search
top

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.

18 Responses to “PA Superior Court: No Right to Carry”

  1. Shawn says:

    one has to realize at the courts are for the most part the enemy of freedom. They are bribed and created by the same people that would wish us in the cattle cars. They are put into their position by politicians who think gunowners are subhuman form of life need to be controlled. If not controlled exterminated. We are the equivalent of Jews in nazi Germany both to the politician and the judge. The only reason they haven’t decided to commit gun owner genocide yet is because we can shoot back. At least for now. And we all know that if the liberal left could slaughter 90 million US gunowners to realize their dream of a gun free America they would do it in a heartbeat.

    Yo is talk about the ballot box and the courts. But it seems that the ballot box never seems to help because the person that replaces the asshole is just as much a self righteous freedom hater if not more and the courts are openly hostile freedom.

    The courts in your state would probably uphold the anti-freedom bills that passed in Connecticut and New York. But of course the courts in your state if the US government decided to round up people based upon a political belief like the CGSV said, & said was lawful they would also say is lawful. Drag them onto the streets and shoot them in cold-blooded mass quick? Totally legal as far as the courts are involved.

  2. Asdf says:

    “Persons located in Philadelphia” are disproportionately black. If we were discussing anything else besides gun rights, these same judges would be SCREAMING about “unequal protection” and “disparate impact”.

  3. mike w says:

    “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.”

    So basically the Court is saying “We’re too darn lazy to actually do our job and we know that we don’t like little folks being able to carry gun”

  4. Asdf says:

    At least they are honest enough to admit that they’re applying a rational basis standard of review, rather than calling it intermediate scrutiny.

  5. HappyWarrior6 says:

    The Posterior court strikes again…

  6. rightwingwacko says:

    This may be good… the ruling is so bad and contrary to the correct reading that it opens the issue up to appeal from higher courts.

    • rd says:

      IF it is appealed and the lawyers or friends of the court (I am a latin illiterate) can afford to craft the necessary court pleadings. Remember US v. Miller and the NFA of 1934 was decided when Miller and his lawyers were a no-show. The Supreme Court was not given much counter-argument to choose from. I hope it is appealed, and appealed again if necessary all the way to the USSC.

      The defendant sounds sketchy, but most of criminal law is based on criminals. Criminals are not always the nicest people.

      • Geodkyt says:

        Actually, Miller was a pretty good pro-gun opinion.

        Remember, even hearing only the government side of teh case, they didn’t actually find against Miller — they remanded for a hearing on facts of the case that were not presented (i.e., the sole issue of whether or not a sawed off shotgun was a useful “militia” weapon.)

  7. Jim says:

    We’ve been so fortunate in Pennsylvania in terms of legislative support for the Second Amendment (and the PA Constitution) that we (or at least I) sometimes forget how tenuous our liberties really are. This ruling is just the latest in a number of cases that undermine what little confidence I had in our state judiciary.

  8. Matthew Carberry says:

    How about putting those state Legislators to the task of making it an explicit statutory right? Or amend the state Constitution?

    Too much resistance from Philly?

    • Sebastian says:

      The state constitution is as clear as could be, but judges just choose to ignore it.

      “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

      I’m not sure how you could make it clearer than that. And that is an explicit statutory right, because it’s binding law. The courts just don’t give a shit. The solution is to boot these bastards out of the court. We have elected judges in Pennsylvania.

      • Matthew Carberry says:

        Maybe I’m misreading, but the Constitutional claim he raised was Frdrral, not state. If he had challenged the statutory sentencing disparity on his explicit State Con right to bear the judges wouldn’t have bren able to punt to a literal reading of protected classes.

      • Matthew Carberry says:

        As an example of doubling down on clarity, our Con. as amended in ’94 when we got shall issue.

        Alaska:  A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.  The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.  Art. I, § 19

        (first sentence enacted 1959, second sentence added 1994).[Individual right explicitly protected; provision enacted in 1994, when the individual right to bear arms was generally understood as aimed at protecting self-defense.]

  9. atom570 says:

    Ask the judge how is he going to defend himself or his family when he goes outside and some guy starts beating the shit out him?

  10. Barry Hirsh says:

    I suspect the USSC would see no issue with this decision. I say that because the Court has already held that states can ban concealed weapons. If one can, with a license, openly carry a gun in Philadelphia, then the right isn’t materially denied. Since PA is a “shall issue” state, the distinction is moot.

    • Sebastian says:

      PA is shall-issue, and technically Philadelphia is too. But in practice the city uses the “character and reputation” close to deny licenses to people they don’t feel should have them. That can include having unpaid parking tickets.

    • Sebastian says:

      It’s also included people who have had guns stolen.

top