PA Superior Court Finds Felon in Possession Statute Constitutional
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. McIntyre, holding that VUFA § 6105’s prohibition on possessing a firearm after being convicted of certain prior offenses is constitutional and does not violate the Second Amendment. Despite the fact that numerous federal courts have reached the opposite conclusion, the Superior Court concluded that individuals with prior convictions for violent felonies are never among the people protected by the Second Amendment.
The Facts of McIntyre
The defendant was convicted of violating 18 Pa.C.S. § 6105, which makes it a felony to possess a firearm following a conviction for certain offenses. A violation of § 6105 is typically a first- or second-degree felony, and a person may also violate the statue if they possess a gun while having prior drug convictions, mental health commitments, or a protection from abuse order against them. In this case, the defendant had prior aggravated assault, robbery, and burglary convictions, among others.
The facts of the case are not particularly relevant for the constitutional analysis, but the defendant was charged with taking a gun from his uncle's house, carrying it to a nearby wooded area, and burying it. The Commonwealth charged him with violating the felon in possession statute after he led family members to the firearm's location. At trial, he claimed a justification defense in that he had found the gun and intended to get it out of the house and call the police, but the jury rejected that defense and found him guilty as he had not actually called the police despite having the opportunity to do so. Instead, he had buried the gun in the woods.
The Superior Court Appeal
The defendant appealed, arguing that § 6105 is unconstitutional following the United States Supreme Court's decision in New York State Rifle & Pistol Association Inc. v. Bruen and the Third Circuit Court of Appeals’s decision in Range v. Attorney General. The Superior Court rejected his argument. It concluded that Bruen focused on the rights of "law-abiding" citizens to carry firearms for self-defense and did not extend Second Amendment protections to individuals convicted of serious crimes like robbery, aggravated assault, and burglary. The Court emphasized Bruen's reliance on District of Columbia v. Heller, which acknowledged the government's ability to restrict firearm possession by felons as presumptively lawful.
In general, the Second Amendment protects the rights of “the people” to possess a firearm, thereby requiring an analysis of who is included within the term “the people.” The Third Circuit concluded in Range that even individuals with prior convictions may be included within “the people,” but the Superior Court found that only law-abiding individuals count as “the people.” As the defendant had numerous violent convictions, he is not among “the people” to which Second Amendment rights extend. Therefore, the Court did not even reach the second part of the Bruen test which is whether the gun restrictions had a historical analogue at time of the adoption of the Second Amendment. The Court simply rejected his argument, finding that the Second Amendment does not apply to anyone with prior violent convictions. The Court therefore denied the appeal.
The Takeaway
The Court’s opinion leaves quite a few important questions open. First, this case dealt with a defendant who had a particularly bad record; he had convictions for aggravated assault, robbery, burglary, and corrupt organizations. Although the convictions were relatively old, those crimes are about as serious as crimes can get, so the question of whether someone with less serious convictions can be stripped of their Second Amendment rights following Bruen remains open. Second, the opinion’s basic conclusion that the defendant is not part of “the people” to which Second Amendment rights extend seemingly conflicts with federal cases like Range v. Attorney General and Bruen itself. Those cases found that virtually everyone falls under the term “the people,” and the focus is instead more on whether the restriction in question would have been accepted by the founders.
This case makes it clear that defendants with serious, violent prior convictions can still be prosecuted under § 6105 in state court for now, but it is definitely not the final word on whether felon-in-possession restrictions are constitutional and what the limits on those restrictions may be. This case and others seem to be headed for the Pennsylvania and United States Supreme Courts. For now, criminal defendants with less serious criminal histories may still have success in filing motions to dismiss on Second Amendment grounds, but it is important to remember that you do not want to be the test case in the event that the courts uphold the restrictions in § 6105 and the corresponding federal statute, § 922(g). The sentences for carrying a gun illegally can be severe.
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Goldstein Mehta LLC Criminal Defense
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