Federal law and PA restoration process

[229Mick]

I finally found out that the prohibiting factor in my trying to get a license to carry and subsequently to purchase a handgun, is in fact the part of PA law that says that anyone prohibited by federal law, is prohibited under PA law... They then referenced federal law 18 usc 922 which says (g) It shall be unlawful for any person—(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. This is regardless of what they actually got, meaning my case was something that I COULD have gotten 2 years for, but I didn't get anything near that. As well, that rule includes everything as low as a third degree misdemeanor, thins like "Insults to Flag" "Mutual combat", meaning a fight, "Tampering w/Fire Hydrants", "Agricultural Trespass (posted)" and the like. So how does anyone who ever committed a crime at all ever posses a firearm!??! All I had ever heard of was: if you're a felon, you can't possess a fire arm, I've never heard anything like this. Does anybody know what one does when in this situation? I also found reference to the 'restoration process on the site here, (18 Pa.C.S. § 6105.1) and I'm wondering if this actually works or if they just bust your ball some more in this process? I haven't had any trouble whatsoever in the last 15 years and it sounds like I should be eligible, but I want to go at this in the best way to get the best solution.

Any thoughts or recommendations?

Thanks.
Mick

[64Jeeper]

I think I'd start with lawyer consultation.

[knight0334]

Its actually two years, not one year, for state misdemeanors(by fed and state law) - except any misdemeanor domestic violence and any crime enumerated in 6105.

The definition of "convicted of a crime punishable by imprisonment for a term exceeding one year" excludes state level misdemeanors of 2 years or less. However, it doesn't exclude by state law any crime listed in 6105.

In PA, 2nd degree misdemeanors are upto 2 years. 3rd degree are 1 year or so(cant remember). Neither in general are disqualifying, unless listed in 6105.


In PA the following will exclude you from a license, ownership and possession:
1. any felony
2. any Misdemeanor 1(because you can get upto 5yrs)
3. any drug/cosmetic violation
4. any misdemeanor crime of domestic violence
5. any conviction of a crime listed in 6105 regardless of possible sentence, or of a similar law in another state.
6. having 3 DUI's in 5 years time. (beware, new DUI law provides for a disqualifying M1 with your first DUI)
7. if you are already prohibited by federal law.


If you were unjustly denied, consult a lawyer and appeal it.


here are the actual definitions for that "one year" thing.

PA Title 18, Chap. 61, Subsection 6102

"Crime punishable by imprisonment exceeding one year."
The term does not include any of the following:
(1) Federal or State offenses pertaining to antitrust, unfair trade practices, restraints on trade or regulation of business.
(2) State offenses classified as misdemeanors and punishable by a term of imprisonment not to exceed two years.

US Title 18, Chap. 44, Subsection 921(a)

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

[mrjam2jab]

Maybe this?

18 Pa.C.S. § 6105.1: Restoration of firearm rights for offenses under prior laws of this Commonwealth
(a) Restoration.--A person convicted of a disabling offense may make application to the court of common pleas in the county where the principal residence of the applicant is situated for restoration of firearms rights. The court shall grant restoration of firearms rights after a hearing in open court to determine whether the requirements of this section have been met unless:
(1) the applicant has been convicted of any other offense specified in section 6105(a) or (b) (relating to persons not to possess, use, manufacture, control, sell or transfer firearms) or the applicant's conduct meets the criteria in section 6105(c)(1), (2), (3), (4), (5), (6) or (7);
(2) the applicant has been convicted of any other crime punishable by imprisonment exceeding one year as defined in section 6102 (relating to definitions); or
(3) the applicant's character and reputation is such that the applicant would be likely to act in a manner dangerous to public safety.
(b) Notice and standing.--
(1) Notice of an application for restoration of firearms rights shall be provided to the Pennsylvania State Police, the district attorney of the county where the disabling offense occurred and the district attorney of the county where the application is filed. The district attorney of the county where the application is filed, the district attorney of the county where the disabling offense occurred and the Pennsylvania State Police may, at their option, be parties to the proceeding.
(2) Notwithstanding paragraph (1), the standing of the Pennsylvania State Police as a party to a proceeding under this section shall be limited to determinations of whether the offense meets the definition of the phrase "disabling offense" or whether the provisions of subsection (a)(1) and (2) have been satisfied.
(c) Copy of order to Pennsylvania State Police.--If the court grants restoration of firearms rights to an applicant, a copy of the order shall be sent by the prothonotary within ten days of the entry of the order to the district attorneys and the Pennsylvania State Police, Firearms Division, and shall include the name, date of birth and Social Security number of the applicant.
(d) Expungement and pardon.--A restoration of firearms rights under this section shall not result in the expungement of any criminal history record information nor will it constitute a gubernatorial pardon.
(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Disabling offense." A conviction for any offense which:
(1) resulted in a Federal firearms disability and is substantially similar to either an offense currently graded as a crime punishable by a term of imprisonment for not more than two years or conduct which no longer constitutes a violation of law; and
(2) was a violation of either of the following:
(i) the former act of May 1, 1929 (P.L.905, No.403), known as The Vehicle Code, or the former act of April 29, 1959 (P.L. 58, No. 32), known as The Vehicle Code; or
(ii) the former act of June 24, 1939 (P.L.872, No.375), known as the Penal Code.
The definition shall not include any offense which, if committed under contemporary standards, would constitute a misdemeanor of the second degree or greater under section 2701 (relating to simple assault) and was committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent or guardian or by a person similarly situated to a spouse, parent or guardian of the victim.
"Restoration of firearms rights." Relieving any and all disabilities with respect to a person's right to own, possess, use, control, sell, purchase, transfer, manufacture, receive, ship or transport firearms, including any disabilities imposed pursuant to this subchapter. The phrase shall also mean the restoration of the right to vote, to hold public office and to serve on a jury.

[229Mick]

Thanks Guys.
Jam2Jab, that was the process I had seen, I just wasn't sure if it was something that really worked for someone who hasn't been in any further trouble (for some 15 years now) or if it was BS.

Knight, that is exactly what I was looking to hear on that. I guess the only problem now is that it is a 1st degree misdemeanor, which may or may not be accurate. The lawyer I used in the original case is suggesting the law was different then and it should only be an M2...

Now if it is an M1, but the m1 only had a 2year sentence at that time would it matter? The sentence that I got was a 30day - 23 months, and of course served the 30 days. If not I guess the restoration process would be the only fix? I appreciate the input!

Mick

[Franky4Fingers]

If I understand you correctly...

Federal law trumps state law.....so, if the Feds ban you, so shall the state.

[229Mick]

Thanks Franky, What I forgot to mention was that I did find in the Federal law's definition was this:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

So it looks like the fed law has a method to support the state restoration process. I'm just not sure the restoration process actually works!

Thanks!