The Commonwealth v. McKown Aftermath….

By Allen Thompson, Esq.

An unfortunate decision was rendered by the Pennsylvania Superior Court this past Tuesday (Oct. 22, 2013).  In Commonwealth v. McKown, 2013 Pa. Super 282 (2013), the court broadly issued a sweeping ruling concerning Licenses to Carry Firearms (LTCFs) and reciprocity.  What could have been a limited ruling applying to merely the facts of the particular case – which are by no means broadly applicable – was, instead, applied to the entire state.  A brief recitation of the facts follows, to give some context:

Hobson Lyle McKown was criminally cited for several summary offenses.  As a result, the Centre County Sheriff revoked Mr. McKown’s LTCF.  Before receiving notice of the revocation – but the day after the revocation was issued – Mr. McKown applied for a New Hampshire LTCF.  Subsequently, Mr. McKown was arrested for a concealed carry violation.  Mr. McKown argued that he had a valid New Hampshire LTCF and was therefore not in violation of the law.  He was nonetheless convicted and appealed.

On appeal, Mr. McKown brought ten questions for review, one of which concerned the interpretation of 18 Pa.C.S.A. §§ 6106 and 6109.  Mr. McKown argued that because he had a New Hampshire LTCF and because Pennsylvania has a reciprocity agreement with New Hampshire, he was not in violation of the law.

Section 6106(a)(1) of Pennsylvania’s Uniform Firearms Act reads, in relevant part: “any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person . . . without a valid and lawfully issued license under this chapter commits a felony of the third degree.” (Emphasis added)

Section 6109(b) reads: “An individual who is 21 years of age or older may apply to a sheriff for a license to carry a firearm concealed on or about his person or in a vehicle within this Commonwealth.  If the applicant is a resident of this Commonwealth, he shall make application with the sheriff of the county in which he resides or, if a resident of a city of the first class, with the chief of police of that city.” (Emphasis added).

The Superior Court rejected Mr. McKown’s argument that a Pennsylvania resident is not required to have a Pennsylvania LTCF, ruling that § 6109(b) requires all Pennsylvania resident who wish to concealed carry to have a Pennsylvania LTCF.  In short, reciprocity agreements only apply to out-of-state residents. For a listing of all reciprocity agreements, see the Attorney General’s website, here.

This is problematic for several reasons.  First, the plain reading of the statute says that “[a]n individual who is 21 years of age of older may apply” for a LTCF.  If the applicant for a Pennsylvania LTCF is a Pennsylvania resident, then the applicant must apply with the sheriff of the county in which he lives (or the chief of police of Philadelphia, if the applicant lives there).  There is no reference or implication in § 6109 of a requirement that the only means for a Pennsylvania resident to legally carry concealed weapons in Pennsylvania is to use this process; in fact, the language used in § 6106, “any person,” suggests that the Legislature did NOT intend to exclude residents. If it was the Legislature’s intent, we would see similar language to that found in § 6109 regarding where residents, as opposed to non-residents, must apply if they desire a PA LTCF. Section 6109 only prescribes where a resident must apply for a PA LTCF and has no applicability to § 6106.

Second,  the Fourteenth Amendment to the United States Constitution requires that the law apply equally to similarly situated individuals.  The Court’s interpretation ignores the fact that Pennsylvania treats holders of LTCF’s differently.  A New Hampshire resident may legally carry his weapon concealed while in Pennsylvania, regardless of whether he holds a Pennsylvania LTCF.  A Pennsylvania resident may not carry his weapon concealed if he holds only a New Hampshire LTCF.

Also of note: the factual scenario Mr. McKown found himself in was markedly different than most.  Rather than merely carrying concealed without a Pennsylvania LTCF (but only with a New Hampshire LTCF), he had a revoked Pennsylvania LTCF.   Additionally, while he may not have known about the revocation at the time he applied for a New Hampshire LTCF, the revocation was official, thus making his New Hampshire LTCF invalid.  The Court could have easily limited its decision to McKown’s factual scenario.  Admittedly, the question presented by Mr. McKown challenged the entirety of the law, but courts frequently narrow broad questions to the limited facts at hand  – here, it could and should have reserved the issue for later and ruled that, regardless of the general applicability of § 6109, Mr. McKown had a revoked LTCF and an invalid New Hampshire LTCF, thus making his argument moot.

Finally, it must be stressed that the City of Philadelphia filed an amicus brief in this matter.  This cannot be taken lightly, for the City of Philadelphia had no interest in the litigation other than its interest as a city in the Commonwealth seeking to limit citizens’ right to carry (under its police power concerning the general welfare, according to its brief).  This may very well be a tactic we begin to see in firearms litigation, especially from the likes of Mayor Bloomberg’s Mayor’s Against Illegal Guns and other anti-gun groups and municipalities.  It is therefore extremely important that individuals and groups that support the Second Amendment rally and meet this threat head-on.  Philadelphia’s legal involvement in an incident that occurred three hours away, half-way across the Commonwealth, demonstrates the organization and length the opposition to the Second Amendment will go.  We must be willing to counter them at each step.  In order to do that, we need your support.

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5 Comments

Filed under Firearms Law, Pennsylvania Firearms Law

5 responses to “The Commonwealth v. McKown Aftermath….

  1. It’s my understanding that earlier this year our State Attorney General rescinded all reciprocity of out of state LTCF, CCW, et al for PA residents. Florida was the main point of this. Since the AG has the legislated purview to sign or rescind reciprocity agreements, it seems to me the judge ruled on that basis. Comments?

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  2. MM

    Ready and willing to support! Where we going?

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  3. In February of this year, AG Kane moderated our agreement with Florida (https://blog.princelaw.com/tag/florida-license-to-carry-firearms-ltcf-pennsylvania-reciprocity-agreement-reciprocity-ag-kane-attorney-general-kane/). Municipalities, such as Philadelphia, and law enforcement saw this as a tool in restricting gun rights – which is one of the reasons Philly’s amicus brief is important. And you are correct that certain politicians were haling this as “closing a loophole,” implying that all agreement would or were dissolved.

    Even if, however, the current modifications had been in effect and would currently apply to McKown, the judges can only rule based on the law as it stood at the time of the offense – otherwise, you are being punished today for something that was legal yesterday, which is forbidden by the US Constitution as an ex post facto law.

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  4. Joshua Prince would do well to remove Allen Thompson from his PrinceLaw.com. Is there a joke? You guessed it: The Superior Court cut down Hobson McKown in part because, as far as concurring Judge Fitzgerald is concerned, Joshua Prince of Prince Law got our Pa. Const. art. I, § 21 right obliterated by the Commonwealth Court only months before. Now, Hobson McKown may believe Joshua Prince fought for the right thing in Caba v. Weaknecht, 64 A.3d 39 (Pa.Cmwlth. 2013), but the Commonwealth Court nearly always rules against the Constitution when a weapon is involved (as do the Pa. Federal District and Circuit Courts). However, the Superior Court only rules against the Constitution some of the time when weapons are involved.

    I don’t know what kind of lawyer Allen Thompson can possibly be when he choose tautologies over
    1) actually reading New Hampshire law, which determines the validity of the pistol/revolver permit licenses,
    2) actually reading the Driver License Compact as adopted by Pennsylvania versus 18 Pa.C.S. §§ 6106 and 913, where one would quickly realize that, yes, the DLC does in fact bar application and use of a license when another is suspended, yet we know 18 Pa.C.S. §§ 6106 and 913 do not, because we know the legislature already knows how to use the appropriate language to set up that system,
    3) recognizing due process does not allow the imaginings of public officials to fix individuals rights — the defendant could not have possibly known that Sheriff Denny Nau had ‘imagined’ (or ‘issued [sic]) the revocation, and further more, a revocation that does not track the exacting requirements of both 18 Pa.C.S. § 6109(i) and In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) can be no revocation at all.

    Philadelphia filed an amicus brief but not one single Pa. or national pro-gun organization filed an amicus brief — can you see how gun owners and ‘rights-believers’ (I would hate to say they actually ‘fought’ for any rights or this case could have never come to exist in the first place), since 1850, the year of the first Pa. state statute regulating carry of weapons, brought this upon themselves? They failed to vote in oath-keepers and removed oath-breakers and criminals-in-office, and they never asked the courts to remedy an institutional attack on our rights (or else we would have any meaningful, lawful binding precedent on the matter; we don’t — see Wright, 1875 (4 lines, per curiam), Gardner (no one raised the issue to allow it to be litigated fully and fairly by the parties, but the court dropped dicta comments anyway), Caba, Morley. No one ever asked the court since 1776 whether the Right to Bear Arms under the Pennsylvania Constitution prevented any Act which criminaled the non-damaging carry of firearms (contrast with Wright, where the very wording of the statute involved not only carry of a weapon but also acute intent of violence.)

    The Court was presented in briefs at each level (trial, appellate) with Bliss v. Commonwealth, 12 Littell 90 (Ky. 1822), the first state high court case on the right to bear arms (declaring the right nearly absolute before almost every other court came around to ignore or write off in a single sentence this case and go on to trash gun rights), and the Pennsylvania Constitutional Debates for the 1874 Constitution. You can find nothing anywhere about these pursuasions in any judge’s opinion; yet, these judges use no binding precident whatsoever and instead turn to a litany of 3rd Cir. and Commonwealth cases, along with dicta of other Pa. Cases, to reach their holdings.

    Want to know a joke? In 1792, Kentucky stole Pa’s Declaration of Rights, copying art. I, sec. 21 exactly (it was numbered differently at the time, however). Bliss came around in 1822. Because of Bliss, Kentucky changed its constituion in 1850 under the theory that the legislature could not regulate concealed carry until specifically authorized under the constitution. It wasn’t until 1850 that Pa. got it’s first state-enacted section of statute regulating the carry of arms. Coincidence? Do a search in WestLaw or LexisNexus for “Bliss v. Commonwealth” under Pennsylvania cases and you will find it NO WHERE. 190 years and the Pa. appellate courts couldn’t make note of it in at least ONE SENTENCE, if to do nothing but write it off? Courts of other states were aware of Bliss within 20 years. Wright, in the 19th century (1875), mentioned to the Pa. Supreme Court the existence of Bliss. The Court made no recognition of that in its 4 sentence per curiam opinion. Hobson McKown, in the 21st century, mentioned to the Pa. Superior Court the existence of Bliss v. Commonwealth and Kentucky’s copying of our declaration of rights. Once again, the Court made no recognition of that in its reptitious but lacking exposition on the Pennsylvania Constitution vs. the Crimes Code, Title 18, Uniform Firearms Act. Do you see the trend?

    Here is the case of Com. v. McKown is four concise sentences:
    “Although the act of Assembly is against carrying arms secretly in that way, yet they fall back on the Constitution, which they say authorizes the bearing of arms, and therefore the act of Assembly is unconstitutional. [It] has been made constantly a matter of defence, and it gives the courts great annoyance.” 7 Debates of the Convention to Amend the Constitution of Pennsylvania 258 (Harrisburg 1872-1873). “I think this amendments should prevail and the word “openly” should go in for this simple reason, that in some portions of the State they have local laws against carrying concealed deadly weapons, and when that question was brought before one of the courts of Philadelphia, one of the judges declared that a person upon the witness stand who had a pistol concealed on his person had a constitutional right to carry that pistol concealed . . .” Id., at 258.
    “[T]he exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff.” People v. Zerillo, 189 N.W. 927 (Mi. 1922).

    History does not bear out the result in the case of Commonwealth v. McKown:

    “Mr. Lewis, as a member of the house, then delivered a very elaborate argument, . . .
    He began with stating the inestimable character of true liberty, which is equally endangered by tyranny on the one hand, and by licentiousness upon the other. . . .
    He then commented upon the origin, nature, and purposes of a state of society, which, he said, was principally formed to protect the rights of individuals; . . . [Exemplifying the precarious balance:]
    The right of publication, like every other right, has its natural and necessary boundary; for, though the law allows a man the free use of his arm, or the possession of a weapon, yet it does not authorize him to plunge a dagger in the breast of an inoffensive neighbour.” Respublica v. Oswald, 1 Dall. 319, 328 n. an-expositive-but-unnumbered-footnote (Pa. 1788).

    Here is what Pa. Supreme Court Judges have to say to all of you:

    “If laws in conflict with it be passed by the legislature, be approved by the governor, and sustained by this court, that is revolution. It is no less revolution because accomplished without great violence.” Perkins v. Philadelphia, 156 Pa. 539, 567-68 (1893).

    “The history of the human race has taught mankind by melancholy experience, that it is necessary in all governments, whether monarchial or republican, to strictly guard the rights of the subject from the injustice of the crown, and the citizen from the injustice and gradual encroachments of those to whom they are compelled to intrust the management of their affairs, whether a legislative body, or whatever mode they may choose to adopt. Experience has also taught us the useful lesson, that there is no more effectual way of destroying the liberties of the people, than by gradual encroachments under colour of law, and that no better instrument could be employed for that purpose, than a venal, timeserving, timid and subservient judiciary. This melancholy truth was completely exemplified in the tyrannical and corrupt reigns of Charles II. and James II., not to mention other notorious examples, which will readily occur to any person even slightly versed in the history of the people from whom we have taken our laws and the principles of our government.

    “It is not intentional disrespect to a co-ordinate branch, nor to the judiciary, to suppose it possible that cases may arise, where, to effect a favourite object of legislative ambition, or to gratify the vindictive feelings occasioned by the phrenzy and madness of party, a successful resort may be had, by such means, to the judicial tribunals of the country. That cases of the kind will not be frequent I am ready to admit; but that they are possible, and have taken place in other lands, if not in this pure and enlightened Commonwealth, will hardly be denied by those who have taken the trouble to look into the history of the times, and particularly that period of history where the judicial departments were subject to the temptations which must necessarily arise from a dependent condition. It is enough for me, that the framers of our admirable Constitution have so thought, and have endeavoured to provide against its recurrence. Thoroughly acquainted with the human heart, deeply versed in history, and taking warning from the numerous examples it affords of the insidious approaches of tyranny, they have surrounded this branch with every protection which might, as they supposed and intended, secure them from the encroachments of the other branches of government. The Constitution itself supposes that our representatives may abuse their trusts, and provides against such a contingency as well as human wisdom can provide. It is a consolation to every lover of his country’s welfare, that insidious or open attacks upon the Constitution cannot ultimately succeed, unless through the corruption of the people themselves. And when the time occurs when assaults on the Constitution are regarded with indifference, it will be an easy step to take refuge in the arms of tyranny. They will deserve to be slaves, because they are unworthy of the blessings of liberty.

    “If, then, I have been, as I flatter myself I have, successful in evincing that the complete and entire independence of the judiciary of the other branches, is essential and so esteemed by the Convention, to the preservation of liberty and the principles of good government, and that the construction of the Constitution for which the respondent contends would jeopard the rights of the community and endanger the welfare of the citizen, and that there is nothing in the Constitution, but the direct contrary, to favour that construction, there is an end of the argument. It may be a matter of surprise, that so much pains is taken to establish a position which cannot, with any prospect of success, be denied. My apology is, that when conclusively proved, there must be an end of the case. A position which weakens, even if it does not destroy, the fundamental principles of the Constitution, the work of the people themselves, the charter of our liberties, cannot expect to be favoured or receive the slightest countenance in a court of justice.

    “We are fully sensible of the delicate situation in which the Judges of this court are placed, but it is not of our seeking, and we should be recreant to our duty, if, when it is demanded by a citizen whose rights have been invaded, we should shrink from its performance. We should in all probability receive, most certainly we should richly merit, the contempt of the Legislature itself. We wish it to be distinctly understood that no claim is put in for judicial irresponsibility; we acknowledge in its fullest extent the constitutional responsibility of Judges for an abuse of their high functions, among which the greatest that could be committed would be a base betrayal of trust in refusing to interpose to prevent injustice whether arising from a wilful, deliberate and wicked invasion of the Constitution, or from what we believe to have been a mistaken construction of legislative authority. As the people, who are the fountain of all power, have in their wisdom distributed the functions of government into their co-ordinate branches–the legislative power, the executive power, and the judicial power–it is necessary that each should respect the just rights of the others, and abstain, as far as practicable, from the exercise of all doubtful authority. In this way, and in this way only, can the harmony of our system be preserved. In this mode, in the language of the Constitution of the United States, we shall best promote the general welfare and secure the blessings of liberty to ourselves and our posterity.

    “And here let me further remark, (without pretending to any great merit for the prediction), that whenever the liberty of this people is overthrown, all the forms of the government will be anxiously and carefully preserved. While the spirit of liberty has fled, its semblance will still remain. Of this truth the fall of the Roman Republic is a memorable and a useful example. Although the most infamous despotism was established which the world has ever seen, yet, to all outward appearances, the government continued the same. But the limits of a judicial opinion will not allow me to pursue this theme by the citation of numerous other examples full of instructive and salutary warning. And let me also, (without intending the slightest disrespect), recall the attention of the intelligent people of the Commonwealth to the frightful despotism which raged without control in a neighbouring country, and at a recent period, under the name and with the apparent sanction of the legislative body. The page of history teems with examples which incontestably prove that no more convenient or effectual instrument can be devised for the success of unhallowed ambition than a corrupt legislature and a subservient judiciary. To prevent the evils which would inevitably result from the overthrow of the government, the equilibrium established by the Constitution must be preserved, and this can only be done by meeting on the threshold the first attempt at encroachment, whether arising from design, inattention or mistake, come from what branch of the government it may.”

    Commonwealth ex rel. Hepburn v. Mann, 5 Watts & Serg. 403 (Pa. 1843)

    That’s right, let this go, and one way or the other, someone is overthrowing the government. You have WestLaw/LexisNexus, Allen, so why don’t you start doing some reading before the next time you post. Thank you. May Joshua Prince otherwise terminate you quickly.

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  5. O. Rly

    McKown has filed a petition for allowance of appeal, docket 906 MAL 2013. This seems to be in accordance with what was promised on cases.hobsonlylemckown.com in which a quote allegedly by the defendant in this case said he would take it up to the Supreme Court of Pennsylvania.

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