasp to seek 

appropriate professional evaluation, and, if necessary, 

treatment, and provide the appropriate documentation to the 

chief to alleviate his legitimate concerns about Holden's 

unsuitability.

We offer no opinion about the validity of the chief's 2006 

policy,11 but the issue concerning the application of that policy

was correctly disposed of by the Superior Court judge when he

concluded that there was no evidence that the chief relied on it 

in his denial of Holden's application. We are satisfied that 

the chief's determination of Holden's unsuitability was based on 

current evidence.

6. Substantial evidence. We are also satisfied that the 

decisions of the chief were based on substantial evidence. The 

judgment of the Superior Court is affirmed.

So ordered.

 

11 Although not part of the record in this case, the chief 

states in his brief that the 2006 policy is no longer in effect.