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.