Massachusetts high court rules mere unlicensed gun possession is "passive and victimless" crime

From the Bay State:

The Supreme Judicial Court ruled today that illegal gun possession is a “passive and victimless crime’’ and those charged with having illicit firearms cannot be held without bail as dangers to society.

In a 4-to-1 ruling, the state’s highest court rejected the law enforcement strategy of Bristol County District Attorney C. Samuel Sutter to cut down on gun violence by seeking pre-trial detention for every person charged with illegal gun possession in his jurisdiction, which includes New Bedford.

Writing for the majority, Justice Francis X. Spina said a law known as 58A does not include illegal gun possession on the list of criminal charges that qualify for a dangerousness hearing. The court also rejected Sutter’s argument that a catch-all phrase included in the statute gave him the legal authority to demand dangerousness hearings for dozens of criminal defendants in the past several years.

“While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime,’’ Spina wrote. “It is passive and victimless.’’

Spina added, “that a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.’’ ...

Article here. This is a win for gun rights. The case is Commonwealth v. Young, SJC-10147, decided May 4, 2009. The issue in the case was whether mere unlicensed firearm possession qualifies as a predicate offense under a statute that allows the government to seek pretrial detention for certain serious offenses. The court concluded that it does not.

From the opinion:

Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.

While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless. It does not even require proof that a defendant knowingly failed to acquire or maintain a license, see Commonwealth v. Jackson, 369 Mass. 904, 917 (1976), and thus may occur regardless whether an individual has acquired a firearm for an illicit or lawful purpose, or simply allowed a license to lapse. Because the motive of an unlicensed possessor of a firearm is totally irrelevant to criminal liability, we discern no principled legal distinction between the risk of physical force posed by licensed and unlicensed possessors of firearms. While a licensed individual may have knowledge of the proper safety practices for using, handling, and storing firearms, the acquisition of a license does not guarantee that the licensee will abide by those safety practices or refrain from using the firearm for an unlawful purpose. Slip op. at 4.