[00:00:00.07] – Speaker 2
I’m Enrique Latoison, your 3 Minute Lawyers. This is part 2. Still here with Adam Kraut, our guest, Executive Director of the Second Amendment Foundation. As I said in Part 1, this is not legal advice, and we’re dealing with firearms and things of that nature, consult your attorney before making any decision. So just to clarify from part one, if in Pennsylvania, you’re convicted of a misdemeanor in the first degree, felony to third, felony to second, and felony first, you’ve basically forfeited your right to own a firearms in the state of Pennsylvania.
[00:00:34.17] – Speaker 1
Yes, that’s correct.
[00:00:36.01] – Speaker 2
That’s wild. Okay. And now I want to ask you, there’s carry permits for people who want to carry a concealed firearms versus open carry. This is an open carry state in Pennsylvania. Am I correct on that?
[00:00:49.15] – Speaker 1
Yes. There’s a lot more to it, but generally speaking, yes.
[00:00:52.10] – Speaker 2
Generally speaking, someone can walk around like John Wayne from a Western movie?
[00:00:56.06] – Speaker 1
You can, but there are state transportation laws preclude you from, say, throwing a firearms in your trunk, driving to your destination, taking it out, putting it on, because there are certain places you can only go to and from without a carry permit. The moral of the story is go get a carry permit.
[00:01:09.28] – Speaker 2
Get a carry permit. Or if you’re going to do like John Wayne, you got to walk everywhere. Is that accurate? Can’t get inside your vehicle because then that would be a crime. So if a person is looking for a carry permit, are there are different rules and different laws, a carry permit versus just somebody that can own a firearms?
[00:01:26.20] – Speaker 1
Yeah. So the criteria for getting a license to carry a firearms versus buying one is slightly different. There are some extra things that if you’ve been convicted of that would preclude you from a carry permit, but might not necessarily preclude you from being able to purchase a firearms. So for instance, if you’re convicted of possession of marijuana, specifically under the Controled Device Substance Cosmetic Act here in Pennsylvania, that specifically precludes you from a carry permit, but may not inhibit your ability to buy and possess firearms and ammunition.
[00:01:56.17] – Speaker 2
So someone has been convicted of carrying marijuana or a possession of marijuana at some point, not going to be able to get a carry permit unless they get a pardon or get it expunged off their record. Okay, now let’s talk about another subject here. How can someone obtain a gun in Pennsylvania? Now, I know there are two types of guns here. We have handguns, which are basically short barrel, and we have long guns, which are basically the common AR-15 or rifle or shotgun. Is that correct? Yeah. Okay. So if a person in Pennsylvania wants to buy or obtain a long gun, what are the rules in reference to that?
[00:02:33.11] – Speaker 1
So long guns are treated differently than handguns. Here in Pennsylvania, you can buy a long gun from a licensed dealer, so an FFL, or you can do a face-to-face sale, or if somebody wants to give you one, they can go ahead and do that. That is, don’t need to go through a background check, provided you believe the person you’re transferring to is not prohibited. So I could meet you out back here in the parking lot and sell you a shotgun out of the back of my truck.
[00:02:56.16] – Speaker 2
Or AR-15?
[00:02:57.28] – Speaker 1
Anything that’s a long gun. And as long as believe you’re prohibited, perfectly long.
[00:03:02.06] – Speaker 2
Okay. Is this what they call the gun show loophole?
[00:03:05.29] – Speaker 1
It’s really alienating your property as the law says you have.
[00:03:11.02] – Speaker 2
So with a long gun, a person can sell, give to anyone they want as long as they believe that person is not prohibited from having that gun. Correct. Okay. Now, let’s talk about a handgun, a nine-millometer Glock gun. What are the rules in reference to how a person can obtain a handgun in Pennsylvania?
[00:03:28.08] – Speaker 1
Those, you can buy one from FFL, you can have one gifted to you in a familial transaction. Now, those are limited. It’s not your entire family. It’s in a… Think of it in a vertical fashion. So grandparent to grandchild, parent to child. The only horizontal manner it can go would be spouse to spouse.
[00:03:47.23] – Speaker 2
And when they obtain that gun, a handgun, through a familiar line, there’s no forms or anything needs to be put out for that?
[00:03:56.29] – Speaker 1
Right. You could just give it to the person. Now, if I had a handgun that you wanted, we would have to go to a dealer to transfer it.
[00:04:04.04] – Speaker 2
So if you’re not in a family line, you either go to a place to buy a gun- And a license that you get. Or if I had a handgun I wanted to sell to you, I would have to take you to a store where you would have to fill out the forms. Correct.
[00:04:18.07] – Speaker 1
Just back to the familial relationship real quick. What you can’t do is brother to brother, brother to the sister or anything like that, uncle to nephew. No good.
[00:04:27.16] – Speaker 2
Okay. Well, thank you, Adam. This has been amazing. A lot of interesting information here to break down for the viewers. I think what you take from this for the most part is, believe it or not, in Pennsylvania, if you’re convicted of a misdemeanor in first degree or higher, you’re not allowed to own firearms. Also, I think it’s important to understand also how a person can go about legally purchasing a firearms, having to fill out those forms or different ways with a long gone. No form has to be filled out if a person believes the person is not illegally obtaining that gun. And then there’s also some rules with handguns, for the most part, from family members down the line. Very interesting stuff. We’re going to post the contact information for Adam. So he does very good work in reference to defending gun rights here in the United States, and he’s part of that foundation. His contact information will be present there. He’s also written some good articles that I came across. That’s how I was able to find Adam. We appreciate you being a guest here on 3 Minute Lawyer. My pleasure. Thank you. What were you saying now?
[00:05:40.11] – Speaker 1
When we were talking about prohibiting offenses, like the misdemeanor to the first degree and the felony things that prohibit people. There are mechanisms in which people can restore their rights.
[00:05:49.14] – Speaker 2
So they can still get their gun rights back.
[00:05:50.27] – Speaker 1
Yeah. So they’re neither fast, cheap, nor easy. So the first option would be a pardon, seeking a governor’s pardon.
[00:05:57.11] – Speaker 2
A governor’s pardon.
[00:05:57.26] – Speaker 1
Yeah. It’s usually a four or five year process. No guarantee. And costs are associated with that. If you’re convicted of an offense that’s a state law crime that’s prohibiting under state law and only state law- Only state law, not federal. Yeah, and that’s pretty rare, honestly. I’d have to go look at the code to tell you this offense qualifies for that. But there are mechanisms you can obtain relief through the courts in the state system, but it’s only under state law. It doesn’t deal with the federal stuff.
[00:06:24.14] – Speaker 2
But you can still be illegal in the federal. Oh, it’s not illegal in the federal system.
[00:06:29.14] – Speaker 1
Yeah. If If it’s only prohibiting under state law and it’s not captured somewhere in federal law, you can get relief by petitioning the state courts. So it’s 6105, there’s provisions about that. And then there’s Second Amendment has applied challenges in the federal court system where you walk in the court, you’re basically saying, Well, if this prohibition as applied to me is unconstitutional. In the third circuit where Pennsylvania is, the seminal case on it was Binder up versus the attorney general. There were two plaintiffs in that. One was convicted of corruption of a minor. The other, I think it was, I can’t remember if it was carrying a fireman without a license or if it was a DUI offense. I think it was carrying a fireman without a license. They petitioned the court for relief from those and ultimately won. When I was practicing law full-time, we did one for an individual who was convicted of forging a window-tint exemption, which was a misdemeanor of the first degree here in Pennsylvania. So that one, we won at the trial court, and the government didn’t appeal it. Federal court? Yeah, in federal court. And then there were two others.
[00:07:34.16] – Speaker 1
There was Holloway, which we ended up losing at the third circuit. He was convicted of a DUI at the highest rate, so misdemeanor of the first degree. Misdemeanor of the first degree.
[00:07:43.08] – Speaker 2
Because that’s probably the most common M1 that I see all the time is second DUI. Yeah, and most people have no idea. For the rest of their lives, they’re allowed to have a firearm?
[00:07:53.11] – Speaker 1
Yeah, and most people have no idea because when you plea, especially if you plea guilty, they don’t tell you that during the colloquy that you’re giving them the firearm.
[00:07:59.27] – Speaker 2
Can I mention any word?
[00:08:00.29] – Speaker 1
Right. So you need a lawyer who understands this stuff. William- It should be part of the colloquy. It should not. Yeah. Williams, which was the same exact, almost the same exact fact as Holloway.
[00:08:11.08] – Speaker 2
Which was on DUI?
[00:08:12.13] – Speaker 1
Yeah. Holloway was granted work, released. Williams was under house arrest. But the same thing, no other issues other than that 1M1. And then there was a case- And they lost?
[00:08:23.27] – Speaker 2
Yeah. So they got two DUIs and never going to have a fire on the rest of their lives or longer.
[00:08:27.29] – Speaker 1
Yeah. And so the Court, in its opinion, expanded on the test that was in Benderup and added this element of dangerousness to it, which really now just opens the gateway for them to go, Well, you’re dangerous, and we’re done here. Nothing left to see. And then there was another interesting one that we lost that was a federal felony, an individual was convicted of making a false statement on the tax return.
[00:08:51.14] – Speaker 2
Is that a misdemeanor?
[00:08:52.05] – Speaker 1
No, that was a federal felony. And that one, the Supreme Court declined a certain condition on that recently, and Holloway as well.
[00:09:04.05] – Speaker 2
So Holloway was not picked up by Supreme Court, so someone with two DUIs is basically screwed?
[00:09:09.00] – Speaker 1
For right now, yeah. Short of a pardon. Short of a pardon. And then what we didn’t talk about at all was the mental health, the involuntary commitment. So now you can get relief from those if a court in Pennsylvania grants you relief. It didn’t used to be that way.
[00:09:24.15] – Speaker 2
For mental health, like a 302?
[00:09:25.22] – Speaker 1
Yeah, for a 302. If you’re 303 or 304, you’re probably not going anywhere.
[00:09:31.02] – Speaker 2
Because 302 is the one where it’s temporary, right?
[00:09:33.02] – Speaker 1
Yeah. There’s no due process. Somebody may look at you, sign a paper, and now you’re- A 303, 304, you’ve been- You’re put in front of an auditor of some kind that’s allegedly neutral. And they said you need to stay. And they said you need to stay. Yeah. So 302s, you can now get relief through petitioning the courts. And ATF has said, Good enough for us. If you get that relief, we’ll pull you out of the system. So good news for people that were 302s anyway. There’s a lot of stuff.
[00:09:59.20] – Speaker 2
I need 10 three-minute lawyer sessions for this, all right? I appreciate it.
[00:10:04.19] – Speaker 1
Yeah.
Contact Enrique Latoison
(610) 999-1439