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PA Superior Court: No Right to Carry

The case is Commonweath v. Scarborough. This case largely revolves around the legality of the stop, but there are issues at play that should concern any Pennsylvania gun owner.

First is whether or not there’s an equal protection issue with state law singling out Philadelphia. Pennsylvania is an open-carry state, in that you can carry a firearm openly in this commonwealth without a license, the sole exception being “cities of the first class” (i.e. Philadelphia). In Philadelphia, you may only carry a firearm (openly or concealed) if you have a License to Carry Firearms. The court rejected the equal protection issue, which would be the expected result. But they went farther, which is very concerning:

The class created by Section 6108, “persons located in Philadelphia,” is not based on race, national origin, sex, or illegitimacy. The right at issue under Section 6106, “the right to carry a concealed weapon,” and the right at issue under Section 6108, “the right to carry a firearm on the streets of Philadelphia without a license,” are not fundamental rights. They manifestly do not rise to the protection afforded by the Second Amendment’s general guarantee of the right to keep and bear arms.

They could have, actually, cited existing Third Circuit precent that there is no right to bear arms outside the home. That was decided in the case of Drake v. Filko, which challenged New Jersey’s restrictive permitting scheme. That is now on appeal to the US Supreme Court. So federally, there is no right to carry a firearm in Pennsylvania outside the home, because of a grave error made by the Third Circuit Court of Appeals. As Alan Gura mentioned in his law review article:

The Third Circuit supplied a great example of how far off the rails a “step one” analysis may veer when history is given short shrift.  Upholding New Jersey’s requirement that handgun carry applicants demonstrate “justifiable need” to exercise their Second Amendment rights, a panel majority held that carrying a handgun for self-defense “fall[s] outside the scope of the Second Amendment’s guarantee.” Even though Heller had expressly held that to “bear arms,” as used in the Second Amendment, is to “carry” arms for the purpose of self-defense in case of confrontation, the Third Circuit rejected an appeal to “text, history, tradition, and precedent,” stating that “we are not inclined to address this contention [that the Second Amendment guarantees a right to publicly carry arms for defense] by engaging in a round of full-blown historical analysis.”

And now we have PA Superior Court giving the right to bear arms the same short shrift. Our Supreme Court has generally been more amenable to the right to keep and bear arms, but only barely so. It may be the case that the state may require a license; our side has generally conceded that when confronting restrictive licensing regimes in court, but that’s quite different than suggesting there’s no right at all, or that such a right is not “fundamental,” when that was the holding of our federal Supreme Court.

“Maybe it was the phony penises.”

That was not the first sentence I expected to read when I opened up an article about a gun club lawsuit in federal court. Regardless, it was the opening sentence, and it was an accurate description of one of the issues raised in a lawsuit filed by members of the Philadelphia Gun Club against animal rights activists who are accused of “stalking, harassment, trespass, intimidation, defamation, libel and privacy invasion.”

The club’s attorney says that the activists have researched personal lives of club members to leave fake reviews on Yelp and other sites when those people own small businesses. They also reportedly spy on these people even after they leave the club grounds. The guys who shoot at the club are not public figures, so there’s a pretty good case there. Not to mention, leaving a fake review online is an issue that’s gaining traction in courts around the country.

The Mass Stabbing We Feared

While some gun control proponents say that you don’t see mass stabbings, only mass shootings, a Western Pennsylvania high school just proved them very wrong this morning. I’ve waited for a little more to unfold in the story before commenting because it’s not an issue of guns or no guns, knife control, or even metal detectors at every door, as it seems that some people are already pushing while students are still undergoing major surgeries since they are in critical condition.

A local paper featured a comment by a senior that I thought was very telling on how the issue of violence as a whole is very complicated and not easily solved by one policy that focuses on the instrument used:

“Everybody was just freaking out,” he said. “It’s been a tough senior year. We’ve had a lot of fights in school — more than usual — and a suicide this year.”

Mental health issues going unaddressed in the community? Check. Increased violent outbreaks as a whole? Check. Those won’t be fixed with gun control, knife control, or metal detectors. It sounds like there won’t be many easy answers for this community. Certainly, they are in our thoughts as this story continues to be investigated.

Pennsylvania’s Candidates Speak Out on Gun Control

Based on their 100% scores from Ceasefire PA, it appears that Allyson Schwartz and Katie McGinty haven’t met a gun control proposal they didn’t like. The “lowest” scoring Democrat on the ballot Tom Wolf who agreed with the gun control group almost 80% of the time. This marks a stark change from 2010 when the “lowest” scoring Democrat was against about half of the group’s policies.

I downloaded the report and will do a more thorough post on the exact issues the gubernatorial candidates want to see become the law of the land in Pennsylvania shortly. One of the delays in getting up a post about the top of the ticket statewide races has been watching the fallout after petitions went in. There have already been changes to the primary ballot with people dropping out, so I wanted to see what the playing field really looked like. Based on the quick look of the summary, pro-gun Democrats in the central part of the state need to start raising their voices – loudly – and start voting their gun rights if they don’t want to line up to turn them in, a serious policy proposal from a suburban Democrat in this state. This isn’t a “Philly” issue anymore. The anti-gun extremism is clearly spreading in Pennsylvania.

More Stalling in the Pennsylvania Legislature

Dear Pennsylvania GOP,

You know what you need to do this year? Motivate some voters. One way to motivate some pro-gun voters is to get moving on preemption legislation that you guys have been ignoring in various forms through the last four year instead of recessing to enjoy spring weather.

Of course, you’ll need more than just pro-gun voters to help save your party’s most visible candidates this year. The completely lack of ability to move any real reforms on ridiculously popular issues like liquor privatization have turned quite a few voters off since it’s clear that a vote for some of your candidates isn’t a vote for any kind of change at all. Regardless, you need all the friends you can get this year.

Sincerely,

Bitter

******

Dear Pennsylvania Democrats,

You know what some of your moderates may need this year in tough districts? Votes to show they aren’t totally associated with the complete disaster the national party seems to want to bring down on candidates who aren’t running in solid blue districts full of rabidly liberal voters. You know an issue that can help with that? Gun rights. One thing you might want to encourage from some of your more moderate Democrats is to publicly push for the House leadership get moving on preemption legislation, but without the 124 amendments filed.

Now, because the national party has done a really good job at pissing off lots of people across the country, I can’t promise this vote will save you if you’re being challenged by a credible opponent. But, it certainly will help cement your NRA grade while the other guy has to run on a questionnaire only rating.

Sincerely,

Bitter

******

Dear Pennsylvania Gun Owners,

Have you called your state representatives yet to ask them why they aren’t moving this bill?

Sincerely,

Bitter

HB1243 and Implementing the Relief Provisions of NIAA

We’re currently engaged in a struggle in Pennsylvania to get a preemption enhancement bill through our generally sluggish legislature. Despite what at least one FOAC board member and some mouth foamers have accused me of, I have not yet made up my mind on this bill. The reason is because HB1243 is not so cut and dry, and there’s a lot of context in which the bill needs to be placed in order to understand it.

I’ve seen dozens of NIAA implementations pass in other states without too much controversy. I know FOAC has come out against HB1243, and I’m open to the idea that Pennsylvania is different, or there’s something irregular about the law, but if there are specific concerns, they have not been articulated as far as I can tell. As soon as I started questioning, I was immediately lumped in with CeaseFirePA, who are supporting the bill on the stipulation that the Santarsiero Amendment be added, which would end private transfers of long guns. I do not support this amendment, nor would I support HR1243 with such an amendment attached under any circumstance.

To put the unamended HB1243 in context, we first we need to back up seven years to the Virginia Tech aftermath in Congress when HR2640, which would later become the NICS Improvement Amendments Act of 2007, came onto the scene. This was originally a bad bill by Congresswoman Carolyn McCarthy that was gutted and replaced by a bill that was nominally a fair compromise, given that in exchange for states being encouraged to report records to NICS, we got a mechanism to relief from firearms disabilities due to mental health. Previously, such a firearm disability was lifelong with no recourse. There were groups opposing it at the time, and my disagreement then earned me quite a bit of enmity from folks who opposed the bill at the time. Now it seems old arguments are cropping up again with HB1243.

Now, back to today’s fight in Pennsylvania: at a first glance, HB1243 looks like run-of-the-mill NIAA implementation, complete with a defined process for relief from both federal and state disability. These have passed in dozens of states with little controversy, but for Pennsylvania, things can get a bit more complicated. The reason is our Mental Health Procedures Act, which is can be severe when it comes to imposing state firearm disabilities.

We have several kinds of involuntary commitment procedures in Pennsylvania — an involuntary observational commitment under Section 302 and an extended involuntary commitment under Sections 303, 304, and 305. ATF has traditionally not considered Section 302 commitments to have sufficient due process to count for federal firearm disability. There is almost zero due process protections for a 302 commitment. Section 302 commitments will get you a firearms disability for Pennsylvania, but if someone with a 302 on their record moved out of state, absent state law to the contrary in the new state, they’d be able to possess firearms again. That looked like it might change when the Pennsylvania State Police decided up bulk upload a bunch of records unilaterally after the Sandy Hook massacre, which caused ATF to waver on the position over whether 302 commitments counted or not for a federal disability. I have not heard whether this has been resolved one way or another, but with or without HB1243, this is potential trouble. Actually if the feds decide to count 302s, we really need a mechanism that’s clear, defined, and predictable, that can offer relief from that disability that the feds will recognize. Currently, we have a process for state relief under 18 Pa.C.S. 6105(f), but it’s entirely discretionary on the part of the judge, and there’s no clearly defined process.

My understanding is that Pennsylvania has yet to implement the NIAA requirements in order for relief from disability under 18 Pa. C.S. 6105(f) to apply federally. HB1243 would implement those requirements, so people petitioning under 18 Pa. C.S. 6105(f) would also get federal relief.

The big question I have over HB1243 is whether the prescribed procedure for rights restoration is consistent with current practices. That’s not something someone who isn’t a practicing attorney in this field of law could tell you, and that person isn’t me. I’m open to the idea that the procedures could use some improvement, but I’m not against the principle of implementing NIAA requirements so there can be federal relief for mental health firearms disability. That’s going to be especially true if the feds change their longstanding policy on 302 commitments.

I don’t blame folks for thinking much of this is tremendously overcomplicated and fundamentally unfair. I don’t think a 302 commitment in and of itself should be sufficient to remove someone’s gun rights, but that’s an issue we’ll need to address separately, and is not all that related HB1243. I’m willing to listen to arguments that there are some material defects in the bill that make it unworkable from our point of view, but I think it would be nice if those arguments could be made on the merits, rather than trying to impugn those who dare to question.

122 Attempts to Stop a Preemption Fix

When an NRA-backed bill to allow citizens to more easily challenge their towns that are passing gun control laws in violation of state law passed a committee vote with a solid, bipartisan vote, we knew that anti-gun advocates would pull out all the stops to try and keep this bill from becoming law.

They do not want their residents to have standing to hold these cities accountable for their violations of state law.

However, even I was a little stunned by the number of amendments already filed to try and stop the bill – 122. I didn’t realize that public accountability of local government was so vehemently opposed by some members of the legislature.

Bloomberg’s $600k Pennsylvania Politician

It looks like the Attorney General that Mike Bloomberg bought heavily contributed to in Pennsylvania is having a less than wonderful 2014. This was supposed to be the year that she would release the results of her Penn State “investigation” that would trash Gov. Tom Corbett right before the election – at least, that’s what some observers might think after watching her run on an immediate investigation with promised swift results in 2012 and not having anything to show for it after more than a year. Instead, it may be turning into the year that has investigations could be opening into her handling of political corruption cases.

For those who haven’t been following the general political news in Pennsylvania, Bloomberg’s golden girl who received hundreds in thousands of dollars in advertising during her campaign shut down a long-running undercover sting of politicians that found several Philadelphia-area lawmakers accepting cash and gifts from a lobbyist that they did not disclose. After the report came out, she lawyered up, refused to talk to the press during a meeting, and appears to be hinting at suing the press for even reporting the story that relied on named sources involved in the investigation for daring to run such criticisms of her.

Oh yeah, and it was said she tried to argue that because most of the politicians caught in the investigation up until the point she shut it down happened to be black, the investigation may have been racist. Then, the District Attorney from Philadelphia, who happens to be a black politician himself, stepped up and said that’s a bunch of bull and criticized her for shutting down the sting. Actually, that might be an understatement. Even the media called the criticism from the DA “unusually barbed criticism of a fellow prosecutor and fellow Democrat.”

Today, we learn that she has just gone through her 3rd spokesman in 14 months as the press begins to pile up against her for lawyering up. In addition, a website largely read by people pretty close to Pennsylvania politics ran a reader poll that asked if Kane should have brought charges against those politicians who were already on the record of accepting cash & gifts without reporting them, and a majority said she should have.

Bloomberg’s little Pennsylvania investment just put a big statewide spotlight on Democratic divides in the state, along with a reminder about the political corruption so well known in Philadelphia political circles as we come up in a big election year for the state. I’m not sure that’s what Bloomberg was hoping to get with his donations.

Back on the Offensive

It feels good to be back on the offensive in Pennsylvania, with HB2011 moving forward to a vote in the Pennsylvania House. Why does it feel good? Because we get to hear the lamentations of the media, who are absolutely opposed to putting any kind of teeth in the state’s preemption law.

Say goodbye to prospects for enactment of any new lost-and-stolen reporting rules, and say hello to court fights for the 30 towns that already have them on the books.

Awesome. Those towns had no legal authority under state law to pass those ordinances in the first place. We told them that, and they didn’t listen. Those towns can easily avoid expensive suits by repealing the illegal ordinance they never had any business passing in the first place. When cities and towns violate state law, we shouldn’t have to wait to be charged under it in order to challenge it. Its mere existence should give us standing.

Celebration & Nervousness

Reader Adam Z. sent along the news that one of Pennsylvania’s open Congressional races where the current A rated congressman is retiring got a little more interesting with the announcement that the perceived more moderate candidate with no record has dropped out of the race. He didn’t want to fight it out in a Democratic primary against his farther left opponent who is running for the same seat for a third time after already losing twice.

This is one of those cases where it’s great news that the race seems more promising for the candidate who will likely (though far from assured) have the better Second Amendment positions in a tight district. On the other hand, the fact that a more radical candidate is now the only opposition makes it a bigger nail-biter.

Needless to say, it will be interesting to see polling when this race gets closer to election day.

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