Election Time – Carrying a Firearm While Voting – It’s Political Speech and It’s Lawful!

While I have blogged on the topic extensively, several individuals have requested that I write an article including all the pertinent information in one article, as many residents of Pennsylvania are unaware of their right to carry a firearm while voting, unless their polling location is located at a place which is prohibited under state law, discussed below. The right to carry a firearm while voting is a political statement protected under the First and Second Amendment. For those interested in an in-depth review of the general right to carry a firearm while voting in Pennsylvania, keep reading.

                                          

During the past several election cycles, I wrote about this issue: Can You Vote While Carrying a Firearm in PA? and It’s Legal to Carry a Firearm, While Voting! In fact, since those articles, more and more counties (and the PA Dept. of State) are realizing and recognizing the lawful right of the people to vote, while carrying a firearm. Before we get into more recent instances of counties recognizing the right of the people, it is important to review the laws in relation to voting, while carrying a firearm.

Pursuant to 18 PA.C.S. 6120,

No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

Furthermore, pursuant to the PA Supreme Court’s decision in Commonwealth v. Hawkins, 547 Pa. 652, 657 (1997), and 18 PA.C.S. 6108, one may lawful carry openly in the Commonwealth, with the exception of the City of Philadelphia, unless the individual has a License to Carry Firearms (LTCF). In Hawkins, the Court, citing to its prior precedent in Ortiz v. Commonwealth, declared,

In all parts of Pennsylvania, persons who are licensed may carry concealed firearms. 18 Pa.C.S. § 6108. Except in Philadelphia, firearms may be carried openly without a license. See Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152, 155 (1996) (only in Philadelphia must a person obtain a license for carrying a firearm whether it is unconcealed or concealed; in other parts of the Commonwealth, unconcealed firearms do not require a license).

Thus, it is generally lawful to openly or conceal carry a firearm (pursuant to a valid LTCF, issued pursuant to 18 PA.C.S. 6109), as there does not exist a state law precluding such activity. However, there are several exceptions. First, although the PA Supreme Court has acknowledged the general lawfulness of open carrying outside of Philadelphia in the absence of an LTCF, the law precludes the open carrying of a firearm anywhere in Pennsylvania during a state of emergency, unless the individual has an LTCF. Right now, Governor Wolf has issued a state of emergency in relation to the opioid crisis, which I have written extensively on and most recently in – With a Second Stroke of a Pen, PA Governor Wolf Ensures that Firearm Rights are Restricted by Renewing Proclamation of State of Emergency

Second, if the polling location is in a court facility, an individual would be precluded from carrying at that polling location because of 18 PA.C.S. 913, which provides, “A person commits an offense if he:(1) knowingly possesses a firearm or other dangerous weapon in a court facility;” however, the law goes on to declare,

Each county shall make available at or within the building containing a court facility by July 1, 2002, lockers or similar facilities at no charge or cost for the temporary checking of firearms by persons carrying firearms under section 6106(b) or 6109 or for the checking of other dangerous weapons that are not otherwise prohibited by law. Any individual checking a firearm, dangerous weapon or an item deemed to be a dangerous weapon at a court facility must be issued a receipt. Notice of the location of the facility shall be posted as required under subsection (d).

Hence, although you cannot carry into a court facility, which is a polling location, the court facility/polling location must provide lockers for the temporary checking of the firearm.

The third issue is polling locations at schools. Pursuant to 18 PA.C.S. 912,

A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.

However, there is an defense provided for in that section, which declares,

It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose.

Although “other lawful purpose” is not defined in the law, I was recently successful in Commonwealth v Goslin in having the Superior Court, en banc, declare that an individual does have the right to the defense, where he/she lawfully possesses the weapon on school grounds and does not have any unlawful purpose or intent in being on the school grounds. For more information on the Goslin decision, see my article: The Goslin Decision’s Impact on Possessing Weapons on School Property.

Furthermore, in 2007, Mr. Gregory Rotz, openly carried his firearm while voting, and as a result, the Franklin County Sheriff’s Department revoked his LTCF. By Order dated January 8, 2008, Franklin County Judge John Waller found that no law had been broken and directed that his LTCF be returned to him. And this isn’t the only time that the Franklin County Sheriff’s Department has violated the law. There is currently a class action lawsuit against the Sheriff’s Department for disclosing confidential LTCF application information, where the Commonwealth Court recently ruled that the Sheriff’s Department did, in fact, violate the confidentiality provision. But, I digress.

October 29, 2010, the Pa. Dept. of State, Bureau of Commissions, Elections & Legislation, issued a letter entitled “Clarification Regarding Firearm Polling Locations,” which, in part, declared,

The Pennsylvania Uniform Firearms Act does not allow county boards of election to enact resolutions or any other rules and regulations prohibiting firearms from polling places.

However, even after the issuance of that letter, I became involved in a situation in Northampton County in 2012, where an individual was temporarily precluded from voting, while lawfully openly carrying a firearm. As a result of an amicable resolution of the matter, Northampton County has now placed on its website information that it is lawful to possess a firearm while voting, https://www.northamptoncounty.org/CTYADMN/ELECTNS/Pages/VoterRegInfo.aspx. Furthermore, additional safeguards have been implemented in Northampton County, including, but not limited to, poll worker training and providing a copy of the policy to any Common Pleas Judge presiding over Election Court on Election Day.

More recently, in October of 2016, the Pa. Dept. of State issued Guidance on Rules in Effect at the Polling Place on Election Day (yeah, the title is a bit awkward), as a result of a letter that I sent to the Dept. of State regarding the carrying of firearms while voting and the general lack of training of polling officials on the lawfulness. Specifically, the guidance states:

Voters who have a legal right to carry a firearm cannot be prohibited from entering the polling place to vote…a voter with a legal right to carry a firearm may not be precluded from voting.

I cannot stress enough how important it is to vote, regardless of whether or not you carry a firearm. While I believe voting while carrying a firearm is a political statement, the failure of so many citizens to become involved in the political process may result in us losing our right to make any political statement, as evidenced by the current state of our Union.

If you, a family member or someone you know is precluded from voting, while carrying a firearm,, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.We cannot let our Rights be eroded by ignorance.

 

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Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.