'I’ll Give You My Gun When You Take it from My Cold, Dead Hands!' The Future of State Gun Control Laws Post-McDonald and Heller and the Death of One-Gun-Per-Month Legislation

The Second Amendment right to bear arms has been a source of significant litigation, legislation, and regulation since the adoption of the Bill of Rights in 1791. The Supreme Court’s recent decision in McDonald v. Chicago overruled over two-hundred years of learned jurisprudence, holding that the Second Amendment right to bear arms is applicable to the states by virtue of the Fourteenth Amendment Due Process Clause. This arguably significant decision will likely change the course of existing and future legislation relative to gun control on the federal and state levels. Existing gun control laws seek to limit, and at times entirely prohibit, access to firearms, the ability to purchase, carry, or use firearms, and the frequency with which a lawful owner may purchase firearms. It is the latter regulation that may be most suspect and ripe for constitutional review under the newfound fundamental right to bear arms for defensive purposes. Currently, four states have enacted laws that restrict the lawful purchase of a handgun to one firearm per month. In addition, Massachusetts Governor Deval Patrick has proposed similar legislation for the Commonwealth. These so-called one-gun-per-month laws have not been constitutionally challenged post-McDonald. While the proposed Massachusetts legislation failed to pass the legislature, because the formal legislative session ended on July 31, 2010, the McDonald decision calls into question the feasibility of such legislation passing constitutional muster, the viability of existing one-gun-per-month laws, and the Massachusetts Supreme Judicial Court’s holding that the Massachusetts right-to-bear-arms clause is a collective, as opposed to an individual, right. Massachusetts, with some of the most restrictive gun control laws in the nation, will very likely be the springboard for significant litigation relative to the extent to which states may limit ones’ Constitutional right to bear arms. The Supreme Court in McDonald established no level of scrutiny for challenges to gun control laws, leaving open the possibility that the Second Amendment right will be afforded the same strict scrutiny as most other fundamental constitutional rights; or perhaps, and more likely, the level of scrutiny will be something less than strict scrutiny, leaving open the possibility for the regulation and restriction of gun ownership, but not the absolute prohibition. After a review of Second Amendment jurisprudence over the past 200 years, as well as a specific review of case law relative to the Massachusetts right-to-bear-arms and the corresponding regulation of gun ownership in Massachusetts, this article will establish that the likely level of scrutiny for challenges to gun control laws will be a “sliding-scale” review; that the Massachusetts Supreme Judicial Court will have to revisit its interpretation of the Massachusetts right-to-bear-arms clause and hold it to bestow an individual right; that the proposed Massachusetts one-gun-per-month law will be held to violate the Second Amendment of the United States Constitution and Article 17 of the Massachusetts Constitution; and, that the existing Massachusetts laws relative to owning a handgun, which require both a Firearms Identification Card (FID Card) and a License To Carry (LTC) permit, will be deemed unduly restrictive in violation of both the Second Amendment and Article 17.