Com. v. McKown, CP-14-CR-1569-2008, began (Sept. 2, 2008) as a case involving the concealed carry of a firearm (re: 18 Pa.C.S. 6106) and an attempt to check that firearm, carried under a PA-reciprocal license, into locker at a court facility as required by law, but for which no such facilities existed at the location (re: 18 Pa.C.S. 913). The defendant challenged the facial validity of both §§ 6106 and 913 under the Pa. Const. art. I, §§ 1, 21, and 25, and the Second Amendment in a motion to declare the statutes unconstitutional. The court denied the motion. 3 years following the arrest for the offense, the defendant was sentenced (Sept. 1, 2011). It is expected that an appeal will follow.
Although upon questionable construction, the courts seem to tend toward reasoning that any possession of a firearm within a vehicle constitutes 'carry'. See Com. v. Valle, 323 A.2d 74, 75-26 (Pa.Super. 1974); Com. v. Festa, 40 A.2d 112, 116 (Pa.Super. 1944). However, see Com. v. Walker, 280 A.2d 590, 591 (Pa.Super. 1971) ("The essence of the offense is the ‘concealed carrying’ of a weapon, whether it is in a vehicle or on the person. The means by which the gun is transported-car or person-is only detail to describe the method of concealment in which the gun is carried."). If the courts continue to favor this construction, there is no 'open carry' in a vehicle allowed in Pennsylvania.
During the defendant's trial, the star sheriff of Pennsylvania, Denny Nau, who is well-known both for being the primary issuer of Pennsylvania LTCFs to out-of-state applicants and for issuing licenses in less than an hour from application when done in person, stated that sheriff's deputies under his command would not be allowed to check firearms openly carried without a license.
The defendant is expected to renew the arguments of constitutional invalidity on appeal. A facial challenge presumes that the statute could never apply under the requirements of the constitution, and if a judge finds that 18 Pa.C.S. 6106 is void, the general bar on carry/transport under 18 Pa.C.S. 6106 among the Commonwealth, including on open carry, in a vehicle, will no longer exist. Similarly, the entirety of possession of a firearm in a court facility is challenged on facial grounds. If the statute is declared void, open carry will no longer be prohibited in court facilities, including courtrooms, under 18 Pa.C.S. 913. Yet this liberty is already what is called for under the Pa. Constitution, and has been recognized even in the darkest depths of hell (Philadelphia): "[W]hen [the] quesiton was brought before one of the courts of Philadelphia, one of the judges declared that a person upon the witness stand who has a pistol concealed on his person had a constitutional right to carry that pistol concealed." 7 Debates of the Convention to Amend the Constitution of Pennsylvania 258 (Harrisburg, 1873). It should be further noted that a defeat of 18 Pa.C.S. 6106(a) sets up 18 Pa.C.S. 6108 (regarding openly carrying in Philadelphia) for a speedy execution.
There has been exceptional documentation of the court case (although the latest records have not yet been made available.) Public records are continually added at http://www.thecrimsonpirate.com/rtkba/archive/mckown/mckown_cases_as_of_20101216.html and the primary location for staying tuned and discussing the case is found on a thread at http://forum.pafoa.org/concealed-open-carry-121/31567-man-tries-take-loaded-gun-hearing.html.
I report the case here because of the special placement of open carriers who have an interest in the outcome, although they certainly cannot be party to the case. "Anyone interested in the questions involved in any matter pending in an appellate court, excluding Petitions for Allowance of Appeal, although not a party, may, without applying for leave to do so, file a brief amicus curiae in regard to those questions." Pa.R.A.P., Rule 351(a). Aiding the court with legal and historical reference, or filling out an argument that the defendant cannot make because the facts did not find him openly carrying in this case, can help the judges see that in no situation should these statutes be allowed to continue to apply to anyone...including those whom openly carry.
Although upon questionable construction, the courts seem to tend toward reasoning that any possession of a firearm within a vehicle constitutes 'carry'. See Com. v. Valle, 323 A.2d 74, 75-26 (Pa.Super. 1974); Com. v. Festa, 40 A.2d 112, 116 (Pa.Super. 1944). However, see Com. v. Walker, 280 A.2d 590, 591 (Pa.Super. 1971) ("The essence of the offense is the ‘concealed carrying’ of a weapon, whether it is in a vehicle or on the person. The means by which the gun is transported-car or person-is only detail to describe the method of concealment in which the gun is carried."). If the courts continue to favor this construction, there is no 'open carry' in a vehicle allowed in Pennsylvania.
During the defendant's trial, the star sheriff of Pennsylvania, Denny Nau, who is well-known both for being the primary issuer of Pennsylvania LTCFs to out-of-state applicants and for issuing licenses in less than an hour from application when done in person, stated that sheriff's deputies under his command would not be allowed to check firearms openly carried without a license.
The defendant is expected to renew the arguments of constitutional invalidity on appeal. A facial challenge presumes that the statute could never apply under the requirements of the constitution, and if a judge finds that 18 Pa.C.S. 6106 is void, the general bar on carry/transport under 18 Pa.C.S. 6106 among the Commonwealth, including on open carry, in a vehicle, will no longer exist. Similarly, the entirety of possession of a firearm in a court facility is challenged on facial grounds. If the statute is declared void, open carry will no longer be prohibited in court facilities, including courtrooms, under 18 Pa.C.S. 913. Yet this liberty is already what is called for under the Pa. Constitution, and has been recognized even in the darkest depths of hell (Philadelphia): "[W]hen [the] quesiton was brought before one of the courts of Philadelphia, one of the judges declared that a person upon the witness stand who has a pistol concealed on his person had a constitutional right to carry that pistol concealed." 7 Debates of the Convention to Amend the Constitution of Pennsylvania 258 (Harrisburg, 1873). It should be further noted that a defeat of 18 Pa.C.S. 6106(a) sets up 18 Pa.C.S. 6108 (regarding openly carrying in Philadelphia) for a speedy execution.
There has been exceptional documentation of the court case (although the latest records have not yet been made available.) Public records are continually added at http://www.thecrimsonpirate.com/rtkba/archive/mckown/mckown_cases_as_of_20101216.html and the primary location for staying tuned and discussing the case is found on a thread at http://forum.pafoa.org/concealed-open-carry-121/31567-man-tries-take-loaded-gun-hearing.html.
I report the case here because of the special placement of open carriers who have an interest in the outcome, although they certainly cannot be party to the case. "Anyone interested in the questions involved in any matter pending in an appellate court, excluding Petitions for Allowance of Appeal, although not a party, may, without applying for leave to do so, file a brief amicus curiae in regard to those questions." Pa.R.A.P., Rule 351(a). Aiding the court with legal and historical reference, or filling out an argument that the defendant cannot make because the facts did not find him openly carrying in this case, can help the judges see that in no situation should these statutes be allowed to continue to apply to anyone...including those whom openly carry.