Commonwealth v. McKown

CONCURRING OPINION BY

FITZGERALD, J.:

I respectfully concur in the result in what is the first case from this Court to address the right to bear arms since District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The majority holds that because Appellant did not possess a valid and lawfully issued New Hampshire license, he did not fulfill the requirements of 18 Pa.C.S. § 6106(b)(15). Because I consider that dispositive, I would not resolve Appellant’s other statutory arguments in support of his first issue, which I construe as dependent upon the existence of a valid license. Furthermore, with respect to Appellant’s facial constitutional challenge to section 6106, in my view, a statute prohibiting the carrying of a concealed firearm without a license does not regulate conduct within the ambit of the Second Amendment to the United States Constitution and article I, *697sections 1, 21, and 25 of the Pennsylvania Constitution.1 See Drake v. Filko, 724 F.3d 426, 434 (3d Cir.), petition for en bane reh’g denied, (3d Cir. Aug. 27, 2013). I thus would not scrutinize the law through the lens of a means-end analysis. Assuming otherwise, however, I discern no constitutional impediment after applying a means-end analysis.

Initially, like the majority, I assume Appellant has standing to raise a facial challenge.2 Second, I similarly assume that the Second Amendment confers an individual right to bear arms outside the home.3

I first address Appellant’s constitutional challenge under the Second Amendment. “First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). If the law does not burden conduct within the scope of the Second Amendment, then the inquiry is complete. Id. Indeed, in an involuntary servitude case, the high court observed that a blanket prohibition on carrying a concealed weapon does not infringe the Second Amendment right to bear arms.4 Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 329, 41 L.Ed. 715, 717 (1897).

The statutory predecessor to 18 Pa.C.S. § 6106 was enacted in 1931.5 Act of June 11, 1931, P.L. 497, No. 158.6 Subsequent*698ly, 18 P.S. § 4628 was enacted in 1939, which was essentially identical to the Act of June 11, 1931, P.L. 497, No. 158. Act of June 24, 1939, P.L. 872, No. 375, § 628. The present statute, 18 Pa.C.S. § 6106, is substantially similar to the original 1931 statute. See 18 Pa.C.S. § 6106(a)(1)-(2). Thus, the modern Pennsylvania license requirement has been codified for more than eighty years.

In Drake, the Third Circuit addressed the constitutionality of a New Jersey statute that required an individual to demonstrate a “justifiable need” for a license to carry a firearm in public for self-defense. Drake, 724 F.3d at 431-33. The appellants challenged the statute on, inter alia, the basis that “the Second Amendment secures a right to carry arms in public for self-defense.” Id. at 428. The Drake panel initially noted that “certain longstanding regulations are ‘exceptions’ to the right to keep and bear arms, such that the conduct they regulate is not within the scope of the Second Amendment.” Id. at 431 (emphasis added). The New Jersey statute, the Drake Court observed, was one of those longstanding regulations, having existed in various forms for almost ninety years. Id. at 432. Based upon such historic precedent in New Jersey and other states, the Drake panel held the following: “[T]he ‘justifiable need’ standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller and expanded upon in our Court’s precedent. Accordingly, it regulates conduct falling outside the scope of the Second Amendment’s guarantee.” Id. at 434 (emphasis added). Furthermore, the Third Circuit held that, regardless, the statute withstood intermediate scrutiny. Id. at 440. The Third Circuit, however, has not answered the question of whether, post-Heller, Pennsylvania can require a license to carry a concealed firearm in public.

Our Commonwealth Court, however, has answered that query.7 In Caba, the appellant challenged the constitutionality of 18 Pa.C.S. § 6109 under both the United States and Pennsylvania constitutions.8 Caba, 64 A.3d at 50. The Commonwealth Court, prior to Heller and McDonald, had implicitly held that section 6109 was constitutional. Id. at 50-51 (discussing Motley v. City of Phila. Licenses & Inspections Unit, 844 A.2d 637 (Pa.Cmwlth.2004)). The Caba Court held that “Heller appears to be consistent with our decision in Motley.” Id. at 51. It further stated the following:

Neither Heller nor McDonald dealt directly with a challenge to a state’s concealed carry law. We see nothing in either decision that causes us to rethink our precedent, upholding the constitutionality of Section 6109 of the Act. To *699the contrary, the Supreme Court’s decisions recognize that concealed carry laws, such as the scheme set forth in the Act, are presumptively valid even under a heightened standard of constitutional scrutiny.

Id. at 51-52 (citation omitted).

I conclude that section 6106 is substantively identical to its statutory predecessor, enacted in 1931. Compare 18 Pa.C.S. § 6106, with Act of June 11, 1931, P.L. 497, No. 158. I also agree with the rationale advanced by the Third Circuit in Drake and would hold that section 6106 is a longstanding regulation. See Drake, 724 F.3d at 434; see also Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir.2013). Similar to the New Jersey “justifiable need” standard, which has existed for almost ninety years, Pennsylvania’s ■ license requirement for concealed firearms has existed in some form for over eighty years. Compare Drake, 724 F.3d at 432 (discussing history of New Jersey statute), with Act of June 11, 1931, P.L. 497, No. 158. In my view, section 6106 thus “regulates conduct falling outside the scope of the Second Amendment’s guarantee.” See Drake, 724 F.3d at 434. But see Caba, 64 A.3d at 51-52 (holding section 6109 burdened Second Amendment right to bear arms because it concluded that concealed carry laws “are presumptively valid even under a heightened standard of constitutional scrutiny.”). I therefore find it unnecessary to resolve whether the statute withstands a facial challenge under the Second Amendment to the United States Constitution.9 See Marzzarella, 614 F.3d at 89.

I next address Appellant’s facial constitutional challenge under sections 1, 21, and 25 of article I of the Pennsylvania Constitution.10 I focus on section 21, which has garnered little judicial attention.11 As Heller acknowledged, the majority of nineteenth-century courts upheld bans on carrying concealed weapons. Heller, 554 U.S. at 626, 128 S.Ct. at 2816, 171 L.Ed.2d at 678. In Wright v. Commonwealth, 77 Pa. 470 (1875), our Supreme Court resolved the constitutionality of the Act of May 5, 1864, P.L. 823, No. 717, which banned the malicious carrying of concealed weapons in Schuylkill County. Id. at 471. The Wright Court, in a sparse decision, held the statute did not violate the clause enshrining the right to bear arms. Id.

In Commonwealth v. Kreps, 25 Dauphin Co. 335 (C.C.P. Dauphin 1922),12 the defendant was convicted of carrying a loaded revolver within Harrisburg, in violation of the Act of April 12, 1873, P.L. 735, No. 810. Id. at 336. The defendant challenged the constitutionality of the Act. Id. The trial court recounted the history of the Pennsylvania right to bear arms and ease law construing sanie. Id. at 337-42. Al*700though Kreps did not opine on the constitutionality of a statute criminalizing the unlicensed carrying of a concealed weapon, the discussion reinforces the longstanding historic recognition that regulating the right to bear arms does not necessarily question section 21.13 See id.; accord Heller, 554 U.S. at 626, 128 S.Ct. at 2816, 171 L.Ed.2d at 678.

Having carefully considered historical precedent, I conclude that section 6106 does not question Pennsylvania’s right to bear arms. Laws regulating the carrying of firearms predate the earliest incarnation of the Pennsylvania Constitution. See, e.g., Act. of Aug. 26, 1721, 3 St. L. 254, Ch. 246. Over a century later, our Supreme Court stated that a law banning the carrying of concealed weapons was constitutional. See Wright, 77 Pa. at 471. In 1931, our legislature enacted a statute requiring a license to carry a concealed firearm, which has existed essentially unchanged for over eighty years. See Act of June 11, 1931, P.L. 497, No. 158. Similar to the Drake Court’s reasoning, I opine that section 6106, as a long-standing regulation, enjoys presumptive constitutionality and regulates conduct outside the scope of article -I, section 21 of the Pennsylvania Constitution. See Drake, 724 F.3d at 434; cf. Caba, 64 A.3d at 51 (holding section 6109 regulates conduct within scope of Second Amendment).14 Because our Supreme Court held a statute banning the malicious carrying of a concealed weapon was outside the scope of section 21, see Wright, 77 Pa. at 471, I conclude that a statute regulating the carrying of a concealed weapon by requiring a license is also outside the scope of section 21. As I noted above, however, even -assuming the challenged conduct falls within the scope of section 21, I agree with the result of the majority’s means-end analysis. Accordingly, I respectfully concur with the majority.

. There are several differences between the Pennsylvania and United States Constitution’s clauses promulgating the right to bear arms. See generally Robert E. Woodside, Pennsylvania Constitutional Law 163 (1985).

. See Commonwealth v. Davidson, 595 Pa. 1, 18, 938 A.2d 198, 208 (2007) (commenting that "challenge to the constitutionality of a statute under the ‘overbreadth' doctrine is generally limited to the First Amendment.” (citation omitted)); see also Caba v. Weaknecht, 64 A.3d 39, 50 (Pa.Cmwlth.2013) (assuming appellant had standing to facially challenge 18 Pa.C.S. § 6109), petition for allowance of appeal filed, 256 MAL 2013 (Pa. Apr. 15, 2013).

. See Drake, 724 F.3d at 431 (declining "to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the 'core' of the right as identified by” Heller, but recognizing "that the Second Amendment’s individual right to bear arms may have some application beyond the home.”).

. "This tradition ['of bans on concealed carry of firearms' dates] back to 1813 and the following decades, at least in some Southern and border states, as well as in Indiana, and by the end of the 19th century the constitutionality of such bans had become pretty broadly accepted.” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.Rev. 1443, 1516 (2009) (footnotes omitted); see generally Tracy B. Farrell, Annotation, Constitutionality of State Statutes and Local Ordinances Regulating Concealed Weapons, 33 A.L.R.6th 407 (2008).

. Pennsylvania statutes regulating the carrying or use of firearms predate 1931. See, e.g., Act of Dec. 24, 1774, 8 St. L. 410, Ch. 705, 1 Sm. L. 421, Ch. 703 (banning public discharge of firearms "at or near New Year’s Day”); Act of Aug. 26, 1721, 3 St. L. 254, Ch. 246 (barring carrying of gun or hunting on lands other than on one's own land without license or permission).

. We reproduce the pertinent sections below:

Section 5. No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided.
Section 6. The provisions of the preceding section shall not apply to [various categories of people].
Section 7. The chief or head of any police force or police department of a city, and, elsewhere in this Commonwealth, the sheriff of a county, may, upon the application of any person, issue a license to such person to carry a firearm in a vehicle or concealed on or about his person within this Commonwealth for not more than one *698year from date of issue, if it appears that the applicant has good reason to fear an injury to his person or property, or has any other proper reason for carrying a firearm, and that he is a suitable person to be so licensed....

Act of June 11, 1931, P.L. 497, No. 158. The Legislature indicated that the law was "aimed and directed at the criminal who wants to go about carrying ... concealed on his person a deadly weapon.” House Legislative Journal, at 2652-53 (Pa. 1931) (publishing remarks for H.B. 1366).

. "Although decisions of the Commonwealth Court are not binding on this Court, we may rely on them if we are persuaded by their reasoning.” NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n. 7 (Pa.Super.2012) (citation omitted).

. In addressing Mr. Caba’s challenge, the Caba Court assumed the following: (1) he had standing; (2) the Second Amendment right to bear arms extends outside the home; and (3) section 6109 burdens conduct falling within the Second Amendment. Caba, 64 A.3d at 49, 52.

. Assuming otherwise, however, I agree with the majority's resolution of Appellant's facial constitutional challenge.

. The Pennsylvania Constitutions of 1790, 1838, and 1874 contain clauses identical to the present section 21. Pa. Const, of 1874, art. I, § 21; Pa. Const, of 1838, [art. IX], § 21; Pa. Const, of 1790, art. IX, § 21.

. See generally Ken Gormley, et al., The Pennsylvania Constitution § 23.2 (2004) (discussing history of right to bear arms in Pennsylvania); David B. Kopel & Clayton E. Cramer, The Keystone of the Second Amendment: the Quakers, the Pennsylvania Constitution, and the Flawed Scholarship of Nathan Kozuskanich, 19 Widener L.J. 277 (2010) (exploring historical origin of Pennsylvania's right to bear arms); Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms, 38 Rutgers L.J. 1041 (2007) (discussing history of Pennsylvania Constitution’s right to bear arms).

.I acknowledge that decisions from the court of common pleas are not .binding on this Court. Barren v. Commonwealth, 74 A.3d 250, 254 n. 2 (Pa.Super.2013).

. I recognize that in Commonwealth v. Ray, 218 Pa.Super. 72, 272 A.2d 275 (1970), this Court held constitutional a statute requiring a license to carry a firearm in public. Id. at 77-78, 272 A.2d at 278 (quoting Act of July 30, 1968, P.L. 690, No. 228). Our Supreme Court, however, vacatéd that decision and quashed the appeal on other grounds. Commonwealth v. Ray, 448 Pa. 307, 312, 292 A.2d 410, 413 (1972).

. The Caba Court did not explicitly discuss whether section 6109 regulated conduct within the scope of article I, section 21, but did opine that the statute did not infringe the "state right to bear arms.” Caba, 64 A.3d at 53.