Commonwealth v. Howard (2025): When Does Displaying a Firearm Become an Assault?
In November 2025, the Massachusetts Appeals Court released an important decision in Commonwealth v. David W. Howard, a case that sits at the intersection of assault law, firearms possession, and the limits of Second Amendment protections. The court affirmed a conviction for assault by means of a dangerous weapon after the defendant—angry about divorce papers being served—retrieved a rifle and appeared in his doorway holding it upright as the constable walked back to his car.
Although the firearm was never pointed directly at the constable, the Appeals Court held that the jury was entitled to find that the defendant’s conduct amounted to an “assault by immediately threatened battery.” The court also rejected the argument that Howard’s actions were protected by the Second Amendment.
This case matters because it reinforces a critical distinction in Massachusetts criminal law: lawful firearm possession inside your home is protected, but using that firearm to threaten another person—lawfully present on your property—falls well outside constitutional protection.
Factual Background
The case began in September 2022, when a constable arrived at Howard’s home to serve divorce papers. After knocking several times with no answer, the constable began walking back to his car. Howard then opened the door. The two exchanged words. Howard was angry, refusing to accept the papers; the constable tossed the envelope at his feet, which he viewed as proper service.
As the constable returned to his vehicle, he saw the envelope suddenly “fly by” him. When he turned, he saw Howard in the doorway holding a rifle vertically in both hands.
The rifle was not pointed at the constable, but the constable testified that he felt nervous and believed the rifle “could be pointed at me at any time.” He immediately left and called police.
Howard was charged with assault by means of a dangerous weapon.
The Motion to Dismiss and the Trial
Before trial, the defense moved to dismiss the charge for lack of probable cause. They argued that Howard merely “displayed” a rifle inside his own home—conduct they said was constitutionally protected and did not amount to an assault.
The trial judge denied the motion, finding probable cause. After a jury trial, the defendant was convicted.
On appeal, the defense renewed its arguments:
The evidence was insufficient to charge or convict him of assault.
His conduct was protected by the Second Amendment.
The judge erred by refusing requested jury instructions about the Second Amendment and firearm storage laws.
Why the Appeals Court Affirmed the Conviction
1. Displaying a Firearm Was Not “Mere Possession”
The Appeals Court emphasized that Howard’s behavior was not passive possession of a gun. Instead:
He became angry during the interaction at his front door.
He went inside specifically to retrieve a rifle.
He reappeared in the doorway with the rifle, drawing the constable’s attention by throwing the envelope first.
He held the rifle in a manner consistent with the ability to use it immediately.
This, the court said, was more than “mere display.” A reasonable jury could conclude that the defendant intended to place the constable in fear of imminent harm.
2. The Victim Had Every Reason to Perceive a Threat
Although the rifle was pointed straight up, the court held that a reasonable person could fear that it might be used at any moment.
Massachusetts law does not require the weapon to be pointed at the victim. It is enough that the victim reasonably perceives an immediate threat.
3. Second Amendment Protection Did Not Apply
Howard argued that the Second Amendment protects the right to “possess and carry weapons in case of confrontation.” The Appeals Court rejected the argument for several reasons:
The constable was lawfully on the property.
Howard did not claim self-defense.
The Second Amendment does not protect the use of a weapon to intentionally threaten someone during a verbal dispute.
The constitutional right to possess a firearm is not unlimited and does not shield criminal threats.
Howard’s actions fell far outside the legitimate purposes recognized by Supreme Court precedent, such as defense of one’s home or self-protection.
4. Jury Instructions Were Properly Declined
The defendant requested jury instructions describing Second Amendment rights and firearm storage requirements. The trial judge refused.
The Appeals Court agreed, explaining:
The defendant’s proposed Second Amendment instruction was incomplete and potentially misleading.
The firearm storage law (G.L. c. 140, § 131L) was irrelevant; nothing compelled the defendant to retrieve the rifle.
Including these instructions risked confusing the jury about issues not implicated by the facts.
Key Takeaways
1. Threatening Use of a Firearm Is Not Protected by the Second Amendment
Massachusetts courts will distinguish sharply between possessing a firearm in the home and retrieving and displaying it in a manner intended to intimidate a person lawfully present.
2. “Immediately Threatened Battery” Does Not Require Pointing a Weapon
The jury may infer intent and reasonable fear from context:
Anger
Escalation
Retrieval of a weapon
Proximity and timing
Purposeful display
3. Lawful Visitors Are Not Trespassers
Process servers, constables, delivery drivers, and anyone with implied permission to approach the front door are considered lawful entrants. Threatening them with a weapon exposes a property owner to criminal liability.
Q&A Section:
What did the Appeals Court decide in Commonwealth v. Howard?
The Appeals Court affirmed a conviction for assault by means of a dangerous weapon after the defendant retrieved a rifle and displayed it to a constable who had come to serve legal papers.
Does the Second Amendment protect showing a gun to someone during an argument?
No. The court held that the Second Amendment does not protect using or displaying a firearm to threaten someone who is lawfully present and not posing a threat.
Do you have to point a gun at someone to be guilty of assault with a dangerous weapon in Massachusetts?
No. It is enough that the victim reasonably fears an imminent battery. Holding a gun in a ready position can satisfy this element.
Can you threaten a constable or process server on your property?
No. Constables serving process are lawful visitors. Threatening them with a weapon can result in criminal charges.
Why didn’t the defendant get a special Second Amendment jury instruction?
Because the right was not implicated by the facts. The trial judge correctly found that the requested instructions did not apply and risked confusing the jury.
Conclusion:
At its core, Commonwealth v. Howard is a reminder that the line between lawful firearm possession and criminal conduct can shift quickly—sometimes in a matter of seconds. When emotions run high, even a momentary decision to retrieve or display a weapon can trigger severe legal consequences, including felony-level exposure, mandatory minimums, and long-term licensing repercussions.
If you or someone you care about is facing an assault or firearms-related charge, you should not navigate the process alone. These cases turn on nuance: what the victim perceived, what the defendant intended, and what the surrounding circumstances genuinely showed. Early, informed intervention can change the trajectory of the case.
If you need guidance in a situation involving an alleged threat, firearm display, or constitutional defense, we can help.
Contact Benzaken, Sheehan & Wood, LLP for a confidential consultation today.