Firearms Regulation in Pennsylvania: The Basics, Some of the Law, and Firearm Disabilities
WHO CAN SELL FIREARMS, AND UNDER WHAT CONDITIONS?
Short answer: Those who are licensed to sell firearms through the federal government. In addition, and generally speaking, private individuals can sell firearms provided that they are an occasional seller. State laws may differ, so this post focuses on the Commonwealth of Pennsylvania.
Long answer: Firearms are regulated in the United States through a combination of federal and state laws. Some of these laws are imprecise lead to confusion and an inability to properly enforce them. Perhaps the best example of this is found in Chapter 44 “Firearms” of Title 18, U.S. Code, Section 921, “Definitions.” In paragraph (a)(21)(A)-(F) of this section, the statute goes to great lengths to explain who is subject to regulation as a license holder who may sell firearms in the ‘course of business’ and those who do not need a license to sell a firearm because they are merely an ‘occasional’ seller.
The confusion is created because what constitutes a ‘business’ or someone who collects guns for hobby and only ‘occasionally’ sells them are not subject to easy definitions. The law employs a standard rather than a clear rule, which is problematic because rules in black-and-white are generally far easier to enforce than a standard that provides leeway for divergent interpretations as to its meaning.
A good example of a rule is that it is unlawful to operate a vehicle faster than the posted speed limit, whatever that posted speed may be. A good example of a standard, by contrast, a person who deals firearms “as a regular course of trade or business to predominantly earn a profit through the repetitve purchase and resale of firearms…” as is found in 18 U.S.C. Sec. 921(a)(21)(C).
If the latter definition sounds about as clear as mud, that’s because it is. While the Bureau of Alcohol, Tobacco, and Firearms (ATF) has issued guidance on what they believe the concept of ‘occasional seller’ should mean in this section of the law, this guidance is given limited deference in a court of law. That is to say, an agency’s interpretation of a law does not carry the weight of the actual law itself. Generally speaking, what the law says is a determination to be made by the judiciary. It suffices to say, with out getting into a run-down of published opinions from court cases, that the government’s efforts to enforce this law, as it written, has not always been successful because of a lack of clarity in the law.
This is so because laws being invoked in the course of a criminal prosecution - or even a civil regulatory action for that matter - must be of sufficient clarity to place the individual on notice of what type of behavior is unlawful. This is a very general discription of what is known as the Void for Vagueness Doctrine, which means exactly what it says. The basic idea is that if a law is too vague, then citizens are not presumed to know what is unlawful or lawful, and the law becomes unenforceable in a criminal prosecution. Vagueness arguments are usually raised in criminal context where the standards for clarity about what is alleged to be wrongful are generally higher than in a civil proceeding, such as a license revocation or suspension proceeding. Higher standards of clarity about what conduct is alleged to be wrongful are generally required in a criminal prosecution because a criminal prosecution poses a greater risk of the deprivation of life and liberty.
IS A BACKGROUND CHECK REQUIRED FOR THE SALE OF A FIREARM IN PENNSYLVANIA?
Short answer: It depends. A licensed firearms dealer must perform a background check for the sale of any firearm. A private citizen ‘occasional seller’ in Pennsylvania must have a background check performed on a potential buyer, but ONLY for a handgun. In this sense, there is no universal background check requirement in Pennsylvania. Other states may differ.
Long answer: Defining who is subject to regulation is important in the context of any discussion of firearms because it invokes the question of what kind of purchaser is subject to a background check before he or she may actually come into possession of a firearm. Background checks are a crucial tool used by law enforcement to determine whether a certain individual is permitted to possess a firearm. Without a universal background check system in the context of a robust system of firearms regulation, law enforcement will never be optimized in its ability to ensure that firearms do not end up in the hands of those who are not legally permitted to possess them. A requirement of universal background checks would, of course, greatly enhance law enforcement’s ability to enforce laws already on the books. However, universal background checks have become a hotly debated political issue and not appropriate for further discussion here. Regardless, observing the breadth of current background check requirements is crucial to an understanding how firearms are regulated in the Commonwealth.
WHO IS PERMITTED TO OWN A FIREARM IN PENNSYLVANIA?
Federal Law Prohibitions
Short answer: Specific prohibitions are set forth in 18 U.S.C. Sec. 922, the Federal Law, and 18 Pa.C.S. Sec. 6105, the Pennsylvania law.
Long answer: There is a tremendous degree of nuance in defining the categories of individuals who are not legally permitted to possess a firearm or do other things, such as transfer a firearm. For brevity’s sake, I am not going to touch on those more technical provisions of the law and instead focus on the certain classes of individuals for which possession is unlawful. The legal inability to own a firearm is generally referred to as a “firearms disability” in the law. This post will attempt to paint the general lay of the legal landscape in broad strokes:
First, Federal firearms disabilities are set forth in 18 U.S.C. Sec. 922, “Unlawful Acts,” (subsection (g)). The reason of these disabilities, which arise by function of law, include those who:
have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;****(special note about prison terms that triggers this prohibition - it’s more complicated than what initially meets the eye).
are fugitives from justice;
are an unlawful user or addicted to any controlled substance; those who have been adjudicated as a mental defective or who has been committed to a mental institution;
are an alien, and is in the United States illegally or unlawfully, or who hold a nonimmigrant visa, (subject to an additional exception);
were discharged from the U.S. Armed Forces under Dishonorable Conditions;
are subject to certain types of restraining orders or equivalent only after certain procedures were followed by the court that issued said restraining orders or equivalent, and only after a specific finding that the individual represents a credible threat to the physical safety of an intimate partner or child;
having been a citizen of the United States, has renounced citizenship;
has been convicted in any court of a misdemeanor crime of domestic violence
****Special note concerning convictions:
The definitions section of the Federal Law (18 U.S.C. Sec. 921(a)(20), further defines the phrase a “crime punishable by imprisonment for a term exceeding one year: in 922(g) as the following:
“The term “crime punishable by imprisonment for a term exceeding one year” does not include…any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or…any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” (bold emphasis underline added).
Special attention is directed to the final sentence of this section because of its meaning in the context of Pennsylvania Law. A misdemeanor II under the laws of the commonwealth imposes a maximum possible term of imprisonment for two years. Meaning, a Misdemeanor II in Pennsylvania will not trigger a Federal Firearms Disability under 18 U.S.C. Sec. 922(g).
State Law Prohibitions
Second, Pennsylvania is considered a relatively gun-friendly state, with relatively lenient laws compared to some other states in the US. However, there are still a number of regulations and restrictions in place that govern the sale, possession, and use of firearms.
Firearms disabilities under state law are set forth in 18 Pa.C.S. Sec. 6105. Generally, this law prohibits the possession of firearms for those convicted of certain, enumerated crimes or their equivalent in other jurisdictions, and “other persons” with particular circumstances.
With regard to crimes that give rise to a prohibition it is generally unlawful for a person to possess firearms if:
They are convicted of a felony under the Controlled Substance, Drug, Device and Cosmetic Act (Title 35, Pennsylvania Statutes), or equivalent in another jurisdiction;
They are the subject of a final protection from abuse order pursuant to 23 Pa.C.S. Sec. 6107;
Have a conviction for, (referencing Title 18, Pennsylvania Crimes Code:
Section 908 (relating to prohibited offensive weapons), Section 911 (relating to corrupt organizations), Section 912 (relating to possession of weapon on school property), Section 2502 (relating to murder), Section 2503 (relating to voluntary manslaughter), Section 2504 (relating to involuntary manslaughter) if the offense is based on the reckless use of a firearm, Section 2702 (relating to aggravated assault), Section 2703 (relating to assault by prisoner), Section 2704 (relating to assault by life prisoner), Section 2709.1 (relating to stalking), Section 2716 (relating to weapons of mass destruction), Section 2901 (relating to kidnapping), Section 2902 (relating to unlawful restraint), Section 2910 (relating to luring a child into a motor vehicle or structure), Section 3121 (relating to rape), Section 3123 (relating to involuntary deviate sexual intercourse), Section 3125 (relating to aggravated indecent assault), Section 3301 (relating to arson and related offenses), Section 3302 (relating to causing or risking catastrophe), Section 3502 (relating to burglary), Section 3503 (relating to criminal trespass) if the offense is graded a felony of the second degree or higher, Section 3701 (relating to robbery), Section 3702 (relating to robbery of motor vehicle), Section 3921 (relating to theft by unlawful taking or disposition) upon conviction of the second felony offense, Section 3923 (relating to theft by extortion) when the offense is accompanied by threats of violence, Section 3925 (relating to receiving stolen property) upon conviction of the second felony offense, Section 4906 (relating to false reports to law enforcement authorities) if the fictitious report involved the theft of a firearm as provided in section 4906(c)(2), Section 4912 (relating to impersonating a public servant) if the person is impersonating a law enforcement officer, Section 4952 (relating to intimidation of witnesses or victims), Section 4953 (relating to retaliation against witness, victim or party), Section 5121 (relating to escape), Section 5122 (relating to weapons or implements for escape), Section 5501(3) (relating to riot), Section 5515 (relating to prohibiting of paramilitary training), Section 5516 (relating to facsimile weapons of mass destruction), Section 6110.1 (relating to possession of firearm by minor), Section 6301 (relating to corruption of minors), Section 6302 (relating to sale or lease of weapons and explosives).
With regard to “other persons,” or stated more simply, those of a different legal circumstances that prohibits them from possessing a firearm, it is unlawful to possess under state law if:
The person is a fugitive from justice;
Any conviction under the Controlled Substance, Drug, Device and Cosmetic Act;
Three DUI convictions within a five year period, except that this prohibition applies to only only transfers or purchases, not possession;
The person has been adjudicated as incompetent or been involuntarily committed pursuant to the Mental Health Procedures Act, except that any “302” commitment must be accompanied by a physician’s certification that inpatient care was necessary OR that the person was committable.
A person who is an illegal alien;
A person who is subject of a final protection from abuse order that required disposition of firearms;
A person adjudicated as delinquent as a result of conduct that would constitute specific, enumerated crimes (list omitted)
A person who is prohibited from possession by reason of 18 U.S.C. Sec. 922(g)(9) (related to a crime of domestic violence, graded not less than a misdemeanor), and provided that other circumstances are met.
Importantly, there are other particulars and nuances both to the federal law and the state law. These statutes are highly technical, and contain schemes of enhanced penalties (different grading of the offense) depending on the circumstances. Consequently, the categories listed above should not, in any case be taken as legal advice. This information is being provided here to provide an overview of how firearms are regulated in the United States and in Pennsylvania.