Can the government confiscate PennLAGOs guns during a State of Emergency in Pennsylvania

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Although at this point, it looks exceedingly unlikely that Hurricane Matthew will do much more than provide for some rain to the Keystone state and no one seems to predict that a Governor will enact a state of emergency or that the President of the United States will enact a state of emergency, it is always best to be prepared. In this post we will talk about what happens during a state of emergency here in PA when it comes to guns and gun law.

The focus that most folks have are two:

Can the government take my guns during a state of emergency?

Can I still carry concealed with my LTCF during a state of emergency?

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There are three levels of concern when it comes to any state of emergency and firearms here in Pennsylvania:

1. Federal Law. Federal Law is generally governed by 42 USC §5207 (Firearms Policy). It reads as follows:

(a) Prohibition on confiscation of firearms. No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—
(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.
(b) Limitation
Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.
(c) Private rights of action
(1) In general
Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.
(2) Remedies
In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.
(3) Attorney fees
In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

2. State Law. The law can be found at 18 PS §6107 (Prohibited conduct during emergency). It reads:

(a) General rule.–No person shall carry a firearm upon the public streets or upon any public property during an emergency proclaimed by a State or municipal governmental executive unless that person is:
(1) Actively engaged in a defense of that person’s life or property from peril or threat.
(2) Licensed to carry firearms under section 6109 (relating to licenses) or is exempt from licensing under section 6106(b) (relating to firearms not to be carried without a license).
(b) Seizure, taking and confiscation.–Except as otherwise provided under subsection (a) and notwithstanding the provisions of 35 Pa.C.S. Ch. 73 (relating to Commonwealth services) or any other provision of law to the contrary, no firearm, accessory or ammunition may be seized, taken or confiscated during an emergency unless the seizure, taking or confiscation would be authorized absent the emergency.
(c) Definitions.–As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Accessory.” Any scope, sight, bipod, sling, light, magazine, clip or other related item that is attached to or necessary for the operation of a firearm.
“Firearm.” The term includes any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any weapon.

3. Local Law. Unfortunately, in Pennsylvania, there are municipalities, such as the City of Harrisburg, that do not believe that they have to follow the law. Despite the clear language of 18 PS §6120 (“No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth”), they enact their own laws called ordinances. They are illegal on their face. But nevertheless, they still are on the books and are subject to enforcement. Here is the City of Harrisburg’s unlawful ordinance concerning a state of emergency:

§ 3 – 355.1 Declaration of emergency. A. Whenever the Mayor declares that a state of emergency exists, the following emergency prohibitions shall thereupon be in effect during the period of said emergency and throughout the City: (1) The sale or transfer of possession, with or without consideration, the offering to sell or so transfer and the purchase of any ammunition, guns or other firearms of any size or description. (2) The displaying by or in any store or shop of any ammunition, guns or other firearms of any size or description. (3) The possession in a public place of a rifle or shotgun by a person, except a duly authorized law enforcement officer or person in military service acting in an official performance of his or her duty. B. The Mayor may order and promulgate all or any of the following emergency measures, in whole or in part, with such limitations and conditions as he or she may determine appropriate; any such emergency measures so ordered and promulgated shall thereupon be in effect during the period of said emergency and in the area or areas for which the emergency has been declared: (9) Whenever the Mayor determines there has been an act of violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority and that, therefore, there is reason to believe that there exists a clear and present danger of a riot, civil disorder or other general public disorder, widespread disobedience of the law and substantial injury to persons or property, all of which constitute a threat to public peace or order and to the general welfare of the City or a part or parts thereof, he or she may declare that a state of emergency exists within the City or any part or parts thereof. § 3 -355.2(B)(9)

 

Bottom line:

  • Can the government (Federal or state) lawfully come and confiscate my lawfully owned guns during a declared state of emergency? No.
  • Can the government (Federal or state) lawfully stop a LTCF holder from carrying concealed outside of the house during a declared state of emergency? No. [a small exception exists if you are being transported by the federal government out of the area, such as a helicopter or truck or what have you, that you may lawfully be asked to temporarily surrender your firearm during that transport, but it should promptly be given back to you.]