YOUNG, District Judge.
In the wake of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), this petition for a writ of habeas corpus is the vehicle for a massive frontal assault on Massachusetts's gun control legislation. The attack fails.
Aaron Powell ("Powell") brings this habeas petition under 28 U.S.C. section 2254, appealing from a decision by the Massachusetts Supreme Judicial Court ("Supreme Judicial Court") affirming his convictions for, inter alia, possession of a firearm without a firearm identification ("FID") card and carrying a firearm without a license. In his petition, Powell contends that (1) the statutory presumption in Massachusetts General Laws chapter 278, section 7, placing the burden of producing evidence of an FID card and a license to carry a firearm on the defendant, violates his due process rights under the Fourteenth Amendment and his right to bear arms under the Second Amendment;
Subsequent to a bench trial held on January 30, 2009, in the Central Division of the Boston Municipal Court, Powell was convicted of (1) possession of a firearm without an FID card, in violation of Massachusetts General Laws chapter 269, section 10(h); (2) carrying a loaded firearm without a license, in violation of Massachusetts General Laws chapter 265, section 10(n); (3) resisting arrest, in violation of Massachusetts General Laws chapter 268, section 32B; and (4) carrying a firearm without a license, in violation of Massachusetts General Laws chapter 269, section 10(a).
Powell initially appealed his convictions to the Massachusetts Appeals Court, but the appeal was ultimately taken up by the Supreme Judicial Court sua sponte on August 24, 2010. Habeas Pet. 3. On April 28, 2011, the Supreme Judicial Court affirmed all of Powell's convictions. Id.; see Commonwealth v. Powell, 459 Mass. 572, 946 N.E.2d 114 (2011), cert. denied sub nom., ___ U.S. ___, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012). Having exhausted all available state remedies, Powell timely filed a petition for writ of certiorari in the Supreme Court, which was denied on March 19, 2012. Habeas Pet. 4; see Powell v. Massachusetts, ___ U.S. ___, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012).
On April 23, 2012, Powell filed a petition for a writ of habeas corpus in this Court and included with it a memorandum in support of his petition. Habeas Pet.; Pet'r's Mem. The Commonwealth electronically filed an answer to Powell's petition on June 1, 2012, Answer, ECF No. 10, and on the same day, manually filed a supplemental answer with this Court,
The background of this case is set forth in extensive detail in the earlier decision by the Supreme Judicial Court. See Powell, 459 Mass. at 575-76, 582, 946 N.E.2d 114. Because Powell does not contest the accuracy of the Supreme Judicial Court's account, this Court accepts it without inquiry. See 28 U.S.C. § 2254(e)(1) (noting that, on habeas review, "determination[s] of ... factual issue[s] made by a State court shall be presumed to be correct"). Nevertheless, this Court will recount in summary fashion those facts that are pertinent to the disposition of this habeas petition.
Around 11 o'clock in the evening on August 20, 2008, two Boston police officers, Manuel Blas ("Officer Blas") and Scott Roby ("Officer Roby"), were patrolling the Roxbury neighborhood of Boston in an unmarked police cruiser when they came across a large gathering of teenagers and young adults at the intersection of Sonoma Street and Maple Street. Powell, 459 Mass. at 575, 946 N.E.2d 114. The twenty-five or so men and women assembled around the intersection were organized into three distinct groups, and it seemed to Officer Blas as though some sort of altercation was about to take place. Id.
Peering out of the police cruiser, Officer Blas noticed a young man, who happened to be Powell,
Shortly thereafter, Officer Blas asked Powell to explain why he had run away from the police cruiser and whether he had a license for the firearm that he had dropped. Id. at 582, 946 N.E.2d 114. Without first being advised of his Miranda rights, Powell responded by saying that he did not have a firearm. Id. There is no indication in the record that Powell ever answered Officer Blas's question regarding the possession of a firearms license or that he at any point furnished a license to the police.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S.Code), a federal court is permitted to grant habeas relief with respect to any and all claims adjudicated on the merits in a state court only if such adjudication (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). A state court's decision is "contrary to" clearly established federal law if it "applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court's decision involves an "unreasonable application" of clearly established federal law if it "correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. A federal court sitting in habeas is instructed to accord decisions handed down by a state court considerable deference, Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010), and a habeas petitioner must bear the weighty burden of proving that the state court decision in question failed to conform to the letter of Supreme Court precedent or to represent an appropriate extension thereof, see Pelletier v. Russo, No. Civ.A. 05-30014-MAP, 2006 WL 335280, at *5 (D.Mass. Feb. 9, 2006) (Ponsor, J.) (citing Bell, 535 U.S. at 693, 122 S.Ct. 1843).
Massachusetts General Laws chapter 269, section 10(h) authorizes punishment
Powell argues that the statutory presumption embedded in Massachusetts General Laws chapter 278, section 7 abrogates the due process rights accorded him under the Fourteenth Amendment and is violative of his right to keep and bear arms under the Second Amendment. Pet'r's Mem. 12-17, 19-22. This Court will address each of these claims in the order presented.
Powell urges this Court to sidestep the standard enunciated by AEDPA and to review his due process claim de novo. Pet'r's Mem. 7-9. He makes much of the fact that, in deciding his appeal, the Supreme Judicial Court made no mention of any Supreme Court cases or other relevant federal authorities. Id. Yet the Supreme Court itself has already spoken to this very issue, holding that state courts need not even be aware of — let alone cite to — its decisions, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). After referencing myriad Massachusetts cases holding that the burden to produce evidence of an FID card and a license to carry rests solely upon the defendant, the Supreme Judicial Court in Powell closed by remarking that "[w]e have declined to revisit these conclusions, and find no reason to do so now." 459 Mass. at 582, 946 N.E.2d 114 (citation omitted). Admittedly, this terse response likely does little to allay Powell's concerns, and the Court ought note that it is sympathetic to this view. Nonetheless, the reasons proffered by the Supreme Judicial Court more than suffice to show that it adjudicated Powell's due process claim on the merits. See Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011) (holding that AEDPA "does not require that there [even] be an opinion from the state court explaining the state court's reasoning" in order for a court to properly deem a habeas petitioner's claims barred under 28 U.S.C. section 2254(d)).
This Court disagrees, although on somewhat different grounds than those furnished by the Supreme Judicial Court. In arriving at the conclusion that Powell bore the burden of producing evidence of an FID card and a license to carry, the Supreme Judicial Court primarily relied upon its earlier decision in Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977), Powell, 459 Mass. at 582, 946 N.E.2d 114, which involved a defendant's challenge to a conviction under Massachusetts General Laws chapter 269, section 10(a) for carrying a firearm without a license. In Jones, the prosecution put on sufficient evidence to prove that the defendant possessed a loaded handgun while sitting in his vehicle but did not provide any evidence tending to show that the defendant was not licensed to carry such a weapon. 372 Mass. at 404, 361 N.E.2d 1308. Nevertheless, the trial judge in the case informed the jury about the Massachusetts General Laws chapter 278, section 7 presumption and, following deliberation, the jury returned a verdict of guilty. Id. After reviewing the interpretation of Massachusetts General Laws chapter 278, section 7 in other jurisprudential contexts and the interaction of that provision with others comprising Massachusetts's firearms regulatory scheme, the court ruled:
Id. at 404, 406, 361 N.E.2d 1308 (footnote omitted) (citation omitted).
Much confusion stems from Jones's muddled rationale for upholding Massachusetts General Laws chapter 278, section 7. Put simply, the Jones court's oblique and intermingled references to presumptions, defenses, burdens, and the like "left ambiguity as to whether the licensing requirement was an element of the crime or an affirmative defense." Gonzalez v. Dickhaut, No. 08-11657, 2010 WL 4955559, at *3 (D.Mass. Nov.
Yet these interpretations defy the plain reading of both the relevant firearms statutes and Powell's criminal complaint,
Thus, this Court rejects the reasoning adduced in Jones with respect to criminal elements and holds instead that the absence of a license, specifically as applied to the crimes of unlawful possession of a firearm and unlawful carrying of a firearm, cannot properly be styled an affirmative defense. Rather, the legally operative elements of the two offenses under review are, respectively, (1) the possession or ownership (2) of a firearm (3) without an FID card; and (1) the knowing (2) carrying (3) of a firearm (4) without a license to carry said firearm. Cf. Gonzalez, 2010 WL 4955559, at *3 (questioning Jones's wisdom and taking an analogous tack in construing the elements of the crime of possession of ammunition without an FID card as "(1) possession (2) of ammunition (3) without a[n] [FID] card").
The test for determining the validity of statutory presumptions comes from Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). For a presumption to withstand a court's inquiry, "a rational connection between the facts proved and the fact presumed" must exist, and the defendant must have the "comparative convenience of producing evidence of the ultimate fact" at issue. Id. at 467, 63 S.Ct. 1241. In County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court further subdivided statutory presumptions into two distinct types of evidentiary devices: permissive presumptions and mandatory presumptions. Permissive presumptions "allow[] — but do[] not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and ... place[] no burden of any kind on the defendant." Id. at 157, 99 S.Ct. 2213. A permissive presumption will be held to be devoid of constitutional validity only if "there is no rational way the trier could make the connection permitted by the inference." Id. Mandatory presumptions, by contrast, are "far more troublesome" because they "tell[] the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." Id. Consequently, such presumptions are generally accorded a fair degree of hostility. C.f., e.g., Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (holding that a jury instruction stating that "the law presumes a person intends the ordinary consequences of his voluntary acts," id. at 512, 99 S.Ct. 2450 (internal quotation marks omitted), violated a defendant's due process rights, id. at 520-24, 99 S.Ct. 2450); Mullaney v. Wilbur, 421 U.S. 684, 703, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (striking down as unconstitutional a state law requiring jurors to conclusively imply a murder defendant's guilt unless the defendant could show by a preponderance of the evidence that his actions were the result of sudden provocation). A special exception is made, however, for those mandatory presumptions that "merely shift the burden of production to the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution." Allen, 442 U.S. at 157 n. 16, 99 S.Ct. 2213. Where the burden of production may be satisfied by an exceptionally low showing of evidence, the impact of such nominally mandatory burdens "may well be ... no greater than [those] of ... permissive inference[s], and it may be proper to analyze [them] as such." Id.
In determining whether a presumption may be accurately characterized as permissive or mandatory, "the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it." Id. Because
Because the burden of production may be met by a minimal showing — that is, the mere production of a license — the mandatory presumption in Massachusetts General Laws chapter 278, section 7 may be assessed under the standard governing permissive presumptions. See Allen, 442 U.S. at 157 n. 16, 99 S.Ct. 2213. One can rest assured that where the existence of a license is squarely within the knowledge of the defendant and the demonstration of proof to that effect imposes upon the defendant no cognizable hardship, any reasonable trier of fact could indeed ascertain a rational connection between the facts proved (the possession and carrying of a firearm) and the fact presumed (the absence of a license).
At trial in the case at bar, the Commonwealth had to offer up only enough evidence for a rational jury to find beyond a reasonable doubt that Powell possessed a firearm and knowingly carried it beyond the walls of his home or place of business. This it did. See Pet'r's Mem. 15. Powell, however, did not at any time before or during trial produce either an FID card or a license to carry, so as matter of law, he has failed to raise a triable issue. Accordingly, this Court holds that the placement of the burden of production on Powell to provide such evidence did no violence to his due process rights under the Fourteenth Amendment.
The Supreme Judicial Court declined to consider Powell's properly raised claim regarding the constitutionality of Massachusetts General Laws chapter 278, section 7 in light of the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). This Court therefore undertakes a review of this claim de novo. See Watkins v. Murphy, 292 F.3d 70, 75-76 (1st Cir.2002).
The Second Amendment, by its terms, provides a powerful (albeit concise) constitutional guarantee: "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." U.S. Const. amend. II. In Heller, the Supreme Court struck down a provision in the District of Columbia Official Code barring the possession of lawfully owned and operable handguns in the home. 554 U.S. at 635, 128 S.Ct. 2783. In so doing, the Court clarified that an individual's right to maintain arms at her residence for the purpose of protecting herself, her family, or her property is wholly secured by the Second Amendment. Id. at 628, 128 S.Ct. 2783. Just two years later, in McDonald, the Supreme Court further expanded the bounds of the Second Amendment, holding that the right to keep and bear arms applies to state gun control regulation via the Due Process Clause of the Fourteenth Amendment. 130 S.Ct. at 3050 (plurality opinion).
Powell argues that the Second Amendment, as defined in Heller and McDonald,
Id. at 626-27, 128 S.Ct. 2783. The Court made sure to note that the examples it provided did not form an exclusive list of the classes of persons and activities subject to states' regulatory authority. Id. at 627 n. 26, 128 S.Ct. 2783. Justice Alito's plurality opinion in McDonald left undisturbed Heller's premise that the right to keep and bear arms may in certain instances be constrained, concluding that "[d]espite ... doomsday proclamations, incorporation does not imperil every law regulating firearms." 130 S.Ct. at 3047 (plurality opinion). Therefore, in order to prevail on this ground for relief, Powell must demonstrate that the firearms licensing scheme at issue works mischief by circumscribing unreasonably the Second Amendment rights of gun owners.
It is well settled that "the requirement of prior approval by a government officer, or a licensing system, does not by itself render [a firearms] statute unconstitutional on its face." Loadholt, 460 Mass. at 726, 954 N.E.2d 1128 (2011) (internal quotation marks omitted). A challenged firearms licensing statute is generally believed to be valid unless its implementation can be shown to be arbitrary and capricious. Cf. Godfrey v. Chief of Police of Wellesley, 35 Mass.App.Ct. 42, 46, 616 N.E.2d 485 (1993) (reviewing the revocation of the plaintiff's license to carry a firearm and ruling that "[w]hen the license is either not granted or not renewed, the applicant is entitled to relief ... only upon a showing by the applicant that the licensing authority's refusal ... was arbitrary, capricious, or an abuse of discretion." (quoting Chief of Police of Shelburne v. Moyer, 16 Mass.App.Ct. 543, 546, 453 N.E.2d 461 (1983)) (internal quotation marks omitted)). Powell, however, advances no such claim and thus cannot make such a showing. The Supreme Court, on the other hand, has exhibited a rather favorable posture toward licensure, especially when the practice is used to moderate law and order. See, e.g., Heller, 554 U.S. at 626-27, 128 S.Ct. 2783 (dubbing "laws imposing conditions and qualifications on the commercial sale of arms" presumptively valid); cf., e.g., Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) (explaining, in the dismissal of five Jehovah's Witnesses' First Amendment challenge to convictions stemming from organizing a parade in a public street without a license, that "[t]he authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend"). In this way, the Supreme Court has suggested that it is perhaps more appropriate to conceive of the right to keep and bear arms as a limited "property right" rather than as an unlimited "primary right." See Warren Freedman, The
Officer Blas testified at trial that, immediately after apprehending Powell, he asked Powell why he fled when he spotted the police cruiser and whether he possessed a license for the firearm that he dropped while being pursued. Powell, 459 Mass. at 582, 946 N.E.2d 114. Powell's response was that he did not have a firearm. Id. Neither Officer Blas nor Officer Roby gave Powell notice of his Miranda rights. Id. In the run-up to trial, Powell's trial counsel filed a motion to suppress physical evidence recovered from the site of Powell's arrest but did not file a similar motion to suppress the statement he had made to Officer Blas. Pet'r's Mem. 18; Resp't's Mem. 10. Powell asserts that his trial counsel's failure to move to suppress evidence of this statement constituted a violation of his Sixth Amendment right to effective assistance of counsel and that, had the statement been excluded from evidence, a reasonable jury would have returned a verdict in his favor. Pet'r's Mem. 17-19.
Powell again requests de novo review. He argues that the Supreme Judicial Court "completely skipped the merits" of his ineffective-assistance-of-counsel claim and that, as a result, "there is no res
This argument, however, is plainly incorrect. The Supreme Judicial Court, in assessing the strength of Powell's Sixth Amendment claim, employed the standard set out in its earlier decision in Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974). Under Saferian, Massachusetts courts entertaining petitions for habeas relief are directed to engage in "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel ... and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Id. at 96, 315 N.E.2d 878. The First Circuit has held Saferian's version of the ineffective-assistance-of-counsel standard to be coterminous with the one announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), at least for the purposes of habeas. Ouber v. Guarino, 293 F.3d 19, 32 (1st Cir.2002). In Powell, the Supreme Judicial Court concluded that counsel's failure to file a motion to suppress the statement Powell made to Officer Blas regarding whether he had a firearm "did not likely deprive him of `an otherwise available, substantial ground of defence,'" 459 Mass. at 583, 946 N.E.2d 114 (quoting Saferian, 366 Mass. at 96, 315 N.E.2d 878), because the statement served only to supplement other convincing evidence of Powell's guilt and because Powell carried the burden of producing an FID card upon request, id. "Because the Strickland test qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States,'" Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Judicial Court's decision to reject Powell's claim for ineffective assistance of counsel under Saferian did not run afoul of AEDPA.
That said, although the reasoning of the Supreme Judicial Court is eminently sensible, this Court wishes to take the opportunity here to spell out additional reasons — made with express reference to Strickland and its progeny in the federal courts — why Powell's claim for ineffective assistance fails. To prevail on a claim of ineffective assistance of counsel under Strickland, a defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness" and that the deficiency in representation was "prejudicial to the defense." 466 U.S. at 688, 692, 104 S.Ct. 2052. Because "the Constitution pledges to an accused an effective defense, not necessarily a perfect... or a successful defense," courts owe to counsel a measure of deference in their representation of clients. Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir.1994) (emphasis added). In particular, counsel's failure to file a motion to suppress evidence "does not constitute per se ineffective assistance of counsel." Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Rather, where the particular basis for a claim of ineffective assistance stems from counsel's failure to file a suppression motion, "[t]he defendant must show that the constitutional claim has merit and that there was a reasonable possibility that the verdict would have been different without the excludable evidence." Barry v. Ficco, 392 F.Supp.2d 83, 94 (D.Mass.2005) (quoting Commonwealth v. Anderson, 58 Mass.App.Ct. 117, 127-28, 787 N.E.2d 1136 (2003)) (internal quotation marks omitted).
Whether Powell's trial counsel's failure to file a suppression motion to exclude Powell's statement to Officer Blas
Even if this Court were to grant Powell's proposition that his trial counsel's failure to file a motion to suppress the statement made to Officer Blas fell below a standard of objective reasonableness, Powell has not shown that such an error rises to the level of prejudice. In his memorandum in support of his habeas petition, Powell relies heavily upon Commonwealth v. Haskell, 438 Mass. 790, 784 N.E.2d 625 (2003), in which the Supreme Judicial Court held that a police officer's mere request that a suspect in custody furnish a license for a firearm must be preceded by a Miranda warning and that, if a Miranda warning is not given, any response provided by the suspect constitutes a testimonial communication in breach of the suspect's Fifth Amendment right to silence and therefore must be suppressed. Id. at 796-97, 784 N.E.2d 625. Yet Haskell is inapposite to the case at bar. The Haskell court did not so much as consider the issue of ineffective assistance of counsel, so it is unclear whether the error in that case may be rightly attributed to the suspect's presumed counsel or whether blame may be placed wholly upon the shoulders of the patrolman. Moreover, the failure to provide a Miranda warning is not necessarily determinative of prejudice, especially when the weight of the evidence in the record supports the ultimate conclusion reached by the jury. See, e.g., LaFortune v. United States, No. 03-10366-PBS, 2012 WL 5389909, at *5-8 (D.Mass. Nov. 2, 2012) (Saris, J.) (holding counsel's failure to file a suppression motion to be deficient where
Massachusetts General Laws chapter 140, sections 129B and 131 set out the requirements for obtaining an FID card and a license to carry a firearm in the Commonwealth, respectively. See Mass. Gen. Laws ch. 140, §§ 129B, 131. Relevant for the purposes of this inquiry are the provisions of these two statutes that place age-based restrictions on the issuance of FID cards and licenses to carry. Massachusetts General Laws chapter 140, section 129B(1)(v)-(vi) proscribes the granting of an FID card to children under the age of fifteen and to children between the ages of fifteen and eighteen who have not offered documentation confirming parental or guardian consent to the children's receipt of the card, id. § 129B(1)(v)-(vi), whereas Massachusetts General Laws chapter 140, section 131(d)(iv) disallows the issuance of a license to carry to any person who "is at the time of the application less than 21 years of age," id. § 131(d)(iv).
The Supreme Judicial Court held that Powell lacked standing to bring his Second Amendment and Fourteenth Amendment claims because, prior to his arrest, he had applied for neither an FID card nor a license to carry a firearm. 459 Mass. at 589-91, 946 N.E.2d 114. Specifically, the court declared that Powell "ha[d] not demonstrated that a denial of the issuance of an FID card would have been rendered" at all, id. at 589, 946 N.E.2d 114, and that he "ha[d] not demonstrated that a denial of the issuance of a [license to carry] ... would have been rendered on account of his age alone," id. at 590, 946 N.E.2d 114. Powell contends that the Supreme Judicial Court's determination is due no deference under AEDPA because it spoke only to standing. Pet'r's Mem. 10-11.
His contention is correct. Because the Supreme Judicial Court did not reach the merits of the constitutional claims raised in Powell's habeas petition, this Court owes its decision no deference and is at liberty to review this issue de novo. See, e.g., Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). Even so, standing may not be assumed arguendo in the instant case, so before proceeding to the heart of Powell's constitutional claims regarding the legality of Massachusetts's age-restricted firearms licensing scheme, this Court must first decide whether it has Article III jurisdiction to hear these claims at all. Cf. Arizonans for Official English
In general, a person may establish standing to challenge a firearms licensing statute on constitutional grounds only by first submitting to the statute so challenged. United States v. Decastro, 682 F.3d 160, 164 (2d Cir.2012); cf. Allen v. Wright, 468 U.S. 737, 746, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (finding that parents of African American children had no standing to challenge the tax-exempt status of allegedly racially discriminatory private schools where the children had never sought admission to said schools and had no intention to do so in the future). An individual's failure to follow statutory procedures does not present a bar to standing, however, if the individual can demonstrate that applying for a firearms license would have amounted to an exercise in futility. Decastro, 682 F.3d at 164; cf. International Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (noting that minorities need not have formally applied to a company embracing a policy of "Whites Only" to have standing to challenge such a policy).
The Supreme Judicial Court's assessment of Powell's standing to challenge the age-restricted firearms licensing scheme in Massachusetts is erroneous, at least in part. Powell was eighteen years old at the time he was charged for the offenses underlying his convictions. See Powell, 459 Mass. at 573 n. 2, 946 N.E.2d 114. Although he faced no obstacles to lawfully obtaining an FID card, see Mass. Gen. Laws ch. 140, § 129B(1)(v)-(vi), Powell was statutorily ineligible to apply for a license to carry in Massachusetts, see id. § 131(d)(iv). Powell need not prove that he would have been denied a license to carry solely on the basis of his age in order to satisfy standing requirements. Cf. Bach v. Pataki, 408 F.3d 75, 82-83 (2d Cir.2005) (holding that a Virginia resident and domiciliary need not have applied for a New York handgun license in order to have standing to challenge New York's handgun licensing scheme, which included residence or employment in the state among its application requirements). Adopting the alternative view would simply buck common sense and could, in certain instances, have the deleterious effect of insulating insufficiently theorized state court decisions from federal habeas review.
Accordingly, this Court holds that, while Powell does not have standing to challenge his conviction under Massachusetts General Laws chapter 269, section 10(h) for possessing a firearm without an FID card, he does indeed have standing to challenge his conviction under Massachusetts General Laws chapter 269, section 10(a) for carrying a firearm without a license.
Having held that Powell has standing to challenge Massachusetts's license-to-carry statute, this Court now turns to the merits of his constitutional claims.
For better or worse, Heller left to the lower courts the task of establishing coherent analytical frameworks for determining whether a given firearms regulation runs afoul of the Second Amendment. See 554 U.S. at 634, 128 S.Ct. 2783. In the absence of higher-level guidance, the majority of the courts of appeals have adopted a two-pronged approach to challenges to firearms regulations, considering "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee" and, if so, whether it passes "some form of means-end scrutiny." United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010); accord National Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194 (5th Cir.2012); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n. 34 (11th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10 Cir.2010). This Court joins these circuits and adopts the aforementioned two-pronged approach.
The first question to be addressed in this inquiry is whether the age-based limitation on a license to carry in Massachusetts imposes a burden on conduct falling within the scope of the Second Amendment guarantee.
Firearms regulations have a deep and rich heritage in this country, with a lineage that can be traced back before the Founding Era.
Of particular import to the case at bar, however, are those regulations targeting groups of otherwise law-abiding people who were thought to be dangers to public safety. Fearful of the threat that Crown-beholden colonists posed to the ultimate success of the American Revolution, numerous states, including Massachusetts, enacted statutes requiring weapons owners to pledge their allegiance to their state of citizenship and the United States or else face the consequence of disarmament. Id. at 506-07; see also Winkler, supra, at 116 ("The Loyalists disarmed by these rules... weren't criminals or traitors who took up arms on behalf of the British. They were ordinary citizens exercising their fundamental right to freedom of conscience."). During and preceding the early years of the republic, the ability of slaves to own and carry weapons was severely constrained, see Clayton E. Cramer, The Racist Roots of Gun Control, Kan. J.L. & Pub. Pol'y, Winter 1995, at 17, 17-18 ("Restrictions on slave possession of arms in the North American English colonies go back a very long way...." Id. at 18), as was those of free blacks, mulattoes, and Native Americans, see, e.g., Cornell & DeDino, supra, at 516 (identifying an 1806 Virginia law making it mandatory for all free blacks and mulattoes to obtain licenses in order to possess and carry guns or ammunition); Thomas N. Ingersoll, Free Blacks in a Slave Society: New Orleans, 1718-1812, 48 Wm. & Mary Q. 173, 198 (1991) (reporting efforts by the Louisiana Superior Council during the early 1800s "to exclude free blacks from positions in which they were required to bear arms," which included "attempt[s] to demobilize the black militia ... [and] to replace the old black slave-catching crews with a white constabulary"); cf., e.g., Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 323-324 (1991) ("For the settlers of British North America, an armed and universally deputized white population was necessary not only to ward off dangers from the armies of other European powers, but also to ward off attacks from the indigenous population which feared the encroachment of English settlers on their lands."). When one accounts for the fact that the number of minorities and Loyalists in America far exceeded that of whites at the
Classification-based firearms regulations persisted well beyond the Founding Era, although state legislatures moved away from their predominant preoccupation with the perils of race and national allegiance to consider those associated with youth. By the turn of the twentieth century, nearly twenty states had laws restricting the ability of persons under the age of twenty-one to access firearms, and over the course of the next twenty or so years, this number steadily grew. See National Rifle Ass'n, 700 F.3d at 202 & nn. 14-16. Case law from jurisdictions across the country confirms that during the late nineteenth and early twentieth centuries, minors' capacity to purchase and own firearms was significantly curtailed. See United States v. Rene E., 583 F.3d 8, 14-15 (1st Cir.2009), cert. denied, 558 U.S. 1133, 130 S.Ct. 1109, 175 L.Ed.2d 921 (2010) (compiling cases). This was at a time when the term "minor" generally applied to individuals under the age of twenty-one, not eighteen. See Larry D. Barnett, The Roots of Law, 15 Am. U.J. Gender Soc. Pol'y & L. 613, 681-86 app. (2007) (reporting that the age of majority remained twenty-one in most states until the 1970s). Today, all fifty states in the Union, as well as the District of Columbia, feature laws imposing age-based restrictions of firearms, and many of these laws set the minimum age for the possession and use of firearms at twenty-one.
The facts evinced from this quick jaunt through history establish that certain access-limiting conditions were and may lawfully be imposed upon individuals seeking to own and use firearms. Age-based restrictions, enacted for reasons of public safety, are among those lawful impositions. Accordingly, this Court holds as matter of law that Massachusetts General Laws chapter 140, section 131(d)(iv)'s proscription against grants of licenses to carry firearms to adults under the age of twenty-one comports with the Second Amendment and imposes no burden on the rights of eighteen- to twenty-year-olds to keep and bear arms.
Despite concluding that the age-based limitation on licenses to carry to adults twenty-one years of age or older does not unduly burden Powell's right to keep and bear arms, this Court, in the interest of prudence, nonetheless proceeds to assess whether Massachusetts General Laws chapter 140, section 131(d)(iv) passes constitutional scrutiny.
Although the Heller Court foreclosed the use of either rational basis scrutiny or interest-balancing in the analysis of firearms regulations, 554 U.S. at 628 n. 27, 634-35, 128 S.Ct. 2783, it declined to establish a reliable standard for the lower courts to follow. The First Circuit has set out its own standard and, in line with the majority of its sister circuits, views challenged firearms regulations through the lens of intermediate scrutiny. See United States v. Booker, 644 F.3d 12, 25 (1st Cir.2011) (holding that "a categorical ban on gun ownership by a class of individuals
Generally, courts look to the legislative history antecedent to a bill's passage to glean the legislative intent behind the bill's enactment. See McGuire v. Reilly, 260 F.3d 36, 48-49 (1st Cir.2001) (examining legislative history in an intermediatescrutiny analysis). Identifying the meaning behind a Massachusetts bill's enactment, however, proves rather difficult. Admittedly, the proceedings of the General Court of the Commonwealth of Massachusetts
That said, the customary absence of deliberative or motivational impressions from Massachusetts legislation does not automatically render void all laws enacted by the General Court; rather, courts are permitted to reach beyond legislative history and probe other relevant materials — including earlier iterations of a statute's text and even rigorous empirical data — to divine legislative intent. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567-72, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting that the purpose of a public indecency statute enacted by a state legislature that did not memorialize its goings-on in the ordinary course of legislative business was nevertheless "clear from [the statute's] text and history," id. at 568, 111 S.Ct. 2456); Maryland v. Craig, 497 U.S. 836, 851-57, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (sifting through state laws, government reports, and academic literature, in addition to legislative history, to determine that a Maryland statutory procedure
Massachusetts General Laws chapter 140, section 131 finds its origins in a piece of 1906 legislation informally titled "An Act to Regulate by License the Carrying of Concealed Weapons," which reads, in relevant part, as the following:
Act of Mar. 16, 1906, ch. 172, § 1, 1906 Mass. Acts 150, 150. Although it was drafted in fairly broad terms, the Act clearly set forth two prerequisites to obtaining a license to carry firearms in the Commonwealth, the most relevant of which required applicants to be "suitable person[s] to be so licensed." Id. (emphasis added). While the Act failed to list with specificity the traits that would qualify a person to be "suitable" to carry firearms, the use of such a word suggests that the General Court may in fact have been informed by a desire to keep potentially dangerous weapons out of reckless hands.
In 1925, the General Court clarified and further limited the classes of persons to whom a license to carry may be granted, see Act of Apr. 29, 1925, ch. 284, sec. 4, § 131, 1925 Mass. Acts 323, 324 (prohibiting the issuance of a license to carry to, inter alia, "[any] unnaturalized person, [and][any] person who has been convicted of a felony or of the unlawful use or sale of drugs"), adopting for the first time an age-based restriction that proscribed "[any] minor other than one fifteen years of age or over in the employ of a bank, public utility corporation or business of a similar nature whose application is endorsed by his employer" from receiving a license to carry, id. The General Court raised the minimum restricted age to eighteen in 1957 and did away with the earlier business
The amendments of 1998 — known collectively and colloquially as the Gun Control Act of 1998 ("Gun Control Act") — were part of a larger effort to overhaul the existing firearms regulatory regime and were described by contemporaneous sources as implementing some of the most stringent gun laws in the nation at that time. See, e.g., Hillary Chabot, Gun Law Gets a Bit Tougher Today, Bos. Globe, Oct. 21, 1998, at B4. Among the many changes made was an elevation in the age of licensure for the carrying of firearms from eighteen to twenty-one. Act of July 23, 1998, ch. 180, sec. 41, § 131(d)(iv), 1998 Mass. Acts 357, 375 (codified at Mass. Gen. Laws ch. 140, § 131(d)(iv)). But the twenty-one-and-over restriction pertaining to the license to carry was not the only such limitation introduced by the Gun Control Act. Indeed, the General Court included within the Act provisions banning the sale of large-capacity rifles, shotguns, firearms, and feeding devices, as well as the sale of any ammunition or ammunition feeding devices, to individuals under the age of twenty-one. Id. sec. 45, § 131E(a)-(b), at 381-82 (codified at Mass. Gen. Laws ch. 140, § 131E(a)-(b)). The breadth of regulatory change attending the passage of the Gun Control Act, as well as the introduction and progressive raising of age-based restrictions over the course of the past century, provides sufficient evidence that the General Court sought to achieve an important governmental objective — namely, the assurance of public safety.
Collected data on national gun violence across age groups only further substantiate this inference and demonstrate that the age-based restriction at issue here is substantially related to the achievement of the General Court's aforementioned objective. A 1999 report produced jointly by the Departments of Justice and the Treasury found that 24% of all gun homicides that took place in 1997 were committed by eighteen- to twenty-year-olds and that, among individuals ages ten through eighty, "18, 19 and 20 year olds ranked first, second, and third in the number of gun homicides committed" that same year. U.S. Dep't of the Treasury & U.S. Dep't of Justice, Gun Crime in the Age Group 18-20, at 2 (1999), available at http://permanent.access.gpo.gov/lps20136/report.pdf; see also id. at 8 fig.1. The report further stated that nearly three-quarters of the homicides committed by people between the ages of eighteen and twenty involved the use of firearms. Id. at 2. These statistics were in line with a decade-long trend of climbing gun use within the nation's young adult population. Id.
In addition, a recent study conducted by the Department of Justice, the Federal Bureau of Investigation, and the Criminal Justice Information Services Division confirms that young adults between the ages of eighteen and twenty make up a disproportionate share of those arrested for gun-related and violent offenses. See U.S. Dep't of Justice et al., Crime in the United States 2011 tbl.38 (2011), available at
Accordingly, this Court holds that the prohibition on eighteen- to twenty-year-olds found within Massachusetts General Laws chapter 140, section 131(d)(iv) aligns with the letter and spirit of the Second Amendment and passes intermediate scrutiny.
Age is not considered a trait worthy of suspect classification under the Equal Protection Clause of the Fourteenth Amendment. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). As a consequence, "[s]tates may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest." Id. A statute that makes distinctions among individuals on the basis of age is presumed to be rationally enacted, so "the individual challenging its constitutionality bears the burden of proving that the facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Id. at 84, 120 S.Ct. 631 (quoting Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)) (internal quotation marks omitted).
Powell has submitted no evidence to suggest that Massachusetts General Laws chapter 140, section 131(d)(iv) was the product of irrational whim, so he has failed to carry the burden required of him under existing Supreme Court law. Because this Court has already deemed the statute permissible under intermediate scrutiny, see supra section II.D.2.a.ii, by implication, it naturally passes the exceedingly low threshold of rational basis scrutiny.
For the foregoing reasons, Powell's petition for a writ of habeas corpus, ECF No. 1, is DENIED.
First, Powell argues that eighteen- to twenty-year-olds ought be permitted to possess and carry firearms by virtue of the fact that they are legally compelled to do so when country so demands. Pet'r's Mem. 27-29. For proof, Powell makes reference to the Militia Act of 1792 ("Militia Act"), ch. 33, 1 Stat. 271, which required in relevant part that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years ... shall severally and respectively be enrolled in the militia" and that "every citizen so enrolled... shall ... provide himself with a good musket or firelock ... and shall appear so armed, accoutred and provided, when called out to exercise, or into service." Id. § 1, 1 Stat. at 271. This evidence is ultimately unpersuasive, however. The minimum age for militia service varied wildly across the colonies and early states, ranging from as low as sixteen to as high as twenty-one. See, e.g., Act of June 24, 1786, § 2, 1786 N.H. Laws 407, 407 (sixteen); Act of June 2, 1779, ch. 24, § 3, 1778 N.J. Laws 58, 59 (twenty-one); Act of Apr. 3, 1778, ch. 33, 1777 N.Y. Laws 62, 62 (sixteen); Act of Mar. 26, 1784, 1784 S.C. Acts 68, 69 (eighteen); Act of 1757, ch. 1, § 2, 1756-1761 Va. Acts 334, 334 (eighteen). In the Commonwealth's own colonial predecessor, known while under the dominion of the British Empire as the Province of the Massachusetts Bay, the age for militia service was under eighteen. See Act of Jan. 22, 1776, ch. 10, § 2, 1775-1776 Mass. Acts 445, 445 (setting the age for militia service at sixteen). Given the lack of conformity among states with respect to the age of militia service, the Court finds preposterous the notion that the Militia Act fixed the minimum age for firearms use at eighteen. (Powell additionally relies upon some of the amendments to the Militia Act, see Pet'r's Mem. 28-29, including one which lowered the age of militia service to seventeen, Act of Aug. 10, 1956, ch. 1041, § 311(a), 70A Stat. 14, 14 (codified as amended at 10 U.S.C. § 311(a)). The claims founded upon these amendments, however, fail for the same reasons as do those that related to the original Militia Act.) Moreover, even if this Court were to reject the evidence in the historical record and accept Powell's premise, Powell ignores the fundamental fact that "the right to arms is not co-extensive with the duty to serve in the militia." National Rifle Ass'n, 700 F.3d at 204 n. 17 (citing Heller, 554 U.S. at 589-94, 128 S.Ct. 2783).
Second, Powell contends that "[t]he clear line of eighteen as the age of majority applies equally to the exercise of Second Amendment rights." Pet'r's Mem. 30; see also id. at 28-29 (citing various contexts in which eighteen is deemed the age of majority). It is true that eighteen-year-olds enjoy a host of privileges and obligations under both federal and Massachusetts law, not the least of which pertain to marriage, see, e.g., Mass. Gen. Laws ch. 207, §§ 7, 24-25 (setting the minimum marriageable age at eighteen years, with certain exceptions made for qualifying minors), military service, see, e.g., Selective Service Act of 1948, ch. 625, § 3, 62 Stat. 604, 605 (codified as amended at 50 U.S.C.App. § 453(a)) (compelling "every male citizen of the United States, and every other male person residing in the United States, ... between the ages of eighteen and twenty-six" to register for the Selective Service System), jury service, see, e.g., Mass. Gen. Laws ch. 234A, §§ 3-4 (requiring Massachusetts residents between the ages of eighteen and sixty-nine to sit on a jury when called by the Commonwealth to do so), and voting, see, e.g., U.S. Const. amend. XXVI, § 1 ("The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."). Simply attaining the age of eighteen, however, does not carry with it the concomitant right to keep and bear arms. For one thing, the legislative designation of an age of majority simply endows those who have reached that age with "a status, not a fixed or vested right." National Rifle Ass'n, 700 F.3d at 204 n. 17 (quoting Jeffrey F. Ghent, Statutory Change of Age of Majority as Affecting Pre-Existing Status or Rights, 75 A.L.R.3d 228, § 3 (1977)) (internal quotation marks omitted). The shifting age of majority in the United States exemplifies this concept: until the 1970s, most states considered individuals under the age of twenty-one as "minors" in the eyes of the law. See Barnett, supra, at 681-86 app. Moreover, a decrease in the age of majority does not automatically assign all preexisting rights and responsibilities to the individuals at or above the newly applicable age of majority. See, e.g., Mass. Gen. Laws ch. 138, § 34 (pegging the legal age for alcohol consumption in the Commonwealth at twenty-one); Estes v. State, 232 Ga. 703, 707-08, 208 S.E.2d 806 (1974) (holding that a statutory enactment lowering the age of majority from twenty-one to eighteen did not render unconstitutional the exclusion of eighteen- to twenty-year-olds from grand juries in Georgia). The Supreme Court has made clear time and time again that it is the prerogative of state legislatures to establish the age of majority in their respective jurisdictions, so long as such decisions do not ride roughshod over the Constitution. See, e.g., Craig v. Boren, 429 U.S. 190, 199-200, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (declaring an Oklahoma law forbidding the sale of nonintoxicating beer to males under the age of twenty-one and females under the age of eighteen to be violative of the Equal Protection Clause because myriad statistical surveys did not support such differential, gender-based treatment); Stanton v. Stanton, 421 U.S. 7, 17-18, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975) (deeming a Utah child-support statute setting the age of majority for males at twenty-one and the age of majority for females at eighteen a violation of the Equal Protection Clause); Oregon v. Mitchell, 400 U.S. 112, 124-31, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (plurality opinion) (holding, prior to the passage of the Twenty-Sixth Amendment, that an amendment to the Voting Rights Act lowering the voting age in state and local elections from twenty-one to eighteen exceeded the bounds of congressional authority because "the Constitution was ... intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise," id. at 124, 91 S.Ct. 260), superseded by constitutional amendment, U.S. Const. amend. XXVI.
Third, Powell complains that, because Massachusetts General Laws chapter 140, section 131(d)(iv) prohibits eighteen- to twenty-year-olds from receiving a license to carry a firearm, it constitutes a blanket ban on gun ownership for an entire class of persons. See Pet'r's Mem. 32. A revisitation of Heller proves the absurdity of this allegation. In Heller, the Supreme Court found the law under consideration unconstitutional because it "totally ban[ned] handgun possession in the home ... [and] require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times." 554 U.S. at 628, 128 S.Ct. 2783. Conversely, the particular age-based regulation at issue here is not nearly as pernicious, given that persons wishing to attain a license to carry in the Commonwealth are subject to the limitation inscribed in Massachusetts General Laws chapter 140, section 131(d)(iv) only until the age of twenty-one. Cf. National Rifle Ass'n, 700 F.3d at 207 (holding that a federal firearms regulation limiting the sale of firearms by federally licensed firearms dealers to individuals twenty-one years of age or older was constitutionally permissible because, inter alia, "[a]ny 18-to-20-year-old subject to the ban will soon grow up and out of its reach" and "[t]he temporary nature of the burden reduces its severity"). Though the First Circuit has not yet spoken to whether the requirement that an individual be twenty-one years of age to obtain a license to carry amounts to a blanket ban, the logic of its decision in United States v. Rene E., 583 F.3d 8, suggests not. In Rene E., a seventeen-year-old challenged his conviction under a federal law that makes it a crime for juveniles to knowingly possess a handgun. Id. at 10. The juvenile advanced an argument, among others, that the ban on juvenile handgun possession was akin to the firearms ban in Heller but that it was "even more complete, because it applie[d] at all times, under all circumstances." Id. at 12 (internal quotation marks omitted). A unanimous panel upheld the juvenile conviction, and in so doing, impliedly rejected this contention. See id. at 12, 16.
Finally, Powell argues that the twenty-one-and-over limitation in Massachusetts General Laws chapter 140, section 131(d)(iv) is invalid because it was first introduced in 1998, Pet'r's Mem. 37, which is far too recent for the statute to qualify as one of the "longstanding prohibitions on the possession of firearms" that the Heller Court regarded as presumptively valid. 554 U.S. at 626, 128 S.Ct. 2783 (emphasis added). For the reasons mentioned above and below, see supra section II.D.2.a.i; infra section II.D.2.a.ii, this argument too fails.
