Source: Superior Court Model Criminal Jury Instructions
Publication Date: November 13, 2024
Statute: G.L. c. 269, § 10(m)
Note: This instruction applies to offenses committed before October 2, 2024. Definitions of firearm, feeding device, large capacity feeding device, large capacity weapon (§ 121), and license to carry (§ 131) were amended effective October 2, 2024 by St. 2024, c. 135, §§ 20-22, 49. Section 131M was also amended by St. 2024, c. 135, § 71.
The Commonwealth must prove four [five] elements beyond a reasonable doubt:
If evidence of licensing exemption:
5. DFT did not qualify for a statutory exemption.
Critical note (fn. 3): Knowledge element requires proof DFT knew weapon/device qualified as large capacity OR that it was capable of holding 10+ rounds. Commonwealth v. Cassidy, 479 Mass. 527, 536 (2018).
Critical note (fn. 4): Instruction includes proof of lack of license as essential element even though, to date, neither SCOTUS nor the SJC has recognized a Second Amendment right to possess large capacity weapons or feeding devices. Guardado II, 493 Mass. 1, 4 n.2 (2023) (leaving for another day whether LCFDs are "arms" under 2A). Cassidy, 479 Mass. at 540 (pre-Bruen, no 2A right to possess large capacity magazine). See also Ocean State Tactical v. Rhode Island, 95 F.4th 38 (1st Cir. 2024); Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024); Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023).
Large capacity weapon: Any firearm, rifle, or shotgun that is (a) semiautomatic with a fixed large capacity feeding device or capable of accepting any detachable large capacity feeding device; or (b) employs a rotating cylinder capable of accepting 10+ rounds or 5+ shotgun shells, or is an assault weapon. G.L. c. 140, § 121.
Exclusions: weapons made before 1899; manual bolt/pump/lever/slide action; single-shot; permanently inoperable; antiques/relics/props. G.L. c. 140, § 121.
Large capacity feeding device: A fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting (or readily convertible to accept) more than ten rounds of ammunition or more than five shotgun shells. G.L. c. 140, § 121.
Section 10(m) exempts:
1. Federal/state employees, agents, officers (including local law enforcement), military personnel, acting within scope of duties and authorized by competent authority
2. Federally licensed gunsmiths
3. Federal/state/local museums, historical societies, institutional collections open to public
Also: G.L. c. 140, § 131(j)(2): No LTC required for unloaded large capacity rifle/shotgun or unloaded feeding device (including one loaded with blanks) by a veteran's organization on official parade duty or during ceremonial occasions.
Same as firearm possession instruction (). Constructive possession: Brzezinski, 405 Mass. 401, 409 (1989). Ignorance of the law is not a defense.