Wolf State of Emergency Proclamation Has Gun Owners Up in Arms

HARRISBURG, Pa. (EYT) – When Governor Tom Wolf issued a proclamation declaring Pennsylvania’s heroin and opioid epidemic a statewide disaster emergency, it appears he may have also triggered some firearms prohibitions in the Commonwealth.

The Commonwealth code, found in 18 Pa.C.S. § 6107, states that when a state of emergency is declared:

(a) General rule. – No person shall carry a firearm upon the public streets or upon any public property during an emergency proclaimed by a State or municipal governmental executive unless that person is:

(1) Actively engaged in a defense of that person’s life or property from peril or threat.

(2) Licensed to carry firearms under section 6109 (relating to licenses) or is exempt from licensing under section 6106(b) (relating to firearms not to be carried without a license).

(b) Seizure, taking and confiscation. – Except as otherwise provided under subsection (a) and notwithstanding the provisions of 35 Pa.C.S. Ch. 73 (relating to Commonwealth services) or any other provision of law to the contrary, no firearm, accessory or ammunition may be seized, taken or confiscated during an emergency unless the seizure, taking or confiscation would be authorized absent the emergency.

(c) Definitions. – As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Accessory.” Any scope, sight, bipod, sling, light, magazine, clip, or other related item that is attached to or necessary for the operation of a firearm.

“Firearm.” The term includes any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any weapon.

(It must be noted that the definition of a firearm is specific to this section of the code and not the general definition of a firearm found in Section 6102. The definition of a firearm in this section is far more broad than the definition in Section 6102).

Attorney Josh Prince posted a blog on the subject last week. He said he believes Wolf’s actions weren’t intended to infringe upon the gun rights of Pennsylvania citizens who are lawfully permitted to carry firearms.

“I personally believe this is an unintended consequence of the declaration of the state of emergency. The laws are so complex, it’s an impossibility in my opinion for anyone to know all of them,” Prince said.

“But, I do have some huge concerns about this that need to be addressed. Late last year, the state Superior Court found exceptions to 6106b where police could charge and the DA could prosecute and an individual may have to defend themselves, when they shouldn’t have to,” Prince added.

J.J. Abbott, press secretary for Governor Wolf, issued the following statement:

“The governor’s declaration does not allow for law enforcement to confiscate firearms, and the governor worked with law enforcement to ensure his actions to fight this epidemic has no impact on citizens and their firearm rights. Any implication otherwise is flat-out wrong.”

“The law specifically does not allow for any firearms to be seized, taken, or confiscated as a result of the disaster declaration. A declaration specifically has no effect on people with a concealed firearms license, someone using a firearm with an active hunting license, or someone openly carrying a firearm if actively engaged in self-defense.”

“These declarations are often used around this time of year for winter weather. In 2016, for example, there was a disaster declaration for winter weather from January 21st until March 23rd. We looked closely at this matter as part of the months-long process to develop this declaration, and we are not aware of any adverse effects on citizens and their firearms in the past during such a weather event with a declaration.”

Prince also had concerns about how it could affect those who are attending and attempting to sell firearms at the upcoming NRA Great American Outdoor Show in Harrisburg at the Farm Show Complex, scheduled to be held February 3-11.

“I imagine the Commonwealth will develop some remedy to this because the show creates quite a bit of revenue for it,” Prince said. “As for law enforcement coming to take people’s guns, I don’t see that. When the issue came up over those with medical marijuana cards possessing firearms, Governor Wolf could have taken a different position on it, but he didn’t.”

“But I believe it would have an impact on those at the show who are either trying to sell or buy guns,” Prince said.

As I addressed in my earlier article, the Proclamation seemingly meets the criteria to trigger the Section 6107 prohibitions, since it is an emergency proclamation issued by a State governmental executive. Additionally, to the surprise of many people, the Farm Show Complex, where the show will be held, is actually owned by the Commonwealth and is, therefore, public property; thereby, prohibiting the carrying of a firearm, as defined by Section 6107, anywhere on the property, during the proclamation of emergency, unless the person meets an exception.”

“As the first exception is not (or at least not likely) applicable to the show, let’s turn to the second set of exceptions – an individual who has been issued a license to carry firearms, pursuant to 18 Pa.C.S. § 6109 or who is otherwise exempt under 18 Pa.C.S. § 6106(b). Obviously, the first is self-explanatory, but what about the exemptions found in 6106(b)?”

Well, Section 6106(b) provides:

(1) Constables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers.

(2) Members of the army, navy, marine corps, air force or coast guard of the United States or of the National Guard or organized reserves when on duty.

(3) The regularly enrolled members of any organization duly organized to purchase or receive such firearms from the United States or from this Commonwealth.

(4) Any persons engaged in target shooting with a firearm, if such persons are at or are going to or from their places of assembly or target practice and if, while going to or from their places of assembly or target practice, the firearm is not loaded.

(5) Officers or employees of the United States duly authorized to carry a concealed firearm.

(6) Agents, messengers and other employees of common carriers, banks, or business firms, whose duties require them to protect money, valuables, and other property in the discharge of such duties.

(7) Any person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person, having in his possession, using or carrying a firearm in the usual or ordinary course of such business.

(8) Any person while carrying a firearm which is not loaded and is in a secure wrapper from the place of purchase to his home or place of business, or to a place of repair, sale or appraisal or back to his home or place of business, or in moving from one place of abode or business to another or from his home to a vacation or recreational home or dwelling or back, or to recover stolen property under section 6111.1(b)(4) (relating to Pennsylvania State Police), or to a place of instruction intended to teach the safe handling, use or maintenance of firearms or back or to a location to which the person has been directed to relinquish firearms under 23 Pa.C.S. § 6108 (relating to relief) or back upon return of the relinquished firearm or to a licensed dealer’s place of business for relinquishment pursuant to 23 Pa.C.S. § 6108.2 (relating to relinquishment for consignment sale, lawful transfer or safekeeping) or back upon return of the relinquished firearm or to a location for safekeeping pursuant to 23 Pa.C.S. § 6108.3 (relating to relinquishment to third party for safekeeping) or back upon return of the relinquished firearm.

(9) Persons licensed to hunt, take furbearers or fish in this Commonwealth, if such persons are actually hunting, taking furbearers or fishing as permitted by such license, or are going to the places where they desire to hunt, take furbearers or fish or returning from such places.

(10) Persons training dogs, if such persons are actually training dogs during the regular training season.

(11) Any person while carrying a firearm in any vehicle, which person possesses a valid and lawfully issued license for that firearm which has been issued under the laws of the United States or any other state.

(12) A person who has a lawfully issued license to carry a firearm pursuant to section 6109 (relating to licenses) and that said license expired within six months prior to the date of arrest and that the individual is otherwise eligible for renewal of the license.

(13) Any person who is otherwise eligible to possess a firearm under this chapter and who is operating a motor vehicle which is registered in the person’s name or the name of a spouse or parent and which contains a firearm for which a valid license has been issued pursuant to section 6109 to the spouse or parent owning the firearm.

(14) A person lawfully engaged in the interstate transportation of a firearm as defined under 18 U.S.C. § 921(a)(3) (relating to definitions) in compliance with 18 U.S.C. § 926A (relating to interstate transportation of firearms).

(15) Any person who possesses a valid and lawfully issued license or permit to carry a firearm which has been issued under the laws of another state, regardless of whether a reciprocity agreement exists between the Commonwealth and the state under section 6109(k), provided:

(i) The state provides a reciprocal privilege for individuals licensed to carry firearms under section 6109.

(ii) The Attorney General has determined that the firearm laws of the state are similar to the firearm laws of this Commonwealth.

(16) Any person holding a license in accordance with section 6109(f)(3).

“Clearly, any vendor or attendee who is a ‘person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person” would be exempt (but see the below caution), as would anyone carrying pursuant to a reciprocity agreement or carrying pursuant to subsection (b)(15).'”

“Other vendors and attendees would seemingly be prohibited, although some employees may be able to claim that they are agents, messengers or other employees of a “business firm, whose duties require them to protect money, valuables and other property in the discharge of such duties.”

“Unfortunately, as few people are aware, as a result of the Superior Court’s en banc decision late last year in Commonwealth v. Anderson, these “exceptions” in Section 6106(b) were found by the Superior Court to be “defenses” that need to be proven at trial. Thus, any individual claiming “exception” under Section 6106(b) can be prosecuted and forced to argue the exception as a defense to the prosecution,” Prince said.

“More disconcerting, unlike the emergency proclamation statute, 35 Pa.C.S. § 7301, utilized by Governor Wolf to issue the proclamation, 18 Pa.C.S. § 6107 does not provide the Governor with any authority to limit or otherwise preclude the enactment of the prohibitions.”

“Rather, the issuance of an emergency proclamation automatically, and seemingly in violation of Article 1, Section 21 and the Second Amendment, prohibits the carrying of “a firearm upon the public streets or upon any public property during [the] emergency.”

“In relation to hunting on state game lands, pursuant to Section 6106(b)(9), those individuals would likewise be entitled to the “defense,” provided that he/she is “licensed to hunt, take furbearers or fish in this Commonwealth, if such persons are actually hunting, taking furbearers or fishing as permitted by such license, or are going to the places where they desire to hunt, take furbearers or fish or returning from such places.”

Prince said he is aware that some members of the general assembly are concerned.

“I  suggest those interested in the subject contact your State Representatives and demand that they immediately repeal Section 6107, so that YOUR rights aren’t infringed and so that YOU aren’t forced to pay attorney fees and costs to prove, as a defense, one of the exceptions in Section 6106,” Prince said. “When contacting them, also demand that the draconian transportation laws of Section 6106 be repealed, as well.”

“If you or someone you know has had their right to keep and bear arms infringed as a result of this state of emergency, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.”

Prince said he believes the Commonwealth’s options for providing additional exceptions are limited, either through a court order or if the General Assembly votes to repeal the prohibition.

Prince does have advice for those who are especially concerned about these prohibitions.

“As it is anticipated that this proclamation of a state of emergency will not be terminated for an extended period of time, I would highly recommend that anyone eligible obtain his or her license to carry firearms.”

“Also, if you or someone you know has had their right to keep and bear arms infringed as a result of this state of emergency, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.”


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