Home Rule

Massachusetts’ Home Rule Amendment, embodied in sections 1-9 of article II of the Articles of Amendment of the Massachusetts Constitution, grants cities and towns broad regulatory authority.

Section 1 provides as follows:

“It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article. [Note that the term “general court” in the Massachusetts Constitution and state statutes refers to the Massachusetts state legislature.]”

The substance of the Home Rule Amendment is in section 6:

“Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by [section 8 of the Home Rule Amendment, discussed below], and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to [section 3 of the Home Rule Amendment].”

Section 7 limits cities and towns from exercising the authority granted in sections 1 and 6 in specified areas unless such authority is granted by the general court as provided for in section 8. Most relevant to firearm regulation are sections 2 and 6 of section 8, which provide, respectively, that municipalities are not permitted to “levy, assess, and collect taxes” or “define and provide “for the punishment of a felony or to impose imprisonment as a punishment for any violation of law.”¹

Section 8 provides authority for a city or town to petition the state to enact special legislation pertaining only to that city or town. Boston’s assault weapon ban is an example of regulation that was enacted through this process.²

In addition to the Home Rule Amendment, the Massachusetts state legislature has enacted various laws that govern municipal authority to regulate. Chapter 43B of the Annotated Laws of Massachusetts, titled the Home Rule Procedures Act, contains many of these provisions. Significantly, section 13 of chapter 43B defines the parameters of a municipality’s powers, and is virtually identical in substance to section 6 of the Home Rule Amendment.

Moreover, pursuant to section 21 of chapter 40 of the Annotated Laws of Massachusetts, towns in Massachusetts may “make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits.”³ Relevant to firearm regulation, towns may enact ordinances and by-laws “[f]or directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.”⁴

Although the Massachusetts Constitution does not grant any explicit power to counties, those counties adopting a charter under the procedures specifically set forth for counties in section 15 of chapter 34A of Massachusetts Statutes Annotated have the power to “[a]dopt, amend, enforce, and repeal ordinances and resolutions notwithstanding the effect of any referendum conducted prior to the county’s adoption of its charter pursuant to” Chapter 34A.⁵ With respect to regulations for the general health, safety and welfare, however, “[c]ities and towns are and shall remain the broad repository of local police power in terms of the right and power to legislate” in these areas.⁶

Interpretation

In 1999, the Supreme Judicial Court of Massachusetts in Connors v. City of Boston reaffirmed the following guidelines to determine whether a municipal regulation is a valid exercise of the municipality’s home rule authority. In making a determination, a court should:

• “look to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject;”⁷
• “in some circumstances, … infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose;”⁸
• “require a ‘sharp conflict’ between a local regulation and the State legislation before invalidating the local regulation. A ‘sharp conflict’ exists ‘when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law.”⁹

In 1986, in Amherst v. Attorney General,¹⁰ the Supreme Judicial Court of Massachusetts upheld a local by-law prohibiting the discharge of certain firearms under certain circumstances within town limits. In so holding, the court held that the regulation was not inconsistent with state statutes regulating hunting and the safe use of firearms. In so holding, the court found that the existence of state law addressing the same subject a local government seeks to regulate does not necessarily result in preemption of local authority. Rather, if the state’s “legislative purpose can be achieved in the face of a local [regulation]…on the same subject, the [local regulation] … is not inconsistent with the State legislation.¹¹ The court determined that the local law did not frustrate the purpose of state laws regarding hunting and therefore did not conflict with state substantive or procedural laws.¹²

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1. Mass. Const. Amend. art. II, §§ 7(2), (6).[↩]
2. 1989 Mass. Acts 596, §§ 1-7.[↩]
3. Ch. 40, § 21.[↩]
4. Ch. 40, § 21(1). See Brown v. Town of Carlisle, 142 N.E.2d. 891 (Mass. 1957) (holding that ch. 40, § 21(1) permits a local jurisdiction to prohibit the discharge of a firearm on any private property except with the permission of the land owner or legal occupant of the land).[↩]
5. Ch. 34A, § 16(A)(ii).[↩]
6. Ch. 34A, § 16(B).[↩]
7. Connors v. City of Boston, 430 Mass. 31, 35-36 (1999), quoting Boston Gas Co. v. Somerville, 420 Mass. 702, 704 (1995) (internal citations omitted).[↩]
8. Id.[↩]
9. Connors, supra, quoting Grace v. Brookline, 379 Mass. 43, 54 (1979) (internal citations omitted).[↩]
10. 398 Mass. 793 (1986).[↩]
11. Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass. 1973).[↩]
12. Id. at 131.[↩]