Chief of Police of the City of Worcester v. Holden

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SJC-11682

CHIEF OF POLICE OF THE CITY OF WORCESTER vs. RAYMOND J.
HOLDEN, JR.

Worcester. November 6, 2014. - March 11, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Firearms. License. Constitutional Law, Right to bear arms,
Vagueness of statute. Due Process of Law, Revocation of
license, Vagueness of statute. Words, "Suitable person."

Civil action commenced in the Superior Court Department on
December 6, 2011.

The case was heard by James R. Lemire, J., on motions for
judgment on the pleadings.

The Supreme Judicial Court granted an application for
direct appellate review.

Mel L. Greenberg for the defendant.
Kevin M. Gould, Assistant City Solicitor (David M. Moore,
City Solicitor, with him) for the plaintiff.
Julia Kobick, Assistant Attorney General, for the
Commonwealth, amicus curiae.
The following submitted briefs for amici curiae:
Jonathan E. Lowy, Kelly Sampson, Elizabeth Burke, Jonathan
L. Diesenhaus, James W. Clayton, & Anna M. Kelly, of the
District of Columbia, & Kathy B. Weinman for Brady Center to
Prevent Gun Violence.
 2

Ben T. Clements & Lila E. Slovak for Massachusetts Chiefs
of Police Association, Inc., & others.
Edward F. George, Jr., & Susan Chu for Gun Owners' Action
League, Inc.
Karen L. MacNutt for Commonwealth Second Amendment, Inc.

SPINA, J. This case mounts a challenge under the Second

Amendment to the United States Constitution1 to the

constitutionality of the "suitable person" standard in G. L.

c. 140, § 131 (d) and (f), as amended through St. 1998, c. 180,

§ 41, by which licenses to carry firearms were issued,

suspended, or revoked between 2005 and 2010.2 The chief of

police of the city of Worcester (chief) determined, based on the

history of domestic violence of Raymond J. Holden, Jr., against

his wife, that Holden was not a suitable person to have such a

license. Holden sought judicial review of three separate

adverse decisions of the chief: suspension of his license, then

revocation of his license, and finally denial of his application

for a new license to carry. After a complex history of District

Court litigation that was consolidated and resolved largely in

favor of Holden, the chief sought certiorari review in the

Superior Court. On cross motions for judgment on the pleadings,

1
The Second Amendment to the United States Constitution
states: "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and
bear Arms, shall not be infringed."
2
The statute was further amended in 2014. See notes 5, 6,
8, and 10, infra.
 3

a judge in the Superior Court ruled in favor of the chief.

Holden appealed, and we granted his petition for direct

appellate review. On appeal, Holden argues that (1) the

"suitable person" standard violates the Second Amendment, both

facially and as applied; (2) the statutory scheme as to the

suspension and revocation of licenses and the denial of license

applications violates procedural due process because it is

devoid of any provision for a hearing before the chief, and

because it makes no provision for an aggrieved person to

confront and cross-examine witnesses in the District Court; (3)

the "suitable person" standard is unconstitutional as applied to

him because it allows the chief to disqualify him permanently

from licensure as an unsuitable person without current cause;

and (4) the decisions of the chief were not supported by

substantial evidence. We reject Holden's claims, and we affirm

the judgment of the Superior Court.3

1. Background. On the evening of September 10, 2005,

Holden's daughter telephoned the Shrewsbury police department

911 dispatch to report that her father had just beaten her

3
We acknowledge the amicus briefs of the Attorney General;
Brady Center to Prevent Gun Violence; and Massachusetts Chiefs
of Police Association, Inc.; Stop Handgun Violence; Educational
Fund to Stop Gun Violence; and Jewish Alliance for Law & Social
Action, in support of the chief of police of the city of
Worcester (chief), and the amicus briefs of Commonwealth Second
Amendment, Inc., and Gun Owners Action League, Inc., in support
of Raymond J. Holden, Jr.
 4

mother and thrown her out of his vehicle in front of the

daughter's house in Shrewsbury. She reported that her mother

was crying and that she was requesting police assistance.

Police arrived at the daughter's home. Holden's wife prepared

and signed a written statement, witnessed by her daughter, in

which she described what occurred. She indicated that she and

Holden were at a restaurant that evening. After consuming a few

cocktails they began to argue. She did not want to create a

scene, so she asked the bartender to arrange for a taxicab to

take her home. Eventually she left with Holden, who verbally

assaulted her and said he was going to leave her at their

daughter's home. Upon arrival, Holden punched his wife in the

face, walked around to the passenger's side door, and pulled her

out of the vehicle. He threw her to the pavement and then drove

away. She suffered a swollen lip, a scratch over her right eye,

and scrapes and bruises on her left arm.

On September 12, 2005, Holden was arraigned in the

Westborough Division of the District Court Department

(Westborough District Court) on a complaint alleging assault and

battery on his wife. On September 14, 2005, the chief, acting

in his capacity as licensing authority for the city of

Worcester, suspended Holden's license on the ground that he was

not suitable to carry firearms. His decision was based on

Holden's arraignment on the assault and battery complaint. The
 5

complaint was dismissed two weeks later at the request of the

complainant, Holden's wife.

On December 6, 2005, Holden filed a complaint for judicial

review of his suspension in the Worcester Division of the

District Court Department (Worcester District Court), pursuant

to G. L. c. 140, § 131 (f). After an evidentiary hearing, the

judge ordered the restoration of Holden's license because the

sole ground for the suspension was the pending charge of assault

and battery, which had been dismissed. The judge ruled that the

suspension was "arbitrary and capricious in that the withholding

of the license [was] not predicated upon any factual

determination by [the licensing authority]." On January 30,

2006, the chief reinstated the suspended license.

However, on that same day, immediately after restoring

Holden's suspended license, the chief revoked the license.

Instead of relying on Holden's arraignment on the then-dismissed

complaint for assault and battery, the chief's written decision

set forth specific findings based on the police incident report

of September 10, 2005, which contained details of the assault

and battery as reported by Holden's wife. The chief explained

that the credible information in the incident report, and not

the mere existence of a criminal charge, were the grounds on

which he determined Holden to be unsuitable. On March 1, 2006,

Holden filed a complaint for judicial review in the Worcester
 6

District Court. A different judge found facts and ruled,

without an evidentiary hearing, that the subsequent action by

the chief was based on the same evidence that was presented in

the earlier action. He ordered the license reinstated. The

chief filed a complaint for certiorari in the Superior Court.

On May 21, 2007, a judge of the Superior Court determined that

the failure to conduct an evidentiary hearing was error, and he

remanded the case to the District Court for an evidentiary

hearing on the revocation. Holden sought appellate review, but

the appeal was dismissed by the Appeals Court on June 30, 2008,

on the ground that the Superior Court's order of remand was

interlocutory, from which there was no right of appeal.

The case lay dormant for nearly two years. On June 17,

2010, Holden requested a hearing.4 On September 21, 2010,

Holden's revoked license to carry firearms expired. On

October 18, 2010, Holden applied to the Worcester police

department licensing division for a new license to carry

firearms. On November 18, 2010, the chief denied the

application on the ground that Holden was not a suitable person

to hold such a license. The chief relied upon and cited details

from the police incident report of September 10, 2005; the

4
Although Holden's motion regarding this request does not
appear on the Worcester District Court docket, the docket states
that a memorandum and order issued on that motion on August 10,
2010.
 7

statement signed by Holden's wife on September 10, 2005; and the

911 dispatch call from Holden's daughter. On January 6, 2011,

Holden filed a complaint for judicial review of the denial of

his application, pursuant to G. L. c. 140, § 131 (f), in

Worcester District Court. He also filed a motion to consolidate

all three cases, which was allowed. It is not clear why the

first case was included, as it had been decided and no notice of

appeal had been filed.

A full evidentiary hearing was held before a third judge of

the District Court on February 7 and 9, 2011. On October 21,

2011, the judge ruled that the chief had a reasonable ground to

suspend and revoke Holden's license in 2005 and 2006,

respectively, based upon the reported domestic assault and

battery by Holden on his wife on September 10, 2005,

notwithstanding dismissal of the criminal charges in the

Westborough District Court on October 3, 2005. The judge

concluded that the chief had authority to rely on reported

behavior of a licensee, even if there had not been any criminal

charges. However, the judge vacated the November 18, 2010,

denial of Holden's application for a license to carry a firearm

and directed that a license to carry be issued to Holden. The

judge determined that the chief did not have a reasonable ground

for denying the 2010 application where there had been a

significant passage of time with no intervening incidents. He
 8

further ruled that a 2006 directive of the chief to the effect

that a revocation of license operated as a "permanent loss"

constituted an abuse of discretion.

On December 6, 2011, the chief filed a complaint for

certiorari review in the Superior Court. The parties filed

cross motions for judgment on the pleadings. After a hearing, a

judge of the Superior Court granted the chief's motion for

judgment on the pleadings, and he denied Holden's motion. The

judge reasoned that "[t]he passage of time without interaction

with the law . . . does not preclude a finding of unsuitability

. . . [but is a] factor that [a licensing authority] is entitled

to take into consideration. . . . [I]t is not appropriate

grounds for the District Court to overrule [the chief in this

case]." The judge also concluded that the District Court judge

erred in relying on the 2006 directive where there was no

evidence that the chief had relied on the directive or that a

revoked license actually would result in a lifetime ban.

Finally, the judge determined that the "core of the Second

Amendment, the right of an individual to keep and bear arms in

the home, was not implicated in [Holden's] case."

2. As-applied challenge. Holden argues that the Second

Amendment secures for him the right to carry a handgun for self-

defense outside the home, and that this right cannot be made

subject to a determination by the chief that he is a suitable
 9

person to carry a handgun. He contends that the "suitable

person" standard in G. L. c. 140, § 131 (d) and (f), violates

the Second Amendment, and that it violates constitutional

principles of vagueness. There are several parts to this

challenge, which we address in turn.

As an initial matter, it is important to note that the

record is silent as to whether Holden had held a Class A license

or a Class B license, and whether he applied for a Class A or a

Class B license after his revoked license expired. For purposes

of this appeal the relevant difference between the two types of

licenses is that a Class A license entitles a holder to possess

and carry a concealed firearm for all lawful purposes, subject

to such restrictions as the licensing authority deems proper.

See G. L. c. 140, § 131 (a).5 A Class B license entitles a

holder to "possess and carry . . . non-large capacity firearms

. . . for all lawful purposes, subject to such restrictions

. . . as the licensing authority deems proper; provided,

however, that a Class B license shall not entitle the holder

thereof to carry or possess a loaded firearm in a concealed

5
General Laws c. 140, § 131 (a), was amended by St. 2014,
c. 284, § 47, effective January 1, 2021. Under the amended
statute there will be no Class A and Class B licenses, but a
unitary license to carry.
 10

manner in any public way or place." G. L. c. 140, § 131 (b).6

The analysis is somewhat different for each type of license. We

begin with the Class A license.

a. Class A license. Holden's argument begins with a

statement from District of Columbia v. Heller, 554 U.S. 570

(2008), made applicable to the States by McDonald v. Chicago,

561 U.S. 742, 791 (2010), where the United States Supreme Court

declared self-defense to be "the central component of the

[Second Amendment] right itself" (emphasis in original).

Heller, supra at 599. The Court was addressing, and rejected,

Justice Breyer's dissent where he described individual self-

defense as being merely a "subsidiary interest" to the Second

Amendment's right to keep and bear arms. Id. at 714 (Breyer,

J., dissenting). Holden acknowledges that the Supreme Court

also said in Heller that the "need for defense of self, family,

and property is most acute" in the home, id. at 628, but he

maintains nevertheless that the right of self-defense is the

core holding of Heller. He reasons that nothing in Heller

suggests that the right to bear arms for self-defense is limited

to the home. Relying on Moore v. Madigan, 702 F.3d 933, 942

(7th Cir. 2013), Holden maintains that the right to keep and

bear arms to defend oneself is at least as important outside the

6
General Laws c. 140, § 131 (b), was amended by St. 2014,
c. 284, § 47, effective January 1, 2021. See note 5, supra.
 11

home as it is inside the home. His argument culminates in the

following statement: "By noting that restrictions on carrying

firearms 'in sensitive places such as schools and government

buildings' . . . were 'presumptively lawful' under the Second

Amendment . . . the Court at least suggested that restrictions

on carrying firearms outside the home in less 'sensitive' places

would violate the right to keep and bear arms," quoting Heller,

supra at 626, 627 n.26.

In Heller, 554 U.S. at 635, the Court held that the

District of Columbia's total ban on handgun possession in the

home violates the Second Amendment. The Court did not say or

imply, as Holden argues, that the right of self-defense is as

great outside the home as it is inside the home. Indeed, the

Court expressed something to the contrary. It said "the need

for defense of self, family, and property is most acute" in the

home. Id. at 628. The United States Court of Appeals for the

First Circuit has observed that, with respect to this language

from Heller, "[c]ourts have consistently recognized that Heller

established that the possession of operative firearms for use in

defense of the home constitutes the 'core' of the Second

Amendment." Hightower v. Boston, 693 F.3d 61, 72 (1st Cir.

2012).

Moreover, mindful of the problem of handgun violence

throughout the country, the Supreme Court said that "[t]he
 12

Constitution leaves the District of Columbia a variety of tools

for combating that problem, including some measures regulating

handguns, see supra at 624-627, and n.26." Heller, 554 U.S. at

636. As to those measures, the Court observed that "[l]ike most

rights, the right secured by the Second Amendment is not

unlimited. From Blackstone through the [Nineteenth Century]

cases, commentators and courts routinely explained that the

right was not a right to keep and carry any weapon whatsoever in

any manner whatsoever and for whatever purpose." Id. at 626.

The Court identified a nonexhaustive list of prohibitions and

restrictions on the Second Amendment right, including

"prohibitions on carrying concealed weapons[,] . . .

longstanding prohibitions on the possession of firearms by

felons and the mentally ill, . . . laws forbidding the carrying

of firearms in sensitive places such as schools and government

buildings, . . . [and] laws imposing conditions and

qualifications on the commercial sale of arms." Id. at 626-627.

Conspicuously absent from Holden's argument is the Supreme

Court's inclusion of "prohibitions on carrying concealed

weapons" among the "tools" available to combat gun violence.

Heller, 554 U.S. at 626, 636. This particular prohibition

applies to the possession of firearms outside the home.

Significantly, the Court referred to this tool as a

"prohibition" on carrying firearms, not merely a restriction.
 13

Moreover, the Court emphasized that prohibitions on carrying

concealed weapons and other prohibitions specifically mentioned

(and others not specified) were "presumptively lawful." Id. at

626-627 & n.26. See Hightower, 693 F.3d at 73.

Because a prohibition against carrying concealed weapons is

presumptively lawful, it follows that licensing the carrying of

such weapons, a less restrictive measure, also must be

presumptively lawful. See id. at 74. "Presumptively lawful"

prohibitions and regulations do not burden conduct protected by

the Second Amendment. As such, they fall outside the scope of

the Second Amendment and are not subject to heightened scrutiny.

See Commonwealth v. McGowan, 464 Mass. 232, 239, 244 (2013).

For these reasons, we conclude that the denial of a Class A

license to carry a concealed firearm, or the revocation or

suspension of a Class A license, falls outside the Second

Amendment and is subject only to rational basis analysis, as a

matter of substantive due process. See id.

i. Rational basis. Those who challenge the

constitutionality of a statute that neither burdens a suspect

group nor a fundamental constitutional right bear a heavy burden

in overcoming the presumption of constitutionality in favor of a

statute's validity. See English v. New England Med. Ctr., Inc.,

405 Mass. 423, 427 (1989), cert. denied, 493 U.S. 1056 (1990).

Under the Federal Constitution, the rational basis test under
 14

principles of due process is "'whether the statute bears a

reasonable relation to a permissible legislative objective'

. . . and, under the . . . State Constitution [is] whether the

statute 'bears real and substantial relation to public health,

safety, morals, or some other phase of the general welfare'"

(citations omitted). Id. at 430. Holden offers nothing to

overcome the presumption of constitutionality with respect to

the regulation of concealed weapons. He relies exclusively on

the application of strict scrutiny. Nevertheless, we undertake

the analysis.

The purpose of G. L. c. 140, § 131, is to "limit access to

deadly weapons by irresponsible persons." Ruggerio v. Police

Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984). "From a

realization that prevention of harm is often preferable to

meting out punishment after an unfortunate event, [§ 131] was

enacted as a first-line measure in the regulatory scheme. It

has been said about § 131 that it was intended 'to have local

licensing authorities employ every conceivable means of

preventing deadly weapons in the form of firearms [from] coming

into the hands of evildoers.'" Id. at 258-259, quoting Rep.

A.G., Pub. Doc. No. 12, at 233-234 (1964). Section 131, in

addition to excluding certain classes of persons from licensure,

requires that the licensing authority ascertain whether an

applicant is a "suitable person" to carry firearms and has a
 15

proper purpose for carrying a firearm, and that someone who has

been issued such a license remains suitable. G. L. c. 140,

§ 131 (d), (f). The Supreme Court acknowledged precisely the

need for such determinations when it said of the Second

Amendment, "whatever else it leaves to future evaluation, it

surely elevates above all other interests the right of law-

abiding, responsible citizens to use arms in defense of hearth

and home" (emphasis added). Heller, 554 U.S. at 635. Although

the statute has been amended,7 the "suitable person" standard

still confers upon a licensing authority "'considerable

latitude' or broad discretion in making a licensing decision."

Chardin v. Police Comm'r of Boston, 465 Mass. 314, 316, cert.

denied sub nom. Chardin v. Davis, 134 S. Ct. 525 (2013), quoting

Ruggiero, supra at 259. Specifically, it allows licensing

authorities to keep firearms out of the hands of persons who are

not categorically disqualified, e.g., convicted felons, but who

nevertheless pose a palpable risk that they would not use a

firearm responsibly if allowed to carry in public. The statute,

broadly speaking, bears a reasonable, as well as a real and

substantial, relation to public health and safety. As such, the

"suitable person" standard passes muster under the United States

and the Massachusetts Constitutions under rational basis

analysis.

7
See note 8, infra.
 16

Even if Holden had a Second Amendment interest in carrying

a concealed weapon, the suspension and revocation of his

license, and the denial of his application for a new license,

would survive heightened scrutiny, which we discuss infra.

ii. Vagueness. Holden also contends that the "suitable

person" standard is inherently subjective and unconstitutionally

vague. "A law is void for vagueness if persons 'of common

intelligence must necessarily guess at its meaning and differ as

to its application,'" Caswell v. Licensing Comm'n for Brockton,

387 Mass. 864, 873 (1983), quoting Connally v. General Constr.

Co., 269 U.S. 385, 391 (1926), or if it "subjects people to an

unascertainable standard." Brookline v. Commissioner of the

Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378 (1982), S.C.,

398 Mass. 404 (1986). The degree of vagueness that is

permissible under principles of due process varies with the

interests involved. See Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 498-499 (1982); Brookline, supra.

Flexibility in a statute is necessary to respond to individual

cases. See Custody of a Minor (No. 2), 378 Mass. 712, 719

(1979) (to survive vagueness challenge Legislature need not

"anticipate and codify every parental shortcoming or handicap

that might place an exposed child in danger"). "Ambiguities

. . . may be clarified by resort to the administrative process

so as to cure a vagueness claim." Brookline, supra.
 17

The term "suitable person" is not defined in the statute as

it existed prior to 2015.8 Nor is it defined by any regulation

promulgated by the Executive Office of Public Safety and

Security or its designee, despite the Appeals Court's

suggestions that guidelines would be beneficial. See MacNutt v.

Police Comm'r of Boston, 30 Mass. App. Ct. 632, 636 n.6 (1991);

Ruggiero, 18 Mass. App. Ct. at 261 n.7. Other States have

"suitable person" standards in their firearms licensing laws.

See, e.g., Conn. Gen. Stat. § 29-28(b); Hawaii Rev. Stat. Ann.

§ 134-9(b)(2); N.H. Rev. Stat. Ann. § 159:6(I); R.I. Gen. Laws

§ 11-47-11(a). Our decisions have served to help clarify the

meaning of the term and limit the scope of discretion of a

licensing authority.

For example, in DeLuca v. Chief of Police of Newton, 415

Mass. 155, 159-160 (1993), this court held that a finding of

unsuitability properly could be made based on acts underlying

convictions even after pardon. The court reasoned that although

a pardon removed the disqualifying feature of a conviction,

because "character is a necessary qualification and the

8
General Laws c. 140, § 131 (d), was amended by St. 2014,
c. 284, § 48, effective January 1, 2015, and now provides in
relevant part: "A determination of unsuitability shall be based
on: (i) reliable 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 (ii) existing factors that suggest
that, if issued a license, the applicant or license may create a
risk to public safety."
 18

commission of a crime would disqualify even though there had

been no criminal prosecution for the crime, the fact that the

criminal has been convicted and pardoned does not make him any

more eligible" (citations omitted). Id. In Howard v. Chief of

Police of Wakefield, 59 Mass. App. Ct. 901, 902 (2003), the

Appeals Court upheld a finding of unsuitability based on an

abuse prevention order that had expired. Moreover, in Godfrey

v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 43, 47-48

(1993), the Appeals Court upheld a finding of unsuitability

based on a licensee's refusal to cooperate with a police

investigation in the face of what the police chief reasonably

deemed to be a continuing and serious danger to public safety,

particularly young children, where police had reason to believe

that a gun used to fire bullets into a school, a private

residence, and an automobile might have belonged to the

licensee. These cases provide adequate guidance to persons of

common intelligence that conduct which is criminal and violent,

regardless whether it has resulted in a criminal conviction, is

grounds for denial, revocation, or suspension of a license to

carry a firearm on the basis of unsuitability.

Holden's license was revoked, and his application for

renewal of his license was denied, based not on a generalized,

subjective determination of unsuitability, but on specific and

reliable information that he had assaulted and beaten his wife.
 19

The information on which the chief relied was the type of

information on which judges rely when revoking a criminal

defendant's probation. See Commonwealth v. Durling, 407 Mass.

108, 120-122 (1990). The punishment for assault and battery

includes imprisonment of up to two and one-half years. See

G. L. c. 265, § 13A. Had Holden been convicted of this offense,

he would have been disqualified from firearm licensure. See

G. L. c. 140, § 131 (d) (i), (f). The fact that there was no

conviction removes the incident as a license disqualifier, but

it does not remove the chief's consideration of the incident on

the question of Holden's suitability. Whatever ambiguities may

be imbedded in the term "suitable person," our jurisprudence

puts people on notice that uncharged and untried criminal

conduct amounting to an assault and battery is not among them.

See Deluca, 415 Mass. at 159-160; Howard, 59 Mass. App. Ct. at

902. See also G. L. c. 140, § 121 (definition of "violent

crime"). A person of common intelligence would understand that

an assault and battery could render him or her unsuitable for

purposes of § 131. As applied to a Class A license holder in

Holden's situation, his vagueness challenge fails.

b. Class B license. Practical wisdom cautions that the

law of possession of firearms outside of the home is a "vast

terra incognita that courts should enter only upon necessity and

only then by small degree." Hightower, 693 F.3d at 74, quoting
 20

United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir.),

cert. denied, 132 S. Ct. 756 (2011). After acknowledging that

the Constitution allows "some measure [for] regulating

handguns,"9 in one of the few definitive statements in Heller,

the Supreme Court said "certain policy choices [are] off the

table. These include the absolute prohibition of handguns held

and used for self-defense in the home" (emphasis added).

Heller, 554 U.S. at 636. In the instant case we have neither an

absolute prohibition of handguns in the home nor the regulation

of handguns in the home. We also are not faced with an absolute

ban on carrying ready-to-use firearms in public. See Moore, 702

F.3d at 940. Although the exact parameters of the Second

Amendment are far from clear with respect to openly carrying

firearms outside the home, and the law is similarly unsettled as

to which standard of scrutiny applies, we may nevertheless

engage in a meaningful analysis based on some assumptions.

To begin, if we assume that Holden had a Class B license or

that he had applied for a Class B license, and if we further

assume that he had an interest protected by the Second

Amendment, in that context that interest would not necessarily

enjoy the same level of protection as keeping and bearing a

handgun for self-defense in the home, which has been

9
The prefatory clause of the Second Amendment ("well
regulated Militia") anticipates some regulation.
 21

increasingly recognized as the "core" of the Second Amendment.

See Hightower, 693 F.3d at 72. We said recently that some

measure of regulation is permissible even in the home "to

prevent those who are not licensed to possess or carry firearms

from gaining access to firearms." McGowan, 464 Mass. at 244.

In that case, we held that G. L. c. 140, § 131L (a), was

"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," but requires him to store the firearm in a

locked container or apply a safety device that renders the

weapon inoperable by someone who is not lawfully authorized when

not being carried or kept under the direct personal control of

the owner or a lawfully authorized user. Id. at 243. Where the

Commonwealth has not totally banned the open carrying of

firearms in public but has subjected such activity to licensing,

the question becomes not whether any regulation is permissible

under the Second Amendment but whether the particular regulation

is permissible. See Hightower, 693 F.3d at 73.

Federal Circuit Courts of Appeals that have considered the

question of regulation of firearms in public have observed that

historically such regulation has been more prevalent than

regulation of firearms in the home, and that the right to carry

in public implicates more peripheral Second Amendment concerns
 22

than keeping and bearing arms in the home. See, e.g., Drake v.

Filko, 724 F.3d 426, 430 n.5 (3d Cir. 2013), cert. denied sub

nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014); Kachalsky v.

County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012), cert.

denied sub nom. Kachalsky v. Cacace, 133 S. Ct. 1806 (2013);

Hightower, 693 F.3d at 72; Masciandaro, 638 F.3d at 470. A

majority of those courts has applied intermediate scrutiny to

laws regulating firearms in public because the regulating

authority did not totally prohibit carrying firearms in public

and because the right to carry a firearm in public was not at

the core of the Second Amendment. See Drake, supra at 436;

Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.), cert.

denied, 134 S. Ct. 422 (2013); Kachalsky, supra at 93-96.

Compare Hightower, supra at 74 (plaintiff's "claim fails

whatever standard of scrutiny is used"). Under intermediate

scrutiny the question is whether the challenged statute is

"substantially related to an important governmental objective."

Clark v. Jeter, 486 U.S. 456, 461 (1988). See Brackett v. Civil

Serv. Comm'n, 447 Mass. 233, 246 (2006).

The governmental objective here has been stated variously

as the promotion of public safety by "limit[ing] access to

deadly weapons by irresponsible persons," Ruggiero, 18 Mass.

App. Ct. at 258; assuaging "the societal concern with weapons

reaching the hands of unauthorized users," Jupin v. Kask, 447
 23

Mass. 141, 154 (2006); and "prevent[ing] the temptation and the

ability to use firearms to inflict harm, be it negligently or

intentionally, on another or on oneself." Commonwealth v. Lee,

10 Mass. App. Ct. 518, 523 (1980). General Laws c. 140, § 131,

"was enacted as a first-line measure in the regulatory scheme,"

arising from the obvious and unassailable "realization that

prevention of harm is often preferable to meting out punishment

after an unfortunate event." Ruggiero, supra at 258-259. The

Supreme Court has recognized that the government interest in

public safety is both "compelling," United States v. Salerno,

481 U.S. 739, 745 (1987), and "significant." Schenck v. Pro-

Choice Network of W. N.Y., 519 U.S. 357, 376 (1997). The

Commonwealth's interest in firearms control regulation is of the

"utmost importance, as the statute governing who may lawfully

carry a firearm directly affects the physical safety of the

citizenry." Dupont v. Chief of Police of Pepperell, 57 Mass.

App. Ct. 690, 693 (2003).

The suitable person standard in G. L. c. 140, § 131 (d) and

(f), is substantially related to these important governmental

interests. As the Attorney General explained in 1926, this

standard ensures that "the traffic of firearms shall be exposed

to the scrutiny of the proper authorities and that criminals and

irresponsible persons shall be unable to obtain firearms

easily." Rep. A.G., Pub. Doc. No. 12, at 160 (1926). That
 24

purpose remained essentially unchanged nearly forty years later,

when the Attorney General stated: "the intent of the General

Court is to have local licensing authorities employ every

conceivable means of preventing deadly weapons in the form of

firearms coming into the hands of evildoers." Rep. A.G., Pub.

Doc. No. 12, at 233-234 (1964). That purpose remains firm

today. As one Federal District Court judge observed about the

Connecticut counterpart to the suitable person standard in G. L.

c. 140, § 131 (d) and (f): "it is impossible for the

[L]egislature to conceive in advance each and every circumstance

in which a person could pose an unacceptable danger to the

public if entrusted with a firearm." Kuck v. Danaher, 822 F.

Supp. 2d 109, 129 (D. Conn. 2011). That standard, with

"circumscribed discretion," was deemed to be constitutional.

Id.

As discussed above with respect to the discussion of the

Class A license, there is nothing vague about the application of

the suitable person standard to Holden's circumstances. There

has been no showing that the chief's decision was arbitrary or

capricious. And there has been no showing of heavy-handedness

on the part of the chief. To the contrary, the District Court

judge found after an evidentiary hearing that in approximately

six years since 2006, the chief granted approximately 3,200
 25

applications for licenses to carry and denied or suspended

approximately 200 such applications and licenses.

As previously discussed, Holden's conduct in punching his

wife in the face, dragging her out of his vehicle, and throwing

her to the ground constitutes criminal conduct that would have

disqualified him from licensure had he been convicted. The

absence of a conviction does not prevent such conduct from

consideration by the chief on the question of Holden's

suitability. Holden's acts of domestic violence provide

precisely the kind and quality of evidence that rationally

support a finding of unsuitability. The suitability standard

works in tandem with the disqualifying provisions of the statute

to reasonably prevent lethal firearms from falling into the

hands of persons likely to misuse them. This standard is

substantially related to the Commonwealth's important interests

in promoting public safety and preventing violence. For these

reasons Holden's as-applied challenge fails.

3. Facial challenge. Holden's facial challenge, on Second

Amendment grounds, focuses on the discretion conferred by the

"suitability" requirement. He contends that G. L. c. 140, § 131

(d) and (f), is unconstitutionally vague on its face because it

confers excessive discretion in determinations of suitability.

Holden maintains that the statute permits determinations of

unsuitability that are inherently subjective. For his facial
 26

attack to succeed Holden "would have to establish 'that no set

of circumstances exists under which [the suitability standard]

would be valid,' United States v. Salerno, 481 U.S. at 745, or

that the statute lacks any 'plainly legitimate sweep,'

Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997)." United

States v. Stevens, 559 U.S. 460, 472 (2010). Although which of

these standards controls is a question that is unresolved, see

id., Holden's challenge fails under both.

A "plaintiff who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the law as

applied to the conduct of others." United States v. Williams,

553 U.S. 285, 304 (2008). "[E]ven when the outer boundaries of

a law are imprecise, such imprecision does not permit a facial

attack on the entire law by one whose conduct 'falls squarely

within the "hard core" of the [law's] proscriptions.'"

Commonwealth v. Orlando, 371 Mass. 732, 734 (1977), quoting

Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973). As discussed

supra, people of common intelligence are on notice that

uncharged and untried criminal conduct amounting to an assault

and battery may render someone unsuitable for purposes of G. L.

c. 131, § 131 (d) and (f). Holden's domestic abuse of his wife

falls squarely within the hard core of the suitability standard,

and it renders him unsuitable to carry firearms in public.

Because Holden's as-applied vagueness challenge fails, his
 27

facial vagueness challenge necessarily fails both standards

identified in Stevens. See Hoffman Estates, 455 U.S. at 497.

See also Hightower, 693 F.3d at 76-80.

Holden also makes a facial challenge based on the

overbreadth doctrine. Under this doctrine a law may be

invalidated under the First Amendment "as overbroad if 'a

substantial number of its applications are unconstitutional,

judged in relation to the statute's plainly legitimate sweep.'"

Stevens, 559 U.S. at 473, quoting Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008).

We need not dwell on this point because "every court to have

expressly considered the issue" has rejected the applicability

of the overbreadth doctrine in the context of the Second

Amendment (citations omitted). Hightower, 693 F.3d at 81-83

(citations omitted). The reason for this is that the Supreme

Court has recognized facial attacks alleging overbreadth in

limited circumstances that do not include the Second Amendment

context. See id. at 82. Holden's facial attack fails.

4. Due process. Holden raises a number of procedural due

process claims that we now address. First, he claims that G. L.

c. 140, § 131 (f), is flawed because it does not provide for a

prerevocation or presuspension hearing before the licensing

authority. Generally, such a hearing is required, but not

always. The Supreme Court has recognized that "on many
 28

occasions . . . where a State must act quickly, or where it

would be impractical to provide predeprivation process,

postdeprivation process satisfies the requirement of the Due

Process Clause." Gilbert v. Homar, 520 U.S. 924, 930 (1997).

"Protection of the health and safety of the public is a

paramount governmental interest which justifies administrative

action. Indeed, deprivation of property to protect the public

health and safety is '[one] of the oldest examples' of

permissible summary action." Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. 264, 300 (1981), quoting Ewing v.

Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950). The

Court has "traditionally accorded the [S]tates great leeway in

adopting summary procedures to protect public health and

safety." Mackey v. Montrym, 443 U.S. 1, 17 (1979). In such

circumstances, full predeprivation process is not required,

provided "prompt postdeprivation review is available for

correction of administrative error." Id. at 13. We conclude

that revocation of a license to carry without a predeprivation

hearing is justified by concerns of public health and safety.

See Kuck v. Danaher, 600 F.3d 159, 166 (2d Cir. 2010); Rabbitt

v. Leonard, 36 Conn. Supp. 108, 111, 115-116 (1979).

General Laws c. 140, § 131 (f), provides that an "applicant

or holder aggrieved by a denial, revocation or suspension of a

license . . . may, within . . . 90 days after receiving notice
 29

of such denial, revocation or suspension . . . , file a petition

to obtain judicial review in the district court having

jurisdiction. . . . A justice of such court, after a hearing,

may direct that a license be issued or reinstated to the

petitioner if such justice finds that there was no reasonable

ground for denying, suspending or revoking such license and that

the petitioner is not prohibited by law from possessing same."

The Appeals Court has interpreted the statute to require an

evidentiary hearing. See Godfrey, 35 Mass. App. Ct. at 44-45;

Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543,

547 (1983). Section 131 (f) affords prompt, comprehensive

postdeprivation review. Contrary to Holden's assertion,

unsupported by any authority, a District Court judge is not

limited to review of an administrative record established by the

summary action of the licensing authority. In this respect,

review under § 131 (f) is broader than review under G. L.

c. 30A, § 14. An aggrieved person may present relevant evidence

tending to show that he or she is a proper person to hold a

license to carry a firearm, or that the action of the licensing

authority was arbitrary or capricious, or an abuse of

discretion. Moyer, supra at 546. Indeed, the evidentiary

hearing in this case was extensive, and new evidence was

offered.
 30

Holden contends that the burden of proof in cases under

G. L. c. 140, § 131 (f), shifted from the applicant or the

license holder to the licensing authority as a result of the

Supreme Court's decision in McDonald, 561 U.S. at 791, which

made Heller applicable to the States. His reliance on Highland

Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 244

(1988), is misplaced. That was a case involving the First

Amendment, and we see no reason to extend the holding in the

Highland Tap decision beyond the facts of that case.

Significantly, the Supreme Court has said that "[o]utside the

criminal law area, where special concerns attend, the locus of

the burden of persuasion is normally not an issue of [F]ederal

constitutional moment." Schaffer ex rel. Schaffer v. Weast, 546

U.S. 49, 58 (2005), quoting Lavine v. Milne, 424 U.S. 577, 585

(1976). As the United States Court of Appeals for the First

Circuit said on precisely this issue, "[t]he Massachusetts

legislature could have reasonably concluded that, on review in

the district court, the burden should be placed on the aggrieved

individual, who would be in the best position to present

relevant evidence as to the suitability requirement."

Hightower, 693 F.3d at 87. For example, Holden could have shown

(but did not here) that he benefited from any number of

therapies, such as marital counselling, anger management, or

psychiatric or psychological counselling, in which he
 31

successfully addressed whatever issues gave rise to the domestic

abuse that resulted in the finding of his unsuitability. See,

e.g., G. L. c. 140, § 131 (d) (ii), (iii) (allowing persons

confined for mental illness or treated for substance abuse to

present affidavit of physician indicating person is no longer

disabled, or is cured).10

Holden next argues that the chief's reliance on hearsay

evidence, both in his summary actions and in his testimony at

the evidentiary hearing, violates due process. In particular,

Holden contends he was deprived of the right to be heard "at a

meaningful time and in a meaningful manner." Armstrong v.

Manzo, 380 U.S. 545, 552 (1965). The hearsay evidence on which

the chief relied was reliable and relevant, and it was the kind

and quality of evidence on which judges often rely in probation

revocation hearings. See Durling, 407 Mass. at 120-122. The

chief testified, and he was subjected to lengthy cross-

examination. The police officer who responded to the domestic

abuse call testified to what he observed about the condition of

Holden's wife, as well as the information he received from

10
General Laws c. 140, § 131 (d) (ii) and (iii), was
amended by St. 2014, c. 284, § 48, effective January 1, 2015.
Section (d) (iii) now provides in part that a person committed
for mental illness or alcohol or substance abuse may, after five
years from the date of confinement, submit the affidavit of a
licensed physician or clinical psychologist stating that the
person is not disabled in a manner that shall prevent the
applicant from possessing a firearm, rifle, or shotgun.
Reference to the statute should be had for further details.
 32

Holden's wife and daughter. He, too, was cross-examined. "The

full panoply of procedures usually available at a trial is not

required in the review by a District Court in a case of this

nature. The hearsay rule should not be applied to evidence

proffered by a chief of police in support of the reasonableness

of his denial. The test should be one of relevance." Moyer, 16

Mass. App. Ct. at 547. We discern nothing in the proceedings

before the District Court to suggest that Holden did not receive

a hearing conformably within the requirements of due process.

Holden's final claim is a reassertion of the argument that

the suitability standard permits unbridled discretion. For

reasons previously stated, we reject this claim.

5. Current cause. Holden argues that, as a matter of

substantive due process, the chief must show that he is

currently unsuitable, and that the chief's 2006 policy

impermissibly transforms the domestic abuse incident in question

into a permanent disqualification. Compare Commonwealth v.

Bruno, 432 Mass. 489, 503 (2000) (commitment of person as

sexually dangerous person turns on his "current mental

condition"); Acting Supt. of Bournewood Hosp. v. Baker, 431

Mass. 101, 105 (2000) ("aspect of immediacy of harm [in context

of civil commitment proceeding] arises from the imminency of

discharge as well as from the mental illness"); Hill,

petitioner, 422 Mass. 147, 154, cert. denied sub nom. Hill v.
 33

Massachusetts, 519 U.S. 867 (1996) (continued commitment of

person as sexually dangerous requires proof that he is "still

sexually dangerous").

Although the chief denied Holden's application five years

after the domestic abuse incident, the basis for denial on the

ground of unsuitability was Holden's "violent proclivities,

anger management issues and poor decision-making." Based on the

chief's twenty-seven-year career as a police officer as of the

time he denied Holden's application in 2010, and based on

published estimates that suggest the recidivism rate among

domestic abusers ranges from forty per cent to eighty per cent,

"implying that there are substantial benefits in keeping the

most deadly weapons out of the hands" of abusers, a period of

five years following an incident of domestic abuse without

professional intervention is hardly stale evidence. United

States v. Skoien, 614 F.3d 638, 644 (7th Cir. 2010), cert.

denied, 131 S. Ct. 1674 (2011). See United States v. Booker,

644 F.3d 12, 26 (1st Cir. 2011), cert. denied, 132 S. Ct. 1538

(2012) ("Statistics bear out the Supreme Court's observation

that '[f]irearms and domestic strife are a potentially deadly

combination nationwide,'" quoting United States v. Hayes, 555

U.S. 415, 427 [2009]). We cannot say that the passage of five

years from Holden's domestic abuse of his wife, without

incident, automatically precluded the chief from relying on the
 34

incident of September 10, 2005, when he denied Holden's

application on November 18, 2010. Had Holden been convicted of

assault and battery, that conviction would have disqualified him

from licensure permanently. See G. L. c. 140, § 131 (d) (i).

We are not prepared to determine, on this record, what period of

time must pass before the chief may no longer consider that

event. We note that it is within Holden's grasp to seek

appropriate professional evaluation, and, if necessary,

treatment, and provide the appropriate documentation to the

chief to alleviate his legitimate concerns about Holden's

unsuitability.

We offer no opinion about the validity of the chief's 2006

policy,11 but the issue concerning the application of that policy

was correctly disposed of by the Superior Court judge when he

concluded that there was no evidence that the chief relied on it

in his denial of Holden's application. We are satisfied that

the chief's determination of Holden's unsuitability was based on

current evidence.

6. Substantial evidence. We are also satisfied that the

decisions of the chief were based on substantial evidence. The

judgment of the Superior Court is affirmed.

So ordered.

11
Although not part of the record in this case, the chief
states in his brief that the 2006 policy is no longer in effect.