Whether the Double Jeopardy Clause precludes retrial after a conviction was vacated due to failure to present evidence on an essential element in light of a pre-trial Supreme Court decision affecting the constitutional status of the charged conduct

In 2012, the Massachusetts S upreme Judicial Court (SJC) upheld the constitutionality of a statutory scheme in which licensure was an affirmative defense to a charge of carrying a firearm without a license , expressly reasoning that the regime did not implicate the Second Amendment where carrying a firearm outside the home was not constitutionally protected conduct . Commonwealth v. Gouse , 965 N.E.2d 774, 778, 786 (Mass. 2012). Then , prior to Petitioner Dasahn Crowder ’s trial, this Court held that such conduct was constitutionally protected , pursuant to the Second and Fourteenth Amendments . New York State Rifle & Pistol Ass’n, Inc. v. Bruen , 597 U.S. 1, 10 (2022). Crowder was convicted of the offense of carrying a firearm without a license, in violation of Mass. Gen. Laws ch. 269, § 10(a) . The SJC did not address Bruen ‘s impact on the essential elements of that offense until after Crowder ’s trial. The government produced no evidence at trial that he lacked a firearms license . As a result, Crowder was wrongfully convicted solely on evidence that he knowingly possessed a firearm outside the home , i.e., that he engaged in constitutionally protected conduct. See, e .g., Coates v. City of Cincinnati , 402 U.S. 611, 614 (1971) (criminal statute is “unconstitutionally broad ” where “it authorizes the punishment of constitutionally protected conduct ”). The questions presented are: 1. Whether it violates the Double Jeopardy Clause to remand a firearm possession case for retrial after the Petitioner ’s conviction was vacated for the government ’s failure to present evidence on the essential element of lack of licensure, where, in light of Bruen , the government was on notice of its obligation to present evidence of the only fact rendering Petitioner ’s conduct constitutionally punishable. 2. As a matter of first impression, whether treating a post -trial change in state law that was dictated by a pre -trial decision of this Court as akin to a solely post-trial change in the law unconstitutionally permits states to ignore controlling decision s of this Court until and unless they are interpreted by a state appellate court . 3. Whether and how an individual may now be prosecuted for conduct implicating the Second Amendment where the criminal statutory scheme under which he was charged was unconstitutional in light of Bruen , and where the current version of the relevant statutory scheme was enacted after the conduct at issue occurred and therefore its application to such conduct would implicate the Ex Post Facto Clause, U.S. Const. Art. I, § 10.