Commonwealth v. Robert L. Brown.

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

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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

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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.

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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.

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