Introduction

Recently, two federal district courts held 18 U.S.C. §922(g)(3) unconstitutional as a result of the United States Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 124 S.Ct. 2111 (June, 2022). U.S. v. Morales-Lopez, 2:20-CR-27 (D. Utah 6/30/2022); U.S. v. Harrison, 22-CR-328 (W.D. OK 2/3/2023). Section 922(g)(3) prohibits any person from possessing firearms “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” Of course, this includes marijuana. The Pennsylvania Uniform Firearm Act does not contain a similar restriction as section 922(g)(3). However, when a Pennsylvanian exercises his State (Pa Const. Art. I sec. 21) and Federal Constitutional Right to purchase firearms, he is required to fill out an ATF form which asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance"?” Underneath the question appears a warning, which states “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” So, if a citizen answers this question with a negative response, where there is evidence that the citizen does use marijuana, the Commonwealth could potentially charge him with violating 18 Pa C.S. §6111(g)(4)(ii), which makes it a third degree felony for any person to knowingly and intentinally “(ii) make[ ] any materially false written statement, including a statement on any form promulgated by Federal or State agencies[.]”

Obviously, the inconsistencies between federal and Pennsylvania law create a conviction trap for otherwise law abiding Pennsylvanians. It remains to be seen how Bruen will affect Pennsylvanians who wish to exercise their Federal and Pennsylvania right to bear arms and their right to lawfully (or unlawfully) use marijuana (or any other controlled substance).

Generally speaking, the new constitutional standard announced in Bruen will not have much effect on the Pennsylvania Uniform Firearms Act, 18 Pa C.S. 6101 et seq. Pennsylvania is an “open-carry, shall-issue” state. See Bruen, 142 S.Ct. at 2161(Kavanaugh, J., concurring) (noting that the Bruen decision does not affect existing “shall-issue” licensing schemes.) (This statement does not apply to Philadelphia and 18 Pa C.S. §6108.) Furthermore, the Bruen standard does not apply to state concealed-carry regulations so long as open-carry is available. Bruen, 142 S.Ct. 2146-2105.

In Pennsylvania, unless a citizen is a prohibited person, he can lawfully possess a firearm in his home and in public without a license (except in Philadelphia). No license is needed unless the citizen wants to conceal the firearm or transport it in a vehicle. But, unlike the statute at issue in Bruen, in Pennsylvania the sheriff “shall issue” the license if there is no good cause to deny it. 18 Pa C.S. §6109(e). The only class of people in Pennsylvania who have a constitutional right to bear arms, but who are prohibited from getting a license, are citizens ages 18-20. 18 Pa C.S. §6109(b); see Firearms Policy Coalition v. McCraw, 2022 WL 3656996 (N.D. Tex. August 25, 2022) (holding that under Bruen, the 2nd Amendment applies to citizens ages 18-20). However, this class of people can still lawfully possess firearms in their homes and in public without a license, except in Philadelphia. 18 Pa C.S §6108. (A potential Bruen challenge to Section 6108 is discussed below.) So, it is doubtful that Bruen would provide a basis for a constitutional challenge on this issue, except in Philadelphia.

Though Bruen might have limited applicability in Pennsylvania, there are several sections of the Uniform Firearm Act that might be susceptible to a constitutional challenge under the new constitutional standard.

Section 6105- Overview

Section 6105 might be susceptible to constitutional challenge to the extent that it prohibits citizens from possessing firearms for reasons other than those that excluded people from possessing firearms at the time of the ratification of the 2nd Amendment. Section 6105(b) provides a list of 38 enumerated offenses that upon conviction prohibit a citizen from possessing a firearm, and 6105(c) provides a list of 10 “other persons” who are also prohibited from possessing firearms.

Prior to Bruen, the federal courts have had difficulty deciding whether convictions for a non-violent felony or misdemeanor can justify prohibiting a person from possessing a firearm under the 2nd Amendment. See e.g. Binderup v. Atty’Gen, 836 F.3d 336 (3rd Cir. 2016)( en banc ); see also Kanter v. Barr , 919 F.3d 437 (7th Cir. 2019). As discussed in Bruen, federal courts would apply an intermediate scrutiny test and generally defer to the legislature to determine if an offense was serious enough to take the citizen outside of the protections of the 2nd Amendment. Though there are many cases that considered this issue, two cases are particularly important: Binderup from the Third Circuit and Kanter from the Seventh Circuit.

In Binderup, the Third Circuit considered two cases that had been consolidated. Both defendants successfully petitioned Pennsylvania courts to remove the prohibition from possessing firearms. However, they remained prohibited from possessing firearms under federal law. Both defendants filed complaints in federal district court, which were denied. They then appealed to the Third Circuit.

One defendant pled guilty in Pennsylvania to corruption of minors, graded as a first degree misdemeanor. He was sentenced to three years of probation and a $300 fine and costs. The other defendant pled guilty in Maryland to possession of a firearm without a license, a misdemeanor with a permissible range of sentence from not less than 30 days to not more than three years or a fine of not less than $250 and not more than $2500 or both. He received a suspended sentence of 180 days imprisonment, a $500 fine, and a year of probation. Eight years later he was convicted of a misdemeanor DUI offense in Maryland. Otherwise, the two defendants led crime free lives.

Sitting en banc, a majority of 8 judges upheld an “as applied” challenge to 18 U.S.C. §922(g)(1), but there was disagreement among the majority as to the rationale. Some judges reasoned that the convictions at issue were simply not serious enough to justify disarmament. The other group reasoned that only dangerous people could be disarmed under the Second Amendment. The seven dissenting judges argued that an “as applied” challenge was simply not permissible.

In Kanter, the defendant pled guilty to one count of mail fraud under 18 U.S.C. §1341. The crime carried a maximum penalty of 20 years in prison and a maximum fine of $250,000. The defendant was sentenced to a year and a day, with two years of supervised release, a $50,000 criminal penalty, and he was ordered to pay restitution in the amount of $27 million in a related civil settlement.

The 7th Circuit carefully considered Binderup in its analysis because at the time it was the only federal case in which an “as applied” challenge had been upheld. The 7th Circuit found that the federal felony conviction at issue in Kanter, though non-violent, was more serious than the state misdemeanor convictions at issue in Binderup. The Court held that the government proved that the felon dispossession statutes are substantially related to the important government objective of keeping firearms away from those convicted of serious crimes. See also Folajtar v. Att'y Gen. of the United States, 980 F.3d 897 (3d Cir. 2020) (holding, in a tax fraud case, that the test to determine whether a conviction excludes a felon from the protection of the Second Amendment is whether the offense is serious, not whether it is dangerous, and the courts must defer to the legislature’s determination of which offenses are serious.)

However, Judge (now Supreme Court Justice) Barret dissented from the majority opinion. Justice Barrett would have held that the Second Amendment only permits disarmament based on evidence of dangerousness. It is not enough to show that the person was convicted of a non-violent, though serious, felony to justify disarming him under the 2nd Amendment. Bruen seems to have settled the question raised in Binderup and Kanter. The historical analysis conducted by the majority in Bruen strongly suggests that the rationale of the Kanter dissent is now the constitutional standard because at the time of the ratification of the 2nd Amendment, the founders were only concerned with disarming people who carried guns to terrorize the population. This conclusion is supported by Justice Barrett’s short concurrence in Bruen in which she wrote separately only to caution against relying on historical practice from the mid-to-late 19th century. Accordingly, certain enumerated offenses under section 6105(b) can no longer justify disarmament absent evidence that the defendant poses a public danger. The same is true for section 6105(c) which lists persons other than those convicted of enumerated offenses who are also prohibited from possessing firearms.

Section 6105 enumerated offenses

In 2017 the Pennsylvania Superior Court decided Commonwealth v. Grove, 170 A.3d 1127 (Pa. Super. 2017). The case was presented in the posture of an appeal from the denial of a PCRA petition. The defendant alleged that his attorney was ineffective for failing to challenge the underlying enumerated offense conviction that made him a prohibited person under section 6105. The facts of the case are somewhat complicated, so a short summary will suffice: In 1978 the defendant was convicted of criminal trespass. The conviction was graded as a second degree felony. Following the conviction, also in 1978, the criminal trespass statute was amended into its current form. In its current form criminal trespass can be graded as either a 2nd or 3rd degree felony. The language of the pre-amendment statute under which the defendant had been convicted was changed such that had he been convicted after the amendment the offense would have been graded as a 3rd degree felony.

Between 1978 and 1995, the defendant was not a prohibited person regardless of the grading of the offense. However, in 1995, section 6105 of the Uniform Firearms Act was amended. Prior to the 1995 amendment, section 6105 provided, “[n]o person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or control.” (emphasis added). The term “crime of violence” was defined as “any of the following crimes, or an attempt to commit any of the same, namely: murder, rape, aggravated assault, robbery, burglary, entering a building with intent to commit a crime therein, and kidnapping.” The Superior Court opined, “[b]ecause [the defendant’s] conviction for criminal trespass was not a “crime of violence” under this definition, [the defendant] was not prohibited from owning a firearm under Section 6105 at the time of his conviction of that offense in 1978.” Id. at 1140.

The 1995 amendment added the current language in the enumerated offense subsection, which includes “[s]ection 3503 (relating to criminal trespass) if the offense is graded as a felony of the second degree or higher.” In 2014, the defendant was convicted of possessing a firearm in violation of section 6105 based on his 1978 conviction for criminal trespass.

So, in summary, the actual conduct for which the defendant was convicted in 1978 would be graded as a 3rd degree felony had he been convicted after 1978. As such it would not be an enumerated offense under either the pre or post 1995 Uniform Firearm Act amendment to section 6105. This creates the absurd result that people convicted of criminal trespass before 1978 are prohibited from possessing firearms, whereas people convicted after 1978 might not be depending on the grading of the offense. Furthermore, between 1978 and 1995, regardless of the grading of offense, criminal trespass was not an enumerated offense, so the defendant could lawfully possess a firearm during that time period.

The Supreme Court in Bruen expressly eliminated means-end or intermediate scrutiny from 2nd Amendment Analysis. It is no longer acceptable to show that the government has an interest in prohibiting a certain person from possessing a firearm or that he was convicted of a “serious offense.” In his concurring opinion in Bruen, Justice Alito explained the rationale for rejecting a means-end test: “[t]his mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun. Bruen, 142 S. Ct. at 2160 (Alito, J. concurring).

The only test that matters after Bruen is whether the firearm regulation at issue is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. Considering the arbitrary and absurd application of section 6105 to the defendant in Grove, it seems unlikely that the Commonwealth could prove that the1978 and 1995 amendments are part of the historical tradition of firearms regulation. The whole purpose of the Bill of Rights is to protect citizens from the very type of arbitrary deprivation of rights displayed in Grove. Constituional rights are simply not subject to the whims of state legislators or judges.

Section 6105(c)(6)

Section 6105(c)(6) prohibits

A person who is the subject of an active final protection from abuse order issued pursuant to 23 Pa.C.S. § 6108, is the subject of any other active protection from abuse order issued pursuant to 23 Pa.C.S. § 6107(b), which provided for the relinquishment of firearms during the period of time the order is in effect or is otherwise prohibited from possessing or acquiring a firearm under 18 U.S.C. §922(g)(8). This prohibition shall terminate upon the expiration or vacation of theorder or portion thereof relating to the relinquishment of firearms.

In a memorandum opinion the federal district court in the Western District of Texas held that under the Bruen standard 18 U.S.C. §922(g)(8) is unconstitutional. USA v. Litsson Antonio Perez-Gallan , 2022 WL 16858516(W.D. TX, 11/10/2022).

Section 922(g)(8) prohibits a person who is subject to a court order that–

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The court reasoned that domestic violence, or violence against anyone for that matter, is not just a modern problem. Quoting Bruen , the court wrote, if a challenged regulation addresses a “general societal problem that has persisted since the 18th century,” and “earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Id . at *10. The court concluded that “the historical record does not contain evidence sufficient to support the federal government's disarmament of domestic abusers. And without historical support, § 922(g)(8) does not overcome Bruen ’s presumption that the Second Amendment protects an individual's possession of a firearm. Thus, § 922(g)(8) is unconstitutional.” Id .; cf. United States v. Boyd, 999 F.3d 171, 188 (3rd Cir. 2021)(pre- Bruen decision that rejected a constitutional challenge to section 922(g)(8) after applying intermediate scrutiny.)

Section 6105(c)(2)

Section 6105 (c)(2) prohibits

A person who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.

Under 35 P.S. §780-113(b), a person convicted of possession of a controlled substance under 35 P.S. §780-113(a)(16) can be sentenced up to three years for a secondconviction. Therefore, a second conviction for a non-violent, ungraded misdemeanor would trigger the application of section 6105(c)(2).

The federal firearms act does not have a section that is identical to section 6105(c)(2), but 18 U.S.C. § 922(g)(3) is similar. Section 922(g)(3) prohibits a person from possessing firearms “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))”. Unfortunately, federal courts have rejected challenges to section 922(g)(3) under Bruen. See e.g. USA v. Daniels , 2022 WL 2654232 (S.D. Miss. July 8, 2022). However, the court simply posited that people who are addicted to drugs are dangerous. Obviously, this conclusion is untenable in Pennsylvania because in Pennsylvania people can lawfully possess and be addicted to controlled substances that other people could not lawfully possess. Furthermore, people can illegally possess and illegally use controlled substances without being addicted to them. Therefore, a challenge to section6105(c)(2) under Bruen would trigger the Commonwealth’s burden to prove that this regulation comports with America’s history and tradition of firearm regulation. In order to meet this burden the Commonwealth must present evidence that possession and use of controlled substances was not a problem that existed at the time of the ratification of the 2nd Amendment before it could present an analogous regulation.

Section 6108

Section 6108 provides,

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

Section 6108 probably violates Bruen to the extent that it completely bans citizens ages 18-20 from carrying firearms in public for the purpose of self-defense, though they may carry firearms for other limited purposes like hunting and training dogs. This exception should not save section 6108 because Bruen makes clear that the Second Amendment protects a citizen’s right to carry firearms for self-defense. As previously discussed, citizens ages 18-20 are not permitted to get a firearm license, and thus, they arecompletely banned from carrying firearms in Philadelphia for self-defense.

In Commonwealth v. Scarborough the Superior Court considered an equal protection and due process challenge to section 6108. The defendant was charged with possessing a firearm without a license under section 6106. However, because he was in Philadelphia, he was also charged with violating section 6108. Consequently, he was not eligible for the section 6106(a)(2) reduction in grading from a third degree felony to a first degree misdemeanor if the defendant is otherwise eligible to possess a license and has not committed any other criminal violations. The “other criminal violation” was the violation of section 6108. Scarborough, 89 A.3d 679, 684-85 (Pa. Super. 2014).

The defendant argued that had he been anywhere in Pennsylvania other than Philadelphia the offense would be graded as a first degree misdemeanor rather than a third degree felony. Id. at 685. He raised an equal protection and due process challenge to sections 6106 and 6108. The Court rejected the constitutional claims. The Court first determined that “persons located in Philadelphia” was not a protected class. Id at 868. The Court then reasoned that the right to carry firearms on the streetsof philadelphia without a license is not a fundamental right. Id. (The Superior Court also held that the right to carry a concealed weapon is not a fundamental right, which is consistent with Bruen .) Consequently, it applied “rational basis” scrutiny to the defendant’s constitutional challenge. Id. (This is an even lower standard than the federal courts applied when considering pre-Bruen constitutional challenges to firearms regulations. The federal courts generally applied intermediate scrutiny.) The Superior Court found that the statute served a legitimate state interest based on its consideration of crime statistics in Philadelphia. Id. at 686-87.

Scarborough did not directly consider the question of whether the legislature can totally prohibit citizens ages 18-20 from carrying firearms in public for the purpose of self-defense. However, the rationale that the Scarborough Court used to reach its holding is no longer valid under the Bruen . Specifically, the right to bear arms on the streets of Philadelphia for self-defense is a fundamental right under the Second Amendment.

Section 6110.2

Section 6110.2 says “[n]o person shall possess a firearm which has had the manufacturer's number integral to the frame or receiver altered, changed, removed or obliterated.” This section is similar to 18 U.S.C. 922(g)(k) which provides that “It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.”

A federal district court in the Southern District of West Virginia declared section 922(g)(k) unconstitutional under Bruen. USA v. Price , 2022 WL 6968457 (S.D.W.Va. October, 12, 2022); cf. United States v. Holton, 2022 WL 16701935 (N.D. Tex. Nov. 3, 2022) (holding that firearms without serial numbers are “dangerous and unusual weapons” and therefore outside the scope of the Second Amendment). The court applied the Bruen framework and then analyzed the history of serial numbers on firearms. The court noted that the first legal requirement for serial numbers on firearms did not appear until 1934 when Congress passed the National Firearm Act. Not until the passage of the Gun Control Act of 1968 were serial numbers broadly required for all firearms. But, even then, it was not a crime to possess a firearm with an altered or obliterated serial number. The possession of a firearm with an altered or obliterated serial number was not criminalized until the passage of the Crime Control Act in 1990. Id . at *5. The court concluded that the government failed to prove that section 922(g)(k) was part of, or analogous to, the historical tradition that delimits the outer bounds of the right to keep and bear arms. Id . at *9.

Section 6104

One final section of the Uniform Firearms Act is worth considering. Section 6104 might be susceptible to an “as applied” constitutional challenge under Bruen based on which enumerated offense the defendant is charged with committing. Section 6104 says,

In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same , shall be evidence of that person's intention to commit the offense.

(emphasis added).

This statute is potentially unconstitutional because it burdens a core right under the Second Amendment, specifically the right to use firearms in self-defense, by creating an evidentiary inference that a person who is in lawful possession of a firearm intended to use it to commit a crime.

No other constitutional right is burdened in such a manner. For example, the failure to have a broadcasting license does not create an inference that a person’s speech is outside of the protections of the 1st Amendment.

There is no requirement in Pennsylvania that a person possess a firearm license in order to carry a firearm in public or to use the firearm in self-defense (other than in Philadelphia). Consider a citizen who carries a firearm on his hip in open view, but is forced one day to use the firearm in self-defense resulting in the death of the assailant. If the defendant is charged with murder, under section 6104 the Commonwealth would be entitled to an instruction that the jury may infer the defendant’s intent to commit murder, i.e. that he acted with malice, based on the fact that he did not have a license to carry the firearm. After Bruen , a defendant should be entitled to the exact opposite instruction– the jury should be instructed that it must not consider the fact that the defendant did not have a license as evidence of his intent to commit the offense.

Conclusion

The effect of Bruen on the Pennsylvania Uniform Firearm Act is still yet to be determined. However, one thing is clear, if the Supreme Court means what it says that the 2nd Amendment is not a second-class right, then several Pennsylvanian laws are ripe for constitutional challenges.