Would 6109 fail an equal protection challenge?

[IronSight]

A thought came to mind as I was re-reading "18 Pa.C.S. § 6109: Licenses".

This law seems destined to fall under an equal protection challenge more so than anything else. Ignoring the potential debate over whether a license will be covered as a "reasonable restriction" by SCOTUS in the future it seems obvious that this law creates separate classes of citizens and subjugates one class to another.

Under subsection (m.2)(1) it states "a law enforcement officer whose current identification as a law enforcement officer shall be construed as a valid license to carry a firearm; or". I've emphasized the important part, that it automatically makes a law enforcement officer's "current identification" into a "valid license". Everyone else is subject to the licensing requirements as provided by 6109's other subsections, and so it seems two separate classes are provided for under the law.

The thing that really gets me, is that law enforcement is in control of the licensing for everyone else. So not only are they exempt from regular licensing provisions, but they also control the implementation of those provisions against everyone else.

This seems to be an absurdly obvious violation of the equal protection clause of the U.S. Constitution which states; "nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws." When the rights of one class are restricted by a licensing system, and another class automatically circumvents those restrictions, it's a violation of equal protection. When that privileged class gets to exercise control over the restrictions of the other class then it, in my mind, is nothing short of tyranny.

It seems to me that a lot of state laws regarding firearms exempt LEO's whenever the chance arises, and I just don't see how these laws pass the constitutional test. Hell, even if Heller went the other way and the 2nd amendment was declared only applicable to a "militia" equal protection would still apply, and it would seem right to me that these laws should fall. "18 Pa.C.S. § 6106" is another PA law that seems susceptible to an equal protection challenge.

I'm interested in what the lawyers among us, and the politically active, think about this.

http://reference.pafoa.org/statutes/...6109/licenses/

http://reference.pafoa.org/statutes/...out-a-license/

[rikilii]

A thought came to mind as I was re-reading "18 Pa.C.S. § 6109: Licenses".

This law seems destined to fall under an equal protection challenge more so than anything else. Ignoring the potential debate over whether a license will be covered as a "reasonable restriction" by SCOTUS in the future it seems obvious that this law creates separate classes of citizens and subjugates one class to another.

Under subsection (m.2)(1) it states "a law enforcement officer whose current identification as a law enforcement officer shall be construed as a valid license to carry a firearm; or". I've emphasized the important part, that it automatically makes a law enforcement officer's "current identification" into a "valid license". Everyone else is subject to the licensing requirements as provided by 6109's other subsections, and so it seems two separate classes are provided for under the law.

The thing that really gets me, is that law enforcement is in control of the licensing for everyone else. So not only are they exempt from regular licensing provisions, but they also control the implementation of those provisions against everyone else.

This seems to be an absurdly obvious violation of the equal protection clause of the U.S. Constitution which states; "nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws." When the rights of one class are restricted by a licensing system, and another class automatically circumvents those restrictions, it's a violation of equal protection. When that privileged class gets to exercise control over the restrictions of the other class then it, in my mind, is nothing short of tyranny.

It seems to me that a lot of state laws regarding firearms exempt LEO's whenever the chance arises, and I just don't see how these laws pass the constitutional test. Hell, even if Heller went the other way and the 2nd amendment was declared only applicable to a "militia" equal protection would still apply, and it would seem right to me that these laws should fall. "18 Pa.C.S. § 6106" is another PA law that seems susceptible to an equal protection challenge.

I'm interested in what the lawyers among us, and the politically active, think about this.

http://reference.pafoa.org/statutes/...6109/licenses/

http://reference.pafoa.org/statutes/...out-a-license/

No.

The law does not distinguish based on race, national origin, sex, or deny a fundamental right, so the "Rational Basis Test" would apply. Under that test, a law is constitutional if it is "reasonably related to a legitimate government interest."

Although I don't necessarily agree with this, it is at least rational for the government to assume that its police officers are qualified to carry firearms off duty, since they carry them all day on duty, and if they failed to meet the qualifications regarding prior convictions or mental illnesss, etc., they probably wouldn't still be police officers.

I can also think of a number of arguably "legitimate government interests" that this specific provision serves, the simplest being reducing the number of LTCF applications that need to be processed.

All this law basically does is assume that LEOs would meet the requirements for getting an LTCF and exempts them from the paperwork involved in getting one. It doesn't deny anyone any rights.

[IronSight]

No.

The law does not distinguish based on race, national origin, sex, or deny a fundamental right, so the "Rational Basis Test" would apply. Under that test, a law is constitutional if it is "reasonably related to a legitimate government interest."

The problem isn't that it denies a fundamental right, but that it restricts a fundamental right more severely for regular citizens, and subjugates that right to the control of a group exempted from those restrictions. I, for one, don't consider that to be a "legitimate government interest", but I suppose the courts would disagree.

As former Justice Harlan put it, "[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens." While he was talking directly about race, I fail to see why it shouldn't be applied elsewhere.

Although I don't necessarily agree with this, it is at least rational for the government to assume that its police officers are qualified to carry firearms off duty, since they carry them all day on duty, and if they failed to meet the qualifications regarding prior convictions or mental illnesss, etc., they probably wouldn't still be police officers.

Using the same logic perhaps certified car mechanics should be exempt from having to obtain or renew a drivers license. Not saying your point wouldn't be accepted by the court, just that I disagree.

I can also think of a number of arguably "legitimate government interests" that this specific provision serves, the simplest being reducing the number of LTCF applications that need to be processed.

All this law basically does is assume that LEOs would meet the requirements for getting an LTCF and exempts them from the paperwork involved in getting one. It doesn't deny anyone any rights.

It does a little bit more than that, which is my point, in that it doesn't just exempt them from the standard paperwork, but it also places them in direct control over the licenses for everyone else. If it only exempted the police from licensing requirements, based on the training process and qualifications necessary to be a law enforcement officer, then I wouldn't see it as a violation of equal protection. But because it puts them in direct control over the process for everyone else it, in my not so humble opinion, appears to violate the purpose of equal protection.

[rikilii]

The problem isn't that it denies a fundamental right, but that it restricts a fundamental right more severely for regular citizens, and subjugates that right to the control of a group exempted from those restrictions. I, for one, don't consider that to be a "legitimate government interest", but I suppose the courts would disagree.

As former Justice Harlan put it, "[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens." While he was talking directly about race, I fail to see why it shouldn't be applied elsewhere.

Whether it denies a fundamental right or not is only relevant in this sense to determine which test the court would apply. If it restricted or denied a fundamental right, the court would apply "strict scrutiny".

Using the same logic perhaps certified car mechanics should be exempt from having to obtain or renew a drivers license. Not saying your point wouldn't be accepted by the court, just that I disagree.

I'm sure there are plenty of analogies you could come up with, but the fact that the same rationale could be applied to justify a different law doesn't mean THIS law violates the Equal Protection Clause.

It does a little bit more than that, which is my point, in that it doesn't just exempt them from the standard paperwork, but it also places them in direct control over the licenses for everyone else. If it only exempted the police from licensing requirements, based on the training process and qualifications necessary to be a law enforcement officer, then I wouldn't see it as a violation of equal protection. But because it puts them in direct control over the process for everyone else it, in my not so humble opinion, appears to violate the purpose of equal protection.

I don't see how the inclusion of those two elements together makes it 'more of a violation' of equal protection. Just as there's a rational basis for treating LEOs differently from the general public when it comes to carrying firearms, there's also a separate rational basis for putting LEOs in charge of licensing. On top of that, the fact that LEOs as opposed to some other group of people are given the task does not in and of itself impact your rights.

[IronSight]

Whether it denies a fundamental right or not is only relevant in this sense to determine which test the court would apply. If it restricted or denied a fundamental right, the court would apply "strict scrutiny".

Very good point, and true.

I'm sure there are plenty of analogies you could come up with, but the fact that the same rationale could be applied to justify a different law doesn't mean THIS law violates the Equal Protection Clause.

Yeah I've got a few more analogies that could fit too.

I don't see how the inclusion of those two elements together makes it 'more of a violation' of equal protection. Just as there's a rational basis for treating LEOs differently from the general public when it comes to carrying firearms, there's also a separate rational basis for putting LEOs in charge of licensing. On top of that, the fact that LEOs as opposed to some other group of people are given the task does not in and of itself impact your rights.

Good points, rep inbound.

[rikilii]

Very good point, and true.



Yeah I've got a few more analogies that could fit too.



Good points, rep inbound.

Thanks, glad to be of help.

Naturally, I instinctively would prefer that there be no license requirement. If you can legally acquire a firearm, you should legally be allowed to carry it, concealed or not.

However, I confess to not understanding the whole picture, for instance how the requirement for a license might facilitate legitimate efforts by LEOs to reduce illegal gun possession.

[NotThatOne]

My legal opinion...which means nothing since I am only a concerned citizen

I think a few distinctions need to be made here, to refute that it wouldn't hold up against equal protection

It's not LEOs that control licensing. Unlike your local city\borough police chief who is appointed by the Mayor\Town Council, the Sheriff is elected and is working at your "mercy". Except for Philadelphia; Sheriffs handle licensing. Are Sheriffs LEOs, sort of...are town\city cops Sheriffs, no. Do Sheriffs regulate the LTCF or simply handle the paperwork? They do the paperwork only and you have an appeal process if the Sheriff isn't "following the law."

PA allows [basically]anyone that is not insane or a criminal to buy and carry a gun. Except for the insane; you can't argue that any one is not being given equal protection. The criminal knew (or should have known) the potential outcome of their crime. The insane are being discriminated against and could argue a case...but what lawyer would take it?

Again, PA allows [basically] anyone that is not insane or a criminal to conceal carry with a simple to get permit. LEOs (I hope) are put through more stringent back ground checks and training then you, the LTCF applicant. Many town cops are required to complete PSP training before going on the job. Their successful hiring and training is at least equal to your LTCF check.

No where does it say that the LEO maintains this right. If you are fired\quit\down sized you are just Joe Public and have to apply for LTCF. If you are fired for a crime, you may have just gone into category 1, where you are no longer allowed to even posses a firearm.

Any lawyer trying to plead an equal protection case based on this statute would not be a lawyer I would rely on for my defense.

Using the same logic perhaps certified car mechanics should be exempt from having to obtain or renew a drivers license. Not saying your point wouldn't be accepted by the court, just that I disagree.

If becoming a mechanic involved at least as much trouble as you the car driver had to go through to get a license, then yes, the same logic would apply. Unfortunately, a mechanic is not required to know how to drive or pass a test to drive! LEOs are "checked out" so the logic doesn't apply here.

[IronSight]

My legal opinion...which means nothing since I am only a concerned citizen

I think a few distinctions need to be made here, to refute that it wouldn't hold up against equal protection

It's not LEOs that control licensing. Unlike your local city\borough police chief who is appointed by the Mayor\Town Council, the Sheriff is elected and is working at your "mercy". Except for Philadelphia; Sheriffs handle licensing. Are Sheriffs LEOs, sort of...are town\city cops Sheriffs, no. Do Sheriffs regulate the LTCF or simply handle the paperwork? They do the paperwork only and you have an appeal process if the Sheriff isn't "following the law."

Sounds good in theory, proven wrong in practice. It's self-evident that the system is open to abuse, just ask anyone who has gone through the application process in Philly.

PA allows [basically]anyone that is not insane or a criminal to buy and carry a gun. Except for the insane; you can't argue that any one is not being given equal protection. The criminal knew (or should have known) the potential outcome of their crime. The insane are being discriminated against and could argue a case...but what lawyer would take it?

Except for things such as the "character clause" which give wide latitude to the issuing sheriff.

Again, PA allows [basically] anyone that is not insane or a criminal to conceal carry with a simple to get permit. LEOs (I hope) are put through more stringent back ground checks and training then you, the LTCF applicant. Many town cops are required to complete PSP training before going on the job. Their successful hiring and training is at least equal to your LTCF check.

The background check on an LEO when he buys a firearm is no different then when you or I go to do the same.

Edit: In regards to training, any firearms training law enforcement officers receive is irrelevant because there is no requirement for such training in order to receive a license in the first place. If licensing requirements mandated training then that would be a valid argument that indeed the standards were, in essence, equal. However, with no such training requirement in place the issue becomes that of subjugation.

No where does it say that the LEO maintains this right. If you are fired\quit\down sized you are just Joe Public and have to apply for LTCF. If you are fired for a crime, you may have just gone into category 1, where you are no longer allowed to even posses a firearm.

This is true.

Any lawyer trying to plead an equal protection case based on this statute would not be a lawyer I would rely on for my defense.

In my opinion it would depend on how well written and argued his/her legal brief is.

If becoming a mechanic involved at least as much trouble as you the car driver had to go through to get a license, then yes, the same logic would apply. Unfortunately, a mechanic is not required to know how to drive or pass a test to drive! LEOs are "checked out" so the logic doesn't apply here.

LEO's aren't checked out any more than you or I when they purchase a firearm, therefore I see absolutely no justification that the process should be easier for them to obtain full rights to carry that firearm as well. LEO's can't just flash a badge and buy a firearm without going through the same process as you or I, if there's a licensing system in place it ought to, in my view, be applied equally across the board.

[NotThatOne]

Except for things such as the "character clause" which give wide latitude to the issuing sheriff.

This is true, but unless the sheriff knows you personally, it is going to be very shaky ground in the appeal. YOU give the references, so YOU control what the Sheriff can find out. How many people can the Sheriff line up to say you are a "person of poor character?", how many can you line up saying the opposite.

I could be be denied because I "need" coffee every morning (and that is a stimulant) but try making that stand as grounds to deny?

The background check on an LEO when he buys a firearm is no different then when you or I go to do the same.

This is also true. But the point is that it is not very hard for you to buy a firearm and an LEO is still checked on purchase. Seems like Equal Protection. We ARE talking about LTCF. At which point the LEO background check for employment is more stringent then your self-filled out form with references YOU provided. Again, the Equal Protection argument holds up. Unless an LEO can tell us they got their job with no fingerprinting, back ground check, or visiting the FBI (like a Teacher!)...I didn't do any of that to get my LTCF....then there is no advantage to being an LEO just to get a "free" ride on LTCF. We have it easier then they do.

BTW, being a teacher in PA requires a trip to the FBI for fingerprinting and about $50...so IF LEOs had similar requirements their LTCF is harder to get AND costs more.

[ChamberedRound]

The thing that really gets me, is that law enforcement is in control of the licensing for everyone else. So not only are they exempt from regular licensing provisions, but they also control the implementation of those provisions against everyone else.

The problem isn't that it denies a fundamental right, but that it restricts a fundamental right more severely for regular citizens, and subjugates that right to the control of a group exempted from those restrictions. I, for one, don't consider that to be a "legitimate government interest", but I suppose the courts would disagree.

I like your idea, but the fundamental assumption your argument is based on, i.e. that licensing is controlled by law enforcement, is incorrect. In PA (with the exception of Allegheny county, and even they defer primarily to local LEOs), Sheriffs departments are NOT law enforcement. They do not enforce the law, they act only as an arm of Judiciary, issuing warrants/subpoenas, tracking down fugitives, etc.

Licensing was placed in the hands of the county Sheriffs' offices primarily because this office is an elected post, unlike LEOs and police chiefs who are appointed. As such, it allows the People to remove someone who isn't respecting their rights. In addition, LEOs are technically not "exempt" from licensing, as their badge is a license; they have to go through much more to obtain it than the average citizen does to get a LTCF, and rightfully so as their badge confers more authority to them.