State high court: Prosecutors who charge illegal gun possession don’t have to prove defendant didn’t have a license

Massachusetts prosecutors who charge people with unlawful possession of a firearm don’t have to prove that the person doesn’t have a gun license. Rather, the person charged can present the license as a defense, if they have one, the state’s highest court ruled today.

The Supreme Judicial Court said it had long held that the absence of a license was not an element of the crime that prosecutors had to prove but having a license was an “affirmative defense.’’ The court said the burden was on the defendant to come forward with the evidence and, if evidence of a license is presented, the burden would be on the prosecution to persuade the judge or jury that the defense did not exist.


“We have consistently adhered to this holding and see no cause to upset it now,’’ the court ruled in the Bristol County case of Commonwealth v. Damian Gouse.

Gouse got out of a car in January 2008 and attacked his former girlfriend, hitting her with his fists and following her down the street, kicking her in the back. The police apprehended him later that afternoon and recovered a gun from the trunk of his car. He was convicted of assault and battery, assault and battery by means of a dangerous weapon, and unlawful possession of a firearm outside of his residence or place of business. He was also convicted of unlawful possession of a firearm having previously been convicted of a violent crime.

The court upheld all his convictions, after rejecting several of his arguments.

Those arguments included a claim that his gun convictions infringed on his due process rights and Second Amendment right to keep and bear arms.

Gouse argued in his appeal that the state law permitted “a presumption of criminality from constitutionally protected conduct – the possession of a firearm’’ in contravention of recent US Supreme Court decisions applying the Second Amendment to the states.

The SJC said, “The premise of this argument is flawed, for it assumes a breadth to those decisions far beyond those holdings.’’


“Nothing in the [Supreme Court] decisions has altered or abrogated our jurisprudence regarding the elements of the crime of unlawful possession of a firearm or the allocation of the burdens of production and proof with respect to the affirmative defense of licensure,’’ the SJC said.

The SJC said the Supreme Court had articulated a right to possess a handgun in the home for self-defense, but the state court pointed out that in Gouse’s case, he was charged and convicted of possessing a gun in his car, not his home, “and there was no evidence or suggestion that it was possessed for the purpose of defending the same.’’


This discussion has ended. Please join elsewhere on