By Jim Wallace, Executive Director
Massachusetts GOAL
Special to TGM
‘Tis the season when we start hearing about all of these communities holding, so-called, gun buy backs. Aside from the normal chatter of how can the government buy back a gun it never owned, there is an honest question about them. Are they legal in Massachusetts? While always having to caveat these articles with, I am not an attorney nor do I play one on TV, there is a simple answer. No, they are not! At least as we know them.
Normally what we see in the news are people lining up with various guns to exchange them for a gift card of some sort. Usually these types of events are conducted by local groups, churches and even law enforcement. Using a statement that is often incorrectly used against lawful gun owners: I can find no law that allows this to take place.
The current law establishing a “Firearm Surrender Program” was passed as part of Chapter 180 in 1998. Section 47 of that bill to be specific. The law requires the colonel of state police, in conjunction with the secretary of the executive office of public safety, to create regulations to make the surrender program function. They did so with Commonwealth of Massachusetts Regulation (CMR) 515 CMR 3.06: Firearms Surrender Program.
This CMR specifically requires anyone wishing to surrender a firearm to directly contact law enforcement in writing or by phone. Once done, a specific time and place must be agreed on: Such persons shall make arrangements with the department regarding date, time, locations, manner, and officer who shall be receiving the firearm(s). There is nothing in the law or regulation that allows for mass turn ins or just random people showing up to turn in a firearm or exchange it for a gift.
Yet another major problem is that the law does establish protections from the other gun laws like licensing, transportation, storage, etc. But these protections only exist as long as the person surrendering the gun is complying with the regulations. Clearly, they are not in compliance and therefore not provided protection.
And wait, there is more. A lot of the pictures we see from these “buy back” are of old rifles and shotguns. Most are junk, but once in a while there are some nice ones. None of that matters because the law clearly limits the program to handguns. The law specifically states the law applies to “Firearms”. Under MGL Chapter 140, Section 121 (The definition section.) that word means handgun. The use of this term strictly limits any surrender, under this law and regulation, to a handgun. No other types of guns are allowed to be turned in under the program.
Municipalities should also be very careful about how they dispose of the firearms turned. It appears in paragraph 2 of the CMR that all of the firearms must be turned over to the state police. We had heard that some were being directly turned over to out of state companies for destruction.
The big question now is, will the government uphold the laws against itself? Don’t hold your breath.
Laws & Regulations:
MGL Chapter 140, Section 121 ”Firearm”, a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured; provided, however, that the term firearm shall not include any weapon that is: (i) constructed in a shape that does not resemble a handgun, short-barreled rifle or short-barreled shotgun including, but not limited to, covert weapons that resemble key-chains, pens, cigarette-lighters or cigarette-packages; or (ii) not detectable as a weapon or potential weapon by x-ray machines commonly used at airports or walk- through metal detectors.
MGL Chapter 140, Section 131O. Notwithstanding any general or special law, rule or regulation to the contrary, the colonel of state police, in conjunction with the secretary of the executive office of public safety, shall promulgate rules and regulations implementing a statewide firearms surrender program. In conjunction with this program only, any citizen of the commonwealth who complies with the policies set forth by the colonel shall not be asked for identification and shall be immune from prosecution for possession of such firearm; provided, however, that nothing herein shall prohibit the prosecution of any person for the unlawful possession of a firearm who is not in compliance with the conditions and procedures established by the colonel; and provided further, that nothing herein shall prohibit the prosecution of any person for any other offense committed within the commonwealth.
515 CMR 3.06: Firearms Surrender Program
(1.) Date/Time/Location. Persons turning in a firearm(s) shall notify their local law enforcement department or the Department of State Police, in writing or by telephone, informing the department of their desire to surrender a firearm(s). Such persons shall make arrangements with the department regarding date, time, locations, manner, and officer who shall be receiving the firearm(s).
(2.) Firearms Submitted for Disposal. The State Police Firearms Identification Section shall receive firearms, turned in from a Firearms Surrender Program, for disposal from any law enforcement department in the state. The firearms shall be accompanied by an official department request as set forth in 515 CMR 3.06(3) and (4) and submitted as follows:
a.) A copy of the request shall accompany the firearms to serve as a temporary receipt pending the final verification.
b.) Prior to submission each firearm shall be tagged to correspond to the item number listed on the request.
c.) No more than 25 firearms shall be submitted at any one time, unless by approval of the State Police Firearms Identification Section.
(3.) Form of Official Department Request. A request by a law enforcement department for the disposal of firearms shall be on a form prescribed by the Colonel and shall:
a.) Officially request disposal and be signed by the chief of the department or the equivalent of the department’s evidence/contraband officer;
b.) Be signed by the officer responsible for submitting the firearms;
c.) List each firearm with a description of the firearm that includes the caliber, manufacturer’s name, type or model, and serial number; and
d.) Certify that a stolen record check has been completed through both LEAPS and NCIC on each firearm submitted, with negative results.
(4.) Request Substitute. A court order authorizing the disposal or destruction of firearms may be used in lieu of an official department request.
(5.) Immunity. Persons turning in firearms at the stated date, time and location, as arranged through the police department, shall not be asked for identification and shall be immune from prosecution for possession of such firearm(s) as set forth in G.L. c. 140, § 131O.
Any firearm surrendered in accordance with the provisions of this program that is reported stolen shall be returned to its lawful owner; provided, however, that any firearm suspected to be evidence in a crime shall remain in the custody and control of the department of state police in the same manner as any other such firearm lawfully seized by the department of state police. The department of state police may test-fire and preserve any and all firearms voluntarily surrendered. All weapons that have been voluntarily surrendered that are not suspected to be evidence of criminal activity and have not been reported stolen shall be disposed of in accordance with procedures established by the colonel.
