As the Supreme Court has held, the Second Amendment is an individual right; yet, few attorneys, even those extremely skilled criminal defense attorneys, know or understand when their client’s right to keep and bear arms is jeopardized. There exists a maze of federal and state laws that apply and which can result in even the most experienced practitioner scratching his or her head or mistakenly believing that his or her client will not lose his/her right to keep and bear arms because it is “merely a misdemeanor.”
While the maze of federal and state law is too vast to review in a single article, there are some very easy to remember laws, in regards to firearms disabilities/prohibitions. Once an individual is convicted of a disabling crime (some of which aren’t crimes at all; but rather, civil penalties), the individual is commonly referred to as a “prohibited person,” because of his/her “firearms disability.” While there are clearly constitutional questions and challenges that exist to such firearms disability deprivations since the Supreme Court’s decisions in D.C. v. Heller and City of Chicago v. McDonald, those are beyond the scope of this article.
First, everyone must understand that if you are convicted1 of a prohibiting crime, pursuant to either state or federal law, the individual is prohibited from possessing or purchasing any firearm, ammunition or, here in the Commonwealth, an electronic incapacitation device.2 One of the easiest rules of thumb is that if you are convicted of any crime enumerated in 18 Pa.C.S. § 6105, you are prohibited, at least within Pennsylvania, if not also federally.3 While a strictly Pennsylvania prohibition, such as a conviction under 18 Pa.C.S. § 4912, may be resolved by you moving to another state,4 a federal disability would prohibit you throughout the U.S.
Another easy rule of thumb is if you are convicted federally of any crime that is punishable by more than one year in jail or a state crime of a felony grading that is punishable by more than one year in jail, you are prohibited federally, unless the federal or state crime falls into one of the extremely limited exceptions of 18 U.S.C. § 921(a)(20)(A). Furthermore, any individual convicted of a state crime of a misdemeanor grading that is punishable by more than two years in jail, is prohibited federally. It is important to note that the conviction must be, in both cases, for “more than” the specified yearly amount. Accordingly, in Pennsylvania, a misdemeanor 2 conviction would not be prohibiting federally,5 because the maximum it can be punished by is two years. Also, it is important to note that the amount of time spent in jail, if any, is immaterial. The only criteria that determines whether the federal prohibition applies is what the maximum sentence that can be imposed is, not the actual sentence imposed. Hence, 99.9% of the time, any misdemeanor 1 conviction in Pennsylvania will be prohibiting.6
There are also several catchalls, which can be found in 18 U.S.C. § 922(g). These include, a person who: 1. is a fugitive of justice; 2. is an unlawful user of or addicted to any controlled substance; 3. has been adjudicated as a mental defective or who has been committed to a mental institution;7 4. is illegal alien; 5. has been discharged from the Armed Forces under dishonorable conditions; 6. has renounced his U.S. citizenship; 7. is subject to a court order, which “restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child;” and 8. has been convicted in any court of a misdemeanor crime of domestic violence.
While entire articles can be devoted to some of the above-listed prohibitions and what must be shown or found for the prohibition to apply, knowing that the above can apply will greatly assist you in determining whether you may lose your Second Amendment right.
In that vein, let us quickly consider your recent DUI charge. Let us assume this is your second DUI offense and is listed as highest rate (.16% or greater BAC). Do you have anything to worry about? What is the first step? Determine what the maximum penalty is and whether it is a misdemeanor or felony. Whew, it is a misdemeanor, so nothing to worry about, right? Wrong. Because it is highest rate, it is a first-degree misdemeanor, which carries with it a maximum penalty of five years in jail. By pleading guilty to this offense, you have become prohibited, ostensibly for the rest of your life. However, if you realize beforehand, you might be able to cut a deal with the District Attorney for you to plead guilty to a second offense, high rate, which is an ungraded misdemeanor, for which the maximum penalty is two years in jail; hence, not prohibiting.
If you find yourself charged with a crime, it is imperative that you obtain competent counsel that can advise you on whether you will lose any of your constitutionally protected rights by pleading guilty. Otherwise, if you plead guilty to a prohibiting crime, even if your attorney erroneously advised you that the offense will not result in a prohibition, you will likely lose your rights for the remainder of your life.
1 Conviction does not include successful completion of Alternative Rehabilitative Disposition (ARD). However, adjudications of delinquency and mental health commitments can be prohibiting, but are beyond the scope of this article.
2 18 Pa.C.S. § 908.1(c).
3 For instance, while a conviction for impersonating a public servant, 18 Pa.C.S. § 4912, is listed in § 6105(b) as a prohibiting offense, this would not trigger the federal disability, as the maximum penalty that it can be punished by is two years in jail; not more than two years in jail, as will be explained later on.
4 CAUTION: you would need to ensure that the new state does not have any laws, which, in essence, state that if you are prohibited under the laws of another state, you are prohibited under the laws of the new state, regardless of the fact that if the same crime had been committed in the new state, you would not be prohibited. Such laws are not uncommon.
5 Unless such conviction is a misdemeanor conviction related to domestic violence, pursuant to 18 U.S.C. § 922(g)(9), which would include any grade misdemeanor conviction.
6 This author only knows of one instance in Pennsylvania law, where a conviction results in a misdemeanor 1; yet, the maximum sentence that can be imposed is 2 years. That is pursuant to 18 Pa.C.S. § 5511(a)(2.1)(i)-(ii), Cruelty to Animals.
7 An involuntary commitment pursuant to 50 P.S. § 7302, commonly referred to as being 302’ed, is currently considered prohibiting under federal law by ATF.