Unlawful Possession of a Firearm or Ammunition in Massachusetts: § 10(h) vs. Carrying, Penalties, and Defenses

Police found a gun, a rifle, or ammunition in your home or business, and you don’t have the license Massachusetts requires. That is the charge under G.L. c. 269, § 10(h): unlawful possession of a firearm or ammunition. It is not the same as the carrying charge under § 10(a), and the difference matters a great deal. Here is what § 10(h) covers, what the Commonwealth has to prove, the penalties, and where a defense comes from.

What § 10(h) Covers

Section 10(h)(1) makes it a crime when a person “owns, possesses or transfers a firearm or ammunition without complying with the provisions of section 129C of chapter 140.” In plain terms, it covers having a gun or ammunition without the license, permit, or card the law requires, or without fitting one of the law’s exemptions.

The charge usually comes up when the gun or ammunition is in a home or place of business. That is because carrying a firearm away from your home or business without a license is charged under a different, much more serious law, § 10(a). Ammunition anywhere is charged under § 10(h).

Under the 2024 gun law (Acts 2024, c. 135), G.L. c. 140, § 129C now lists the limited situations in which a person may possess a firearm or ammunition without a license, permit, or card. Some examples: a new resident or a returning resident, for 60 days, as to guns they already had; an heir, for up to 60 days after the gun comes into their possession; a person shooting or handling a gun under the direct supervision of a licensed person for examination, trial, or instruction; and certain nonresidents with rifles and shotguns that are not large capacity or semi-automatic.

What Counts as a Firearm and Ammunition

Section 10(o) adopts the definitions of “firearm” and “ammunition” in G.L. c. 140, § 121, which was rewritten in 2024. Section 121 now defines “firearm” broadly: “a stun gun, pistol, revolver, rifle, shotgun, sawed-off shotgun, large capacity firearm, assault-style firearm and machine gun, loaded or unloaded, which is designed to or may readily be converted to expel a shot or bullet,” including “the frame or receiver” of such a gun and an “unfinished frame or receiver.” Antique firearms and permanently inoperable firearms are excluded.

“Ammunition” means “cartridges or cartridge cases, primers (igniter), bullets or propellant powder designed for use in any firearm, rifle or shotgun,” and tear gas cartridges.

What the Commonwealth Must Prove

Under the Massachusetts model jury instruction for § 10(h) possession at home or business (Instruction 7.620), the Commonwealth must prove each of these beyond a reasonable doubt:

• You possessed the item. Possession can be actual (on you) or constructive (knowledge of the item plus the ability and intent to control it).
• The item meets the legal definition of a firearm, rifle, or shotgun.
• You knew you possessed it.
• You did not have a valid license: neither a license to carry nor a firearm identification card.
• If there is evidence you were exempt, that you did not qualify for the exemption under G.L. c. 140, § 129C.

The licensing element is the Commonwealth’s to prove. In Commonwealth v. Guardado, 491 Mass. 666 (2023), the Supreme Judicial Court held that the absence of a license is an essential element of unlawful possession of a firearm and of unlawful possession of ammunition under § 10(h). It is not something you have to prove.

Possession Under § 10(h) vs. Carrying Under § 10(a)

The two charges are often confused, but they are very different. Carrying a firearm under § 10(a) covers knowingly possessing a firearm, or having it under your control in a vehicle, without a license and without “being present in or on his residence or place of business.” Section 10(h) does not have that limit.

• Where: § 10(a) applies away from your home or business, including in a car. Section 10(h) covers possession generally, including at home or work, and covers ammunition.
• Penalty: § 10(a) carries state prison of 2½ to 5 years, or 18 months to 2½ years in a house of correction, with an 18-month minimum that cannot be suspended. Section 10(h)(1) has no minimum.
• Dispositions: a § 10(a) prosecution can’t be continued without a finding or placed on file. Section 10(h)(1) has no such bar.
• Repeat offenses: a prior § 10(a), (b), or (c) conviction triggers § 10(d)’s enhanced state prison terms. A § 10(h)(1) second offense raises only the fine limit and allows both jail and a fine.

Because of that gap, whether the facts fit § 10(a) or only § 10(h) can be the most important question in a gun case.

Penalties

• First offense, § 10(h)(1): up to 2 years in a jail or house of correction, or a fine of up to $500.
• Second or later offense, § 10(h)(1): up to 2 years in a house of correction, or a fine of up to $1,000, or both.
• Leaving a gun for a crime, § 10(h)(2): leaving a firearm or ammunition unattended intending to transfer it to an unlicensed person “for the purpose of committing a crime or concealing a crime” is punishable by up to 2½ years in a house of correction or up to 5 years in state prison. Because of the state prison term, that is a felony.

Under G.L. c. 274, § 1, a crime that can be punished by state prison is a felony and all others are misdemeanors. A § 10(h)(1) charge has no state prison term, so it is a misdemeanor. Under § 10(e), a firearm involved in a conviction is generally forfeited.

If Your License or FID Card Has Expired

An expired license is not always treated as no license at all. G.L. c. 140, § 121F, sets out two separate rules for an expired license to carry (§ 131) or firearm identification card (§ 129B).

When an expired license is still valid (§ 121F(s)). The license or card “shall remain valid for all lawful purposes” if:

• you applied for renewal before it expired, in which case it stays valid until the renewal is approved or denied;
• you were on active duty in the U.S. armed forces on the expiration date, in which case it stays valid until your release and for at least 180 days after (and, if you apply to renew within that period, until the renewal is decided); or
• no more than 90 days have passed since the stated expiration date, unless the license or card was revoked or suspended.

When it has lapsed but you could still renew (§ 121F(t)). If your license or card is invalid “for the sole reason that it has expired” and you are not otherwise disqualified from renewal, the penalty is a fine of $100 to $5,000, and “section 10 of chapter 269 shall not apply.” In other words, the § 10 charges, including § 10(h), do not apply. That protection does not apply if the license or card was revoked or suspended, is the subject of a pending revocation or suspension (in either case, unless it was only for failing to report a change of address), or if a renewal application was denied. Police who find a person with a firearm more than 90 days after expiration must confiscate the firearm and the expired license or card. The firearm must be returned if proof of reinstatement is provided within 1 year. Section 121F(t) does not apply to temporary licenses under § 131F.

Defenses

• You had a valid license or card. The Commonwealth must prove you had neither a license to carry nor a firearm identification card.
• Your license or card had only expired. Under § 121F(s) it may still be valid, and under § 121F(t) a lapsed but renewable license means a fine instead of a § 10 charge.
• An exemption applies. Section 129C lists situations where possession without a license is lawful, such as the 60-day windows for new or returning residents and heirs, or supervised use. If there is evidence of one, the Commonwealth must disprove it.
• No possession. In a shared home or car, being near a gun is not possession. The Commonwealth must prove you knew about it and had the ability and intent to control it.
• Not a firearm or ammunition under the law. Antique and permanently inoperable firearms are excluded, and the item has to fit the definitions.
• An unlawful search. If the gun was found in a search that violated your rights, a motion to suppress may keep it out of evidence. See search and seizure.
• The wrong charge. If you were at home or work, a § 10(a) carrying charge may not fit the facts.

Why a Lawyer Matters

Gun charges in Massachusetts turn on details: where the gun was, who could reach it, what license or card you held and when it expired, and whether an exemption applies. Those details decide whether you face a misdemeanor under § 10(h) or a mandatory minimum under § 10(a). The Law Office of William J. Barabino in Medford has over 23 years of experience defending Massachusetts gun charges throughout Greater Boston. Call 781-393-5900 to talk about your case.

Related Charges

• Carrying a firearm (G.L. c. 269, § 10(a)): a gun away from your home or business, or in a vehicle, without a license.
• Large capacity feeding devices (G.L. c. 140, § 131M; c. 269, § 10(m)): possession of high-capacity magazines, a separate felony charge.
• Improper storage of a firearm (G.L. c. 140, § 131L): a gun not secured as the law requires, even when it is lawfully owned.
• Firearm while committing a felony (G.L. c. 265, § 18B): having a gun during a felony, with its own mandatory minimum.
• Armed career criminal (G.L. c. 269, § 10G): enhanced sentences for gun charges after certain prior convictions.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.