In response to the shooting tragedies in Newtown, Connecticut, and Aurora, Colorado, and after many months of policy study, House Speaker Robert DeLeo introduced new firearms legislation. Public hearings were held before the Joint Committee on Public Safety and Homeland Security in late May, and the bill barely passed out of committee last month, by a single vote.

While much of the language of the legislation strives to prevent firearms from getting into the hands of the mentally ill, one proposed measure is highly contentious: giving Massachusetts police chiefs absolute discretion in issuing Firearms Identification Cards, or FIDs. Without an FID, individuals cannot purchase or possess firearms of any type – rifles, shotguns, pistols, or revolvers.

Subsequent consideration of the Senate’s adopted version of the House bill stripped away the discretionary licensing language and, during debate, an amendment adding it back was defeated by a bipartisan vote of 28-10.

Uproar ensued. Many gun-control advocates, including Gov. Deval Patrick and numerous police chiefs, disapprove of the Senate’s removal of the bill’s licensing discretion, and are supporting a newly-introduced House bill which includes it. The competing bills are now in a conference committee to be reconciled, with the clock running down on the Legislature’s session, which ends on Thursday.

Supporters of a fully discretionary licensing scheme claim it has worked well in the past for issuing Licenses to Carry (LTC), permits which are required to purchase (and carry) pistols and revolvers, so it seems logical to them to extend such discretion to long guns—rifles and shotguns.

Wouldn’t doing this, proponents argue, extend an extra measure of safety by allowing police chiefs to refuse to issue FID cards even when applicants meet all state and federal licensing requirements? Might not this discretion have prevented Newtown, Connecticut, mass-murderer Adam Lanza from fatally shooting 20 children and 6 adults at the Sandy Hook Elementary School, and prevented James Holmes from killing 12 others in an Aurora, Colorado, movie theater?

The counterargument against such discretion, made by the Massachusetts Gun Owners’ Action League, is that some police chiefs have blatantly abused the discretion of the “may issue” LTC licensing process, denying applicants their carry permits for any reason, or no reason at all, despite applicants meeting all the state’s tough suitability standards. “You don’t need a handgun” has been sufficient justification for denial, and the courts generally defer to such discretion when denials are appealed; after all, the Supreme Judicial Court reasons, that was precisely the broad latitude the legislature meant to give.

GOAL and other gun rights supporters believe that extending discretion to all firearms licensing is a frontal attack on fundamental Second Amendment rights, given what they believe is abuse of that discretion in issuing LTCs. This new abuse would be graver: suitability to own any firearm whatsoever would be placed into the hands of 351 police chiefs across the Commonwealth, each with their own idea of what constitutes “suitability.”

In the safety-versus-gun rights debate, the Senate expressed concern that discretion applied to all forms of firearms ownership might indeed risk a Second Amendment challenge in federal court, perhaps explaining why the mostly-Democratic Senate voted 28-10 to remove the discretionary licensing language. Indeed, the Boston Globe reports that Sen. James Timilty, cochairman of the Joint Committee Public Safety and Homeland Security, “expressed concern that the measure might violate the US Constitution.”

Such concern is well-placed.

In the intervening years since Massachusetts adopted its very stringent firearms licensing laws, Second Amendment constitutional jurisprudence has moved towards substantially stronger gun rights. Recent decisions from the US Supreme Court, and decisions at both the federal appellate and federal district levels, have created a far more uncertain legal environment for discretionary “may issue” firearm licensing like the Commonwealth’s discretionary LTC handgun permitting.

Recent decisions from the Supreme Court, in District of Columbia v. Heller and McDonald v. Chicago, and from the 7th Circuit, in Ezell v. City of Chicago, have defined (some say reaffirmed) the Second Amendment as an ordinary and individual constitutional right, a right identical to those found in the Bill of Rights and subsequent amendments. The Second Amendment now must be treated like the bedrock of all constitutional protections, the First Amendment.

Subsequent court decisions are following Heller’s and McDonald’s reasoning. These have implications for Massachusetts which Beacon Hill should carefully consider.

Even the US 9th Circuit Court, considered to be the most liberal in the federal circuit court system, recently ruled, in Peruta v. County of San Diego, that California’s discretionary handgun permitting standards “impermissibly infringe on the Second Amendment right to bear arms in lawful self-defense.”

Perhaps more stunning is last week’s finding by the US District Court for the District of Columbia that Washington, DC’s “complete ban on the carrying of handguns in public is unconstitutional.” The court ordered that the city government must issue licenses to anyone, including out of state applicants, who meets the city’s licensing requirements. To be sure, this is a decision from the less-weighty District Court and not the Supreme Court, but it still adds to the ever increasing body of pro-gun-rights jurisprudence.

These recent court precedents are a tectonic shift in Second Amendment interpretation. It would be wise for Beacon Hill to consider more carefully whether even broader licensing discretion, and the “may issue” language in the House bill is as broad as it gets, might provoke lawsuits at the federal level brought under today’s more robust Second Amendment protections.

Such a lawsuit is not farfetched. What would happen if a police chief—just one—simply decides not to issue any FID cards to applicants who meet the current state suitability standards? That is the discretion granted to each chief in the House bill. And when faced with an FID renewal, perhaps he simply says “denied–not renewed,” and the courts uphold it. Without that FID, those individuals would no longer be able to possess firearms they may have owned their entire adults lives. That’s clearly a Second Amendment violation, and probably a due process violation of the Fifth and Fourteenth Amendments, too.

The sea change in the law since Heller is apparently unconvincing to many of the Commonwealth’s gun-control advocates, who cannot imagine how discretionary licensing to own firearms, however judiciously and “fairly” that discretion may be applied, however much that discretion is used for public safety, might easily be adjudicated as a Second Amendment violation.

A First Amendment analogy may be helpful. Imagine if speaking freely in public required a “free speech ID card” issued at the sole discretion of your town council. The topic you wish to talk about is controversial to others. Anxious to avoid inflaming town sentiments, the council denies you your free speech permit. While from a public safety perspective the denial might seem reasonable, as a matter of constitutional law it would go down quickly in flames.

The US Constitution does not permit government to pick and choose which individuals may exercise their enumerated constitutional rights. And in the shadow of Heller and McDonald, the current House bill, if passed into law, will inevitably be challenged as a blatant infringement of those rights.

The more sensible heads in the House and Senate, both Republicans and Democrats, know discretionary FIDs risk nullifying Massachusetts’s firearms licensing regime. They believe, correctly, that ignoring the settled interpretation of the Second Amendment as an individual right and a right to self-defense could be construed as an ad hoc, outright prohibition of all classes of firearms.

Why is the Commonwealth risking legal action that could potentially cause the entire body of its gun laws to be swept aside by court order?

William A. Matthews is a member of the NRA and the Gun Owners’ Action League, and an avid skeet shooter.

CommonWealth Voices is sponsored by The Boston Foundation.

The Boston Foundation is deeply committed to civic leadership, and essential to our work is the exchange of informed opinions.  We are proud to partner on a platform that engages such a broad range of demographic and ideological viewpoints.