PA Superior Court: No Right to Carry

[BenFoo]

http://www.pagunblog.com/2014/04/15/...ight-to-carry/

The case is Commonweath v. Scarborough(http://scholar.google.com/scholar_ca...oi=scholaralrt). This case largely revolves around the legality of the stop, but there are issues at play that should concern any Pennsylvania gun owner.
First is whether or not there’s an equal protection issue with state law singling out Philadelphia. Pennsylvania is an open-carry state, in that you can carry a firearm openly in this commonwealth without a license, the sole exception being “cities of the first class” (i.e. Philadelphia). In Philadelphia, you may only carry a firearm (openly or concealed) if you have a License to Carry Firearms. The court rejected the equal protection issue, which would be the expected result. But they went farther, which is very concerning:
The class created by Section 6108, “persons located in Philadelphia,” is not based on race, national origin, sex, or illegitimacy. The right at issue under Section 6106, “the right to carry a concealed weapon,” and the right at issue under Section 6108, “the right to carry a firearm on the streets of Philadelphia without a license,” are not fundamental rights. They manifestly do not rise to the protection afforded by the Second Amendment’s general guarantee of the right to keep and bear arms.
They could have, actually, cited existing Third Circuit precent that there is no right to bear arms outside the home. That was decided in the case of Drake v. Filko, which challenged New Jersey’s restrictive permitting scheme. That is now on appeal to the US Supreme Court. So federally, there is no right to carry a firearm in Pennsylvania outside the home, because of a grave error made by the Third Circuit Court of Appeals. As Alan Gura mentioned in his law review article:
The Third Circuit supplied a great example of how far off the rails a “step one” analysis may veer when history is given short shrift. Upholding New Jersey’s requirement that handgun carry applicants demonstrate “justifiable need” to exercise their Second Amendment rights, a panel majority held that carrying a handgun for self-defense “fall[s] outside the scope of the Second Amendment’s guarantee.” Even though Heller had expressly held that to “bear arms,” as used in the Second Amendment, is to “carry” arms for the purpose of self-defense in case of confrontation, the Third Circuit rejected an appeal to “text, history, tradition, and precedent,” stating that “we are not inclined to address this contention [that the Second Amendment guarantees a right to publicly carry arms for defense] by engaging in a round of full-blown historical analysis.”
And now we have PA Superior Court giving the right to bear arms the same short shrift. Our Supreme Court has generally been more amenable to the right to keep and bear arms, but only barely so. It may be the case that the state may require a license; our side has generally conceded that when confronting restrictive licensing regimes in court, but that’s quite different than suggesting there’s no right at all, or that such a right is not “fundamental,” when that was the holding of our federal Supreme Court.

Anyone hear any more about this????

[ChuckS]

Being discussed here:
more-bad-caselaw

[ideaman]

Someone should tell the judge if it's only allowed in the home, what are you going to do when you go outside and some guy starts beating the shit out you, how a are you going to defend yourself?

[Deleted]

If it gets appealed to PASC I think the outcome will be quite different.

[Fortytwo]

Cited in the article is the appeal of the NJ case to the SCotUS, regarding the right to carry outside of one's home. That is up for considration this very Friday. Keep an eye on that relevant action.

http://forum.pafoa.org/national-11/2...-case-not.html

[PAMedic=F|A=]

Updates?

[Jhaydeno]

Updates?

Yes please!

This is one of those times that Gunlawyer references: get a lawyer that knows gun laws or you might just ruin it for everyone. Trying to argue a 2A point in PA courts, when you have a PA constitution that's even more direct and to the point, is not only risky, it's crazy:

The Pennsylvania Constitution: Article I Section 21-
The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.


Where does that say anything about 'except outside your home', or 'except in Philadelphia' no less? Where are the ambiguous arguments, poor rulings and incorrectly applied citations from previous nubskulls & cases across the US, chipping away at this argument? There are none....somebody might just want a lawyer versed in gun laws when bringing up a gun arguement.

Edit: and yes, I know the imfamous Centre county idiot brought up similar arguments, and lost, but reading through this case it appears this lawyer pulled a 'Hobson', tossed as much crap on the wall as he could, and hoped something stuck.