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Concealed Carry

Archive for the ‘Gun Sense’ Category


There are in the neighborhood of  200 so-called ‘sanctuary cities’ around the United States.

The elected officials running many of these cities have come out publicly since President Elect Trump won the election on November 8th to proclaim to the world that they will not enforce the laws that deal with illegal aliens, and that they welcome illegal aliens to their ‘sanctuaries’.

Their stance in and of itself is illegal, and a premeditated criminal act. They took office swearing to uphold and defend the Constitution of the United States, this would automatically include all laws passed by Congress. They have become traitors to that oath.

I will boil it down in this way; If a bank robber fleeing from the law showed up at your door because he knew of you, and he asked for you to shelter him until the ‘heat’ blew over, and you agreed, what would that make you? You would now knowingly be harboring a fugitive from justice. If caught you would be charged as an accomplice in the crime and sentenced accordingly for harboring a fugitive from justice, aiding and abetting.

For these elected officials to publically take the stance that they willingly/knowingly harbor criminals that have come into our country illegally they also are aiding and abetting. They are engaged in sedition against the citizens of the United States.  In doing so, should an illegal alien commit a crime against any American citizen, the elected officials running the city where the crime was committed are liable for the actions of that illegal alien, and should be arrested and tried with that illegal alien. If that crime be murder they should also be tried for murder, and sentenced accordingly when found guilty.

This is not some far flung theory, it is a fact that immigration laws are being broken and politicians are encouraging it. Officials in office are ignoring the safety of American citizens they swore an oath to protect in order to harbor illegal aliens. They must be arrested, heads must roll in order to bring back the rule of law, no one is above the laws no matter what their ‘title’ may be, or who they think they are, one such case will turn these ‘tough’ Mayors into quivering bowls of repentant jelly…….

Mark Shean


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For the Kel-Tec KSG shotgun owner, a brand new design feed tube selector switch (FTSS) for the #KSG. This is a dramatic improvement over the original and any other varients, now you can keep your hands Where They Belong while engaging your task/target/adversary. Never lose your sight picture again, even for an a few seconds. This is a breakthrough design, not merely a protuberance.
Works great with shooting style gloves.
FTSS DEMO on Youtube for the KSG,    (just copy and paste link)
pat. pending 62/159,719
Mark Shean/Ed Sinnott- Inventors
Solutions De Innovation LLC
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This information came from these two links below. You should understand the firearm you own and its parts.


Terminology & Nomenclature

Submitted by Mark Shean


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This is a list of 21 States that honor your Ma. LTC. Be advised that this list can change without notice from year to year so before you travel to any of these states give their State House a call and ask for the firearm licensing division to confirm that they still honor the Ma. license.














North Carolina



South Dakota





You may want to take a look at this also; 12 States Closer To Carry Conceal Gun Laws, No Permit Required

And if you want to see what states honor the Multi state licenses scroll down the information at my States  tab.


Mark Shean

Submitted 6-6-2015


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Things happen sometimes that are not under our control, we are all susceptable to being blindsided from time to time. If someone pulls a 209A restraining order against you for instance while they are having an alcohol induced fit ect., and suddenly the police are there taking your firearms/ammo away, here is something for you to consider.

At the time of confiscation, by law, the police are supposed to do two things.

1. As of 8-13-2014 under bill H.4376, If your firearms are confiscated by the licensing authority, (the police) shall at that time inform the person(s) in writing of their ability to transfer their firearms to an independently licensed individual OR dealer, after the 209-A has been terminated by the court, plaintiff, or expires and is not renewed.

2. The officer shall, at the time of confiscation, provide to the person whose firearm(s)/ammo has been confiscated, a written inventory and receipt for any/all of the firearms/ammo confiscated, and the officer and his employer shall exercise due care in the handling, holding and storage of these items. Nothing listed on the inventory should mysteriously be ‘missing’ later on when/if the court terminates the disqualifing conditions…..

So now that you know this, if there is someone that you can trust, and will help you, this is a templet letter he/she can use to present to the police in order to legally take custody of your firearms at the termination of the 209-A, should you want to transfer them at that time instead of taking them back, otherwise barring any other condition that may prevent you from taking them back yourself the court should release them back to you.


I John Q. Doe II, LTC # 12345678A, of 123 Main St. (name of town) zip code, phone #.               With the permission of (persons name), who was recently under a 209A restraining order. I will take transfer of said person’s firearm(s) and ammunition as listed on the enclosed/attached copy of official inventory list, as is a legal proceedure under H.4376 passed on 8-13-2015. I will keep them stored as to maintain compliance with applicable state firearm storage.

Sincerely, John Q. Doe II,  +(signature)

Printed name of person whose weapons were confiscated and his/her signature below yours.

I would add this whole section along with the letter.

Directly from the 188th session 2013-2014, H.4376, Sec. 42, Section 129D of said Chapter 140; An Act Relative to Reduction of Gun Violence.

SECTION 42. Section 129D of said chapter 140, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
Upon revocation, suspension or denial of an application for a firearm identification card pursuant to section 129B or for any firearms license if the firearm identification card is not then in force or for any machine gun license, the person whose application was so revoked, suspended or denied shall without delay deliver or surrender to the licensing authority where the person resides all firearms, rifles, shotguns and machine guns and ammunition which the person then possesses unless an appeal of the revocation or suspension is pending.

The person or the person’s legal representative shall have the right, at any time up to 1 year after the delivery or surrender, to transfer the firearms, rifles, shotguns and machine guns and ammunition to any licensed dealer or any other person legally permitted to purchase or take possession of the firearms, rifles, shotguns and machine guns and ammunition and, upon notification in writing by the purchaser or transferee and the former owner, the licensing authority shall within 10 days deliver the firearms, rifles, shotguns and machine guns and ammunition to the transferee  or purchaser and the licensing authority shall observe due care in the receipt and holding of any such firearm, rifle, shotgun or machine gun and ammunition; provided, however, that the purchaser or transferee shall affirm in writing that the purchaser or transferee shall not in violation of section 129C transfer the firearms, rifles, shotguns or machine guns or ammunition to the former owner.

The licensing authority shall at the time of delivery or surrender inform the person in writing of the authority’s ability, within 1 year after delivery or surrender, to transfer the firearms, rifles, shotguns and machine guns and ammunition to any licensed dealer OR OTHER PERSON LEGALLY PERMITTED, (as in licensed) TO PURCHASE OR TAKE POSSESSION.


In my opinion, reasoning to the contrary does not reflect what H.4376, passed on 8-13-2014, clearly states in the above section. As this outline does not describe a transfer of ownership or use of an FA-10 form, it is merely a written transfer to another licensed individual taking custody, not ownership of the firearms until any disqualifying conditions have been dropped. It is true that a licensed individual can sell up to four firearms in a year, and more through an FFL but it is also true that this cannot be done legally by someone with a suspended license, so it does not pertain for this transfer.


NOTE: If the police don’t know, or pretend not to know this about this law, and refuse to research it or turn over the firearms/ammo, your second step should be to send the police chief the request by certified mail return receipt. If then he will not be reasonable your next step would be to go to court and petition a judge, who is supposed to know the laws, he should inform the police to release the firearms to you per law, see Gun Sense #13, Petition for Judicial Review. I hope no one has to go to this extreme, but guns can be a big tug of war…..

ADDITIONAL NOTE: Section 44. Said section 129D of said chapter 140, as so appearing, is hereby further amended by inserting after the third paragraph the following paragraph:-If the licensing authority cannot reasonably ascertain a lawful owner within 180 days of acquisition by the authority, the authority may, in its discretion, trade or dispose of surplus, donated, abandoned or junk firearms, rifles, shotguns or machineguns or ammunition to properly licensed distributors or firearms dealers. The proceeds of the sale or transfer shall be remitted or credited to the municipality in which the authority presides to purchase weapons, equipment or supplies or for violence reduction or suicide prevention; provided, however, that no firearm, rifle, shotgun or machinegun or ammunition classified as having been used to carry out a criminal act pursuant to section 131Q shall be considered surplus, donated, abandoned or junk for the purpose of this section. 

Note: Section 44 is a  great incentive for the police to cling to the firearms and to block transfer under any pretense to someone you would want to hold them for you pending any court decision. Legal/illegal theft of valuable property is what this section could be used for. So stalling for 180 days would be in their best interest. Contact the Commonwealth Second Amendment Lawyers if this happens, the link is at my website. 

Also, there are no stipulations in H.4376 as to a 209A vs. any other reason why the police would not turn the guns over to a licensed individual.

Ma. Gun Transaction Portal;

I hope this is helpful, of course it may not be applicable to cover all reasons for confiscation.

Submitted by Mark Shean, 4-22-2015





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Changes in the gun laws as of 8-13-2014;

H.4376 Highlights Breakdown:

H.4376 Accomplished many positive things for Ma. gun owners including Juniors:

Critical Training language correction for juniors, this now allows trainers to provide firearms to junior shooters and hunters with parental consent. Allows juniors to apply for their FID card a year early,(age 14) and receive their card at 15, price $25. NOTE:  Age 15 up to 18, The fee for FID is $25, as stated in the MA General Law (Chapter 140, section 129B)(9C) Except as provided in clause (9B), the fee for an application for a firearm identification card for any person under the age of 18 shall be $25, which shall be payable to the licensing authority and shall not be prorated or refunded in the case of revocation or denial. The licensing authority shall retain 50 per cent of the fee and the remaining portion shall be deposited into the General Fund. Notwithstanding any general or special law to the contrary, licensing authorities shall deposit quarterly that portion of the firearm identification card application fee which is to be deposited into the General Fund, not later than January 1, April 1, July 1 and October 1 of each year.

Pepper Spray: Persons over the age of 18 will no longer need an FID card to buy pepper spray. 15-17 year old persons can still possess pepper spray but must have an FID card or class D license.

FID: Chiefs must FIRST petition the court to deny someone his/her FID card. Because it is in the courts, it will give GOAL and Com2A the ability to track what chiefs are up to.

NOTE: In Ma. courts will probably err with the chief as the courts here are not very gun friendly as we all know. So this still could allow abuse from certain chiefs that frown on mere civilians having firearms. The courts should override chiefs in frivolous cases if there were actual justice in play, time will tell.

Both licenses: The term ‘prohibited person’ will now be used for both licenses, FID and LTC, instead of ‘unsuitable’. This change in language provides a much needed change in the framework around who may be denied

The former ’90’ day ‘Grace Period’ is now GONE. Gun owners will now receive a receipt upon renewal which makes their old license valid until the state gets off its thumbs and sends to you your new license. With that receipt and your expired license you may still buy guns and ammo. NOTE: Don’t lose that receipt, ALWAYS make copies of ANYTHING gun related and file it!

Mental Health: Added language so that people who voluntarily seek mental health care WILL NOT be listed as a prohibited person through the NICS. NOTE: This information is/has been private and confidential between you and your doctor anyway if the courts were never involved its not in your record……

Olympic style handguns: There will now be exemptions for the sale of Olympic style handguns in Ma. They were previously not legal to transfer by licensed dealers in Ma. NOTE: It finally dawned over Marble Head that criminals have never committed any crimes with Olympic handguns……..

Curios and Relic Collectors: Collectors can now purchase handguns and other firearms that once did not comply with the so-called ‘approved firearms roster’. NOTE: Antique bolt action ‘assault’ rifles, break open revolvers and such……

Online Portal: Newly created online portal for face to face E-FA-10 transfers, preserving private sales. Go to the Ma. State Police website or Gun Sense #36, hopefully it will be working. NOTE: Remember, you can only sell up to 4 firearms in a linear year on your LTC.

LTC: The class A+B Licenses were eliminated, going forward there will be only one License to Carry (LTC) in Ma. If you already have a class B license it will remain in effect until it expires. NOTE: Please read Gun Sense #39.

Chiefs now have to put denials in writing for the LTC within 40 days of you applying, (the police have been known to violate this 40 day law, if this happens please read Gun Sense #13). For the first time, gun owners can appeal their LTC restrictions in District Court, NOW the burden of proof is on the police chief to defend the denial or restriction in the District Court, in writing. NOTE: We should have never been guilty until proven innocent in the first place! This may burden some chiefs from arbitrarily denying people offhand as some of them were infamous for doing in the past…..

Confiscation: If your firearms get confiscated the licensing authority, (the police) shall at that time inform the person(s) in writing of their ability to transfer their firearms to an independently licensed individual. NOTE: This one is curious, you always could do this, they just did not tell you outright, so I made it a point to tell people in my class of their right to do this. Please see Gun Sense #46

Lost or Stolen Firearm(s): A person, who in good faith, reports their firearm lost or stolen, in a timely manner, (when you discover it is missing) shall NOT make the police consider him/her a ‘prohibited person’. NOTE: There is a new requirement when renewing your license that you write an affidavit stating that: “No guns were lost or stolen from me within the last six years”. Obviously if there had been you would have reported it anyway…..gee.

Military Personnel: The time for an active duty military member to renew their license has gone from 90 days to 180 days. Active duty military members are now exempted from having to take the ‘mandatory’ gun safety training classes. NOTE: In my opinion this sets them up for failure, not knowing the state gun laws is a recipe for felony charges. I suggest strongly that you read these following articles from my Gun Sense series so your not blindsided by the laws, I’m sure that you have better things to do with your money and time than to be in court: #13, #14, #19, #20, #22, #26, #27, #33, #34, #35, #36, #37, #38, #39, +#43, These will not take long to read, thank you for your service to our country!

Recap: Police Chiefs gain discretion over the issuance of FID cards, however they must petition the District Court in order to deny an FID card for any non-statutory reason.

Court ordered commitments (and relief) relative to mental illness, alcohol, and substance abuse will now be reported to the Federal National Instant Check System, (NICS).

Suitability is better defined.

Improved opportunities to appeal suspended, revoked, denied, or restricted licenses to carry.

Expired licenses remain valid indefinitely if the renewal process has been started prior to your license expiring. NOTE: Contact the police by email at least 3 months before your license expires, save that email as proof you started the renewal process, don’t lose that email! 

Reduced penalties for failing to renew a license. NOTE: If you decide that you no longer want a gun license, legally get rid of your guns,(E-FA-10/ or gun dealer) prior to your license expiring. Now your off the radar because you never go back to renew anyway. OK? See Gun Sense #36

License renewals now require an affidavit stating that: “The licensee, (you) has not had any firearms lost or stolen since their last license was issued”.

Increased penalties for carrying on school grounds, improper storage, and failure to report a lost or stolen firearm.

Elimination of the Class B license to carry-GONE!

Elimination of the licensing requirement to posses or buy pepper spray for anyone 18 or older, but age 15-17 still need an FID or class D license to buy pepper spray.

Requirement to report face to face firearm(s) transfers in ‘real time’ E-FA-10 form, See Gun Sense #36.

Is this new legislation great? No, but it’s better than it was with more room for improvement. If you stop putting the same people in office over and over maybe things will improve more…..

Submitted 8-13-2014

by Mark Shean,

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The link to this demonstration is on youtube.

Also an installation video for the FTSS for the KSG on YouTube

Also, 15 rounds in 9 seconds with KSG on YouTube

But read first;

I wanted to demonstrate the relatively new 15 shot Kel-Tec #KSG 12ga. shotgun as a home defense firearm. The distance I choose is 15 feet because I am simulating a scenario inside the home, possibly in a bedroom. The day I made this video it was cold and windy, about 30 degrees with a wind chill of about 20, my fingers were freezing. There is wind noise on the video, I tried to get most of it filtered out, if you put your volume up you will be able to understand me fairly well. This video was unscripted, I just turned on the camera and started talking.  The only thing that I would like to have said over was the info about slugs, I had meant to say that a 12ga. slug delivers 2000 pounds of kinetic energy at 100 yards, instead I believe I said it delivers 2000 pounds per square inch at 100 yards, again this was unscripted and I did not have the luxury of additional ‘takes’ like in the movies. It is my very first video.

I set up three B-27 silhouette targets so that I could swing from one to the other as I shoot, alternately 5 shots each, I did not want to use one static target. By using three I can demonstrate the accuracy while quickly firing. When I begin shooting the #KSG I fired the first 8 rounds in 3-4 seconds, then you will see me pause and look for the selector switch before I continue to fire the remaining 7 rounds, the total elapsed time is 12 seconds from start to finish including that mid way pause, (should be 3-4 seconds quicker)…. The selector switch is quite small and difficult to locate without looking for it unless you have larger hands, mine are medium size. The selector switch is located to the rear of the trigger guard, and most of us will not be able to reach it with our thumb unless we disengage/leave the trigger, and move our hand to the rear to select the next tube before re-engaging the trigger, I do not like that. My next follow-up video will incorporate a ‘fix’ to the selector switch problem, and there will be a ‘smoother’ result, on a less windy warmer day..with less talk….

Mark Shean

 NEW, First video for upcoming Feed Tube Selector Switch for the #KSG, (FTSS). The website is  We are now up and running as of the 16th, January 2016. This switch is a dramatic improvement over the factory and current variants and is not merely a protuberance.

If you like the attached video on youtube please share it and rate it Thanks!!      <——Here is the new video, just made in June 2015 with the new prototype switch we have developed.

Production has started, Pat. Pending 62/159,719

Solution De Innovation LLC



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The Ma. E-FA10 form is a transfer of ownership form, it is not gun registration. When you buy a firearm at the gun store, or from an individual, you need to fill out the E-FA10 form online now, by law, to transfer ownership of that firearm. If you did not do that in Ma. you would be committing a felony. See ‘Notice’ 20 lines down as to why this is not registration. See (GS#36) and (GS#45)

If you want to register your firearm(s) on a voluntary basis only in Ma. you can, but why would you? Hold off on that….

When registration is the goal of any government body it is always proceeded with unconstitutional, very dire threats to the entire population of the impending penalties/prison time, if you don’t comply by such-n-such a date you will become an overnight felon, we will come after you, we will kick in your doors!….. those types of threats. Such as oath breakers in Connecticut and New York have just tried to impose on the citizens of those two states as of the deadline 1-1-2014, using the lie of ‘gun control’ to stop mental cases or Islamic terrorists from killing people as a reason. Only a very small fraction have complied, (best kept media secret) the rest have publicly said to the oath breakers in office to go to hell, come take them! The police have said they will not enforce the dictate because it would needlessly put them in harms way. Now, there are very nervous politicians in those two states, as they should be……

If you move into Ma. from out of state with your firearms, you have 180 days to get a LTC to legally keep them, in the meantime they would be properly stored under Ma. law, Gun Sense #22, Firearm Storage and ‘Direct Control’ in Ma.  you could not use them until you received your Ma. license. Once you obtain your LTC you are under NO obligation to turn in a list of your firearms. If you want to sell any of them in the future, at that point you would be required to file the E-FA10 Transfer of Ownership form.

NOTICE: Ma. Firearms records are EXEMPTED from the public records statute.  G.L c.4,§7 (clause twenty-six)(j).  The Firearm Record Bureau (FRB) may not disseminate firearms records “to any person, firm, corporation, entity or agency except criminal justice agencies as defined in chapter six and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request.”  G.L. c. 66, § 10(d). Note: Such as Law Enforcement in tracking ownership of a gun that was used in a crime.

State of Ma. Firearm Transaction list link, choose option/info you need;

Firearm registration is Unconstitutional;

It falls under Section 103(i) in the Brady Law:
(i) PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO FIREARMS- No department, agency, officer, or employee of the United States may–
(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or
(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons prohibited, (convicted criminals) by section 922 (g) or (n) of title 18, United States Code or State law, from receiving a firearm.

NOTE:….”the right to keep and bear arms shall not be infringed.” Infringe means to encroach. You cannot even encroach on that right. Any thing which restricts in any manner the right to keep and bear arms for the law abiding is Unconstitutional.

This decides what type of country we live in: a Constitutional Republic where individuals have unalienable rights, or an unlimited democracy where individuals have only privileges the fickle/ignorant media led  majority grants them. We live in a Republic, as instituted by our Founders.

It’s real easy, “SHALL NOT BE INFRINGED”, is powerful language, it is up there with “Congress shall make no law…” in the First Amendment.

If the feds are databasing gun owners they are infringing their right to keep and bear arms by requiring an unreasonable action on the part of the gun owner. A database has the great potential to be abused, history easily shows us, therefore it is in itself an infringment of the right for a lawful citizen to own a firearm.

Under the 4th Amendment; Unreasonable searches and seizures are those that are without cause, actually without probable cause.Probable cause means that the police have to have a good reason to believe that someone has broken the law. The police can not do anything until they convince a judge that they have probable cause, and then they can get a warrant which gives them permission to search. Without a warrant they would need YOUR permission to search your car, home, etc. Don’t give it.

 Under the 14th Amendment; No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or PROPERTY, (such as guns), without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

In Ma. a 209-A restraining order can/does violate your 14th Amendment protection based on nothing but hearsayallowing someone to manipulate the court as a tool of harassment. This is done prior to you’re due process of law!

Mark Shean & Son

Submitted 10-21-2014

About Me

Reviews    Gun Sense #44, KSG 12ga. Shotgun Demonstration


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Gun Sense #42, Legal Resident Aliens, (Federal Law) and license info.

Question: Can a LEGAL Resident Alien apply now for an LTC, (license to carry) in Massachusetts ?

Answer: Yes, a Legal Resident Alien (so-called ‘green card’ holder) can apply for an LTC on the SAME BASIS as a citizen.  It is the result of the federal court, Fletcher v. Haas decision, found here:  Civil Action No. 11-10644-DPW.

If you run into a Police Department, (PD) that refuses to process your application even though you are a Legal Resident Alien, please contact Comm2A (though the word is pretty much out, and PD’s seem to be processing such apps) as they should be.

Permanent legal resident aliens (so-called ‘green card’ holders) are treated the same as citizens with a license duration of 6 years and the $100 fee. The case was all about fairness for legal resident aliens – and we scored a decisive win.

NOTE: A yearly license fee for Non-residents is $100 per year, which I believe is designed to discourage people from out-of-state.

Commonwealth Second Amendment group, (lawyers)  or  or 617-942-0660

Comm2A | PO Box 301398 | Jamaica Plain | MA | 02130

Licenses in Ma. +

Below is an explanation of the graduated licenses under Massachusetts Law as dated back to Oct. 21, 1998. And “Green Card” firearm licensing info. Revisions on 8-13-2014.
CLASS D: You need this license from age 15 to 17, To Possess pepper spray, mace or other chemical incapacitating agents legal in the State of Massachusetts. NOTE: As of 8-13-2014 once you are 18 or older you no longer need this license or gun license to buy Pepper Spray, (sometimes called mace) . See Gun Sense #41
FID: Possession of low capacity rifles and shotguns. Low capacity is defined as a shotgun with a loading capacity of five rounds or less and a rifle with a loading capacity of ten rounds or less. $25 for age 15-17. For all other residents $100.
CLASS B: Gone as of 8-13-2014 law revisions. See Gun Sense #41
Class A: Known as a ‘LTC,’ Possession of high capacity handguns. High capacity is defined as a handgun with a loading capacity of more than ten rounds. This is the only license that allows an individual to carry a concealed weapon if authorized by the licensing authority in your town, $100
NOTE: The possession of electronic incapacitators (stun guns) is illegal, there is no license available and if caught with one in your possession you will be arrested, fined up to 10,000 dollars, and can be jailed for up to 2 1/2 years in the house of correction.
“GREEN CARD” Information: I verified this information through the Framingham State Police, (Inaa Hoyle) who also verified it through the Firearms Record Bureau in Chelsea Ma..
If you have a so-called ‘green card’ you may apply for an LTC, (license to carry). You must still take the state approved firearm safety class before applying for either an FID or LTC.
1. Call the Firearm Records Bureau at 617-660-4780, (prompt # 2) for a permit application, to apply for a non resident alien license.
2. You can take the Ma. Firearm Safety class any time and hang on to the Certification as proof you took the required course
Permanent Legal Resident Alien:
Gun Sense #42, Legal Resident Aliens, (Federal Law)

Mark Shean & Son
About Me

Reviews    Gun Sense #44, KSG 12ga. Shotgun Demonstration

For the Ma. Firearm Transaction List go to;   and choose the option you need.

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This was Sent to me by Jeff Wernick of Second Call Defense. He has given me permission to reprint it here. I feel it is vital information that can protect you in the future, but I hope that you never need it. Education is power.

5th Amendment Update: Why silence is no longer golden by Sean Maloney, Esq.

Nearly 70 years ago, Supreme Court Justice Robert Jackson wrote in Watts v. Indiana: “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances. “I  have shared Justice Jackson’s wisdom over the course of my legal career with anyone who would listen. As a Criminal Defense Attorney, I consider Justice Jackson’s statement to be the single most important advice given.  Now, after the United States Supreme Court’s recent decision in Salinas v. Texas, this once-trustworthy advice could be equivalent to malpractice. Protecting your rights is no longer as simple as just shutting up.

Let me explain why.

The 2 Kinds of Police Interrogation You might think an interrogation is an interrogation. But in reality, there are two kinds:

A Custodial interrogation is an interrogation of a person in custody who is reasonably suspected of being directly involved in or responsible for an offense. The person being interrogated is not free to leave police custody. Once a person is in police custody, the suspect must be read his Miranda rights if the police want to question him and to use the answers as evidence at trial.

Non Custodial Interrogation (also called an interview) – A non custodial interrogation is the gathering of information by police from a person that is not yet officially considered a suspect for the offense being investigated. An interviewee is not in police custody and is free to leave at any time. A non custodial interview does not require the police to read the suspect his Miranda rights in order to use statements as evidence at trial. In other words, the police will warn you about your rights when you’re in custody, and you have to specifically wave your rights before they can use your statements against you.

However, if you’re not officially in custody, they can just start asking you questions with no warning and anything you say can still be used against you. The problem is, how do you know whether you’re involved in a custodial or noncustodial interrogation?

When you’ve just shot someone and a police officer is asking you questions, even  friendly questions can seem like an official custodial interrogation. As if this isn’t bad enough, if you’re on the wrong side of an interrogation, now the Salinas ruling confirms that not only are police officers NOT required to give you a Miranda warning for a non custodial interrogation, just standing there and remaining silent without specifically invoking your 5th Amendment right in a non custodial interrogation can be used against you. The whole purpose of the Miranda law was to protect you from incriminating yourself. But now the burden of protecting your rights has shifted from the police to YOU. You are expected to know that you have a right against self-incrimination, and unless you specifically and clearly invoke this right, anything you say or do not say, including your mannerisms at the time you stop talking, can be used against you!

As the United States Supreme Court stated, “Before [we can] rely on the incrimination … [we are] required to [verbally] invoke it” at the time we exercise it.  You’re probably familiar with custodial interrogations. You see them in TV crime dramas all the time. And because an officer gives you a Miranda warning, it’s very clear what’s going on.

But to make sure you know what a non custodial interview is like, let’s imagine I have just shot someone in self defense. Here’s police with  Sean, do you mind if we ask you a few questions? Could  you meet us at the station to help us Sean, could you tell us about what happened last night at the party across the street?  Or the police officer might be a little more forceful and use pressure to get Sean talking: “Sean, as part of my investigation, I am going to ask you some questions to find out the truth about what just happened. You want to be truthful with me don’t you? Now, I want to make clear, if you refuse to answer my questions, at trial the prosecutor will be able to stand in front of the jury and tell them ‘an innocent man would have answered my questions, but you refused.’ So I recommend that you cooperate and answer my questions.

“This puts you in a very difficult situation. You would have to be a Fifth Amendment expert to understand whether you’re in a custodial or non custodial interrogation, or that you are
not required to say anything. And you have to possess the willpower and composure (in what may be the most stressful moment of your life) to refuse to answer a police officer’s questions.

How to End a Police Interrogation Technically, how you end a police interrogation depends on which kind of interrogation it is.

A Non custodial interrogation, such as the example above, can be ended by simply walking away.

A Custodial interrogation can be ended with a clear request for an attorney or a clear request to remain silent. HOWEVER, if you’ve been involved in a self defense shooting, this is not the time for technicalities and fine points of law. Given that even experts might not agree on whether you’re facing a custodial or non custodial interrogation, and given the recent Salinas ruling, you should immediately and expressly invoke your right against self-incrimination if law enforcement tries to question you. This isn’t a game of words, so there’s no formula for what you have to say. Anything you say that expressly invokes your constitutional right against self-incrimination will work, examples:

” I invoke my Constitutional Right to remain silent Detective”.

“I invoke my 5th Amendment, I refuse to answer any questions and exercise my constitutional right to remain silent”.

“I assure you that I am willing to cooperate, but not until I have had time to compose myself and meet with my  attorney”.

“I evoke my constitutional rights to remain silent.  I do not consent to any warrantless searches”.

Don’t concern yourself with what kind of interrogation you’re in. Don’t worry about whether Salinas applies in your particular situation. Just invoke your 5th Amendment right
immediately, verbally, and clearly.

If you are being questioned by police in a post shooting situation, no matter how friendly or hostile it may seem, invoke your 5th Amendment Constitutional right against
self-incrimination. If you do, the prosecutor cannot use your statements against you and cannot argue that “an innocent person would talk,” when you refuse to.

Consider a Second Call Defense protection program that will provide the necessary legal and financial resources right away.   After you call 911, your second call is to the 24/7 emergency Second Call Defense hotline.

Even before the police arrive, RKBA defense lawyers advise you how to respond.  If necessary, they can even represent you and talk to the police when they get there.   Please review all
the legal and financial benefits available to members of Second Call Defense.


Reprinted with permission.

In my opinion, I would just ask the police up front, is this a custodial or non custodial interrogation? Handcuffs could be a ‘clue’ if it is custodial.

Mark Shean,  About Me


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