By Joshua Prince, Esq.
Prince Law Offices, P.C.
October 4, 2018
Yesterday, the Pennsylvania Senate passed HB 2060 (Prime Sponsor Marguerite Quinn, Republican Bucks), after declining to amend it to address the plethora of constitutional and statutory issues with it, while certain Senate and House Members misled other Members of the General Assembly and the public regarding it. Although all Members of the General Assembly were made aware of these issues through my prior testimony before the House Judiciary Committeeand Firearm Owners Against Crime’s review, which I co-authored, numerous Members of the House of Representativesand almost all of the Senate elected to ignore these issues and enact an unconstitutional and statutorily conflicting bill. With the elections of all House Members and a number of Senators coming up in the next couple months, let’s review HB 2060.
The text of HB 2060, as passed by the House and Senate, can be found here. The first issue that arises is in relation to new section 6105(a)(2)(iv) which requires an individual to relinquish his/her firearms, if he she is subjected to a protection from abuse (“PFA”) order. Unlike other provisions in HB 2060, this provision does NOT specify that it is only in relation to a “final protection from abuse act order.” Thus, this provision applies to emergency and temporary PFAs, which are done ex parte, in the absence of all forms of due process. And let us not forget the Cambria County man, who, as a result of a vindictive PFA, was required to turn over his 306 firearms, only for the Court to find that the temporary PFA was baseless; yet, he received a bill for over $1200 for the Sheriff Departments procurement of his firearms, even though he was not provided an opportunity to be heard, before being stripped of his constitutional rights. he then had to retain counsel to fight the bill and for his firearms to be returned to his home, where they were seized from. Of course, those Members that voted in favor of HB 2060 don’t care if constitutional rights are stripped of an individual, in the absence of due process, and where, after due process is provided and the individual is vindicated, that we place costs upon them for having done nothing unlawful or wrongful. It is due to the fact that an individual must be provided due process, before being stripped of a constitutional right, that the U.S. Congress specified in enacting 18 U.S.C. § 922(g)(8) that the prohibition is only triggered if the protection order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.” See, Mathews v. Eldridge, 424 U.S. 319 (1976)
The following addition, 6105(a.1)(2), make abundantly clear that it is in relation to temporary PFAs, as it specifies that it will be a misdemeanor of the second degree if any individual subjected to a PFA pursuant to 23 Pa.C.S. § 6107(b) – which specifically addresses temporary order – fails to surrender his/her firearms. This is reiterated in revised section 6105(c)(6), which again cites to 23 Pa.C.S. § 6107(b). And then, there is the explicit provision added to Title 23, section 6108, that declares:
The court’s order shall require the defendant to relinquish such firearms, other weapons, ammunition and any firearm license pursuant to the provisions of this chapter within 24 hours of service of a temporary order or the entry of a final order or the close of the next business day as necessary by closure of the sheriffs’ offices, except for cause shown at the hearing, in which case the court shall specify the time for relinquishment of any or all of the defendant’s firearms.
But, your Members of the General Assembly told you that an individual cannot be stripped of his/her constitutional right in the absence of due process, right? Well, if so, they lied to you.
Moreover, anyone convicted of failing to turnover his/her firearms will be prohibited for a five year period, pursuant to new section 6105(c)(10).
New section 6105.2 now requires the individual to relinquish his/her firearms within 24 hours following a domestic violence conviction. Interestingly, it does not require a final conviction; thus, one would seemingly be stripped of his/her constitutional right, prior to a final determination (i.e. all appeals being exhausted). New section 6105.2(c) addresses relinquishment to a federal firearms licensee (“FFL”), but unlike later provisions, does not provide the right to relinquish to a “commercial armory” or attorney. HB 2060 also provides that if the individual initially relinquishes to a law enforcement agency, he/she may request, but only once and provided it is done within six months of relinquishment, that the firearms be transferred to an FFL.
And just to make sure that the constitutional rights of the citizens of the Commonwealth would be violated, new section 6128 is enacted, which addresses “Abandonment of firearms, weapons or ammunition.” This section, in violation of numerous constitutional provisions, including due process and the takings clauses, actually provides that if the individual (or his/her attorney) does not make a written request for return of his/her firearms within one year, the firearms, weapons and ammunition shall be deemed abandoned. Better yet, it allows the law enforcement or other agency in possession of the firearms, weapons or ammunition to reap the rewards of declaring the items abandoned by permitting them to sell the items and to pocket the proceeds. While there is a “limitation” section where limited notice is required, due to the way in which it is drafted, it would only seemingly only apply, where a law enforcement or other agency came into the possession of a firearm through means other than the lawful relinquishment of the firearms, as provided for in new section 6128(a)(2). In essence, this only provides notice to a 3rd party, who turns in a firearm, weapon or ammunition that belongs to someone subjected to a PFA. Hence, the person who has the property interest in the firearm, weapon or ammunition is not provided notice. More importantly, as previously held by the U.S. Supreme Court in Henderson v. United States, 135 S.Ct. 1780 (2015), even where an individual is prohibited from purchasing and possessing firearms, he/she still retains an property interest in firearms previously acquired and the Government does not procure a property interest in the property merely because the individual has become a prohibited person.
In turning to the amendments to Title 23, we now see a new entity specified (which is not specified in Crimes Code, i.e.Title 18, provisions) which is a “commercial armory.” A commercial armory is defined as “[a] for profit entity which holds the appropriate federal and state licenses to possess and secure firearms of third persons.” This is comical, as there is no state or federal license to “possess and secure firearms.” In fact, neither the statutory nor regulatory law provide for FFLs to merely store firearms; rather, the law provides that an FFL may – depending on licensing – transfer, sell, manufacture, import or perform gunsmithing in relation to firearms and ammunition. Moreover, if you look at the state licensing provision – 18 Pa.C.S. § 6113 – it is only in relation to the sale of firearms. Thus, setting aside that there is no such allowance in the amendments to the Crimes Code and even limiting the issues to the state licensing, it is an impossibility to comply with this provision. Even more interesting, if a commercial armory violates any provision, HB 2060 provides that it forfeits its “federal and state licenses”; yet, the state lacks any legal authority to forfeit a federal license. It would seem that our elected representatives that voted for this bill have the Supremacy Clause of Article IV, Section 2 to the U.S. Constitution, backwards, but that isn’t surprising given their lack of comprehension for the U.S. and Pennsylvania Constitutions.
Another similar issue arises in relation to the amendments to Title 23 permitting an attorney that represents the defendant to seek a third-party safekeeping permit, even though an attorney is not specified in the amendment to Crimes Code. But, our elected representatives shouldn’t let those pesky issues bother them, right?
Then, we turn to the separation of powers issue, where the Legislature requires that the Judiciary, in every final order, “must direct the defendant to refrain from abusing, harassing, stalking, threatening or attempting or threatening to use physical force against the plaintiff or minor children and must order that the Defendant is subject to the firearms, other weapons or ammunition and firearms license prohibition relinquishment provisions” regardless of whether any basis for this language exists.
With many elected representatives that do little more than pay lip-service to the U.S. and Pennsylvania Constitutions, it is imperative that the voters remember several things in relation to the upcoming elections in November:
- The Prime Sponsor of HB 2060 is Marguerite Quinn, an alleged Republican, who is running for the PA Senate.
- All Members of the House of Representatives are up for re-election in November. You can find all the House Members that voted in FAVOR of HB 2060 here. Likewise remember those 63 House Members, who ardently defended the U.S. and Pennsylvania Constitutions by voting AGAINST HB 2060, such as Representatives Aaron Bernstine, Russ Diamond, Jerry Knowles, David Maloney, Daryl Metcalfe, Jeff Pyle, Rick Saccone and Dave Zimmerman.
- Half of the Members of the Senate are up for re-election in November. You can find all the Senate Members that voted in FAVOR of HB 2060 here. Likewise, remember those 5 Senates Members, who ardently defended the U.S. and Pennsylvania Constitutions by voting AGAINST HB 2060. They are Senators Camera Bartolotta, John Eichelberger,
Our freedoms are being usurped with one grand claw but are rather being eroded cobble by cobble, one liberty at a time, one person at a time