570-371-3737
CONTACT US FOR A
FREE CASE REVIEW
Firearm rights Restoration lawyers
in Wilkes-barre Pennsylvania

restoring Your Rights to Purchase and/or Possess Firearms in PA

Lampman Law may be able to help you restore your right to buy and possess a gun in Pennsylvania. Call us today for a free case evaluation.

 

Your Rights to Possess and Purchase Firearms Can be LOST

The Commonwealth of Pennsylvania and the United States government both prohibit the possession, purchase, or acquiring of firearms by certain individuals. The Federal and state laws are independent of each other. If you are prohibited from possessing and/or purchasing a firearm under either the Federal or state law, it would be a crime to possess and/or own a firearm.
Pennsylvania State Law

Pennsylvania’s Uniform Firearms Act, 18 Pa.C.S. § 6101, et seq., generally governs who can and cannot purchase or possess firearms in Pennsylvania. Under the Uniform Firearms Act, anyone convicted of the following crimes is prohibited from possessing, using, controlling, selling, transferring, manufacturing, and/or obtaining a license to use or possess a firearm:

  • Prohibited Offensive Weapons, 18 Pa.C.S. § 908

  • Corrupt Organizations (i.e. Organized Crime), 18 Pa.C.S. § 911

  • Possession of a Weapon on School Property, 18 Pa.C.S. § 912

  • Murder, 18 Pa.C.S. § 2502

  • Voluntary Manslaughter, 18 Pa.C.S. § 2503

  • Involuntary Manslaughter if the offense/conviction is based upon the reckless use of a firearm, 18 Pa.C.S. § 2504

  • Aggravated Assault, 18 Pa.C.S. § 2702

  • Assault by a Prisoner, 18 Pa.C.S. § 2703

  • Assault by Life Prisoner, 18 Pa.C.S. § 2704

  • Stalking, 18 Pa.C.S. § 2709.1

  • Weapons of Mass Destruction, 18 Pa.C.S. § 2716

  • Kidnapping, 18 Pa.C.S. § 2901

  • Unlawful Restraint, 18 Pa.C.S. § 2902

  • Luring a Child into a Motor Vehicle or Structure, 18 Pa.C.S. § 2910

  • Rape, 18 Pa.C.S. § 3121

  • Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3123

  • Aggravated Indecent Assault, 18 Pa.C.S. § 3125

  • Arson and Related Offenses, 18 Pa.C.S. § 3301

  • Causing or Risking Catastrophe, 18 Pa.C.S. § 3302

  • Burglary, 18 Pa.C.S. § 3502

  • Criminal Trespass if it is graded as a felony of the second degree or higher, 18 Pa.C.S. § 3503

  • Robbery, 18 Pa.C.S. § 3701

  • Robbery of a Motor Vehicle, 18 Pa.C.S. § 3702

  • Theft by Unlawful Taking or Disposition, 18 Pa.C.S. § 3921

  • Theft by Extortion if the offense includes threats of violence, 18 Pa.C.S. § 3923

  • Receiving Stolen Property, 18 Pa.C.S. § 3925

  • False Reports to Law Enforcement if the false report is regarding the theft of a firearm, 18 Pa.C.S. § 4906

  • Impersonating a Public Servant if the person is impersonating a law enforcement officer, 18 Pa.C.S. § 4912

  • Intimidation of Victims or Witnesses, 18 Pa.C.S. § 4952

  • Retaliation against Witness, Victim, or Party, 18 Pa.C.S. § 4953

  • Escape, 18 Pa.C.S. § 5121

  • Weapons or Implements for Escape, 18 Pa.C.S. § 5122

  • Rioting, 18 Pa.C.S. § 5501(3)

  • Prohibition of Paramilitary Training, 18 Pa.C.S. § 5515

  • Facsimile Weapons of Mass Destruction, 18 Pa.C.S. § 5516

  • Possession of a Firearm by a Minor, 18 Pa.C.S. § 6110.1

  • Corruption of Minors, 18 Pa.C.S. § 6301

  • Prohibited Sale or Lease of Weapons and Explosives, 18 Pa.C.S. § 6302

In addition to these enumerated offenses, the Uniform Firearms Act prohibits any person convicted of an offense equivalent (i.e. similar to or the same as) to one of the above enumerated offenses from possessing and purchasing a firearm.

The Uniform Firearms Act also provides a broader provision that prohibits many other individuals from possessing and purchasing firearms. Under § 6105(c) of the Uniform Firearms Act, the following individuals are prohibited from possessing or purchasing a firearm as well:

  • A person who is a fugitive from justice;

  • A person convicted of a crime under the Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal or State statute, that may be punishable by imprisonment exceeding two years;

  • A person convicted of DUI on three or more separate occasions within a five-year period (this specific class only applies to transfers or purchases of firearms after the third DUI conviction);

  • A person adjudicated incompetent;

  • A person involuntarily committed under 50 P.S. §§ 7302, 7303, and 7304 (often known as § 302 commitments);

  • A person who is illegally or unlawfully in the United States (i.e. Illegal Immigrant / Undocumented Immigrant);

  • A person subject to an active Protection from Abuse Order (i.e. PFA) if the order provides for the relinquishment of firearms;

  • A person adjudicated delinquent for certain serious offenses; and

  • A person prohibited from possessing or acquiring a firearm under 18 U.S.C. § 922(g)(9) for certain domestic violence convictions.

Federal Law

The United States government regulates who can and cannot possess and/or own firearms under the Federal Gun Control Act of 1968, 18 U.S.C. § 921, et seq. The Federal Gun Control Act of 1968 provides that it is illegal for the following persons to possess and/or own firearms:

  • A person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.

    1. Notably, this provision is very broad. However, the Federal Gun Control Act limits this definition by providing that the term “crime punishable by imprisonment for a term exceeding one year” does not include:

      1. Any offense relating to antitrust violations, unfair trade practices, restraints on trade, or other similar offenses relating to the regulation of business practices; or

      2. Any state offense classified as a misdemeanor and punishable by a term of imprisonment of two years or less. 18 U.S.C. § 921(a)(20).

  • A person who is a fugitive from justice;

  • A person who is an unlawful user of any controlled substance or a person addicted to any controlled substance as defined in the Controlled Substances Act, 21 U.S.C. § 802;

  • A person who has been adjudicated mentally defective or committed to a mental institution;

  • A person in the United States illegally or unlawfully (i.e. an illegal or undocumented immigrant);

  • A person admitted to the United States under a nonimmigrant visa;

  • A person who received a dishonorable discharge from the United States military;

  • A person who has renounced his/her citizenship in the United States;

  • A person who is subject to a protection from abuse order (i.e. PFA) under certain conditions;

  • A person who has been convicted of a misdemeanor for a crime of domestic violence;

Generally, the most common scenario where a person has his/her gun rights taken away under federal law is when a person is convicted of a crime punishable by imprisonment of greater than one year. However, as described above, this prohibition is limited in the case of misdemeanors to misdemeanors punishable by imprisonment greater than two years. This does not mean that you would have to spend greater than two years in prison on a misdemeanor charge in order for your gun rights to be taken away. If you pled to a misdemeanor charge that could send you to prison for greater than two years, this prohibition would apply to you even if you spent no time in prison.

Restoring Your Gun Rights

Since the Pennsylvania and Federal laws outlined above are independent of each other, you must have your state gun rights and federal gun rights restored in order to lawfully possess and/or purchase a firearm. If you only have your state rights reinstated but you are still prohibited from owning and/or purchasing a firearm under the federal law, it is still a crime to own and/or possess a firearm. The converse of this is also true.

Restoring your Gun Rights under Pennsylvania Law

Restoration of Gun Rights under 18 Pa.C.S. § 6105(d)

If your gun rights have been taken away, you must make an application to the Court of Common Pleas where you reside to have those gun rights restored. 18 Pa.C.S. § 6105(d). In order for the application to be successful, the Court of Common Pleas must determine whether: (1) the conviction causing the loss of your gun rights has been vacated and appellate options have been exhausted; (2) a governor’s pardon was issued; or (3) the person has had their gun rights restored under federal law (or the Court determines that the Secretary of Treasury cannot grant relief under federal law because Congress did not appropriate sufficient funds) and a period of ten years has passed since the person’s conviction for certain crimes.

Notably, the ten year period for prong three does not begin to run until a person is released from incarceration. Additionally, prong three only applies to the crimes enumerated by the statute (18 Pa.C.S. § 6105(b)), a felony conviction of the Controlled Substance, Drug, Device and Cosmetic Act, or the offense resulted in losing federal gun rights because of a misdemeanor domestic violence conviction.

Restoration of Gun Rights Under 18 Pa.C.S. § 6105(f) for Involuntary Commitments

As described above, a person loses their gun rights if they are involuntarily committed under 50 P.S. §§ 7302, 7303, and 7304, which is commonly referred to as a § 302 commitment. In addition to having the involuntary commitment expunged, a person can apply for a reinstatement of their gun rights under 18 Pa.C.S. § 6105(f). Importantly, a person can apply for a reinstatement of gun rights under 18 Pa.C.S. § 6105(f) even if the involuntary commitment is not expunged. Often times, a petition to expunge an involuntary commitment and a petition to reinstate gun rights under 18 Pa.C.S. § 6105(f) can be filed at the same time so the petitioner has the best chances of having their gun rights restored.

Under 18 Pa.C.S. § 6105(f), an individual who was involuntarily committed and wants their gun rights restored must file an application with the Court of Common Pleas where they reside. Then, at a hearing, the Court of Common Pleas may grant relief that it deems appropriate if the court determines that the person seeking to have their gun rights restored can possess a firearm without being a risk to themselves or any other person. Many times, this involves providing evidence that the mental episode that led to the involuntary commitment has passed. For example, if someone was involuntarily committed because they were suicidal, proof would have to be submitted to the court to demonstrate that the person was no longer suicidal and could possess a gun without being a danger to themselves. However, as evidenced by the word “may” in the statute, relief under this section is discretionary with the court.

If successful, a person’s gun rights would be restored under 18 Pa.C.S. § 6105(f). However, there is a separate process for having involuntary commitments expunged.

Restoration of Gun Rights Under 18 Pa.C.S. § 6105(f) for Protection from Abuse Orders

18 Pa.C.S. § 6105(f) also provides an avenue to restore your gun rights after being ordered to relinquish your firearms pursuant to a protection from abuse order (“PFA”). First, the statute provides that any PFA requiring the relinquishment of firearms terminates when the PFA expires, the PFA is vacated, or the PFA is amended to remove the clause requiring a person to relinquish his/her firearms. The person who sought and received the PFA must receive notice of the application to restore gun rights and would be given an opportunity to be heard by the court before the court restored any gun rights.

In order to have firearm rights restored, the court must decide to amend its PFA or vacate its PFA. Amending the PFA is a discretionary matter and it is important to have evidence to present to the court to demonstrate that any restoration of firearms rights would not result in harm to the person who sought and received the PFA. 

The other option would be to wait for the PFA to expire. After a PFA expires, 18 Pa.C.S. § 6105(c)(6) provides that the person’s firearm rights, under Pennsylvania law, would be restored.

Restoration of Gun Rights Under 18 Pa.C.S. § 6105.1

18 Pa.C.S. § 6105.1 offers restoration of gun rights for individuals who were convicted under previous laws of Pennsylvania that are no longer in effect. In order to qualify for relief under this section, the offense causing the loss of your firearm rights must be a “disabling offense.” A disabling offense is defined as an offense that resulted in a Federal firearms disability and is substantially similar to an offense that is not punishable by more than two years imprisonment or is substantially similar to an offense that is no longer a violation of the law. 18 Pa.C.S. § 6105.1(e). Additionally, in order to be a disabling offense, the offense must have been under the former Vehicle Code or the former Penal Code.

There are numerous exceptions to this avenue to have your gun rights restored as well. For example, the court can deny an application to have firearm rights restored under § 6105.1 if the court determines that the party petitioning to have gun rights restored has such a character and reputation that it is likely he/she would act in a manner dangerous to public safety. 18 Pa.C.S. § 6105.1(a)(3). There are many more exceptions to this type of restoration and it is best to consult with an experienced attorney to determine if you can have your firearm rights restored under § 6105.1.

Restoring Your Gun Rights Under Federal Law

In order to have your Federal gun rights reinstated, an application to the Attorney General of the United States must be made. 18 U.S.C. § 925. The Attorney General’s office then has the discretion to grant relief from any firearms disability. In order for the Attorney General to restore a person’s gun rights, it must be demonstrated that the circumstances surrounding the removal of a person’s gun rights and the person’s record and reputation show that the person is not likely to act in a manner dangerous to public safety. Additionally, restoring a person’s gun rights must not be contrary to the public interest.

If the Attorney General’s office denies a petition to restore gun rights, the petitioner can file an appeal to the United States District Court in which he/she resides. The District Court would then review the Attorney General’s decision and could admit new evidence if a miscarriage of justice would result without the new evidence.

Erroneously Reported Information that Prevents You From Owning a Gun

If information is being erroneously (i.e. incorrectly, mistakenly) reported on a background check or similar system that prevents you from getting a firearm, you can bring a lawsuit against the state, political subdivision of the state, or the United States to get a court order to correct the information. 18 U.S.C. § 925A. Therefore, if incorrect information is on your background check that prevents you from obtaining a firearm, Congress provided you with an avenue to challenge that incorrect information.

Additionally, if you are successful in bringing an action for a court order to correct the information, the United States District Court could force the defendant (i.e. political organization incorrectly reporting information) to pay your attorney’s fees and costs for bringing the lawsuit. Notably, awarding attorney’s fees under this section is discretionary but it could help alleviate some of the costs of enforcing your rights.

Interplay Between Pennsylvania Law and Federal Law

As described above, Pennsylvania and the United States Federal Government have separate and independent statutes that regulate who is permitted to purchase, possess, transfer, or otherwise own firearms. Restoring your gun rights under the Pennsylvania Law does not, generally, restore your gun rights under Federal law. In Pennsylvania State Police v. Paulshock, the Pennsylvania Supreme Court made clear that any state court ruling reinstating gun rights under § 6105 does not reinstate a person’s gun rights under Federal law. Therefore, in most circumstances, a person must apply for reinstatement of their Federal rights and Pennsylvania state rights to own guns before he/she can lawfully own a firearm.

Free Consultation

Lampman Law offers free consultations to review your individual case. As you can see from the article above, having gun rights restored, and discovering the reason gun rights were taken away, is complicated. It is always best to consult with an experienced attorney to see what rights you have. The call is free and it could help you restore your rights to possess and/or own a firearm.

2 Public Square, Wilkes-Barre, PA 18701

reception@lampmanlaw.com  |   570-371-3737

Lampman Law practices criminal defense and civil rights in the Counties of: Bradford, Carbon, Clinton, Columbia, Lackawanna, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northampton, Northumberland, Pike, Schuylkill, Snyder, Sullivan, Susquehanna, Union, Wayne, Wyoming. Lampman Law Office is located in Wilkes-Barre, Luzerne County, Pennsylvania.

Prior results do not guarantee a similar outcome. The information on this site is not, nor is it intended to be, legal advice. Do not rely on it for accuracy or direction. You should consult an attorney for advice concerning your individual situation because every case is different. Further, contacting us does not create an attorney-client relationship. Do not send confidential information to us until an attorney-client relationship has been established.

© 2020 by Lampman Law. All Rights Reserved.