Commonwealth v. Cassidy

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SJC-12350

COMMONWEALTH vs. JOHN CASSIDY.

Bristol. January 5, 2018. - May 14, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

Firearms. Constitutional Law, Right to bear arms, Vagueness of

statute. Due Process of Law, Vagueness of statute.

Evidence, Firearm. Statute, Validity Practice, Criminal,

Instructions to jury.

Indictments found and returned in the Superior Court

Department on March 10, 2011.

The cases were tried before Robert C. Cosgrove, J.

After review by the Appeals Court, the Supreme Judicial

Court granted leave to obtain further appellate review.

John E. Cassidy, pro se.

Mary E. Lee, Assistant District Attorney, for the

Commonwealth.

David Rangaviz, Committee for Public Counsel Services, for

Erickson Resende, amicus curiae, submitted a brief.

William Burns, pro se, amicus curiae, submitted a brief.

GAZIANO, J. The defendant lawfully purchased an AK-47-

style pistol and a nine millimeter pistol in Texas and brought

2

them with him when he moved to Massachusetts in August, 2010, to

attend law school. At some point between that time and his

March 11, 2011, arrest, the defendant was advised by a classmate

that firearms must be registered in Massachusetts. See G. L.

c. 140, §§ 129B, 131; G. L. c. 269, § 10 (a). Although he

obtained the forms necessary to register for a license to

possess a firearm in Massachusetts, the defendant did not file

them and did not obtain a license to carry or a firearm

identification (FID) card; at trial, he testified that he could

not afford to pay the registration and licensing fees. Under

Massachusetts law, the nine millimeter pistol, which could hold

twelve rounds of ammunition, fell within the definition of a

large capacity weapon; such a weapon has separate licensing and

registration requirements in the Commonwealth. See G. L.

c. 269, § 10 (m). The AK-47-style pistol met the Massachusetts

definition of an assault weapon; possession of such weapons is

heavily restricted in the Commonwealth.1 See G. L. c. 140,

§§ 121, 131M.

During a search of the defendant's apartment pursuant to a

search warrant, police officers located the two pistols, four

high capacity magazines, several boxes of ammunition, and a bag

1 As the defendant argued, under Texas law, there is no

separate category of "high capacity" handguns, and no license is

required to possess a handgun in an individual's home or

vehicle, or to possess a rifle. See Tex. Penal Code Ann.

§§ 46.01, 46.02, 46.05.

3

containing loose rounds of various types of ammunition in the

defendant's bedroom. He was charged with unlawful possession of

these items. The defendant did not dispute that the weapons

were his or that they were operable firearms; in a recorded

interview, portions of which were read to the jury, he told an

investigating officer that he had legally purchased the weapons

in Texas and had brought them with him when he moved to

Massachusetts. The defendant also testified similarly at trial.

A Superior Court jury convicted the defendant of unlawful

possession of an assault weapon, G. L. c. 140, § 131M; unlawful

possession of four large capacity feeding devices, G. L. c. 269,

§ 10 (m); unlawful possession of a large capacity firearm, G. L.

c. 269, § 10 (m); and unlawful possession of ammunition, G. L.

c. 269, § 10 (h).2

On appeal, the defendant contends that his convictions of

possession of a large capacity firearm and large capacity

feeding devices should be overturned because the Commonwealth

failed to prove that he knew the firearm and feeding devices he

possessed qualified as "large capacity," meaning that they were

2 Before sentencing, the Commonwealth entered nolle

prosequis on one count charging assault and battery, one count

charging assault by means of a dangerous weapon (a metal folding

chair), and one count charging assault and battery by means of a

dangerous weapon. Those charges stemmed from an alleged

altercation between the defendant and his housemate, which led

to the issuance of the search warrant; the charges were not

prosecuted at trial.

4

capable of holding more than ten rounds of ammunition. See

G. L. c. 140, § 121. He argues also that Massachusetts firearms

statutes are unconstitutionally vague and that they violate his

right to bear arms under the Second Amendment to the United

States Constitution and art. 17 of the Massachusetts Declaration

of Rights; in addition, he contends similarly that the

Commonwealth's interpretation of art. 17 to include a

"collective" rather than an "individual" right likewise deprives

him of his right to bear arms.

We conclude that, to sustain a conviction under G. L.

c. 269, § 10 (m), the Commonwealth must prove that a defendant

either knew the firearm or feeding device met the legal

definition of "large capacity" or knew it was capable of holding

more than ten rounds of ammunition. Here, the judge adequately,

if minimally, instructed the jury on the elements necessary to

sustain a conviction, and a reasonable jury could have inferred

that the defendant knew that the nine millimeter pistol and the

magazines were capable of holding more than ten rounds of

ammunition. We conclude also that the defendant has not shown a

violation of his rights under the Second Amendment or art. 17 by

any provision of G L. c. 269, § 10. Accordingly, we affirm the

defendant's convictions.3

3 We acknowledge the amicus briefs submitted by Erickson

Resende and William Burns.

5

1. Background. We recite the evidence the jury could have

found in the light most favorable to the Commonwealth. See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

The defendant drove from Texas to Massachusetts in August,

2010, to attend law school. He brought two legally obtained

firearms and legally obtained magazines and ammunition with him

and kept them in his bedroom in a two-bedroom apartment that he

leased with another law student.

On March 2, 2011, Dartmouth police officers executed a

search warrant for the defendant's apartment. The officers

found a nine millimeter pistol under a pillow on the defendant's

bed; while there was no round in the chamber and the safety was

engaged, the pistol was loaded. In a suitcase in a bedroom

closet, officers found an AK-47-style pistol with an empty

magazine, two additional magazines -- one loaded and one

unloaded -- that fit into that pistol, an extended magazine for

the nine millimeter pistol, full boxes of ammunition, and a bag

of loose ammunition.4 A tag on the suitcase and identification

4 General Laws c. 140, § 121, distinguishes rifles from

firearms, defining a rifle as "a weapon having a rifled bore

with a barrel length equal to or greater than [sixteen] inches"

and a firearm as "a pistol, revolver or other weapon of any

description . . . of which the length of the barrel or barrels

is less than [sixteen] inches."

One of the officers testified that when he first discovered

the defendant's AK-47-style pistol, he thought it was an AK-47-

6

cards found in the bedroom indicated that it was the defendant's

bedroom.

The officers crossed the street to the parking lot of the

law school, where the defendant had been taken into custody.

After waiving the Miranda rights, the defendant informed the

officers that he had "an AK and a nine" in his bedroom that were

"legit" in Texas but not yet registered in Massachusetts.

In a video recorded interview at the police station, the

defendant again indicated that he had bought the two firearms in

Texas and had transported them to Massachusetts in his vehicle

when he drove to Massachusetts to attend law school in August,

2010. He said that he had grown up around guns, had purchased

the nine millimeter pistol for recreational use, and had fired

both firearms in Texas. He also told the detective that the AK-

47-style pistol was not loaded, and that the nine millimeter

pistol had three or four rounds in the magazine "[b]ut

definitely it's not full so it's not going to wear the spring

out on it." He said that, although he was not familiar with

Massachusetts's firearms laws, he had learned from one of his

law school classmates that he was required to register the

firearms in Massachusetts. He obtained but did not file the

style rifle, but "[b]ased on the specifications of the firearm,

it was later found to be a pistol."

7

registration forms, because he did not have enough money to pay

the licensing fees.

The defendant was charged with unlawful possession of an

assault weapon, G. L. c. 140, § 131M;5 unlawful possession of

four large capacity feeding devices, G. L. c. 269, § 10 (m);

unlawful possession of a large capacity firearm, G. L. c. 269,

5 Under G. L. c. 140, § 121,

"'Assault weapon', shall have the same meaning as a

semiautomatic assault weapon as defined in the federal

Public Safety and Recreational Firearms Use Protection Act,

18 U.S.C. [§] 921(a)(30) as appearing in such section on

September 13, 1994, and shall include, but not be limited

to, any of the weapons, or copies or duplicates of the

weapons, of any caliber, known as: (i) Avtomat Kalashnikov

(AK) (all models); (ii) Action Arms Israeli Military

Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv)

Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR and FNC;

(vi) SWD M-10, M-11, M-11/9 and M-12; (vi) Steyr AUG; (vii)

INTRATEC TEC-9, TEC-DC9 and TEC-22; and (viii) revolving

cylinder shotguns, such as, or similar to, the Street

Sweeper and Striker 12; provided, however, that the term

assault weapon shall not include: (i) any of the weapons,

or replicas or duplicates of such weapons, specified in

appendix A to 18 U.S.C. [§] 922 as appearing in such

appendix on September 13, 1994, as such weapons were

manufactured on October 1, 1993; (ii) any weapon that is

operated by manual bolt, pump, lever or slide action; (iii)

any weapon that has been rendered permanently inoperable or

otherwise rendered permanently unable to be designated a

semiautomatic assault weapon; (iv) any weapon that was

manufactured prior to the year 1899; (v) any weapon that is

an antique or relic, theatrical prop or other weapon that

is not capable of firing a projectile and which is not

intended for use as a functional weapon and cannot be

readily modified through a combination of available parts

into an operable assault weapon; (vi) any semiautomatic

rifle that cannot accept a detachable magazine that holds

more than five rounds of ammunition; or (vii) any

semiautomatic shotgun that cannot hold more than five

rounds of ammunition in a fixed or detachable magazine."

8

§ 10 (m); and unlawful possession of ammunition, G. L. c. 269,

§ 10 (h).6

At trial on the seven firearm-related charges, two

Dartmouth police officers testified concerning the search of the

defendant's apartment and their interviews with him.

Additionally, the head armorer of the Dartmouth police

department, who is in charge of the department's firearms,

identified the firearms, magazines, and various types of

ammunition, test fired the two pistols, and testified that the

firearms and magazines were fully functional. He indicated that

the three magazines for the AK-47-style pistol each could hold

thirty rounds of ammunition, the nine millimeter pistol with its

original magazine could hold twelve rounds, and the extended

magazine for the nine millimeter pistol was an after-market

magazine that was "much larger than the one that came with the

gun" and could hold either fifteen or twenty rounds. Finally,

he testified that an application for a license to carry or an

FID card costs one hundred dollars. See G. L. c. 140,

§§ 129B (9A), 131 (i).

6 As discussed, the defendant also was charged with assault

by means of a dangerous weapon (a metal folding chair), G. L.

c. 265, § 15 (b); assault and battery, G. L. c. 265, § 13A; and

assault and battery by means of a dangerous weapon, G. L.

c. 265, § 15A (b). The Commonwealth did not pursue these

charges. See note 2, supra.

9

The defendant testified in his own defense. He said that

the firearms were his, he had been hunting since he was eight

years old, he purchased the firearms legally in Texas and

brought them with him when he started law school, and he had not

applied for a license or FID card after his arrival in

Massachusetts.

The defendant was convicted of all of the firearms charges.

The defendant initially sought relief before a single justice in

the county court, pursuant to G. L. c. 211, § 3; that petition

was denied without a hearing. The Appeals Court thereafter

affirmed the defendant's convictions in a memorandum and order

pursuant to its rule 1:28. We then granted the defendant's

application for further appellate review.

2. Discussion. The defendant contends that his

convictions under G. L. c. 269, § 10 (m), should be overturned

because the Commonwealth failed to prove that he knowingly

possessed a large capacity firearm and large capacity feeding

devices. The defendant also argues that the statutes under

which he was convicted are unconstitutionally vague because they

are too complex to be understood and are enforced arbitrarily.

In addition, he contends that the statutes violate his right to

bear arms under the Second Amendment and art. 17 by

impermissibly regulating possession of firearms.

10

a. Knowledge that firearms and feeding devices have a

large capacity. General Laws c. 269, § 10 (m), prohibits

individuals from "knowingly" possessing or having under their

control a large capacity weapon or large capacity feeding device

unless they possess a class A or class B license to carry

firearms. Under G. L. c. 140, § 121, a large capacity weapon is

defined as "any firearm . . . (i) that is semiautomatic with a

fixed large capacity feeding device; (ii) that is semiautomatic

and capable of accepting, or readily modifiable to accept, any

detachable large capacity feeding device; (iii) that employs a

rotating cylinder capable of accepting more than ten rounds of

ammunition in a . . . firearm . . . ; or (iv) that is an assault

weapon." A large capacity feeding device is "a fixed or

detachable magazine, box, drum, feed strip or similar device

capable of accepting, or that can be readily converted to

accept, more than ten rounds of ammunition." Id.

The defendant contends that in order to sustain his

conviction under G. L. c. 269, § 10 (m), the Commonwealth was

required to prove both that he knew he possessed a firearm and

that he knew that that firearm qualified as "large capacity."7

7 The defendant also contends that if the weapons and

feeding devices had not been considered "large capacity," he

would not have been required to obtain an FID card to possess

them within his home. In support of this argument, the

defendant cites G. L. c. 140, § 129C (u), which allows some

nonresidents who hold a license in another State to be exempt

11

In support of this argument, he relies on Staples v. United

States, 511 U.S. 600, 602 (1994), where the United States

Supreme Court held that, in order to convict the defendant of

the illegal possession of a machine gun, in violation of 26

U.S.C. § 5845(a)(6), prosecutors were required to prove that he

knew his rifle had the characteristics that brought it within

the statutory definition of a machine gun. The Court

differentiated firearms and rifles from other dangerous devices,

such as hand grenades, that are highly regulated under public

welfare statutes. Id. at 609-610 (distinguishing United States

v. Freed, 401 U.S. 601 [1971]). Because the type of weapon

owned by that defendant might "give no externally visible

indication that it is fully automatic," it was possible that the

government's reading of the statute "would impose criminal

sanctions on a class of persons whose mental state -- ignorance

of the characteristics of weapons in their possession -- ma[d]e

their actions entirely innocent." Id. at 614-615.

By contrast, the Commonwealth points to this court's

decision in Commonwealth v. O'Connell, 432 Mass. 657, 663-664

(2000), in which this court held that the Commonwealth was not

from Massachusetts licensing requirements "provided . . . that

the licensing requirements of such nonresident's [S]tate of

residence are as stringent as the requirements of the

[C]ommonwealth for a firearm identification card . . . ." The

defendant presented no evidence, however, that his Texas license

would have satisfied that requirement.

12

required to prove that a defendant was aware of the length of

the shotgun he possessed in order to be convicted of possession

of a sawed-off shotgun. "Although knowledge is an essential

element of each crime, . . . the Commonwealth need not prove

that the defendant knew that the physical characteristics of the

firearm he possessed (such as barrel length) rendered it subject

to regulation. . . . Where, as here, the jury could have

inferred that the defendant knew a particular firearm was in his

possession, his ignorance vis-à-vis that firearm's dimensions is

not a valid defense." Id. The Commonwealth argues that "large

capacity" is a type of physical characteristic similar to barrel

length.

"Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.

740, 744 (2010). "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).

That said, "[w]e will not adopt a literal construction of a

statute if the consequences of such construction are absurd or

unreasonable." Attorney Gen. v. School Comm. of Essex, 387

Mass. 326, 336 (1982). See Black's Law Dictionary 11-12 (10th

ed. 2014) (defining "absurdity" as "being grossly unreasonable"

13

and "[a]n interpretation that would lead to an unconscionable

result, esp. one that . . . the drafters could not have

intended"). "Where the words of the statute are ambiguous, we

strive to make it an effectual piece of legislation in harmony

with common sense and sound reason and consistent with

legislative intent" (quotations and citation omitted).

Commonwealth v. Pon, 469 Mass. 296, 302 (2014).

To determine the elements that the Commonwealth must prove,

we begin with the text of G. L. c. 269, § 10 (m). That statute

provides, in relevant part:

"[A]ny person not exempted by statute who knowingly has in

his possession, or knowingly has under his control in a

vehicle, a large capacity weapon or large capacity feeding

device therefor who does not possess a valid Class A or

Class B license to carry firearms . . . , except as

permitted or otherwise provided under this section or

[G. L. c.] 140, shall be punished by imprisonment in a

[S]tate prison for not less than two and one-half years nor

more than ten years. The possession of a valid firearm

identification card issued under [G. L. c. 140, § 129B,]

shall not be a defense for a violation of this subsection;

provided, however, that any such person charged with

violating this paragraph and holding a valid firearm

identification card shall not be subject to any mandatory

minimum sentence imposed by this paragraph."

Courts generally interpret criminal statutes in a manner

that is consistent with ordinary English usage. Flores-Figueroa

v. United States, 556 U.S. 646, 652 (2009). "That is to say

courts ordinarily read a phrase in a criminal statute that

introduces the elements of a crime with the word 'knowingly' as

14

applying that word to each element." Id. As the Supreme Court

has explained:

"In ordinary English, where a transitive verb has an

object, listeners in most contexts assume that an adverb

(such as knowingly) that modifies the transitive verb tells

the listener how the subject performed the entire action,

including the object as set forth in the sentence. Thus,

if a bank official says, 'Smith knowingly transferred the

funds to his brother's account,' we would normally

understand the bank official's statement as telling us that

Smith knew the account was his brother's. Nor would it

matter if the bank official said 'Smith knowingly

transferred the funds to the account of his brother.' In

either instance, if the bank official later told us that

Smith did not know the account belonged to Smith's brother,

we should be surprised. . . . Similar examples abound. If

a child knowingly takes a toy that belongs to his sibling,

we assume that the child not only knows that he is taking

something, but that he also knows that what he is taking is

a toy and that the toy belongs to his sibling" (emphasis in

original).

Id. at 650-651. See Commonwealth v. Daley, 463 Mass. 620, 624

(2012). See also A. Scalia & B.A. Garner, Reading Law: The

Interpretation of Legal Texts 140-141, 147-151 (2012).

The Commonwealth's reliance on O'Connell, 432 Mass. at 663-

664, is misplaced. That case addresses a conviction under G. L.

c. 269, § 10 (c), a statute that does not explicitly include the

word "knowingly."8 Accordingly, we did not construe the term

"knowingly" as applying to the entire direct object of "a sawed-

8 General Laws c. 269, § 10 (c), provides, in relevant part:

"[W]hoever owns, possesses or carries on his person, or

carries on his person or under his control in a vehicle, a

sawed-off shotgun, as defined in [G. L. c. 140, § 121],

shall be punished . . . ."

15

off shotgun," and required the Commonwealth to prove in that

case only the defendant's knowledge that he possessed the

firearm. Id. But see Commonwealth v. Johnson, 461 Mass. 44,

52-53 (2011) (concluding that G. L. c. 269, § 10 [h], which

criminalizes unlawful possession of ammunition and does not

explicitly include mens rea requirement, contains implicit

knowledge requirement).

When an adverb such as "knowingly" is explicitly inserted

in a statute to modify a verb, it necessarily must modify the

object of that verb: it matters what the defendant knowingly

had in his or her possession. Then, "once [the adverb] is

understood to modify the object of [that] verb[], there is no

reason to believe it does not extend to the phrase which limits

that object." Flores-Figueroa, 556 U.S. at 657 (Scalia, J.,

concurring in part and concurring in the judgment). Thus, in

G. L. c. 269, § 10 (m), "knowingly" is an adverb that modifies

both the transitive verb phrase, "has in his possession," and

the entire direct object of the verb, "large capacity weapon."

Accordingly, as one of the elements of a charge under G. L.

c. 269, § 10 (m), the Commonwealth must prove that a defendant

either knew a firearm or feeding device he or she possessed

qualifies as having a large capacity under the statute or knew

that the firearm or feeding device is capable of holding more

than ten rounds of ammunition.

16

Here, the judge instructed the jury on the elements they

were required to find in order to convict the defendant of

unlawful possession of large capacity weapons and feeding

devices as follows:

"[T]he Commonwealth must prove three things beyond a

reasonable doubt[:] first, that the defendant possessed

and had under his control a large capacity weapon [or

feeding device]; second, that what the defendant possessed

or had under his control met the legal definition of a

large capacity weapon [or feeding device]; and, third, that

the defendant knew that he possessed or had under his

control a large capacity weapon [or feeding device]."

The judge then provided the statutory definitions for large

capacity weapons and feeding devices. While far from a model of

clarity, and not a form of words we would encourage to be used

in the future, the judge's instructions were appropriate. He

adequately explained the elements of the offense, including the

requirement that the defendant must know that he possessed a

large capacity weapon or feeding device.9

In addition to challenging the jury instruction, the

defendant also challenges the sufficiency of the Commonwealth's

evidence to establish that he knew that the weapon and feeding

devices he possessed qualified as "large capacity." In

reviewing a challenge to the sufficiency of the evidence, we ask

"whether, after viewing the evidence in the light most favorable

9 A model instruction for prosecution of charges of unlawful

possession of large capacity weapons and feeding devices is set

forth in the Appendix.

17

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt"

(emphasis in original). Latimore, 378 Mass. at 677, quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

There was no direct evidence that the defendant knew that

the nine millimeter pistol and the magazines had large

capacities as defined under Massachusetts law. "But knowledge

can be inferred from circumstantial evidence, including any

external indications signaling the nature of the weapon."

Staples v. United States, 511 U.S. 600, 615 n.11 (1994) ("firing

a fully automatic weapon would make the regulated

characteristics of the weapon immediately apparent to its

owner"). See Commonwealth v. Romero, 464 Mass. 648, 653 (2013)

("Proof of possession of [contraband] may be established by

circumstantial evidence, and the inferences that can be drawn

therefrom" [citation omitted]). The same is true for knowledge

that a firearm or feeding device qualifies as "large capacity"

under Massachusetts law.

Based on the evidence, as viewed in the light most

favorable to the Commonwealth, the jury could have inferred that

the defendant knew that the nine millimeter pistol and four

magazines could hold more than ten rounds of ammunition. The

defendant had owned the firearms and magazines for a significant

period of time; he testified that he purchased the nine

18

millimeter pistol at a particular gun store in Houston sometime

"between the end of 2008 . . . [and the] beginning of 2009," and

the AK-47-style pistol at the same store during the fall of

2009. He had fired the firearms in Texas. He was familiar with

firearms more generally, had owned other firearms in the past,

and had been hunting since he was eight years old. The

defendant also demonstrated knowledge of the nine millimeter

pistol's capacity by indicating that he did not fully load the

magazine so that he would not wear out the spring. In addition,

the three magazines for the AK-47-style pistol each were capable

of holding thirty rounds of ammunition, and were noticeably

larger than a magazine that holds ten rounds. Similarly, the

extended, after-market magazine for the nine millimeter pistol,

which the defendant had purchased separately, could hold either

fifteen or twenty rounds; it, too, was noticeably larger than

the stock magazine that was in the pistol when it was found,

which the firearms expert testified holds twelve rounds.

Given the defendant's testimony about purchasing, loading,

and shooting the two firearms; the manner in which he kept the

AK-47-style pistol with its magazine unloaded; the manner in

which he kept the nine millimeter pistol partially loaded (to

save the spring from wear), but locked (for safety and

accessibility); and the obvious large size of the thirty-round

"banana-style" magazines and the after-market magazine, the jury

19

reasonably could have inferred that the defendant was aware that

the magazines held more than ten rounds of ammunition.

b. Vagueness. The defendant also challenges the statutes

under which he was convicted as being unconstitutionally vague,

arguing that they are too complex to be understood and also are

enforced arbitrarily. "A law is void for vagueness if persons

of common intelligence must necessarily guess at its meaning and

differ as to its application . . . or if it subjects people to

an unascertainable standard" (quotations and citations omitted).

Chief of Police of Worcester v. Holden, 470 Mass. 845, 854

(2015). See United States v. Williams, 553 U.S. 285, 304 (2008)

("A conviction fails to comport with due process if the statute

under which it is obtained fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously

discriminatory enforcement").

The defendant cites statistics showing that more than one-

half of firearm charges in Massachusetts are dismissed and few

result in sentences of incarceration. Standing alone, however,

these statistics are insufficient to demonstrate arbitrary

enforcement. "What renders a statute vague is not the

possibility that it will sometimes be difficult to determine

whether the incriminating fact it establishes has been proved;

but rather the indeterminacy of precisely what that fact is."

20

Williams, 553 U.S. at 306. Thus, statutes are determined to be

unconstitutionally vague when officials possess unfettered

discretion to decide whom to charge. See Kolender v. Lawson,

461 U.S. 352, 360-361 (1983) (statute requiring individuals to

carry "'credible and reliable' identification" was

unconstitutionally vague on its face "because it encourages

arbitrary enforcement by failing to describe with sufficient

particularity what a suspect may do in order to satisfy the

statute"); Commonwealth v. Williams, 395 Mass. 302, 304-306

(1985) (ordinance prohibiting sauntering and loitering "in such

a manner as to obstruct . . . travellers" was unconstitutionally

vague); Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980)

(term "lewd, wanton and lascivious person" is unconstitutionally

vague).

There is no such indeterminacy here. The statutes

challenged by the defendant clearly indicate what is required of

individuals who wish to possess firearms legally in the

Commonwealth. The defendant testified that he was aware before

his arrest that Massachusetts required registration of firearms,

and that he had not registered either of his weapons because of

the cost. In some circumstances, the Supreme Court has

concluded that ignorance of the law may be a defense, where

proscribed conduct is completely passive and a defendant has no

reason to know of the requirements of the law. See Lambert v.

21

California, 355 U.S. 225, 228-230 (1957) (holding that defendant

could not be convicted of violating felon registration ordinance

by virtue of her mere presence in city). Such a claim is

unrelated to a facial vagueness challenge, and does not

appropriately describe the defendant's conduct here. The

defendant's vagueness claim therefore fails.

c. Right to bear arms. Finally, the defendant argues that

the statutes under which he was convicted violate his

constitutional right to bear arms, protected by the Second

Amendment and art. 17.10 In District of Columbia v. Heller, 554

U.S. 570, 635 (2008), the Supreme Court held that a complete ban

on handguns and a requirement that firearms held in a home be

kept unloaded and disassembled violated the Second Amendment.

Two years later, in McDonald v. Chicago, 561 U.S. 742, 791

(2010), the Court held that the Second Amendment also applies to

the States through the Fourteenth Amendment to the United States

Constitution. Yet, "the right secured by the Second Amendment

is not unlimited." Heller, supra at 626. Regulations other

than total handgun bans are permissible so long as they do not

10Because he did not apply for a license to carry or an FID

card, the defendant cannot properly raise an as-applied

challenge, see Commonwealth v. Johnson, 461 Mass. 44, 58 (2011),

citing Commonwealth v. Powell, 459 Mass. 572, 589-590 (2011),

cert. denied, 565 U.S. 1262 (2012), and he appropriately does

not do so.

22

interfere with the Second Amendment's "core lawful purpose of

self-defense." Id. at 630, 636.

Since then, we have rejected challenges to Massachusetts's

firearms statutes on Second Amendment and art. 17 grounds. See,

e.g., Commonwealth v. Gouse, 461 Mass. 787, 800-801 (2012);

Commonwealth v. Johnson, 461 Mass. 44, 57-59 (2011);

Commonwealth v. Loadholt, 460 Mass. 723, 723-724, 726 (2011);

Commonwealth v. Powell, 459 Mass. 572, 573 (2011), cert. denied,

565 U.S. 1262 (2012). Relying on Heller, 554 U.S. at 626-627,

we determined that "an individual's Second Amendment right does

not prohibit laws regulating who may purchase, possess, and

carry firearms, and where such weapons may be carried."

Johnson, supra at 57. Furthermore, "the requirement of

licensing before one may possess a firearm or ammunition does

not by itself render the licensing statute unconstitutional on

its face." Id. at 58, citing Loadholt, supra at 726. That

ruling is dispositive here.

The assault weapon statute under which the defendant was

convicted, G. L. c. 140, § 131M, also is not prohibited by the

Second Amendment, because the right "does not protect those

weapons not typically possessed by law-abiding citizens for

lawful purposes." Heller, 554 U.S. at 625. The Second

Amendment does not grant "a right to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever purpose."

23

Id. at 626. A ban on assault weapons is more similar to the

restriction on short-barreled shotguns upheld in United States

v. Miller, 307 U.S. 174, 178 (1939), than the handgun ban

overturned in Heller. "In the absence of any evidence tending

to show that possession or use of a 'shotgun having a barrel of

less than eighteen inches in length' at this time has some

reasonable relationship to the preservation or efficiency of a

well[-]regulated militia, we cannot say that the Second

Amendment guarantees the right to keep and bear such an

instrument." Miller, supra. See Heller, supra at 627

(suggesting that "weapons that are most useful in military

service -- M-16 rifles and the like -- may be banned"). Several

United States Courts of Appeals have upheld similar bans on

assault weapons. See Heller v. District of Columbia, 670 F.3d

1244, 1247-1248, 1262 (D.C. Cir. 2011) ("the prohibition of

semi-automatic rifles and large-capacity magazines does not

effectively disarm individuals or substantially affect their

ability to defend themselves"). See, e.g., Kolbe v. Hogan, 849

F.3d 114, 121 (4th Cir.), cert. denied, 138 S. Ct. 469 (2017);

New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d

242, 247-248 (2d Cir. 2015), cert. denied sub nom. Shew v.

Malloy, 136 S. Ct. 2486 (2016); Friedman v. Highland Park, 784

F.3d 406, 412 (7th Cir. 2015), cert. denied, 136 S. Ct. 447

(2015).

24

The defendant's claims that the Commonwealth's firearms

statutes violate the Second Amendment and art. 17 on vagueness

grounds, or because they deprive citizens of their right to bear

arms, therefore fail.

Judgments affirmed.

Appendix.

Model Jury Instruction Regarding Unlawful Possession of Large

Capacity Weapons and/or Feeding Devices

The defendant is charged with unlawfully possessing a large

capacity (weapon) (feeding device).

In order to prove the defendant guilty of this offense, the

Commonwealth must prove four elements beyond a reasonable doubt:

First: That the defendant possessed an item;

Second: That the item meets the legal definition of "large

capacity (weapon) (feeding device)";

Third: That the defendant knew that (he) (she) possessed

that (weapon) (feeding device); and

Fourth: That the defendant knew that the (weapon) (feeding

device) met the legal definition of a large capacity (weapon)

(feeding device) or was capable of holding more than ten rounds

of ammunition.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant possessed the

(firearm) (feeding device). A person "possesses" something if

(he) (she) has direct physical control or custody of it at a

given time.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the item in question met the

legal definition of a large capacity (weapon) (feeding device).

(A large capacity weapon is defined in our law as any firearm,

rifle, or shotgun that is semiautomatic and has a fixed large

capacity feeding device or is capable of accepting, or readily

modifiable to accept, any detachable large capacity feeding

device, or any firearm, rifle, or shotgun that employs a

rotating cylinder capable of accepting more than ten rounds of

ammunition or more than five shotgun shells.) (A large capacity

feeding device is defined in our law as a fixed or detachable

magazine, box, drum, feed strip, or similar device capable of

accepting, or that can be readily converted to accept, more than

ten rounds of ammunition or more than five shotgun shells.)

2

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knew that (he)

(she) was in possession of a (weapon) (feeding device).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt either that the defendant knew that

that the (weapon) (feeding device) met the legal definition of

"large capacity" or that the defendant knew that the (weapon)

(feeding device) was capable of accepting, or readily modifiable

to accept, more than ten rounds of ammunition or more than five

shotgun shells.

This requires you to make a decision about the defendant's

state of mind at the time of the alleged unlawful possession of

a large capacity (weapon) (feeding device). You may examine the

defendant's actions and words, and all of the surrounding

circumstances, to help you determine the extent of the

defendant's knowledge.