You’ve heard of “pleading the fifth,” but what about “pleading the second?” After a series of federal court decisions over the past few years interpreting the second amendment, more and more people are challenging existing gun possession laws on the basis that they go too far.
Purchase Forms ATF-4473 (federal) and SP4-113 (State)
If you’ve ever bought a gun at a licensed dealer, you probably remember having to fill out a lot of paperwork. If you bought a shotgun or a rifle, you probably only had to fill out 3 pages of the ATF form (ATF-4473), and read 3 more pages of instructions. For a handgun, you also would’ve had to fill out the one-page Pennsylvania State Police form (SP4-113), and had to read the back for instructions. Both forms have really long questions about your background that go on forever and contain “legalese” that most people find hard to understand.
Don’t Just Guess!
At the end of it all, you might wonder “why do I have to answer all these questions when they’re just going to run a full background check anyway and see if I was right?” It feels like a graded quiz in school, where anything less than a perfect score can result in your arrest! Fortunately, some district attorney’s offices and police departments don’t charge every violation, and instead may just issue a warning and even try to educate the misguided purchaser. But unfortunately some people face charges even if they had no intention of violating the law.
Some of the questions on the forms are really important, like the ones that ask for your biographical information, or the ones that ask you to verify you’re not buying the gun for somebody else (unless it’s a gift to your spouse/child/parent/grandparent/grandchild). But other questions seem like they have nothing to do with keeping guns out of the hands of dangerous people who are likely to misuse them. The federal form asks a lot more questions because federal law has a lot more restrictions on firearms than Pennsylvania state law does. But since we’re in the United States, we have to follow federal law too.
Are you an “unlawful drug user?”
My “favorite” background question has always been what is now Question 21(f) on the ATF (federal) form, which asks if you “are an unlawful user of, or addicted to” a controlled substance. Federal law says you can’t have guns if you “are an unlawful user of, or addicted to,” a controlled substance. While we can agree that people who are strung-out on meth shouldn’t be handling firearms, the question heavily emphasizes marijuana. They even added a specific warning about how marijuana is still “unlawful” under federal law even if your state has made it legal for medicinal purposes (like Pennsylvania).
If you’re wondering what “user” or “addicted” means, the forms won’t help you. The instructions don’t even explain this question; they skip right over it, from 21(e) to 21(g). Check it out:
Crimes Punishable by One Year (or Two Years) or More…
The firearm prohibitor that we see people misunderstand most often, by far, is the one in Question 21(d) on the federal ATF form. In plain language, it asks if you have a felony conviction. But since what defines a “felony” is different from state to state (and federally), they go on to say it includes any crime (even misdemeanors) where you could have gotten more than a year in jail at sentencing, even if you got less time than that (or no time in jail). And then if you read the instructions, they say that “one year” really means “two years” if the law was a misdemeanor. You can see why the question itself can be confusing:
So, under Pennsylvania law, all convictions for a misdemeanor of the first degree (M1) will strip your firearms rights under federal law, because an M1 can get you up to 5 years in jail. Most people don’t get anywhere near 5 years on an M1, and that causes confusion. Most of the common M1 offenses in Pennsylvania, like repeat DUI, Retail Theft of over $150, and Theft of between $200 and $2,000, have nothing to do with violent or aggressive behavior. This led people to challenge this federal law.
Range v. Attorney General – Second Amendment Interpretation
On June 6, 2023, the federal appeals court for the Third Circuit (which covers Pennsylvania) decided the appeal of Range v. Attorney General of the United States. Mr. Range had pled guilty in 1995 to making a false statement to the government to get foodstamps. It was an M1, and he got 3 years of probation.
Since it was an M1, this conviction automatically stripped Mr. Range of his federal firearm rights. Range filed a lawsuit against the United States, invoking his Second Amendment rights, asking the courts to strike down the federal law that deemed his M1 fraud conviction a prohibitor. The Court ruled that this law violated Range’s Second Amendment rights, basically because a misdemeanor fraud conviction was not serious enough to revoke firearm rights. Click here to read the full Opinion of the Court.
Range isn’t the only person to have recently filed a lawsuit asking to invalidate a firearm possession law on the basis that it violates the Second Amendment. Back in August, a federal court in Louisiana found that the “unlawful drug user” portion of the federal law was unconstitutional. Just last month, another federal judge in Pennsylvania ruled that federal law could not take away a man’s firearms rights based on a second conviction for DUI that was graded as an M1. These M1 DUI convictions are probably the most common type of M1 conviction in Pennsylvania, so the implications here could be huge.
Second Amendment-style Challenges to Pennsylvania State Law
People can bring these challenges to the law under Pennsylvania state law, too. Pennsylvania has its own list of reasons a person can lose their firearms rights, and some of those reasons probably aren’t “serious” enough to justify their existence under the Second Amendment.
If you have been charged with making a false statement on a firearm purchase form, or if you’ve decided not to even try to buy a gun because you know you’re prohibited, give us a call to discuss your options under the Second Amendment. We can also potentially raise this defense if you face charges related to prohibited firearm possession.
Or contact me privately:
steve@fairlielaw.com
(215) 997–1000