Recently, due to COVID-19, a number of Pennsylvania Sheriff Departments, in violation of the law and their oaths, have notified residents that they will no longer process license to carry firearm (LTCF) applications, including renewals; thereby, preventing individuals who do not have an LTCF from being able to defend themselves in a time of need and subjecting those who do have an LTCF, but whose LTCF lapses, to criminal prosecution.
Let’s start with those who do not have an LTCF. 18 Pa.C.S. § 6109 sets forth the application process and the criteria for eligibility of an LTCF. Nowhere within Section 6109 does it permit a sheriff to refuse to accept an LTCF application. In the absence of an LTCF, one is subject to the draconian and unconstitutional transportation restrictions of 18 Pa.C.S. § 6106; whereby, an individual can only go directly to and from very specific and limited locations. If you violate Section 6106 by, for example, stopping for a coffee on your way to or from the range, you are subjected to the criminal penalty of either a misdemeanor of the first degree (if you were otherwise eligible for an LTCF) or a felony of third degree (if you were not eligible for an LTCF). Regardless of which you are convicted of, pursuant to 18 U.S.C. § 922(g)(1) and as defined by 18 U.S.C. § 921(a)(20), you will be prohibited for life from being able to purchase, possess, and utilize firearms and ammunition, because even a misdemeanor of the first degree can be punished by up to 5 years in jail, pursuant to 18 Pa.C.S. § 106(b)(6).
But open carry is lawful, right? First, open carry is not explicitly mentioned as an exception to our draconian transportation laws. Second, due to Governor Wolf issuing the opioid proclamation, as well as, a state of emergency regarding COVID-19, pursuant to 18 Pa.C.S § 6107, an individual is prohibited from carrying any firearm on “public streets or upon any public property” during the state of emergency, unless one has an LTCF. I detailed all of these issues in my prior article, Lose Your Second Amendment Rights if You Violate Section 6107 as a Result of Governor Wolf’s Opioid Proclamation.
Thus, if you do not have an LTCF, your right, in public, to defend yourself is virtually eliminated, even though the U.S. Supreme Court in D.C. v Heller defined “bear arms” as to “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” D.C. v. Heller, 554 U.S. 570, 584 (2008). This is why it is imperative that the General Assembly immediately enact HB-1412 (permitting constitutional carry), HB-1747 (generally repealing 18 Pa.C.S. 6107 and removing “firearms” from 35 Pa.C.S. § 7301(f)(8)), and HB-303 (generally repealing the unconstitutional transportation laws).
But you don’t have to worry about the above because you have your LTCF, right? Well, that’s true unless your LTCF is set to expire, while your county sheriff is refusing to process LTCF applications. But Josh, my sheriff told me that there is a 6 month grace period, so I’m fine! If only it were that simple…
Although 18 Pa.C.S. § 6106(b)(12) provides an “exception,” the Superior Court has turned that “exception” into a “defense.” Specifically, Section 6106(b)(12) provides:
(b) Exceptions.–The provisions of subsection (a) shall not apply to: … (12) A person who has a lawfully issued license to carry a firearm pursuant to section 6109 (relating to licenses) and that said license expired within six months prior to the date of arrest and that the individual is otherwise eligible for renewal of the license.
Unfortunately, the Superior Court in Commonwealth v. Anderson held that “exceptions” were “defenses” to prosecution – meaning the Commonwealth can prosecute you and during trial, you can raise an “exception” as a defense to prosecution. As I detailed in my blog article Devastating En Banc Decision Regarding Act 235 Security Guards,
However, in a mind-boggling evisceration of the statutory language, the court goes on to say that the “exceptions” found in Section 6106(b), even though the statutory text states that subsection (a) shall not apply, are defenses that must be proven at trial. This is truly a manifest injustice, as the General Assembly is acutely aware of how to draft provisions that are “defenses,” as evidenced by 18 Pa.C.S. 912(c), and those that are immunities or exceptions.
Based on the absurdity of this decision, for example, now law enforcement officers, who are found in a courthouse possessing a firearm, are to be prosecuted and have to prove, as a defense, that the firearm was possessed in “lawful performance of official duties” because Section 913(c) makes such possession an “exception.” Even more obscene, the same would be true of “constables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers,” since this is an “exception” found in Section 6106(b).
Thus, sheriffs who are refusing to issue renewals to residents whose LTCF is set to expire are subjecting those individuals to criminal prosecution.
But Josh, COVID-19 is serious and we need to protect our LEOs! While I am not going to address the seriousness or lack-of-seriousness of COVID-19 and agree that we must protect our LEOs, there are safeguard practices that could be instituted, as some sheriff offices have already done, which permit individuals to obtain/renew LTCFs while generally protecting our sheriffs and their deputies. For example, in Armstrong County, Sheriff Rupert placed the following on the website:
|Firearms Application Renewal|
|ATTENTON: Due to the COVID-19 virus, we will processing ALL License to Carry applications through the mail ONLY! This will be effective immediately and last until May 31, 2020. Once you are approved, we will notify you by phone. After said time, we will be doing the photos and signatures Monday – Friday to get everyone caught up and a new License to Carry printed. As of June 1, 2020, we will be processing applications like normal. Applications are available below or at he front doors of our courthouse. Please keep checking the webpage for any updates. Thank-you for your understanding in this matter.
When sending your application through the mail please include the following with your application:
1. Copy of your driver’s license
2. Check or money order for $20.00, made out to “Armstrong County Sheriff”
Many other sheriffs, for example in Butler, Fayette, Greene, Lawrence counties, have continued, in honoring their oath and the law, to issue LTCFs, without implementing any regulations. The Beaver County Sheriff took a slightly different approach by accepting LTCF applications by appointment only.
Thus, I am calling upon all Pennsylvania sheriffs to uphold their oaths and the law by continuing to issue LTCFs, as the refusal to issue such, is placing your residents in harms way and potentially subjecting them to serious bodily injury or death during this time of need.
For those who are quarantining yourselves, please take a few minutes and contact your elected officials and demand that they immediately enact HB-1412 (permitting constitutional carry), HB-1747 (generally repealing 18 Pa.C.S. 6107 and removing “firearms” from 35 Pa.C.S. § 7301(f)(8)), HB-303 (generally repealing the unconstitutional transportation laws), and HB 1066 (preempting local regulation of firearms and providing for attorney fees and costs)!
If you or someone you know has had their rights violated by a Government agency, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.
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.