Bartley-Fox

From Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law (ABC/Clio: 2d ed. 2012).

By Dave Kopel

The 1976 Bartley-Fox law in Massachusetts imposed a mandatory one-year prison sentence for carrying a gun without a permit. This was the first law of its kind in the nation. The law is considered a model by gun control advocates, and a horror story by gun rights advocates.

In 1994, a White House Working Group convened by the Clinton administration issued a secret (but leaked) report setting forth objectives for future national gun control laws. Among the objectives was a national law modeled on Bartley-Fox, providing a mandatory sentence for carrying a gun without a permit. In Massachusetts, local police chiefs and sheriffs have complete discretion about the issuance of handgun carrying permits. In practice, this means that in most jurisdictions, no-one can obtain a permit, while some jurisdictions issue to friends of the chief or to people with other political connections.

The Massachusetts Civil Liberties Union opposed Bartley-Fox because of the risk that non-dangerous people might be sent to prison. The Massachusetts legislature's Black Caucus had also opposed the bill, because of concern about discriminatory licensing and arrests.

The enactment of Bartley-Fox did generate some of the kinds of cases that the Massachusetts CLU had warned about. The first prosecution under Bartley-Fox was of an old woman who was passing out religious literature in a rough part of Boston . (S. Gettinger, "Police and Gun Control," Police (November 1980), p. 15.)

An early test cases of the law was the successful prosecution of a young man who had inadvertently allowed his gun license to expire. To raise money to buy his high school class ring, he was driving to a pawn shop to sell his gun. Stopping the man for a traffic violation, a policeman noticed the gun. The teenager spent the mandatory year in prison.

The most famous Bartley-Fox case, however, involved a man who started carrying a gun after a co-worker assaulted him, and repeatedly threatened to kill him. The co-worker did attack later, and the victim successfully defended himself. The crime victim was then sentenced to a mandatory one year in prison for carrying a gun without a permit. The Massachusetts high court summarized:

The threat of physical harm was founded on an earlier assault by Michel with a knife and became a real and direct matter once again when Michel attacked the defendant with a knife at the MBTA [subway] station. . . . [D]efendant is a hardworking, family man, without a criminal record, who was respected by his fellow employees (Michel excepted).

Michel, on the other hand, appears to have lacked the same redeeming qualities. He was a convicted felon with serious charges pending against him. . . . It is possible that defendant is alive today only because he carried the gun that day for protection. Before the days of a one-year mandatory sentence, the special circumstances involving the accused could be reflected reasonably in the sentencing or dispositional aspects of the proceeding. That option is no longer available in the judicial branch of government in a case of this sort.

Commonwealth v. Lindsey, (Mass. Supreme Judicial Court (March 5, 1986).

The Lindsey case generated such an outcry that defendant Lindsey was eventually pardoned by Massachusetts Governor Michael Dukakis, even though Dukakis was a staunch gun prohibition advocate.

Scholarly evaluations of Bartley-Fox have generated mixed results. Part of the problem is that studies assume that the only thing Bartley-Fox did was impose the mandatory sentence of unlicensed carrying. But in fact, Bartley-Fox also imposed mandatory sentences for use of a gun in a crime. Accordingly, it has been difficult to disentangle the effects of the two different parts of the Bartley-Fox law--one aimed at violent criminals, the other aimed at citizens who merely lacked a permit.

One study was conducted by the United States Department of Justice, which concluded that "the effect may be to penalize some less serious offenders, while the punishment for more serious offenses is postponed, reduced, or avoided altogether." (Kenneth Carlson, "Mandatory Sentencing: The Experience of Two States," Department of Justice, National Institute of Justice policy brief (Washington: Abt Associates, May 1982), p. 15.) The Wright, Rossi & Daly study Under the Gunfor the National Institute of Justice found that the law reduced the casual carrying of firearms but did not significantly affect the gun use patterns of determined criminals.