SJC hears dispute over whether Bruen bars retrial in Commonwealth v. Zemenay

The Supreme Judicial Court of Massachusetts heard argument in Commonwealth v. Nathaniel Zemenay on whether the Commonwealth may retry Zemenay on a charge of carrying a firearm after the trial court did not receive evidence that the defendant lacked a license.

Defense counsel argued that United States v. Bruen changed the constitutional law governing public carry and therefore placed on the Commonwealth the burden to prove lack of licensure. “The constitutional prohibition against double jeopardy prohibits the Commonwealth from retrying Mr. Zemenay on the charge of carrying a firearm,” defense counsel told the court, saying the defendant’s trial occurred after Bruen but before the SJC’s interpretation in Guardado.

The defense pressed that the original trial suffered more than a garden-variety instructional error because the Commonwealth introduced no evidence to overcome the presumptive right Bruen recognized, and that insufficient evidence would ordinarily require dismissal rather than a new trial. “That is my…