Military exception to LTCF - has anyone heard this story?

[PhillyVet]

This is one of those things where you just want to find out if it’s true. I heard a story a month or so ago and was wondering if anyone else had ever heard it, and/or if had any specific case information.. The story is this:

Supposedly, a Pennsylvania National Guardsman, who didn’t have a LTCF, had a pistol with him at Drill. While traveling home from drill on Sunday afternoon, he was pulled over for some traffic offense. Since he didn’t have a LTCF, he was arrested and charged with Carrying without a License. As the story goes his Attorney successfully got the Judge to dismiss the charges pursuant to Title 18, § 6106 (b)(2)

Title 18, § 6106. Firearms not to be carried without a license

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

(b) Exceptions.--The provisions of subsection (a) shall not apply to:


(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.

As the story explains, since a National Guardsman (even after dismissal to go home) is still “On Duty” until midnight, he falls under the exception..

Though I doubt this was the intent of the section, the story does seem to meet the “black letter” text of the statute.. Has anyone else heard this story or have any information/insight?

[jeepin]

IANAL, when I was in the guard it was always assumed that this applied to carrying a issue weapon on official duty.

However, what you are referring to about being on duty until midnight does apply when a soldier is on weekend orders. I had a few guys stop and grab some drinks in the way home after drill, and one got a little sauced and drove home. He was prosecuted as a civilian, and was also held to UCMJ. He was accountable for both because he was in orders.

Might apply to guns. Still easier to get a ltcf

[GunLawyer001]

Seems like more than that exception could have applied to this fellow, if he was doing the sort of military training that I expect he was doing:

(b) Exceptions.--The provisions of subsection (a) shall not apply to:

(1)

(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)
(6)
(7)
(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.

[EandGWZ]

Seems like more than that exception could have applied to this fellow, if he was doing the sort of military training that I expect he was doing:

(b) Exceptions.--The provisions of subsection (a) shall not apply to:

(1)

(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)
(6)
(7)
(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.

Assuming the gun was unloaded, etc.

[USMC3531]

my take on the millitary execption is it's for SERVICE PISTOLS while on duty, and you cant carry a privately owned firearm while on duty. Since you cant carry a service pistol home with you I dont feel the vmillitary part of the execption would apply.

[GunLawyer001]

my take on the millitary execption is it's for SERVICE PISTOLS while on duty, and you cant carry a privately owned firearm while on duty. Since you cant carry a service pistol home with you I dont feel the vmillitary part of the execption would apply.

The UCMJ may have something to say about him if he stashes a Chief's Special in his fatigues while on duty, but Pennsylvania's UFA makes no distinction between "firearms".

ETA: This part does refer to "such firearms", but it's not clear what it refers back to:
(3) The regularly enrolled members of any organization duly organized to purchase or receive such firearms from the United States or from this Commonwealth.

[Greywolf]

Title 18, § 6106. Firearms not to be carried without a license

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

(b) Exceptions.--The provisions of subsection (a) shall not apply to:


(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.

As the story explains, since a National Guardsman (even after dismissal to go home) is still “On Duty” until midnight, he falls under the exception..

Though I doubt this was the intent of the section, the story does seem to meet the “black letter” text of the statute.. Has anyone else heard this story or have any information/insight?

I think the Guardsman had a good lawyer and a very friendly judge. By "on duty" until midnight, you mean the equivalent of being formally in a training day, which is the equivalent of a Regular Army soldier being on active duty for the full term of his/her enlistment. IMHO the intent of the statutory exception does not mean that a member of the Army, marine Corps, Navy or Air Force gets a free pass to carry a pistol in PA for the full three or however many years they enlisted. It means they can carry a pistol when they are in uniform and performing their assigned duties as a member of whatever unit they belong to. Which means they would be carrying a military-issued weapon pursuant to military orders.

I spent a few years in the Army. I was not considered to be "on duty" when I was sleeping in the barracks after my shift was over, when I was eating an open-face turkey sandwich at the local diner and flirting with the pretty waitress, or when I was drag racing on the access road to the post recreation area. But I was on "active duty" insofar as my subsequent DD-214 was concerned.

[MT1]

The UCMJ may have something to say about him if he stashes a Chief's Special in his fatigues while on duty, but Pennsylvania's UFA makes no distinction between "firearms".

ETA: This part does refer to "such firearms", but it's not clear what it refers back to:
(3) The regularly enrolled members of any organization duly organized to purchase or receive such firearms from the United States or from this Commonwealth.

UCMJ only applies to Title 10. National Guard on state duty are Title 32 and not subject to UCMJ unless federalized.

[GunLawyer001]

UCMJ only applies to Title 10. National Guard on state duty are Title 32 and not subject to UCMJ unless federalized.

Good to know.

Either way, the UFA doesn't distinguish between his issue pistol and his personal KelTec .380 or whatever. The exceptions apply to "firearms", as does the offense itself. If he's considered to be "on duty", then he'd have just as much of a defense to the UFA charge if he carried an extra personal weapon as if he only had his issued M-9 on him. If he's not on duty, then as I noted there are a couple of other exceptions that apply to folks who are going back and forth from firearms training; so if he put in any range time during his drill, and he had the gun unloaded for transport, he should have a viable couple of defenses.

[MT1]

Good to know.

Either way, the UFA doesn't distinguish between his issue pistol and his personal KelTec .380 or whatever. The exceptions apply to "firearms", as does the offense itself. If he's considered to be "on duty", then he'd have just as much of a defense to the UFA charge if he carried an extra personal weapon as if he only had his issued M-9 on him. If he's not on duty, then as I noted there are a couple of other exceptions that apply to folks who are going back and forth from firearms training; so if he put in any range time during his drill, and he had the gun unloaded for transport, he should have a viable couple of defenses.

Agreed.

To follow up on my comments of Title 10 vs Title 32... Eight of my soon to be 25 yrs in the Army were as an MP, both enlisted and later as an officer after graduating from OCS. There are actually multiple definitions of the term "duty" depending on its use. In this case, in both training and practical application we viewed the term "duty" as the time period the service member is carrying out their assigned duties. In the case of Military Police, they are on duty when performing their assigned shift. It is only during their shift that they carry their duty weapon and wear the brassard, unless assigned a position as a CID investigator or PSD team member where the rules are a little different. In the case of normal MP duties, personnel do not have the same powers and authority when off shift. Regardless of the individual’s duty status, MPs never carry concealed and/or carry in their private vehicle IN AN OFFICIAL DUTY STATUS. They are free to carry in accordance to the local state law but the same as any other citizen. The only exception I have seen to this is CID investigators that have been granted exceptions to carry their duty weapon when off duty. In all other cases, the weapons are stored in the unit arms room and only issued to MPs physically performing their assigned patrols.

National Guard troops are subject to state law as opposed to UCMJ when on state duty. Federal troops (active duty Regular Army and Army Reserve) are subject to UCMJ. In the case of PA, there are numerous UCMJ laws that are not addressed by PA Code. For this reason there has been a successful push to update the PA Code of Military Justice. Several acts have recently passed to add language addressing code of conduct and other violations.

If the PA Guard decided to pursue this, and it was proven to be a duty weapon, the violation would be his transport of a duty weapon in his POV. However, all previous posts lead me to believe this was his personal weapon. If that is the case the individual is using a gray area of the language to his advantage.

Kudos to the attorney for finding a loophole to argue based on vagueness of the language. This is what he/she gets paid to do. However, in my opinion the service member this references is taking advantage of his military status and giving a bad name to other PA Guardsmen and those legitimately authorized to carry a firearm.

One last item to note, we never carry concealed unless assigned to a special duty such as CID, Personnel Security Detail (PSD), Tactical HUMINT Team (THT), some form of Special Operations, etc.... These special assignments are detailed in the assignment orders and even then in most cases wearing civilian clothing and concealing a weapon only occur in theater.

I can tell you he is lucky it was a civilian judge and he is exempt from UCMJ. A military judge would not have bought into the argument the service member was on duty.