Judicial Activism on Display in Pennsylvania

Pennsylvania's state motto is "Virtue, liberty, and independence," but liberty took a hit this week with a disturbing ruling by the Pennsylvania Superior Court.  Given the decision in Commonwealth v. McKown, Keystone State residents cannot lawfully carry concealed in-state on a valid concealed carry license (CCL) issued by another jurisdiction.  Instead, they may use only a Pennsylvania CCL.  This rule applies, moreover, even where Pennsylvania has a reciprocity agreement with the other state.

Hobson Lyle McKown, a Pennsylvania resident, had a Pennsylvania CCL that was revoked on April 14, 2008, although he did not get the notice until April 29. On April 15, McKown applied for, and later obtained, a New Hampshire CCL. In the fall of 2008, McKown was arrested for a concealed carry violation and claimed that, as a valid New Hampshire permit holder, he did not violate the law. 

The case centered on two provisions of Pennsylvania law. The first, which makes it an offense to carry a concealed firearm outside of a person's home or workplace, exempts, among others, "any person" with a valid permit to carry issued by another state. (18 Pa. Cons. Stat. § 6106(b)(15)). However, this statutory reciprocity hinges on the Attorney General having made a determination that the firearm laws of the other state are similar to Pennsylvania's, and the state took the position that this precondition had not been met regarding New Hampshire's laws (although significantly, the state has a reciprocity agreement with New Hampshire under which each jurisdiction recognizes the other's CCL).

The second and different provision, § 6109(b), titled "place of application," states that "an individual" "may" apply for a Pennsylvania CCL, and, if the applicant is a state resident, the application "shall" be made to the sheriff or chief of police in the jurisdiction where the applicant lives.

McKown was convicted, with the trial court finding that his New Hampshire permit did not meet the requirements in § 6106.  According to the trial court, New Hampshire will only issue CCLs to residents of other states who are licensed by their home state, and McKown was not validly licensed by Pennsylvania at the time he applied for the New Hampshire CCL. McKown appealed this decision, and the Pennsylvania Superior Court rejected his appeal.

In doing so, the Superior Court went much further than the trial court, twisting the straightforward language of § 6109(b) to mean that no Pennsylvania resident was entitled to rely on an out-of-state CCL, valid or otherwise. The court interpreted the "shall" wording in § 6109(b) – a direction regarding where residents should apply – as imposing a mandatory and exclusive application process for residents. The court concluded there was "nothing optional with respect to whether a Pennsylvania license is required for a Pennsylvania resident who wants to carry a concealed weapon in Pennsylvania." 

The decision is troubling on multiple levels. It ignores existing law that extends reciprocity to any person's out-of-state CCL, and reinterprets "any person" to mean "only persons who are not Pennsylvania residents." If the Pennsylvania legislature had intended that residents be restricted to carrying on in-state permits only, it surely would have expressed this clearly and unequivocally (indeed, bills to do exactly that have been introduced and rejected in recent legislative sessions).

More to the point, the appellate court could have resolved the case (as did the trial court) simply by deciding whether McKown's New Hampshire permit was valid at the time of his arrest.  Indeed, the court acknowledges as much in its own opinion and holds that the trial court ruled correctly on this point.  Nevertheless, it created a much broader ruling and resolved a hotly contested political issue that should have been left to the Pennsylvania legislature.