Amicus Curiae Brief — Philip J. Marquis, Petitioner v. Massachusetts

Supreme Court briefSep 4, 2025

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No. 25-5280

IN THE

Supreme Court of the United States

————

PHILLIP MARQUIS,

Petitioner,

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

————

On Petition for A Writ of Certiorari to the

Massachusetts Supreme Judicial Court

————

BRIEF FOR THE STATE OF NEW HAMPSHIRE

AND 24 OTHER STATES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

————

JOHN M. FORMELLA

Attorney General of

New Hampshire

ANTHONY J. GALDIERI

Solicitor General

Counsel of Record

BRANDON F. CHASE

Senior Assistant

Attorney General

SAM M. GONYEA

Assistant Attorney General

1 Granite Place – South

Concord, NH 03301

(603) 271-3650

Anthony.J.Galdieri@doj.nh.gov

Counsel for Amici Curiae

September 4, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

STATEMENT OF INTEREST AND

INTRODUCTION ............................................

STATEMENT OF THE CASE ............................

SUMMARY OF ARGUMENT .............................

REASONS TO GRANT THE PETITION ...........

I. This case presents an important and

recurring Second Amendment issue with

significant implications for law-abiding

citizens’ everyday activities, and, in turn,

their liberty ...............................................

A. Unreasonable Delay: Massachusetts’s

Response to Bruen is “Pay to Delay” ..

B. The Pre-Crime Predicament: Massachusetts’s

‘Suitability’

Standard

and its Chilling Effect on Second

Amendment Rights..............................

C. A Clear Violation of Historical

Tradition: Massachusetts’ Unlawful

Restrictions on the Right to Bear

Arms while Traveling ..........................

D. A Presumption of Guilt: How

Massachusetts’s Licensing Regime

Inverts the Foundational Principles of

the Second Amendment ......................

CONCLUSION ....................................................

ADDITIONAL SIGNATORIES ...........................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Blue Island v. Kozul,

41 N.E.2d 515 (Ill. 1942) ...........................

Commonwealth v. Marquis,

252 N.E.3d 991

(Mass. 2025) ............................. 1, 3, 8, 11-12, 19

District of Columbia v. Heller,

554 U.S. 570 (2008) ...................................

King v. Wyo. Div. of Crim Investigation,

59 P.3d 341 (Wyo. 2004) ...........................

McDonald v. City of Chi.,

561 U.S. 742 (2010)........................................

McIntryre v. State,

83 N.E. 1005 (Ind. 1908) ...........................

Moore v. Madigan,

702 F.3d 933 (7th Cir. 2012) .....................

Murdock v. Pennsylvania,

319 U.S. 105 (1943) ................................... 9-10

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ........... 3, 4, 9-12, 14-16, 18, 20

Nunn v. State,

1 Ga. 243 (1846) ........................................

State v. Barber,

2025 Ohio App. LEXIS 1159 (1st Dist.

Ohio Ct. App. April 4, 2025) ..................... 14, 16

Suarez v. Paris,

2024 U.S. Dist. LEXIS 130327

(M.D. Pa. July 24, 2024) ...........................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Rahimi,

144 S. Ct. 1889 (2024) ...................... 9, 12, 20-21

Wolford v. Lopez,

116 F.4th 959 (9th Cir. 2024) ................... 14-15

CONSTITUTIONS

U.S. Const. amend. II ..... 1, 2, 4-7, 9-15, 17, 19, 23

U.S. Const. amend. XIV ...............................

3-4

N.H. Const. Pt. I, Art. 2-a .............................. 4, 13

STATUTES

Ala. Code § 13A-11-75 ..................................

Alaska Stat. § 18.65.700...............................

Ariz. Rev. Stat. § 13-3112 ............................

Ark. Code Ann. § 5-73-309 ...........................

Fla. Stat. § 790.06 ........................................

Ga. Code Ann. § 16-11-129 ...........................

Idaho Code Ann. § 18-3302 ..........................

Ind. Code § 35-47-2-3....................................

Iowa Code § 724.11 .......................................

Kan. Stat. Ann. § 21-6302 ............................

Ky. Rev. Stat. Ann. § 237.020 ......................

Me. Stat. Ann. tit. 25, § 2003 .......................

Mass. Gen. Laws ch. 134, §1 ........................

Mass. Gen. Laws ch. 134, §3-4 .....................

TABLE OF AUTHORITIES—Continued

Page(s)

Mass. Gen. Laws ch. 134, §16 ......................

Mass. Gen. Laws ch. 140, § 121F ......................

Mass. Gen. Laws ch. 140, § 121F(a) ................. 1, 8, 10

Mass. Gen. Laws ch. 140, § 131(d) ...............

Mass. Gen. Laws ch. 140, § 131F

........................................................ 1, 8-9, 11, 19

Mass. Gen. Laws ch. 140, § 131P .................

Mass. Gen. Laws ch. 269, § 10(a) ....... 3, 10, 19, 21

Mass. Gen. Laws ch. 269, § 10(a)(1)-(5) .......

Mass. Gen. Laws ch. 269, § 10(a)(5)-(6) .......

N.H. Rev. Stat. Ann. § 159:6 ........................

N.H. Rev. Stat. Ann. § 159:6, I(a) ................

N.H. Rev. Stat. Ann. § 159:6, I(b) ................ 10, 13

N.H. Rev. Stat. Ann. § 159:6-d .....................

Miss. Code Ann. § 45-9-101 ..........................

Mo. Rev. Stat. § 571.101...............................

Mont. Code Ann. § 45-8-321 .........................

Neb. Rev. Stat. § 69-2443 .............................

N.D. Cent. Code § 62.1-04-02 .......................

Ohio Rev. Code Ann. § 2923.11 ....................

Okla. Stat. tit. 21, § 1290.9 ..........................

S.C. Code Ann. § 23-31-245 ..........................

S.D. Codified Laws § 23-7-7 .........................

TABLE OF AUTHORITIES—Continued

Page(s)

Tenn. Code Ann. § 39-17-1351 .....................

Tex. Gov’t Code Ann. § 411.172 ...................

Utah Code Ann. § 53-5a-102.2 .....................

W. Va. Code § 61-7-4 ....................................

Wyo. Stat. Ann. § 6-8-104 ............................

OTHER AUTHORITIES

1795 Mass. Acts ch. 2, in Acts and Resolves

of Massachusetts, 1794-1795 (1896) ........

An Act to Regulate the Keeping and

Bearing of Deadly Weapons, 12th Leg.,

R.S., ch. 34, § 1, 1871 Tex. Gen. Laws 25

Apply for a Firearms License (https://tiny

url.com/5n93p8u8)

(last

visited

September 2, 2025) ................................... 8, 10

Declaration of Independence (U.S. 1776) ....

Eric J. Moglinicki & Alexander Shultz, The

Incomplete Record in New York State

Rifle & Pistol Association v. City of New

York, 73 SMU L. Rev. F. 1 (2020) ...........

John Russell Bartlett, ed., Records of the

Colony of Rhode Island and Providence

Plantations,

New

England

(Providence, R.I.: A. Crawford Greene

and Brother, 1856) ....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Massachusetts Concealed Carry Reciprocity

Map & Gun Laws (https://www.usconceal

edcarry.com/resources/ccw_reciprocity_m

ap/ma-gun-laws/) (last visited Sept. 2,

2025) ..........................................................

Nathaniel B. Shurtleff, Records of the

Governor

and

Company

the

Massachusetts Bay in New England

(Boston: William White, 1853) .................

Patrick J. Charles, The Second Amendment

And The Basic Right To Transport

Firearms For Lawful Purposes, 13

Charleston L. Rev. 125 (2018) ..................

Pistol and Revolver Licensing (https://tiny

url.com/yryuykwj) (last visited Sept. 2,

2025) ..........................................................

William Hand Browne, ed. Archives of

Maryland (Baltimore: Maryland Historical Society, 1885) ...................................... 16, 17

William Waller Hening, The Statutes at

Large; Being a Collection of all the Laws

of Virginia, from the First Session of the

Legislature, in the Year 1619 (New York:

R. & W. & G. Bartow, 1823) ..................... 15, 18

STATEMENT OF INTEREST AND

INTRODUCTION1

Under the Constitution of the United States, an

American citizen is as free to speak openly on matters

of public concern in New York as he is in Florida; his

right to be free from unreasonable searches and

seizures applies in New Jersey with the same force

that it does in Montana; and his right to due process

provides the same protection in Illinois that it does in

Iowa. It should therefore follow that an American

citizen is as free to carry a firearm in public for the

purpose of self-defense in Massachusetts as he is in

New Hampshire, but it does not.

In Massachusetts, the process of obtaining permission to exercise one’s Second Amendment rights is

riddled with arbitrary barriers. An application for a

license-to-carry will be denied if the colonel of the state

police determines that the applicant is “unsuitable to

be issued a license[.]” Mass. Gen. Laws ch. 140, § 131F;

see Commonwealth v. Marquis, 252 N.E.3d 991, 1009

(Mass. 2025). If an applicant can clear that hurdle, he

will then have to pay a hefty sum and endure a long

wait to obtain a license-to-carry from Massachusetts.

See Mass. Gen. Laws ch. 140, § 121F(a); Mass. Gen. Laws

ch. 140, § 131F. Though Massachusetts claims to be a

“shall issue” jurisdiction, it has smuggled discretionary

powers into its licensing regime designed to burden

the exercise of a citizen’s Second Amendment right

As required by Rule 37.2, counsel for amici timely notified

counsel of record of its intent to file this brief. No counsel for a

party authored this brief in whole or in part, and no person other

than amici or their counsel contributed money intended to fund

the preparation or submission of this brief.

while routinely refusing to recognize permits issued by

other states.

The consequence is that those who temporarily

travel into such restrictive states are forced to earn

their Second Amendment rights from an authority

that conditionally withholds them. Travelers must

prove to the colonel of another state’s police force that,

inter alia, they are “suitable” to exercise their

unalienable Second Amendment rights—while still

being allowed to operate a vehicle, which is not an

unalienable right. No other federal constitutional

right works this way. A New Hampshire citizen cannot

be forced to certify to another state’s police that he will

not issue true threats before he may speak there;

Massachusetts may not set up a checkpoint at the

state border to search travelers coming from New

Hampshire for contraband; and Massachusetts cannot

disarm travelers that its police colonel deems

“unsuitable” to exercise Second Amendment rights.

Carrying a firearm in public for self-defense is an

unequivocal fundamental right of the People—an

inalienable freedom that is to be exercised without

interference, not a privilege for a government to

regulate with an iron fist. Amici States stand steadfast

in their position that states like Massachusetts cannot

take this important right away from their citizens and

require them to earn it back on pain of criminal

penalties. Yet, Massachusetts has in place a law that

does just that. It requires a New Hampshire citizen

temporarily in the state to earn – through a suitability

determination, a significant fee, and a lengthy waiting

period – his fundamental constitutional right to bear

arms in public for self-defense before he can exercise

it. That conception of the Second Amendment is simply

wrong. Americans earned the fundamental constitutional

right to bear arms in public for self-defense by

ratifying the Second and Fourteenth Amendments.

STATEMENT OF THE CASE

The defendant-appellee, Phillip Marquis, a New

Hampshire resident, was in a car accident while

traveling on Interstate 495 in Massachusetts. When

the police arrived, Mr. Marquis informed them that he

had a pistol on him, but did not have a license to carry

in Massachusetts. His firearm was then seized, and he

was charged in the Lowell District Court with carrying

a firearm without a license under Mass. Gen. Laws ch.

269, § 10(a). The Lowell District Court found that

Massachusetts failed to “affirmatively prove that its

firearms regulation[s are] part of the historical

tradition that delimits the outer bounds of the right to

keep and bear arms.” N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 19 (2022).

The Massachusetts Supreme Judicial Court reversed

the district court’s ruling. See Marquis, 252 N.E.3d

991. The Supreme Judicial Court held that the

defendant-appellee did not have standing to challenge

Massachusetts’s non-resident license-to-carry regime

as-applied to him because he did not apply for a

license. Id. at 999-1001.

The Supreme Judicial Court also upheld

Massachusetts’s license-to-carry regime against a

facial challenge. Id. at 1001-22. The Court held that

Massachusetts’s licensing regime, employed narrow,

objective, and definite standards consistent with this

Court’s decision in Bruen. Id. at 1011-12. The Court

concluded that Massachusetts’s licensing regime was

supported by this Nation’s history and tradition of

regulating the carriage of firearms by likening the

regime to surety laws and going armed laws. Id. at

1012-13.

SUMMARY OF ARGUMENT

The Second Amendment provides that “[a] wellregulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II.

The right to keep and bear arms embodied in most of

the Amici State Constitutions are just as emphatic.

See e.g., N.H. Const. Pt. I, Art. 2-a.

Derived from English practice and codified in

the Second Amendment, the right secures for

Americans a means of self-defense. Bruen, 597 U. S. at

17. The right to keep and bear arms “is not ‘a secondclass right, subject to an entirely different body of

rules than the other Bill of Rights guarantees.’” Id. at

6 (quoting McDonald v. City of Chi., 561 U.S. 742, 780

(2010)) (plurality opinion).

Pursuant to District of Columbia v. Heller, 554 U.S.

570 (2008), McDonald v. City of Chi., 561 U.S. 742

(2010), and Bruen, 597 U.S. 1, the Second and Fourteenth

Amendments protect the rights of ordinary, lawabiding citizens to carry firearms for self-defense

outside the home. To justify any restriction on the

fundamental rights conferred by the Second

Amendment, the government must show the

restriction is “consistent with this Nation’s historical

tradition of firearm regulation.” Bruen, 597 U.S. at 17.

The Massachusetts Supreme Judicial Court erred in

holding that Massachusetts’s non-resident license-tocarry permitting regime uses narrow, objective, and

definite standards, and that it finds historical support

in surety and going armed laws. In fact, Massachusetts

(and its Supreme Judicial Court) failed to show any

historical tradition of states strictly applying their

firearms regulations to non-resident travelers such that

non-resident travelers could be disarmed and criminally

charged if they were not in strict compliance with state

law from the moment they crossed the border – no

matter how long the traveler intended to stay.

As a consequence of the Supreme Judicial Court’s

error, Massachusetts is permitted to incarcerate

residents of other states for exercising their Second

Amendment rights if they fail to comply with the Bay

State’s ahistorical license-to-carry regime, which is

laden with official discretion, a substantial fee, and a

lengthy waiting period. Notwithstanding this Court’s

decision in Bruen, it continues to be the case that

individual states, like Massachusetts, believe it is

within their power to relegate the Peoples’ right of selfdefense to the second-class in the name of crime

prevention. It is not.

REASONS TO GRANT THE PETITION

I. This case presents an important and

recurring Second Amendment issue with

significant implications for law-abiding

citizens’ everyday activities, and, in turn,

their liberty.

Massachusetts’s militantly enforced criminal laws

transform the briefest or most inadvertent crossing of

its border with a firearm into a potential felony—

Amici States’ residents risk prison time for simply

exercising a fundamental, constitutionally protected

right. Thus, absent this Court’s definitive ruling,

citizens of the Amici States confront an intolerable

ultimatum: submit to flagrantly unconstitutional

regulations each year that fly in the face of Bruen or

abandon their Second

Massachusetts’ border.

Amendment

rights

In this case, a New Hampshire resident interacted

with law enforcement in Massachusetts due to a car

accident that he was in while traveling to work and for

which he was not at fault. As soon as he encountered

the police, he did the responsible thing and alerted the

officer to the gun. Even under those circumstances he

was arrested and charged with a felony for possessing

a firearm without a Massachusetts license despite

being constitutionally allowed to carry that same

firearm only a few miles north in New Hampshire.

Accordingly, Amici States are gravely concerned that

any person who enters Massachusetts, no matter how

briefly, while engaging in constitutionally protected

activity—carrying a firearm for self-defense—risks

being branded a felon and imprisoned unless they

satisfy the State’s onerous licensing requirements.

This poses significant concern to New Hampshire

and its residents. As the underlying district court

noted in its order dismissing the charge, the border

between Massachusetts and New Hampshire runs

directly through the parking lot of the Pheasant Lane

Mall (as well as the mall itself), one of the largest malls

in New Hampshire. The geography of the mall is such

that a New Hampshire resident might find themselves

in Massachusetts if she parks on the south side of the

parking lot or visits Buffalo Wild Wings. If that person

is carrying a firearm without a Massachusetts

license—which would be constitutionally protected

activity in most of the mall—that person risks being

charged as a felon and facing mandatory incarceration

in Massachusetts.

Indeed, a person living on West Hollis Road in Hollis,

New Hampshire might cross into Pepperell,

Massachusetts by crossing the street to visit a

neighbor or backing out of her driveway in a southerly

direction. As another example, the nature of sharing a

border creates circumstances such that sometimes the

grocery store nearest to a New Hampshire resident is

in Massachusetts, or the most direct route to a job in

New Hampshire takes a New Hampshire resident

briefly on a Massachusetts road.

The activity protected by the Second Amendment is

the only activity protected by the Bill of Rights that

can become a felony offense with nothing more than

slight geographic movement. That is because, even

post-Bruen, not every state in this country treats the

Second Amendment as the inalienable, fundamental

right that it is.

The Amici States stand unyielding in defense of

the liberties our Founders declared inviolate. Yet

Massachusetts compels travelers to either surrender

their birthright or bow to an exorbitant permit

regime—a scheme that treats inherent rights as

negotiable privileges. This Court should step in and

clarify that Massachusetts may not impose such a

Hobson’s choice on law-abiding Americans or

criminalize the exercise of a fundamental right

enshrined by the Constitution.

A. Unreasonable Delay: Massachusetts’s

Response to Bruen is “Pay to Delay”

Massachusetts does not reciprocally recognize

licenses to carry a firearm issued by any state. See

Massachusetts Concealed Carry Reciprocity Map &

Gun Laws (https://www.usconceal edcarry.com/resourc

es/ccw_reciprocity_map/ma-gun-laws/) (last visited

September 4, 2025). Even still, any person who does

not have a license-to-carry issued under Massachusetts

law is prohibited from “knowingly ha[ving] in his

possession; or knowingly ha[ving] under his control

in a vehicle; a firearm, loaded or unloaded”. Mass.

Gen. Laws ch. 269, §10(a)(1)-(5). A violation of

Massachusetts’s law carries a mandatory-minimum

sentence of 2½ to 5 years in prison or 18 months to 2½

years in jail. Mass. Gen. Laws ch. 269, §10(a)(5)-(6).

Massachusetts purports to maintain a “shall issue”

permitting regime for non-resident travelers who wish

to carry a firearm within its borders. See Mass. Gen.

Laws ch. 140, § 131F; Marquis, 252 N.E.3d at 1011

(stating that Mass. Gen. Laws ch. 140, § 131F bore “all

three hallmarks” of a “shall issue” regime). However,

the permit “shall issue” only if the non-resident: (1)

pays $100; (2) waits 40-149 days;2 (3) proves that he or

she has completed a Massachusetts’s certified firearms

safety course; (4) is not a prohibited person; and (5) is

“not determined unsuitable” by the colonel of the

Massachusetts State Police. See Mass. Gen. Laws ch.

140 at § 121F; § 131F; and § 131P. Temporary licenses

expire after one year, so Amici State citizens would be

required to repeat this process annually. See Mass.

Gen. Laws ch. 140, § 131F.

Massachusetts does not maintain a “shall issue”

regime. Rather, it maintains a licensing regime

Despite the statute’s command that the permit “shall” be

issued or denied in 40 days, Mass. Gen. Laws ch. 140, § 121F(a),

Massachusetts’s own government website advises that the

process “may take up to 90 days.” See Apply for a Firearms License

(https://tinyurl.com/5n93p8u8) (last visited September 2, 2025)).

The website also notes, however, that Massachusetts is

“[c]urrently approving and printing licenses that were submitted

for review by police departments between March 15 and March

28.” See id. (emphasis added).

embedded with discretion and “lengthy wait times in

processing license applications [and] exorbitant fees”

in clear violation of the Second Amendment. See

Bruen, 597 U.S. at 38, n. 9; see also United States v.

Rahimi, 144 S. Ct. 1898 (2024).

First, $100 is a substantial amount of money —

more than one would make in a full workday at the

federal minimum wage. Out of that $100, “$25 of the

fee” is retained by the “licensing authority[;]” “$50 of

the fee” is “deposited into the general fund of the

Commonwealth[;]” and “$25 of the fee” is “deposited in

the Firearms Fingerprint Identity Verification Trust

Fund” – a governmentally managed fund. Mass. Gen.

Laws ch. 140, § 131F. While a $25 fee to the licensing

authority for processing the license application might

be reasonable, there is no reason whatsoever that

Amici State citizens seeking to exercise Second

Amendment rights in Massachusetts should be

required to deposit $50 into that State’s general fund

and deposit another $25 to the department of state

police. There is no historical support for Massachusetts

charging $100 for an application to carry a firearm for

self-defense (and then pocketing half of it).

Moreover, “[a] state may not impose a charge for the

enjoyment of a right granted by the Bill of Rights.”

Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943); see

Blue Island v. Kozul, 41 N.E.2d 515, 519 (Ill. 1942)

(holding that a person cannot be compelled “to

purchase, through a license fee or a license tax, the

privilege freely granted by the constitution.”). The

$100 fee imposed by Massachusetts cannot even be

justified by asking “whether the state has given

something for which it can ask a return.” Murdock, 319

U.S. at 115. “The [fee] is not a charge for the enjoyment

of a privilege or benefit bestowed by the state. The

privilege in question exists apart from state authority.

It is guaranteed the people by the Federal

Constitution.” Id.

Second, Massachusetts’ 40-day waiting period is

also unreasonable. See Mass. Gen. Laws ch. 140, §

121F(a). Even more so in that Massachusetts

apparently interprets, “shall, within 40 days from the

date of receipt . . . either approve the application and

issue the permit . . . or deny the application,” as a mere

suggestion. Massachusetts’s website warns that nonresident applications may take “up to 90-days” to

process, and perhaps longer – up to 170 days as of the

date of this writing. See Apply for a Firearms License

(https://tinyurl.com/5n93p8u8 last visited 8/22/2025).

By comparison, in New Hampshire, a permit must be

issued or an application denied “within 14 days” of the

application being submitted. N.H. Rev. Stat. Ann. §

159:6, I(b).

Practically speaking, Massachusetts’s waiting period

means that the defendant in this case may have had

to wait five months before he could lawfully carry a

firearm for self-defense on his way to work. Similarly,

since the Commonwealth apparently does not intend

to comply with its obligation under Mass. Gen. Laws

ch. 140, § 121F(a) as strictly as it expects New

Hampshire citizens to comply with Mass. Gen. Laws

ch. 269, § 10(a), a New Hampshire citizen planning a

vacation to Cape Cod with his family might apply for

a license-to-carry 90-days before his vacation and still

not have a decision on his permit when it is time to

leave. Processing applications with such apathy and

complacency is characteristic of a state that views the

Second Amendment as a “second-class right[.]” Bruen,

597 U.S. at 6.

B. The

Pre-Crime

Predicament:

Massachusetts’s ‘Suitability’ Standard

and its Chilling Effect on Second

Amendment Rights

While the “lengthy wait times in processing license

applications [and] exorbitant fees,” Bruen, 597 U.S. at

38, n. 9, imposed by Massachusetts to obtain a license

to carry a firearm are unreasonable and without

historical support, the law’s requirement that an

applicant not be “determined unsuitable” to carry a

firearm might be the one most offensive to the Second

Amendment. See Mass. Gen. Laws ch. 140, § 131F; see

also Marquis, 252 N.E.3d at 1009 (quoting Mass. Gen.

Laws ch. 140, § 131(d)) (where the court stated: “[a]

determination of unsuitability shall be based on

reliable, articulable 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 a risk of danger to self or others.”).

Thus, the licensing authority is left to determine, in

its discretion, whether: (1) the information submitted

is credible; (2) the behavior identified is relevant; and

(3) the identified behavior “suggests” that the

applicant “may” pose a risk to some unspecified person

at some indeterminate time in the future. Accordingly,

Mass. Gen. Laws ch. 140, § 131F may contain less

discretion than the statute at issue in Bruen, but it

contains more than the Second Amendment can

tolerate.

In the view of the Massachusetts Supreme Judicial

Court, however, this requirement was a “hallmark” of

a “shall issue” regime because the statute, the Court

claimed, guided the licensing authority’s decision by

means of “narrow, objective, and definite standards.”

Marquis, 252 N.E.3d at 1011. Massachusetts admittedly dresses its statute up in empirical language, but

in substance, it requires the “appraisal of facts, the

exercise of judgment, and the formation of an opinion,”

Bruen, 597 U.S. at 38, n. 9. The statute tasks the

licensing authority with reviewing “credible information” related to an applicant’s past “behavior” and

deciding whether that information “suggests” to the

person reviewing the application that the applicant

“may” pose a risk of danger if they are granted

permission to carry a firearm. The statute does nothing to establish that it is based on the requirements of

the Second Amendment per Bruen.

Further, a finding that a person “has exhibited or

engaged in behavior,” at some unspecified time in the

past, which “suggests” that the person “may” pose a

risk of danger if he carries a firearm to some

unspecified person at some unspecified point in the

future, amounts to nothing more than a finding that

the person might be irresponsible. The Rahimi Court

flatly rejected the contention that the government can

disarm a person “simply because he is not

‘responsible.’” Rahimi, 602 U.S. at 701. Accordingly,

Massachusetts does not have the authority to disarm

people that it deems may be “unsuitable” (i.e.

irresponsible) to carry a gun, no matter how credible

the information leading Massachusetts to that

conclusion may be. In effect, the law grants the

government a predictive power reminiscent of the precrime system depicted in Minority Report, where

individuals are judged not for what they have done,

but for what they someday might do.

In line with Bruen, in New Hampshire, among other

Amici States, any person not otherwise prohibited by

law from possessing a firearm has the right to carry a

firearm for self-defense without obtaining permission

from the government. See N.H. Rev. Stat. Ann. §159:6;

N.H. Const. Pt. I, Art. 2-a; see also Ala. Code § 13A-1175; Alaska Stat. § 18.65.700; Ariz. Rev. Stat. § 13-3112;

Ark. Code Ann. § 5-73-309; Fla. Stat. § 790.06; Ga.

Code Ann. § 16-11-129; Idaho Code Ann. § 18-3302;

Ind. Code § 35-47-2-3; Iowa Code § 724.11; Kan. Stat.

Ann. § 21-6302; Ky. Rev. Stat. Ann. § 237.020; Me. Stat.

Ann. tit. 25, § 2003; Miss. Code Ann. § 45-9-101; Mo.

Rev. Stat. § 571.101; Mont. Code Ann. § 45-8-321; Neb.

Rev. Stat. § 69-2443; N.D. Cent. Code § 62.1-04-02;

Ohio Rev. Code Ann. § 2923.11; Okla. Stat. tit. 21,

§ 1290.9; S.C. Code Ann. § 23-31-245; S.D. Codified

Laws § 23-7-7; Tenn. Code Ann. § 39-17-1351; Tex.

Gov’t Code Ann. § 411.172; Utah Code Ann. § 53-5a102.2; W. Va. Code § 61-7-4; Wyo. Stat. Ann. § 6-8-104.

Nevertheless, residents and nonresidents alike may

apply for a permit in New Hampshire, which issues in

14 days and enjoys reciprocity with 29 other states as

of this writing. N.H. Rev. Stat. Ann. § 159:6, I(a)-(b); see

Pistol and Revolver Licensing (https://tinyurl.com/

yryuykwj) (last visited September 4, 2025); see also

N.H. Rev. Stat. Ann. § 159:6-d.

Accordingly, New Hampshire citizens, and those of

other Amici States, are conditioned to exercise their

Second Amendment rights liberally. Since Massachusetts

appears steadfast in its refusal to reciprocally

recognize other states’ permits, this Court’s answer to

whether Massachusetts can constitutionally enforce

its licensing regime against non-resident travelers

through the criminal law is vital to American citizens

who wish to enter Massachusetts for mere moments

while exercising their fundamental right to carry a

firearm for self-defense.

C. A Clear Violation of Historical Tradition:

Massachusetts’ Unlawful Restrictions

on the Right to Bear Arms while

Traveling

The Bill of Rights does not protect privileges

permitted by any government, but rather “unalienable

Rights” of the People that “are endowed by their

Creator.” The Declaration of Independence (U.S. 1776).

The Second Amendment guarantees that “the right of

the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II.

To justify any restriction on the fundamental rights

conferred by the Second Amendment, the government

must show the restriction is “consistent with this

Nation’s historical tradition of firearm regulation.”

Bruen, 597 U.S. at 17. If the challenged regulation

addresses a general societal problem that has

persisted since the founding, the lack of a “distinctly

similar” historical regulation addressing the problem

is evidence of the regulation’s unconstitutionality. See

Wolford v. Lopez, 116 F.4th 959, 976-77 (9th Cir. 2024)

(quoting Bruen, 597 U.S. 26-27) (referring to this mode

of analysis as the “distinctly similar” test”). In

contrast, modern circumstances or considerations that

did not exist at the time of the Founding require an

analogical analysis of the government’s proffered

historical record, but one that is still grounded in the

Founding. See Wolford, 116 F.4th at 976-77 (quoting

Bruen, 597 U.S. at 27-30) (referring to this mode of

analysis as the “more nuanced approach”).

In this case, while modes of transportation have

changed since the founding, “efforts to curb violence

committed by those who are traveling certainly are

nothing new.” State v. Barber, 2025 Ohio App. LEXIS

1159, **28 (1st Dist. Ohio Ct. App.) (April 4, 2025).

Accordingly, for the Commonwealth’s scheme of

strictly enforcing its license-to-carry regime against

travelers using the punishing stick of the criminal law

to pass constitutional muster, the Commonwealth

must identify a “distinctly similar historical regulation”

addressing the carriage of firearms by travelers. See

Wolford, 116 F.4th at 976-77 (quoting Bruen, 597 U.S.

at 27-30). It cannot.

This Nation’s history and tradition surrounding

firearms regulations for travelers and permitting

regimes does not support Massachusetts’s strict

application of its permitting regime to transitory nonresidents. At the time of the founding, ordinary

Americans would have understood the Second

Amendment to protect the right to travel with a

firearm because traveling without one presented

significant dangers. See Moore v. Madigan, 702 F.3d

933, 936-37 (7th Cir. 2012). As this Court has

recognized, “[m]any Americans hazard greater danger

outside the home than in it.” Bruen, 597 U.S. at 33;

Moore, 702 F.3d at 936-37.

Indeed, a 1623 Virginia law, which was reissued in

1632, required “[t]hat no man go or send abroad

without sufficient parte will armed . . .. That go not to

worke in the ground without their arms (and a

centinell upon them.)[.]” William Waller Hening, The

Statutes at Large; Being a Collection of all the Laws of

Virginia, from the First Session of the Legislature, in

the Year 1619 (New York: R. & W. & G. Bartow, 1823)

1:127, 198.

In 1636, Massachusetts adopted a statute stating

that “no person shall travel above one mile from his

dwelling house, except in places wheare other houses

are neare together, without some armes, upon paine of

12d. for every default . . ..” Nathaniel B. Shurtleff,

Records of the Governor and Company of the

Massachusetts Bay in New England (Boston: William

White, 1853), 1:190).

A 1639 Rhode Island law reads: “It is ordered, that

noe man shall go two miles from the Towne unarmed,

eyther with Gunn or Sword . . .[.]” John Russell

Bartlett, ed., Records of the Colony of Rhode Island

and Providence Plantations, in New England

(Providence, R.I.: A. Crawford Greene and Brother,

1856) 1:94. Failure to adhere to the law carried a fine

of five shillings. Id.

And a 1642 Maryland statute stated that “[n]oe man

able to bear arms to goe . . . any considerable distance

from home without fixed gunn and 1 Charge at least

of powder and Shott.” William Hand Browne, ed.

Archives of Maryland (Baltimore: Maryland Historical

Society, 1885) 3:103.

Moreover, to the extent that colonies or states did

regulate the carriage of firearms around the time of

the founding, “history reveals a consensus that States

could not ban public carry altogether.” Bruen, 597 U.S.

at 53; see Nunn v. State, 1 Ga. 243, 251 (1846) (holding

that a law prohibiting carrying arms “secretly” was

permissible, but insofar as it contained “a prohibition

against bearing arms openly, [was] in conflict with the

Constitution, and void . . .”). And even to that extent,

many laws regulating the carriage of firearms

specifically included exceptions for travelers. See State

v. Barber, 2025 Ohio App. LEXIS at **17 (“Usually,

however, historical concealed-carry prohibitions ‘made

exceptions for travelers passing through an area while

armed.’” (citation omitted)).

For example, an 1831 Indiana statute prohibited

“[e]very person, not being a traveler” from “wear[ing]

or carry[ing] a” concealed “dirk, pistol, sword in a cane,

or other dangerous weapon.” See McIntryre v. State, 83

N.E. 1005 (Ind. 1908) (emphasis added).

In 1871, Texas enacted a statute forbidding “any

person” from carrying “about his person, saddle, or in

his saddle bags, any pistol,” but the statute exempted

“‘persons traveling’ to and from Texas.” Suarez v.

Paris, 2024 U.S. Dist. LEXIS 130327 (M.D. Pa. July 24,

2024) (citing Eric J. Moglinicki & Alexander Shultz,

The Incomplete Record in New York State Rifle &

Pistol Association v. City of New York, 73 SMU L. Rev.

F. 1 (2020) at 4 & n. 19 (quoting An Act to Regulate the

Keeping and Bearing of Deadly Weapons, 12th Leg.,

R.S., ch. 34, § 1, 1871 Tex. Gen. Laws 25, 25)).

California’s 1863 “armed carriage law” also included

a “travelers” exception, as did an 1870 statute in

Tennessee. See Patrick J. Charles, The Second

Amendment And The Basic Right To Transport

Firearms For Lawful Purposes, 13 Charleston L. Rev.

125 (2018), 150-53.

In 1887, the then-territory of New Mexico enacted a

law prohibiting the carriage of any deadly weapon,

“either concealed or otherwise,” but allowed travelers

to “carry arms for their own protecting while actually

prosecuting their journey.” See id. at 153. The New

Mexico statute required travelers to “remove all arms

from their person” if they “stop[ped]” their journey “for

a longer time than fifteen minutes,” but allowed

travelers to “resume the same” upon the “eve of

departure.” Id.

In 1890, contemporaneous with the adoption of the

Wyoming Constitution, the state legislature enacted a

statute prohibiting the concealed carry of “pistol[s]”

and “other dangerous or deadly weapon[s]” by any

person, except “traveler[s].” See King v. Wyo. Div. of

Crim Investigation, 59 P.3d 341, 351 (Wyo. 2004).

As this Court instructed in Bruen, “postenactment

history” should not be given “more weight than it can

rightly bear.” 597 U.S. at 28. However, these 19thcentury laws including travelers’ exceptions demonstrates that the colonial-era tradition of traveling with

a firearm persisted all the way through the

Reconstruction era.

Additionally, the founding generation was not

unfamiliar with the concept of regulating activities

involving firearms through licensing regimes. For

example, colonies such as Virginia and Maryland

maintained licensing regimes related to hunting with

firearms at various times. See William Waller Hening,

The Statutes at Large; Being a Collection of all the

Laws of Virginia, from the First Session of the

Legislature, in the Year 1619 (New York: R. & W. & G.

Bartow, 1823) 3:69, 180; William Hand Browne, ed.

Archives of Maryland (Baltimore: Maryland Historical

Society, 1885) 3:255. Nevertheless, Amici States are

aware of no historical evidence that colonies or states

around the time of the founding broadly required

people to obtain a license from the government to

simply carry a firearm in public or while traveling. See

Bruen, 597 U.S. at 27.

Therefore, there is no historical evidence for

Massachusetts’s statutory and enforcement scheme of

requiring transitory non-residents to obtain a permit

by satisfying onerous requirements before they can

carry firearms, and incarcerating them if they fail to

do so. Indeed, there is history to the contrary.

Massachusetts’s licensing regime and its enforcement

through the criminal law is unconstitutional.

D. A

Presumption

Guilt:

How

Massachusetts’s

Licensing

Regime

Inverts the Foundational Principles of

the Second Amendment

The Massachusetts Supreme Judicial Court

reasoned that Mass. Gen. Laws ch. 140, § 131F was

analogous to “surety laws and ‘going armed’ laws.”

Marquis, 252 N.E.3d at 1012. Just like those laws, the

Court averred, Mass. Gen. Laws ch. 140, § 131F

presumes that non-residents have a right to carry

firearms and “begins with the presumption that all

nonresident applicants ‘shall be issued’” a license. Id.

But the Supreme Judicial Court is wrong.

Mass. Gen. Laws ch. 140, § 131F does not truly

presume that all nonresident applicants shall be

issued a license. It certainly does not issue them one

and only take it away if the suitability determination

does not work out or the $100 fee is not paid.

Rather, the statute envisions nonresident applicants

being issued a license only if they pay into the

Commonwealth’s general fund and earn the stamp of

“suitability” from the colonel of the Massachusetts

State Police. It cannot be presumed that a person will

be issued a license when issuance of the license

requires satisfaction of substantial and discretionary

burdens imposed by the licensing authority.

Further, neither Mass. Gen. Laws ch. 140, § 131F nor

Mass. Gen. Laws ch. 269, § 10(a) are anything like

surety or going armed laws. Indeed, the two sets of

laws do not even begin from the same premises.

Massachusetts’s law purports to grant permission to

exercise the right protected by the Second Amendment

upon satisfaction of onerous regulatory conditions,

whereas surety and going armed laws revoked the

right to carry a weapon for self-defense upon

particular findings being made by a court. Thus, the

former purports to grant a right that the People

already possess, while the latter purports to strip away

a right of the People under specific circumstances.

Surety laws were a form of “preventative justice”.

See Rahimi 144 S. Ct. at 1899-1900. Under surety

laws, a magistrate could “oblige those persons, of

whom there is a probable ground to suspect of future

misbehaviour, to stipulate with and to give full

assurance that such offence shall not happen, by

finding pledges or securities.”

Id. (cleaned up;

emphasis added). The Rahimi Court emphasized that

those historical laws did “not broadly restrict arms use

by the public generally,” and that their application

“involved judicial determinations of whether a

particular defendant likely would threaten or had

threatened another with a weapon.” Id. at 1902. The

Court also stressed that “surety bonds” were “of

limited duration.” Id.

Surety laws also targeted the misuse of firearms. In

1795, for example, Massachusetts enacted a law

authorizing justices of the peace to “arrest” all who “go

armed offensively [and] require of the offender to find

sureties for his keeping the peace.” 1795 Mass. Acts ch.

2, in Acts and Resolves of Massachusetts, 1794-1795,

ch. 26, pp. 66-67 (1896). Later, Massachusetts

amended its surety laws to be even more specific,

authorizing the imposition of bonds from individuals

“[who went] armed with a dirk, dagger, sword, pistol,

or other offensive and dangerous weapon.” Mass. Gen.

Laws ch. 134, §16; see id. (marginal note) (referencing

the earlier statute); see also Bruen 597 U.S. at 55-60.

Most notably, however, before the accused could be

compelled to post bond for “go[ing] armed,” a complaint

had to be made to a magistrate by “any person having

reasonable cause to fear” that the accused would do

him harm or breach the peace. Mass. Gen. Laws ch.

134, §§1, 16. The magistrate would take evidence,

and—if he determined that cause existed for the

charge—summon the accused, who could respond to

the allegations. Id. at §§3-4. Bonds could not be

required for more than six months at a time, and,

importantly, an individual could obtain an exception if

he needed his arms for self-defense or some other

legitimate reason. Id. at §16.

Because Massachusetts cannot reasonably stand on

the argument that there is “probable ground” to

believe that all Amici State citizens carrying firearms

are “suspect of future misbehaviour[,]” Massachusetts’s

strict application of Mass. Gen. Laws ch. 269, § 10(a)

to Amici State citizens cannot be persuasively

analogized to a “surety law.” See Rahimi 144 S. Ct. at

1899-1900.

Similar to surety laws, “going armed” laws provided

a mechanism for punishing those who had first

terrified others with firearms or other weapons. Bruen

597 U.S. at 50. Such laws were a particular subset of

the ancient common-law prohibition on affrays3.

Rahimi, 144 S. Ct. at 1900-1901. “But as with the

earlier periods, there is no evidence indicating that

these common-law limitations impaired the right of

the general population to peaceable public carry.”

Bruen 597 U.S. at 50-51.

By contrast, the Massachusetts law places

discretion in a colonel of State Police to determine

Affrays encompassed the offense of “arm[ing]” oneself “to the

Terror of the People,” United States v. Rahimi, 144 S. Ct. 1889,

1901 (2024) (citing to T. Barlow, The Justice of the Peace: A

Treatise 11 (1745)).

whether some behavior that a person engaged in at

some point in the past suggests that the person might

pose a danger to some unspecified person at some

uncertain point in the future if he or she is permitted

to carry a firearm. Massachusetts can claim that its

statute has a similar public safety purpose to going

armed and surety laws — after all, most gun

regulations are public safety measures — but it does

not operate in remotely the same way and the

Supreme Judicial Court’s analysis likening Mass. Gen.

Laws ch. 140, § 131F to such laws is simply not

persuasive.

Consequently, the surety laws and going armed laws

that the Massachusetts Supreme Judicial Court relied

on cannot carry the Commonwealth’s burden in this

case because such laws are not similar to the statute

at issue. See Bruen, 597 U.S. at 29 (where the Court

noted that “Green trucks” and “green hats” are

analogous only when the relevant metric is “things

that are green.”). As Justice Gorsuch wrote, “[c]ourts

must proceed with care in making comparisons to

historic firearms regulations, or else they risk gaming

away an individual right the people expressly

preserved for themselves in the Constitution’s text.”

Rahimi, 144 S. Ct. at 1908 (Gorsuch, J., concurring).

CONCLUSION

Massachusetts’s overzealous application of its

unconstitutional license-to-carry regime severely

encroaches on the rights of Amici State residents to

carry firearms for self-defense. Unless this Court

intervenes, the Second Amendment rights of Amici

State citizens are at the mercy of Massachusetts.

The Court should grant the petition.

Respectfully submitted,

JOHN M. FORMELLA

Attorney General of

New Hampshire

ANTHONY J. GALDIERI

Solicitor General

Counsel of Record

BRANDON F. CHASE

Senior Assistant

Attorney General

SAM M. GONYEA

Assistant Attorney General

1 Granite Place – South

Concord, NH 03301

(603) 271-3650

Anthony.J.Galdieri@doj.nh.gov

Counsel for Amici Curiae

September 4, 2025

ADDITIONAL SIGNATORIES

Steve Marshall

Attorney General

State of Alabama

Kris W. Kobach

Attorney General

State of Kansas

Stephen Cox

Attorney General

State of Alaska

Russell Coleman

Attorney General

State of Kentucky

Tim Griffin

Attorney General

State of Arkansas

Liz Murrill

Attorney General

State of Louisiana

James Uthmeier

Attorney General

State of Florida

Lynn Finch

Attorney General

State of Mississippi

Christopher M. Carr

Attorney General

State of Georgia

Andrew Bailey

Attorney General

State of Missouri

Raúl Labrador

Attorney General

State of Idaho

Austin Knudsen

Attorney General

State of Montana

Theodore E. Rokita

Attorney General

State of Indiana

Michael T. Hilgers

Attorney General

State of Nebraska

Brenna Bird

Attorney General

State of Iowa

Gentner Drummond

Attorney General

State of Oklahoma

Alan Wilson

Attorney General

State of South Carolina

Marty J. Jackley

Attorney General

State of South Dakota

Jonathan Skrmetti

Attorney General

State of Tennessee

Ken Paxton

Attorney General

State of Texas

Derek Brown

Attorney General

State of Utah

Jason Miyares

Attorney General

State of Virginia

John B. McCuskey

Attorney General

State of West Virginia

Keith G. Kautz

Attorney General

State of Wyoming

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.