NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-512
COMMONWEALTH
vs.
ROBERT L. BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of
carrying a firearm without a license, in violation of G. L.
c. 269, § 10 (a); possession of ammunition without a license, in
violation of G. L. c. 269, § 10 (h); and improper storage of a
firearm, in violation of G. L. c. 140, § 131L (a). On appeal,
and for the first time, the defendant facially challenges the
constitutionality of the firearms licensing scheme underlying
his firearm and ammunition possession convictions and the
firearms storage statute. Because we conclude that the
defendant has not met his burden to demonstrate that these
statutes are unconstitutional in all of their applications, we
affirm. Discussion. The defendant asserts that the unsuitability
determination within G. L. c. 140, § 131 (d) and the storage
requirements set forth in G. L. c. 140, § 131L (a) violate the
Second Amendment to the United States Constitution because they
are inconsistent with this nation's historical tradition of
firearm regulation.1 He did not preserve these arguments in the
District Court. The defendant also argues that his trial
counsel was ineffective for failing to raise these issues before
that court.
1. Constitutional challenges. a. Standard of review.
The defendant urges us to review his unpreserved constitutional
challenges under the "clairvoyance exception." Commonwealth v.
Guardado, 493 Mass. 1, 3-4 (2023) (Guardado II). See
Commonwealth v. Guardado, 491 Mass. 666, 686 (2023). As
described in Guardado II, supra, the clairvoyance exception
"allows a defendant to raise an unpreserved issue on appeal when
the constitutional theory on which the defendant has relied was
not sufficiently developed at the time of trial" (quotation and
citation omitted). The defendant's trial was on November 6,
2023. At that point, the United States Supreme Court's decision
At oral argument, the defendant, relying on Commonwealth 1
v. Donnell, 495 Mass. 471, 477-478 (2025), asserted that the "may issue" language in G. L. c. 140, § 131 (d) is unconstitutional.
2 in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1
(2022) (Bruen), was the most recent and leading case on the
scope of the Second Amendment. See Guardado II, supra. In
Bruen, the Supreme Court ruled that every burden on the right to
bear arms must be rooted in history and tradition, such that the
"how" and the "why" of the regulation can find a historical
analogue. See Bruen, supra at 26-30. This is the theory on
which the defendant relies to attack the constitutionality of
the statutes at issue. Accordingly, it was "sufficiently
developed at the time of [the defendant's] trial," Guardado II,
supra, and the clairvoyance exception does not apply. Thus,
because the defendant did not raise this issue at trial, it is
waived and we review only for a substantial risk of a
miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.
290, 294 (2002).
Furthermore, "[a]s a general matter, the United States
Supreme Court has cautioned that facial challenges are
'disfavored' because they 'often rest on speculation' and
'threaten to short circuit the democratic process.'"
Commonwealth v. Marquis, 495 Mass. 434, 441 (2025), quoting
Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 450-451 (2008). "Consequently, a facial challenge
is the most difficult challenge to mount successfully, because
it requires a defendant to establish that no set of
3 circumstances exists under which the [statute] would be valid"
(quotations omitted). Marquis, supra at 441-442, quoting United
States v. Rahimi, 602 U.S. 680, 693 (2024). "For the
Commonwealth to prevail, it need only demonstrate that the
Commonwealth's . . . firearm licensing scheme [and firearm
storage statute are] compatible with the Second Amendment and
with the Fourteenth Amendment in some of [their] applications"
(quotation and citation omitted). Marquis, supra at 442.
"Conversely, the defendant shall prevail if and only if he
demonstrates that the law[s] are unconstitutional in all of
[their] applications" (quotation and citation omitted).2 Id.
b. Facial challenge to G. L. c. 140, § 131 (d). The
defendant argues that the "unsuitability" provision of G. L.
c. 140, § 131 (d) (§ 131 [d]), renders the statute facially
invalid because it impermissibly requires an exercise of
discretion expressly rejected in Bruen. At the time the
2 The defendant makes a brief reference to "a second type of facial challenge" recognized by the United States Supreme Court in Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008), without any additional explanation of why or how it is relevant here. To the extent that he intends to raise a separate facial challenge argument, we decline to consider it. "[B]ald assertions of error that lack[ ] legal argument . . . [do not] rise[ ] to the level of appellate argument required by" Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019) (quotations omitted). Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).
4 defendant was arrested,3 § 131(d) stated that "[t]he licensing
authority may deny the application or renewal of a license to
carry . . . if, in a reasonable exercise of discretion, the
licensing authority determines that the applicant or licensee is
unsuitable to be issued . . . a license to carry." G. L.
c. 140, § 131 (d), as amended through St. 2014, c. 284, §§ 46,
47, 49, 52, 54 (effective January 1, 2021). "Unsuitability" was
to be determined based on "reliable and credible information
that the applicant . . . if issued a license . . . may create a
risk to public safety." Id. In light of the Supreme Judicial
Court's (SJC's) decision in Marquis, however, we are not
persuaded. See Marquis, 495 Mass. at 457, quoting Rahimi, 602
U.S. at 698 (defendant's facial challenge failed where
suitability determination in non-resident firearm licensing
scheme fit "neatly within the tradition the surety and going
armed laws represent").
In Marquis, the SJC analyzed similar suitability language
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-512
COMMONWEALTH
vs.
ROBERT L. BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of
carrying a firearm without a license, in violation of G. L.
c. 269, § 10 (a); possession of ammunition without a license, in
violation of G. L. c. 269, § 10 (h); and improper storage of a
firearm, in violation of G. L. c. 140, § 131L (a). On appeal,
and for the first time, the defendant facially challenges the
constitutionality of the firearms licensing scheme underlying
his firearm and ammunition possession convictions and the
firearms storage statute. Because we conclude that the
defendant has not met his burden to demonstrate that these
statutes are unconstitutional in all of their applications, we
affirm. Discussion. The defendant asserts that the unsuitability
determination within G. L. c. 140, § 131 (d) and the storage
requirements set forth in G. L. c. 140, § 131L (a) violate the
Second Amendment to the United States Constitution because they
are inconsistent with this nation's historical tradition of
firearm regulation.1 He did not preserve these arguments in the
District Court. The defendant also argues that his trial
counsel was ineffective for failing to raise these issues before
that court.
1. Constitutional challenges. a. Standard of review.
The defendant urges us to review his unpreserved constitutional
challenges under the "clairvoyance exception." Commonwealth v.
Guardado, 493 Mass. 1, 3-4 (2023) (Guardado II). See
Commonwealth v. Guardado, 491 Mass. 666, 686 (2023). As
described in Guardado II, supra, the clairvoyance exception
"allows a defendant to raise an unpreserved issue on appeal when
the constitutional theory on which the defendant has relied was
not sufficiently developed at the time of trial" (quotation and
citation omitted). The defendant's trial was on November 6,
2023. At that point, the United States Supreme Court's decision
At oral argument, the defendant, relying on Commonwealth 1
v. Donnell, 495 Mass. 471, 477-478 (2025), asserted that the "may issue" language in G. L. c. 140, § 131 (d) is unconstitutional.
2 in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1
(2022) (Bruen), was the most recent and leading case on the
scope of the Second Amendment. See Guardado II, supra. In
Bruen, the Supreme Court ruled that every burden on the right to
bear arms must be rooted in history and tradition, such that the
"how" and the "why" of the regulation can find a historical
analogue. See Bruen, supra at 26-30. This is the theory on
which the defendant relies to attack the constitutionality of
the statutes at issue. Accordingly, it was "sufficiently
developed at the time of [the defendant's] trial," Guardado II,
supra, and the clairvoyance exception does not apply. Thus,
because the defendant did not raise this issue at trial, it is
waived and we review only for a substantial risk of a
miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.
290, 294 (2002).
Furthermore, "[a]s a general matter, the United States
Supreme Court has cautioned that facial challenges are
'disfavored' because they 'often rest on speculation' and
'threaten to short circuit the democratic process.'"
Commonwealth v. Marquis, 495 Mass. 434, 441 (2025), quoting
Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 450-451 (2008). "Consequently, a facial challenge
is the most difficult challenge to mount successfully, because
it requires a defendant to establish that no set of
3 circumstances exists under which the [statute] would be valid"
(quotations omitted). Marquis, supra at 441-442, quoting United
States v. Rahimi, 602 U.S. 680, 693 (2024). "For the
Commonwealth to prevail, it need only demonstrate that the
Commonwealth's . . . firearm licensing scheme [and firearm
storage statute are] compatible with the Second Amendment and
with the Fourteenth Amendment in some of [their] applications"
(quotation and citation omitted). Marquis, supra at 442.
"Conversely, the defendant shall prevail if and only if he
demonstrates that the law[s] are unconstitutional in all of
[their] applications" (quotation and citation omitted).2 Id.
b. Facial challenge to G. L. c. 140, § 131 (d). The
defendant argues that the "unsuitability" provision of G. L.
c. 140, § 131 (d) (§ 131 [d]), renders the statute facially
invalid because it impermissibly requires an exercise of
discretion expressly rejected in Bruen. At the time the
2 The defendant makes a brief reference to "a second type of facial challenge" recognized by the United States Supreme Court in Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008), without any additional explanation of why or how it is relevant here. To the extent that he intends to raise a separate facial challenge argument, we decline to consider it. "[B]ald assertions of error that lack[ ] legal argument . . . [do not] rise[ ] to the level of appellate argument required by" Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019) (quotations omitted). Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).
4 defendant was arrested,3 § 131(d) stated that "[t]he licensing
authority may deny the application or renewal of a license to
carry . . . if, in a reasonable exercise of discretion, the
licensing authority determines that the applicant or licensee is
unsuitable to be issued . . . a license to carry." G. L.
c. 140, § 131 (d), as amended through St. 2014, c. 284, §§ 46,
47, 49, 52, 54 (effective January 1, 2021). "Unsuitability" was
to be determined based on "reliable and credible information
that the applicant . . . if issued a license . . . may create a
risk to public safety." Id. In light of the Supreme Judicial
Court's (SJC's) decision in Marquis, however, we are not
persuaded. See Marquis, 495 Mass. at 457, quoting Rahimi, 602
U.S. at 698 (defendant's facial challenge failed where
suitability determination in non-resident firearm licensing
scheme fit "neatly within the tradition the surety and going
armed laws represent").
In Marquis, the SJC analyzed similar suitability language
within G. L. c. 140, § 131F (§ 131F). Specifically, § 131F
3 In his brief, the defendant cited an amended version of § 131 (d) which added language to the standard for determining unsuitability and changed the phrase "may issue" to "shall issue." See G. L. c. 140, § 131 (d), as amended through St. 2022, c. 175, § 4-17A (effective August 10, 2022). However, this amendment was made after the defendant was charged. For the purposes of our review, we consider the language of the statute as it appeared when the defendant was charged.
5 provided that a firearms license "shall be issued" to a
nonresident applicant if the applicant was neither a "prohibited
person" nor a person "determined unsuitable" by "credible
information" suggesting that the applicant, if issued a license,
would pose "a risk to public safety or a risk of danger to self
or others." Marquis, 495 Mass. at 436, quoting § 131F. The
factors relevant to a suitability determination under § 131F are
the same as those relevant to a determination of unsuitability
under § 131 (d). See Marquis, supra at 452. After determining
that this restriction was based on a public safety rationale,
the SJC concluded that "[i]f there is any point of consensus
about what purposes have historically been recognized as a
permissible basis for regulating access to firearms, it is 'what
common sense suggests: [w]hen an individual poses a clear
threat of physical violence to another, the threatening
individual may be disarmed.'" Id. at 453, quoting Rahimi, 602
U.S. at 698. Further, the SJC decided that, where the
suitability determination was the only basis on which an
applicant could be denied a license, and where the criteria for
unsuitability were appropriately guided by narrow standards, the
"how" of the regulation similarly satisfied the Bruen historical
analysis. See Marquis, supra at 455-456.
At oral argument, the defendant conceded that Marquis
controls here, and we agree. Where the language of the
6 suitability provision in § 131 (d) paralleled the language of
the suitability provision in § 131F, and the criteria used for
determining unsuitability is the same for each statute, there is
no reason to think the SJC's analysis of § 131F would not apply
to the language in § 131 (d). Accordingly, the suitability
provision in § 131 (d) was not facially unconstitutional.
We pause briefly to address the defendant's argument that
the holding in Commonwealth v. Donnell, 495 Mass. 471 (2025),
presented a new challenge to the language of § 131 (d). We are
not persuaded that Donnell compels the conclusion that the "may
issue" language in § 131 (d) combined with the discretion vested
in the licensing authority renders the statute unconstitutional.
While the argument has not been briefed, see Mass. R. A. P.
16 (a) (9) (A), 481 Mass. 1628 (2019), because of the importance
of the issue, we exercise our discretion to consider the issue
on appeal within the limited context of the arguments raised by
the parties at oral argument and conclude that it is without
merit. See Commonwealth v. Yasin, 483 Mass. 343, 349-350 (2019)
(appellate courts may exercise discretion to consider issue
raised for first time on appeal where question presented is of
some public importance).
As the Commonwealth argues, the discretion afforded to the
licensing authority under § 131F to deny a license to an
otherwise qualified person was materially different from the
7 discretion afforded to the licensing authority under § 131 (d),
and thus the holding of Donnell does not control.4 In Donnell,
the SJC primarily took issue with two provisions of § 131F: the
use of "may issue" language instead of "shall issue" language,5
and the power of the licensing authority to deny a license based
on "such terms and conditions as [the] colonel may deem proper."
Donnell, 495 Mass. at 481, quoting G. L. c. 140, § 131F. The
SJC remarked that the combination of these provisions created a
constitutionally problematic licensing scheme because it
"confer[red] on officials the unfettered discretion to deny
licenses even where the applicant is otherwise qualified."
Donnell, supra.
In comparison, although § 131 (d) used "may issue" language
instead of "shall issue" language, it did not confer on the
licensing authority constitutionally problematic discretion to
4 Donnell, like Marquis, involved a challenge to the firearm licensing scheme for nonresidents under § 131F, but not the suitability provision at issue in Marquis.
5 In Bruen, 597 U.S. at 14-15, the Supreme Court explained that a "may issue" law is one "under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the . . . license." In contrast to "may issue" schemes, the Court explained that the criteria in a permissible "shall issue" firearm licensing scheme must be based on "narrow, objective, and definite standards" and not on the "appraisal of facts, the exercise of judgment, and the formation of an opinion" (citations omitted). Id. at 38 n.9.
8 deny a license to an otherwise qualified applicant. Rather,
§ 131 (d) stated that the licensing authority may issue a
license "if it appears that the applicant is not a prohibited
person," and, later in its text, gave the licensing authority
the power to deny an application if the applicant was determined
to be unsuitable. As explained in Marquis, 495 Mass. at 455-
456, this unsuitability determination was limited to whether the
applicant poses a clear threat of physical violence to another,
and therefore was consistent with the history and tradition of
the Second Amendment. Therefore, § 131 (d) did not "confer on
officials . . . unfettered discretion." Donnell, 495 Mass. at
481. Accordingly, the "may issue" language in § 131 (d) did not
render it facially unconstitutional.
c. Facial challenge to G. L. c. 140, § 131L (a).
Similarly, the defendant challenges the constitutionality of the
firearms storage statute, G. L. c. 140, § 131L (a) (§ 131L [a]),
arguing that it does not align with the nation's history and
tradition of firearm regulation. Section 131L (a) states,
"It shall be unlawful to store or keep any firearm in any place unless such firearm is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such firearm inoperable by any person other than the owner or other lawfully authorized user. It shall be unlawful to store or keep any stun gun in any place unless such firearm is secured in a locked container accessible only to the owner or other lawfully authorized user. For purposes of this section, such firearm shall not be deemed
9 stored or kept if carried by or under the control of the owner or other lawfully authorized user."
In District of Columbia v. Heller, 554 U.S. 570, 628-630
(2008), the Supreme Court declared unconstitutional a regulation
that completely banned handguns in the home and required any
firearms kept in the home to be disassembled or always bound by
a trigger lock. The Court emphasized that nothing in their
analysis "suggest[s] the invalidity of laws regulating the
storage of firearms to prevent accidents." Id. at 632.
After the Supreme Court decided Heller, but before it
decided Bruen, the SJC confirmed the constitutionality of
§ 131L (a) in two cases decided on the same day: Commonwealth
v. McGowan, 464 Mass. 232 (2013), and Commonwealth v. Reyes, 464
Mass. 245 (2013). In McGowan, supra at 243, the court declared
that "§ 131L (a) is 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." The court explained that
the purpose of the firearms storage statute is "to keep firearms
out of the hands of those not authorized by law to possess a
firearm, including but not limited to felons, the mentally ill,
and children." Id. at 241-242. Finally, the court held that,
where § 131L (a) is consistent with the right to bear arms and
"is designed to prevent those who are not licensed to possess or
10 carry firearms from gaining access to firearms, it falls outside
the scope of the Second Amendment." Id. at 244.
In Reyes, the court further reiterated that "the underlying
purpose of firearms control legislation is to assuage the
societal concern with weapons reaching the hands of unauthorized
users" (quotation and citation omitted), Reyes, 464 Mass. at
250, and clarified that the use of the word "secured," rather
than "stored" or "placed," sufficiently narrowed the scope of
the regulation so as to not render the statute
unconstitutionally vague, see id. at 251-254. The court also
reiterated its holding in McGowan that "the storage statute
would not infringe on the defendant's Second Amendment right to
self-defense because it only imposes storage restrictions where
the firearm is not within the gun owner's possession or
control." Reyes, supra at 257.
The defendant urges us to nevertheless disregard these
holdings because they were decided before Bruen and did not
consider whether § 131L (a) is consistent with the nation's
history and tradition of firearm regulation. We decline to do
so. Because SJC precedent establishes that § 131L (a) does not
implicate the plain text of the Second Amendment, Bruen is not
implicated. See Bruen, 597 U.S. at 24 (Second Amendment is not
implicated unless its "plain text covers an individual's
11 conduct"); McGowan, 464 Mass. at 244 ("§ 131L (a). . . falls
outside the scope of the Second Amendment").
In any event, the defendant has not satisfied his burden to
show that every application of § 131L (a) is unconstitutional.
As noted in McGowan, 464 Mass. at 241-242, the statute has
constitutionally permissible applications in instances where the
statute seeks to prevent possession of firearms by unauthorized
users, such as the mentally ill, children, and felons. See
Heller, 554 U.S. at 626 ("nothing in [the Court's] opinion
should be taken to cast doubt on the longstanding prohibitions
on the possession of firearms by felons and the mentally ill").
Where § 131L (a) permissibly prevents access to firearms by
unauthorized users, we cannot say the statute is
unconstitutional in every application, and the defendant's
facial challenge fails.
2. Ineffective assistance of counsel. The defendant
claims that his trial counsel was ineffective for not raising
these constitutional challenges before the District Court. We
examine ineffective assistance claims to determine whether there
has been "serious incompetency, inefficiency, or inattention of
counsel -- behavior of counsel falling measurably below that
which might be expected from an ordinary fallible lawyer -- and,
if that is found, then, typically, whether it has likely
deprived the defendant of an otherwise available, substantial
12 ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96
(1974).
Passing over the first prong, we conclude that the
defendant's claim fails the second prong of the Saferian test.
See Saferian, 366 Mass. at 96. As we have explained, the
constitutional theories now advanced by the defendant would not
have offered a successful defense to his convictions. Given
that we have rejected the defendant's facial challenges to the
relevant statutes, trial counsel's failure to raise these
arguments did not deprive the defendant of an available and
substantial ground of defense. See Commonwealth v. Filoma, 79
Mass. App. Ct. 16, 24 (2011) (omission of "futile tactic" will
not support claim of ineffective assistance of counsel).
Accordingly, the defendant's trial counsel was not ineffective.
Judgments affirmed.
By the Court (Hand, Grant & Wood, JJ.6),
Clerk
Entered: August 6, 2025.
6 The panelists are listed in order of seniority.