I've been asked to go on a radio show

[Mike]

Originally Posted by NineseveN

Most of the time, the kinds of arguments you’re advancing would be met with serious scrutiny no matter who made them.

Those advocating iffy arguments (e.g., that "possession" = "carry") need to couch their statements with the fact that they are just beiong risk averse, and that no PA case law goes this far. Else we end up in the same do-loop that has finally been disrupted about the legality of open carry, e.g., that OC=DC.

[headcase]

Originally Posted by Mike

Thanks for the explanation on the Section 908 disability.

But the idea that a Section 908 charge is justifiable is starting to sound like the old warnings that OC = DC. That just does not hold any legal water, so folks who are worried about any possible police/prosecutorial abuse had best not ever carry a gun.

Now as for FOPA defense, that the last ditch offense after you have lost on the definition of "carry," and lost your Fourth Amebndment suppression motions. But I think it is still arguably viable, especially considering juriy nullification of any judge direction that FOPA is not applicable. The DC Court of Appeals has held that trial courts must advise juries of FOPA in DC gun cases involving autos. Bottom line though, FOPA's terxt is arguably applicable, as it speaks to transporting firearms from place to place, not between states:

"§ 926A. Interstate transportation of firearms
How Current is This? Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."

This is not to say it's a sure fire defense - but look at the obstacle course any prosecutor has to run - (1) was the stop valid?, (2) was their consent to the search?, (3) does "carry" equal possession in a locked trunk?, (4) Are you going to look a judge in the eye and say that FOPA's text does not mean what it says?

If the answer to any of the above questions is No, the gun owner wins.

A charge in the example under 908 would not be justified, but may well go through to conviction depending on who is prosecuting and who is defending. That's all I am saying there. As for folks being worried about legal abuse, well, I think that being worried when following radical advice is prudent. Follow the accepted meaning of the law and you have no reason to worry. If you want to live life testing the bounds of stautes, that's f'ing awesome, if you have the time, will, and money to do so, hell, I'd make it my life's mission. But the average Joe, doesn't need that hassle.

As for the FOPA, I have to say, it isn't a weak defense, re reading it. But the firearm must be unloaded and locked in the trunk or absent a trunk, out of reach of the driver in other than the glove box or console. And seeing as Pa. has a very specific entry on the subject in the UFA, I am not sure it would be interpreted to apply to overriding a states law as it applies to a state resident. It would be an interesting trial...

Have you read this breakdown on the FOPA? I found it very informative.

[NineseveN]

Originally Posted by Mike

Those advocating iffy arguments (e.g., that "possession" = "carry") need to couch their statements with the fact that they are just beiong risk averse, and that no PA case law goes this far. Else we end up in the same do-loop that has finally been disrupted about the legality of open carry, e.g., that OC=DC.

Apples and oranges. Disorderly Conduct is pretty well defined, and we've had various DA's note that DC does not apply to Open Carry. The issue here is not to combat the vagueness of the law, the issue is the ignorance of law enforcement and residents of Pennsylvania.

However, I believe we do have sufficient notice that in Pennsylvania, what you advocate does not conform with the law. If you want to be the test case, feel free. Otherwise, acting like what you profess is established is reckless and irresponsible.

Furthermore, if you read the entire statute, it's pretty obvious how much legal maneuvering would be required to contend that having a your handgun not on your person but in your car without an LTCF does not constitute carrying the firearm. Absent a clear and specific definition that supports your point, it falls to not only what is stated in the statute, but also the general workings of the law.

If you actually read the statute (6101 etc...), it's pretty clear what it's meant to say. If vehicle carry was only prohibited if it were on or about your person, the statue wouldn't separate that from carrying on or about your person while not in a vehicle.

Furthermore, how does one carry a rifle or shotgun on or about their person while in a vehicle? If the law stipulates separate containers for the firearm and ammunition are needed while “carrying” in a vehicle, it is quite obvious that “carry” is not only on or about one's person, otherwise that statute would be nonsensical. If that's your legal basis for a defense, I'm sorry, but that's just too much. Go to court, get it handed down in a decision to the affirmative, survive the appeal and then it's not so reckless. Don't muddy the discussion with that OC=DC garbage, completely different story with different facets of the law involved.


I think perhaps this could use it's own thread, we're running this one into the dirt.

[headcase]

Originally Posted by Mike

Those advocating iffy arguments (e.g., that "possession" = "carry") need to couch their statements with the fact that they are just beiong risk averse, and that no PA case law goes this far. Else we end up in the same do-loop that has finally been disrupted about the legality of open carry, e.g., that OC=DC.

LOL, no, I don't think I agree. The OC=DC is not applicable as the act of OC does not meet the definition of the DC statute, at all. There is PASC verbage on this. There is no such verbage in the carry=transport argument in Pa., although the SCOTUS definition will more than likely hold up if introduced in Pa. You say "beiong risk averse" like we should all be stampeading cowboys, and that is not the case nor the sentiment this board generally assumes. This board is about promoting fellowship and responsibility and exchanging information among law abiding firearm owners. It's mission is not to have every firearm owner push the limits of every firearm law on the books. It is about trying to help members understand the law so they may make informed decisions within their comfort level. Everyone should be risk averse, unless they have the means and the will to deal with the legal ramifications of being an envelope pushing maverick. Most don't. You are among people that get it, here, and even if they don't yet, they are here because they want to. You need to tone the rhetoric down, this isn't a board full of antis you need to convince. I would just appreciate you being a tad more responsible in your advice and on posting your interpretations here, that's all.

[LittleRedToyota]

i can't find it, but i remember a case being posted maybe a year or so ago about someone who bought a handgun and stopped at his sister's to show it to her on his way home.

later he was pulled over for a traffic citation and informed the officer that he had the gun in his trunk.

he also told the officer he had stopped at his sister's on the way home.

he ended up being convicted under the PA UFA of carrying without a license because by stopping at his sister's house he no longer fell under the exception regarding carrying an empty gun in your car going directly from the shop to your home.

i seem to remember the gun was in the trunk.

i can't find the post or case though. i remember that it was posted by a lawyer. i am about certain it was on PAFOA, but may have been on glocktalk.

does anyone else happen to remember that post or case or, even better, have a reference to it?

[pex]

You say "beiong risk averse" like we should all be stampeading cowboys, and that is not the case nor the sentiment this board generally assumes. This board is about promoting fellowship and responsibility and exchanging information among law abiding firearm owners. It's mission is not to have every firearm owner push the limits of every firearm law on the books. It is about trying to help members understand the law so they may make informed decisions within their comfort level. Everyone should be risk averse, unless they have the means and the will to deal with the legal ramifications of being an envelope pushing maverick. Most don't.

We're soon going to have to call this organization something else if we aren't interested in promoting liberty through action. We're certainly not going to be an association of 'firearms owners' for long if we don't.

We cannot expect those few people out there interested in carrying on liberty's torch (recent examples: Mike, Pa. Patriot) to bear the weight for everyone. It is not because they don't want to try -- they may or may not -- it is instead because it would be physically impossible. Only the People can carry on liberty.

That begins with the actions of you, I, and everyone else. It's a little troublesome for those who are willing to sacrifice something to hear others say "I want liberty, but I'd rather just stay in my comfort zone."

As for 'authoritative posting', there is a certain level of naivety we cannot account for in making posts here. Offering complete disclaimers upon every post we make information-passing troublesome. No one should come onto a web forum expecting authoritative information -- we are like Wikipedia; we are opinions and a summary of primary sources, for our convenience. I know I always suggest to those in discussion of the law or things requiring 'experts' that they provide CITATIONS!

[NineseveN]

Originally Posted by pex

We're soon going to have to call this organization something else if we aren't interested in promoting liberty through action. We're certainly not going to be an association of 'firearms owners' for long if we don't.

We cannot expect those few people out there interested in carrying on liberty's torch (recent examples: Mike, Pa. Patriot) to bear the weight for everyone. It is not because they don't want to try -- they may or may not -- it is instead because it would be physically impossible. Only the People can carry on liberty.

That begins with the actions of you, I, and everyone else. It's a little troublesome for those who are willing to sacrifice something to hear others say "I want liberty, but I'd rather just stay in my comfort zone."

As for 'authoritative posting', there is a certain level of naivety we cannot account for in making posts here. Offering complete disclaimers upon every post we make information-passing troublesome. No one should come onto a web forum expecting authoritative information -- we are like Wikipedia; we are opinions and a summary of primary sources, for our convenience. I know I always suggest to those in discussion of the law or things requiring 'experts' that they provide CITATIONS!

There's a difference between pioneering advancements for liberty and being reckless and foolish. It's one thing to knowingly engage in risky behavior on your own accord, but giving "iffy" advice that could produce some very real and dire consequences to a number of potentially unsuspecting people who are on our side is something else entirely.

When Gunlawyer or Rule or one of the other attorney's versed in PA law comes in, upholds Mike's opinion and offers a solid defense for anyone caught within this so-called ambiguity of the law, I'll change my stance. You can start converting your rifles to fully-automatic tomorrow, thumbing your nose at the ATF and daring them to come get you while citing the Second Amendment as all the authority you need if that's what you fancy...advocating that others can lawfully do something similar based on how you interpret the Second Amendment without legal standing, expertise and credentials is again, something else entirely.


P.S. No, I'm not saying it's the same thing, only that the two can be paralleled.



With all of the lawyers, advocates, activists, law enforcement officers and other such personalities we have around here and other PA-centric forums, you can’t possibly avoid wondering why it is common knowledge that the opposite of Mike’s position is held to be true in this state if his argument is so solid. Wafers come to mind here.

[LittleRedToyota]

Originally Posted by Mike

no PA case law goes this far.

you cannot definitively say that.

i am about certain that there actually is such case law...i just can't find it. (i will keep looking when i have some more time.)

we will just have to agree to disagree on this part, but saying that the PA courts would interpret "carry" and "transport" to mean the same thing when SCOTUS has already ruled that way and when the common definition of "carry" includes things like "carrying a spare tire in your trunk" is not exactly "iffy".

if someone specifically wants to go challenge this and find out how the PA courts will rule, cool. but anyone doing so should have a clear understanding of what they are taking on.

[headcase]

Originally Posted by pex

We're soon going to have to call this organization something else if we aren't interested in promoting liberty through action. We're certainly not going to be an association of 'firearms owners' for long if we don't.

We cannot expect those few people out there interested in carrying on liberty's torch (recent examples: Mike, Pa. Patriot) to bear the weight for everyone. It is not because they don't want to try -- they may or may not -- it is instead because it would be physically impossible. Only the People can carry on liberty.

That begins with the actions of you, I, and everyone else. It's a little troublesome for those who are willing to sacrifice something to hear others say "I want liberty, but I'd rather just stay in my comfort zone."

As for 'authoritative posting', there is a certain level of naivety we cannot account for in making posts here. Offering complete disclaimers upon every post we make information-passing troublesome. No one should come onto a web forum expecting authoritative information -- we are like Wikipedia; we are opinions and a summary of primary sources, for our convenience. I know I always suggest to those in discussion of the law or things requiring 'experts' that they provide CITATIONS!

Hold the phone there Pex. There is a whole world of difference between fighting for liberty and purposefully advocating breaking the law based on your assumptions. If everyone on this board decided to OC at the same place at the same time, and all were illegally arrested, would that satisfy the requirement you have for upholding liberty? What of the people who barely make ends meet, who donate to the organization or legal defense funds, with money they don't have? What about the hundreds and thousands of members who bombard their Reps, with letters, calls, and emails in support of, or in opposition to, gun related legislation? What about those members who take time from their lives to attend rallies or OC dinners? What about those who OC daily knowing the day may come when they join Greg, Rich, and others who have paid for exercising their right with court dates or real impositions on their freedom? Are they sheep laying around hoping someone else fights for them?? It has been and always will be a fact, that a few people will be willing to risk their lives to stand up for others rights, and by doing so, turn the tide of public outrage. Just because everyone doesn't get arrested doesn't mean they take the fight any less seriously. And to require them to do so in any event, stinks of communism and totalitarianism.

To state an interpretation of a laws meaning as fact, by someone who is seen as an "Leader" in the fight for our right, by some, is irresponsible and holds weight with some people. Not everyone who reads these forums is as well educated as you seem to be. It is necessary to inform people that you are expressing an opinion, not stating definitive fact, when posting on legal issues, in order to avoid your words helping to ruin someones life. You want to state an opinion, you use, IMO or IIRC or IANAL or I think that or I believe that..... You don't say, this is perfectly legal, when, in fact, it is no such thing. That has been one of the better aspects of this forum, at least to me, and I would not see it disregarded just to stroke someone's ego.

[headcase]

Originally Posted by LittleRedToyota

you cannot definitively say that.

i am about certain that there actually is such case law...i just can't find it. (i will keep looking when i have some more time.)

we will just have to agree to disagree on this part, but saying that the PA courts would interpret "carry" and "transport" to mean the same thing when SCOTUS has already ruled that way and when the common definition of "carry" includes things like "carrying a spare tire in your trunk" is not exactly "iffy".

if someone specifically wants to go challenge this and find out how the PA courts will rule, cool. but anyone doing so should have a clear understanding of what they are taking on.

Is this (Carrying without a license, New Sentencing Rules) what you were talking about?