Massachusetts Court Upholds Subjective ‘Suitability’ Standards for Gun Owners

It’s been nearly three years since the Supreme Court ruled that discretionary “may issue” carry regimes violate the Second Amendment’s right to keep and bear arms, but there are still some judges across the country who have decided to just ignore it in order to uphold subjective licensing standards. 

Massachusetts Superior Court Justice Deepika Shukla is one of them. While a district court judge in the state found that resident Randy Westbrook’s rights had been violated when Holyoke, Massachusetts Police Chief David Pratt rejected his application for a License to Carry on the grounds that he was “unsuitable” to possess a firearm, Shukla overturned that decision on Thursday, declaring that the Supreme Court tacitly gave the thumbs up to at least some subjective suitability standards in Bruen.

Citing language from the Second Circuit Court of Appeals in Antonyuk v. New York, Shukla declared “[t]he Supreme Court’s simultaneous endorsement of Connecticut and Rhode Island’s suitability regimes and criticism of state laws that give licensing officials ‘discretion to deny licenses based on a perceived lack of need or suitability, suggests that States cannot grant or deny licenses based on suitable need or purpose but may do so based on the applicant having a suitable character or temperament to handle a weapon.” 

Nor does Bruen prohibit licensing authorities from exercising any amount of discretion at all. Id. at 994-996 (explaining that more than a dozen of the States cited in Bruen as having approved “shall issue” licensing regimes call for some measure of discretion in assessing suitability, good moral character, or danger to public safety); id. at 998 (the Supreme Court “did not establish a new rule forbidding all discretionary judgments in firearm licensing”).

While the passage from Bruen cited by Shukla does suggest that SCOTUS allows for some measure of subjective review on the part of licensing authorities, the Court also held that the licensing language in those states “appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion.”

In the case of Connecticut, at least, I’d say SCOTUS whiffed. The “suitability” language in Connecticut allows licensing authorities to deny carry permits to “individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon”; a pretty broad and undefined statement. What exactly is conduct that demonstrates someone lacks the “essential character or temperament” to own a gun? The Connecticut statute doesn’t say, which means that licensing authorities can use almost any incident from an applicant’s past to justify a denial. 

In the case of Randy Westbrook, it was arrests for allegedly assaulting a pregnant woman and possessing cocaine with intent to distribute that resulted in Pratt turning down Westbrook’s application for a License to Carry (which, in Massachusetts, is also required to keep a handgun in the home). Westbrook was never convicted of those crimes, however. Instead, the cases were resolved with a “Continuance Without a Finding”; a sort of plea where the defendant does not admit guilt but acknowledges there are sufficient facts for a conviction. Unlike a no contest plea, however CWOF’s generally result in the case being dismissed without a finding of guilt so long as certain terms are met; which, in Westbrook’s case, they were. 

In justifying his decision, Shukla cited a pre-Bruen Massachusetts case called Holden, in which the Massachusetts Supreme Judicial Court determined 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 suitability”. In other words, a mere allegation of criminal conduct can deprive someone of their ability to exercise a fundamental civil right, even if they can pass a background check and are eligible under federal law to possess and purchase a firearm. 

“A person of ordinary intelligence would be able to ascertain that assault and battery on a pregnant woman and possession of cocaine with intent to distribute are indicative of a risk to public safety should such a person receive a license to carry a firearm,” Shukla wrote, turning away Westbrook’s as-applied challenge to the law. 

On the surface, Shukla’s statement may sound reasonable. But the state of Massachusetts didn’t believe that Westbrook was a big enough threat to public safety to take the charges against him to trial, or to reject any kind of deal that would keep him out of prison. The state of Massachusetts allowed the case against Westbrook to be continued without a finding of guilt, and permitted the court to dismiss the charges against him, which is pretty extraordinary treatment for someone who’s supposedly a threat to the general public. 

I can’t attest to Westbrook’s character or temperament, but frankly, those attributes shouldn’t matter when it comes to exercising a fundamental civil right. He’s not a convicted felon, nor has he been adjudicated as mentally defective by a court. By the objective criteria set down by the federal government Westbrook can purchase and possess a firearm without violating the law. It’s the subjective and arbitrary standards allowed under Massachusetts law that prevent him from exercising his Second Amendment rights, and if the mere allegation of a crime is enough to strip someone of that fundamental civil liberty then I’d argue the state is treating that right as a privilege… something that Bruen definitely doesn’t allow.