J-A07001-24
2024 PA Super 309
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYQUAN A. FARMER :
:
Appellant : No. 1153 MDA 2023
Appeal from the Judgment of Sentence Entered February 14, 2023
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0004742-2020
BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED: DECEMBER 23, 2024
Appellant, Rayquan Farmer, appeals from the February 14, 2023
judgment of sentence imposing five to ten years of incarceration for unlawful
possession of a firearm, 18 Pa.C.S.A. § 6105. We affirm.
Appellant was on parole for a prior robbery conviction1 when police
received word that Appellant was in possession of a firearm. Police
investigated, procured a search warrant, and recovered a .40 caliber Beretta
from Appellant’s residence. A jury found Appellant guilty of the
aforementioned offense at the conclusion of a December 12, 2022, trial. After
imposition of sentence, Appellant filed a timely post-sentence motion. In it,
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* Former Justice specially assigned to the Superior Court.
1 Appellant and several coconspirators robbed the victim of his wallet at
gunpoint. The robbery offense is codified at 18 Pa.C.S.A. § 3701.
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he argued that § 6105 violates the Second Amendment to the United States
Constitution as applied to him in this case under the United States Supreme
Court’s analysis in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597
U.S. 1 (2022). The trial court ordered briefing on that issue and conducted
an en banc hearing before the entire Dauphin County bench.2 On July 20,
2023, the trial court denied Appellant’s post-sentence motion. This timely
appeal followed.
The constitutionality of § 6105 as applied to Appellant is the only
question before us.3 It is a question of law for which our standard of review
is de novo and our scope of review is plenary. Commonwealth v. Bizzel,
107 A.3d 102 (Pa. Super. 2014) (noting that the constitutionality of a statue
presents a pure question of law), appeal denied,
126 A.3d 1281 (Pa. 2015).
In an as applied challenge, the court determines whether a law with some
permissible applications is unconstitutional as applied to Appellant’s actions in
this case. Spence v. Washington,
418 U.S. 405, 414 (1974). The Second
Amendment governs the people’s right to keep and bear arms: “A well
regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.” U.S. CONST.
amend II.
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2 See Pa.R.C.P. 227.2.
3 Appellant’s brief addresses only the federal constitution. We have cabined
our analysis accordingly.
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In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme
Court held that the Second Amendment to the United States Constitution
confers an individual right to keep and bear a handgun within the home for
self-defense. As we will discuss in greater detail below, the Heller Court
announced a strong presumption that “the right of the people” referenced in
the Second Amendment’s operative clause “is exercised individually and
belongs to all Americans.”
Id. at 581. The phrase “the people” as used in
the Constitution “unambiguously refers to all members of the political
community, not an unspecified subset.”
Id. at 580.
Moreover, the Second Amendment codified a “pre-existing right,” that
was conducive to, but not dependent on, an individual’s service in a state
militia. Id. at 592-93 (italics in original). This is so because our founding
generation knew, from history, that “the way tyrants had eliminated a militia
consisting of all the able-bodied men was not by banning the militia but simply
by taking away the people’s arms, enabling a select militia or standing army
to suppress political opponents.”
Id. at 598. The protection of an individual’s
right to self-defense enshrined in several state constitutions also informed the
Heller majority’s view of the founding generation’s understanding of the right
to keep and bear arms.
Id. at 602-03. The Heller Court reviewed post-
ratification commentary (see
id. at 605), pre-Civil War case law (see
id. at
610), post-Civil War legislation (see
id. at 614), and post-Civil War
commentators (see
id. at 616), finding support for its holding throughout
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those sources. But the Heller Court also issued some qualifications as to the
scope of its decision:
Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment, nothing
in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.
Id. at 626-27. We shall refer to these four categories—felons, the mentally
ill, sensitive places, and commercial sale—as the “Heller Exemptions.”
Turning to the laws at issue in Heller, whereby the District of Columbia
prohibited the possession of handguns and required that lawfully owned long
guns be rendered inoperable while stored within the home, the Supreme Court
held them to be in violation of the Second Amendment.
[T]he inherent right of self-defense has been central to the
Second Amendment right. The handgun ban amounts to a
prohibition of an entire class of ‘arms’ that is overwhelmingly
chosen by American society for that lawful purpose. The
prohibition extends, moreover, to the home, where the need for
defense of self, family, and property is most acute.
Id. at 628. The High Court held that the handgun ban would fail under any
level of scrutiny.
Id. at 628-29. Likewise, the requirement that lawfully
owned guns be rendered inoperable within the home precluded their use for
self-defense, and thus violated the Second Amendment right.
Id. at 630.
Subsequently, in McDonald v. City of Chicago, 561 U.S. 742 (2010),
the Supreme Court held that the Second Amendment right to keep and bear
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arms for self-defense applies to the states by operation of the Fourteenth
Amendment.4 The McDonald Court struck down laws of the city of Chicago
and one of its suburbs which, like the laws at issue in Heller, effectively
banned the possession of handguns.
In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1
(2022), the Supreme Court built on Heller and McDonald, holding that the
Second and Fourteenth Amendments confer an individual right to carry a
handgun outside the home for self-defense. In so holding, the Bruen Court
struck down a New York law that forbade the carrying of an unlicensed
handgun and required persons seeking a public carry license to establish a
special need for self-defense.
Id. at 8-11.
The New York state courts had upheld the law against the constitutional
challenge, reasoning that the licensing requirements were “substantially
related to the achievement of an important governmental interest.” Id. at
17. Similarly, federal circuit courts after Heller and McDonald “coalesced
around a ‘two-step’ framework for analyzing Second Amendment challenges
____________________________________________
4 The Fourteenth Amendment provides, in part, that “No State shall make or
enforce any law which shall abridge the privileges or immunities of the citizens
of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
A 5 to 4 majority agreed that the Fourteenth Amendment incorporates the
Second Amendment right as defined by Heller.
McDonald, supra. Justice
Alito, joined by Chief Justice Roberts, Justice Scalia, and Justice Kennedy,
relied on the Due Process Clause of the Fourteenth Amendment to reach their
result. Justice Thomas relied on the Privileges and Immunities Clause.
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that combines history with means-end scrutiny.” Id. The Bruen Court
abrogated the means-ends scrutiny portion of the analysis.
In keeping with Heller, we hold that when the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its
regulation, the government may not simply posit that the
regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent
with this Nation’s historical tradition of firearm regulation. Only if
a firearm regulation is consistent with this Nation’s historical
tradition may a court conclude that the individual’s conduct falls
outside the Second Amendment’s ‘unqualified command.’
Id. Thus, Bruen created a modified two-step analysis. Step one requires
consideration of whether the Second Amendment covers the conduct at issue.
If it does, step two requires the government to demonstrate that the
regulation at issue is consistent with our Nation’s historical tradition of firearm
regulation.
The Bruen Court acknowledged the difficulties of historical analysis but
found those difficulties preferable to the empirical judgments and cost-benefit
analysis attendant to judicial scrutiny. Id. at 25. The historical analysis
requires consideration of how and why the law at issue burdens “a law-abiding
citizen’s right to armed self-defense.” Id. at 29. The “how” and “why” of the
law at issue must comport with the “how” and “why” of a “historical analogue,
not a historical twin.” Id. at 30 (italics in original). Finally, the Bruen Court
explained that the Second Amendment does not recognize a “home/public
distinction in the right to keep and bear arms.” Id. at 32. The right to self-
defense is a “central component” of the Second Amendment right, and
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“[m]any Americans hazard greater danger outside the home than in it.” Id.
at 33.
Applying these principles, the Bruen Court held that the respondents
failed to identify a sufficient historical analogue for a law requiring citizens to
demonstrate a special need to carry firearms in public. Id. at 70.
The Second Amendment guaranteed to “all Americans” the
right to bear commonly used arms in public subject to certain
reasonable, well-defined restrictions. Heller, 554 U.S. at 581.
Those restrictions, for example, limited the intent for which one
could carry arms, the manner by which one carried arms, or the
exceptional circumstances under which one could not carry arms,
such as before justices of the peace and other government
officials. Apart from a few late-19th-century outlier jurisdictions,
American governments simply have not broadly prohibited the
public carry of commonly used firearms for personal defense. Nor,
subject to a few late-in-time outliers, have American governments
required law-abiding, responsible citizens to “demonstrate a
special need for self-protection distinguishable from that of the
general community” in order to carry arms in public.
Id. In a concurring opinion, Justice Kavanaugh, joined by Chief Justice
Roberts, reiterated the Heller Exemptions.
Id. at 81 (quoting Heller,
554
U.S. at 626).
Most recently, in United States v. Rahimi, 602 U.S. 680 (2024), the
High Court upheld a Second Amendment challenge to a federal statute,
18
U.S.C.A. § 922(g)(8), that forbids possession of a firearm to a person subject
to a domestic violence order if the order includes a finding that the person
“represents a credible threat to the physical safety” of the person’s intimate
partner. Id. at 684. The petitioner in that case argued that § 922(g)(8) was
unconstitutional on its face. Id. at 689. The Supreme Court disagreed.
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“From the earliest days of the common law, firearm regulations have
included provisions barring people from misusing weapons to harm or menace
others.” Id. at 693. The Rahimi Court cited surety laws, whereby a person
suspected of future misbehavior, including misuse of firearms, was required
to post a bond or face jailtime. Those who posted bonds would forfeit the
bond in the event of future misbehavior. Id. at 695. “Going armed” laws
“prohibited ‘riding or going armed, with dangerous or unusual weapons, [to]
terrify [] the good people of the land.’” Id. at 697 (quoting 4 Blackstone 149).
Punishment included imprisonment and forfeiture of weaponry. Id.
Noteworthy here is the lesson the Rahimi Court drew from the surety
and going armed laws. “Taken together, the surety and going armed laws
confirm what common sense suggests: When an individual poses a clear
threat of physical violence to another, the threatening individual may be
disarmed.” Id. at 698. That is, § 922(g)(8) was sufficiently analogous to the
going armed and surety laws in both its “how” – restricting gun possession –
and its “why” – because the subject posed a credible threat of violence to
another. Id. at 698-99.
Against this backdrop, we now turn to the present case. The
Commonwealth has forbidden Appellant to possess firearms under § 6105:
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or whose
conduct meets the criteria in subsection (c) shall not possess, use,
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control, sell, transfer or manufacture or obtain a license to
possess, use, control, sell, transfer or manufacture a firearm in
this Commonwealth.
…
(b) Enumerated offenses.—The following offenses shall
apply to subsection (a):
…
Section 3701 (relating to robbery).
18 Pa.C.S.A. § 6105(a)(1), (b).5
Appellant challenges the constitutionality of this provision as applied to
him and argues that the first step under Bruen is to determine whether
Appellant is included within “the people” protected under the Second
Amendment. Appellant Brief at 39. The Appellant maintains that excluding
people like himself from “the people” protected under the Second Amendment
is at odds with Heller and would produce inconsistent results under our
Constitution leading to piecemeal application of rights to different classes of
individuals. The Commonwealth, drawing upon the Heller Exemptions,
argues that Appellant, as a convicted felon, is not among those people entitled
to protection under the Second Amendment. Commonwealth Brief at 9.
____________________________________________
5 We are mindful that the laws of our General Assembly are presumed to be
constitutional, and that one who challenges a law’s constitutionality bears a
heavy burden to demonstrate that the law “clearly, palpably, and plainly
violates the constitution.” Commonwealth v. Eid, 249 A.3d 1030, 1041 (Pa.
2021).
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We conclude that the Heller Court’s textual analysis forecloses the
Commonwealth’s argument. The Heller Court began by examining the
operative clause to the Second Amendment – “the right of the people to keep
and bear Arms shall not be infringed”. Id.554 U.S. 578. According to the
Court, the first salient feature of the operative clause is that it codifies a “right
of the people.”
Id. at 579. After canvassing where and how the use of the
term “the people” appears in the Constitution, the Court explained,
What is more, in all six other provisions of the Constitution that
mention “the people,” the term unambiguously refers to all members
of the political community, not an unspecified subset. As we said in
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990):
“‘[T]he people’ seems to have been a term of art
employed in select parts of the Constitution… . [Its uses]
sugges[t] that ‘the people’ protected by the Fourth
Amendment, and by the First and Second Amendments,
and to whom rights and powers are reserved in the Ninth
and Tenth Amendments, refers to a class of persons who
are part of a national community or who have otherwise
developed sufficient connection with this country to be
considered part of that community.”
This contrasts markedly with the phrase “the militia” in the prefatory
clause. As we will describe below, the “militia” in colonial America
consisted of a subset of “the people”—those who were male, able
bodied, and within a certain age range. Reading the Second
Amendment as protecting only the right to “keep and bear Arms” in
an organized militia therefore fits poorly with the operative clause’s
description of the holder of that right as “the people.”
We start therefore with a strong presumption that the Second
Amendment right is exercised individually and belongs to all
Americans.
Heller, 554 U.S. at 580. (emphases added). Heller rejected a construction
of the Second Amendment that excluded subclasses of people from within its
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“the people” protection. The right under the Second Amendment applies to
all “the people”, a/k/a “Americans.” Id. Nonetheless, the Court reaffirmed
that “[l]ike most rights, the right secured by the Second Amendment is not
unlimited.”
Id. at 626. It was within that context that the Court issued the
Heller Exemptions, explaining that it was not conducting an exhaustive
historical analysis of the full scope of the Second Amendment, and that
nothing in [its]… opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale
of arms.
Id. at 626-627. These statements by the Court cannot be reconciled with a
construction that categorically excludes “felons” from among “the people”
within the scope of the Second Amendment. When these statements are
considered together, the reference to “longstanding prohibitions” can only be
considered as those which find support within the history and tradition of the
Second Amendment as explained in Bruen. While the Second Amendment
covers all people, the legislature nonetheless may strip a person of that right
if the criteria under Bruen are satisfied.
And though we believe Heller is decisive on this point, we proceed to
address the parties’ reliance on the Third Circuit’s analysis in Range v.
Attorney General, 69 F.4th 96, 98 (3d Cir. 2023), vacated and remanded
for reconsideration, Garland v. Range,
144 S.Ct. 2706 (2024). There, the
Third Circuit, writing prior to the Supreme Court’s opinion in Rahimi,
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considered a case in which the firearm prohibition resulted from a conviction
for a false statement on a food stamp application. The Third Circuit in Range
rejected the Government's contention that only “law-abiding, responsible
citizens” are counted among “the people” protected by the Second
Amendment. Range concluded that under Heller and its progeny Bryan
Range remained among “the people” despite his 1995 false statement
conviction.6 Thus, the Range Court’s analysis in its now-vacated opinion
supports our conclusion.
The Range Court offered four bases for concluding that convicted felons
are among “the people” protected by the Second Amendment. First, the
criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not
at issue in those cases. The references to "law-abiding, responsible citizens"
were therefore dicta. Id. at 101. Second, other Constitutional provisions
reference "the people."7 Range could only be considered as not among “the
people” if the meaning of the phrase varied from provision to provision, which
it believed the Supreme Court did not intend under Heller. Id. at 101-02.
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6 The Range Court ultimately concluded that 18 U.S.C. § 922(g)(1),
commonly known as the “felon in possession” law, was unconstitutional as
applied to Range because his prior conviction was non-violent. Id. at 106.
7Range observed that U.S. CONST. art. I, § 2 mentions “the people” twice
with respect to voting for Congress; U.S. CONST. amend. I, recognizes “the
people” as having rights to assemble peaceably and to petition the
government for redress; and U.S. CONST. amend. IV protects “the people”
against unreasonable searches and seizures.
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Third, it is not illogical to conclude that all people have the right to keep and
bear arms, though the legislature may constitutionally strip certain groups of
that right. Id. at 102 (citing Binderup v. Attorney General, 836 F.3d 336,
344 (3d. Cir. 2016) and Kanter v. Barr,
919 F.3d 437, 452 (7th. Cir. 2019)
(Barrett, J., dissenting)).
“Fourth, the phrase ‘law-abiding, responsible citizens’ is as expansive as
it is vague.” Id. at 102. The Court was confident that the Supreme Court’s
references to “law-abiding, responsible citizens”, for example, did not mean
that every American who gets a traffic ticket is no longer among “the people”
protected by the Second Amendment. The modifier “responsible” only served
to undermine the government’s argument because it renders the category
hopelessly vague. The Range Court observed that “[i]n our Republic of over
330 million people, Americans have widely divergent ideas about what is
required for one to be considered a ‘responsible’ citizen.” Id. It rejected the
Government's claim that only “law-abiding, responsible citizens” are protected
by the Second Amendment because such “extreme deference gives
legislatures unreviewable power to manipulate the Second Amendment by
choosing a label.” Id. at 103 (citing Folajtar v. Attorney General, 980 F.3d
897, 912 (3d. Cir. 2020) (Bibas, J., dissenting)).
The Commonwealth maintains that the Range Court, by engaging in a
detailed analysis of the meaning of “the people,” elected to disregard the
repeated, explicit language of the Supreme Court cautioning against doubting
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the presumptive validity of felon-in-possession prohibitions as per the Heller
Exemptions. Commonwealth Brief at 13. For all the foregoing reasons,
however, we are convinced based upon Heller, Bruen, and Range,8 that the
reference to “the people” contained within the Second Amendment does not
categorically exclude felons like Appellant from within its scope.9 The Rahimi
Court’s closing remarks buttress our belief that we have correctly interpreted
Heller and McDonald:
Finally, in holding that Section 922(g)(8) is constitutional as
applied to Rahimi, we reject the Government’s
contention that Rahimi may be disarmed simply
because he is not ‘responsible.’ Brief for United States
6; see Tr. of Oral Arg. 8-11. ‘Responsible’ is a vague term.
It is unclear what such a rule would entail. Nor does such a
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8 The United States Supreme Court could have taken Range up to address
whether Ranges was one of “the people,” but instead vacated Range for
further consideration in light of its Rahimi opinion. Rahimi did not analyze
whether the petitioner there was one of “the people.” It seems unlikely,
therefore, that the Supreme Court’s vacatur of Range requires the Third
Circuit to revisit its conclusion that Range is one of “the people” for purposes
of the Second Amendment.
9 We acknowledge that a different panel of this Court very recently issued its
opinion in Commonwealth v. Jenkins, 2024 WL 5037053 (Pa. Super.
December 6, 2024), where it reached the conclusion that, taken together,
surety laws and laws disarming vagrants and outlaws offer ample support that
the disarmament of a “fugitive from justice” is consistent with the Second
Amendment. Id. at *8-13. Our analysis does not conflict with Jenkins. The
defendant in Jenkins was not a convicted felon, and therefore like Rahimi,
the panel did not decide whether the appellant is included among “the people”
under the Second Amendment. Presently, Appellant is a convicted felon who
posed a threat of violence due to his conviction for committing a felony
(robbery) with a firearm. The question presented thus squarely requires that
we first examine whether Appellant is among “the people” before addressing
whether the government may constitutionally strip him of his right to possess
a firearm as demonstrated by the history and tradition of firearm regulation.
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line derive from our case law. In Heller and Bruen, we
used the term ‘responsible’ to describe the class of ordinary
citizens who undoubtedly enjoy the Second Amendment
right. See, e.g., Heller, 554 U. S., at 635; Bruen,
597
U.S., at 70. But those decisions did not define the term and
said nothing about the status of citizens who were not
‘responsible.’ The question was simply not presented.
Rahimi, 602 U.S. at 701-0210 (emphasis added).
In summary, we conclude that § 6105 deprives some of “the people” of
the right to bear arms. Per step one of Bruen, then, § 6105 implicates
conduct protected under the Second Amendment.
The remaining question, per step two of Bruen, is whether, despite
Appellant’s inclusion as one of the people protected under the Second
Amendment, the legislature may constitutionally strip Appellant him of that
right because of his prior robbery conviction. To answer that question, we
need to examine whether § 6105, as applied to Appellant, is consistent with
this Nation’s historical tradition of firearm regulation. We conclude that it is.
The Supreme Court’s Rahimi opinion,11 particularly its “how” and “why”
analysis with regard to “going armed” laws, provides an avenue for upholding
____________________________________________
10In fact, the Government in its brief to the Rahimi Court repeatedly and
consistently referred to “law-abiding, responsible” citizens. Brief for United
States, passim.
11 The United States Supreme Court decided Rahimi after briefing and oral
argument in this case. Neither party sought leave to file an additional brief.
See Pa.R.A.P. 2113(c); Pa.R.A.P. 2501(a).
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felon firearms bans such as that of § 6105, at least temporarily.12 The
common law “going armed” laws prohibited the use of dangerous weapons to
terrify people and imposed forfeiture of weaponry as a punishment. Rahimi,
602 U.S. at 697. Plainly, the experience of being robbed at gunpoint and/or
the threat of being robbed at gunpoint by one convicted of having done so in
the past is sufficient to cause terror. And § 6105 is strikingly similar to
§ 922(g)(8), at issue in Rahimi, in both how—prohibition of firearm
possession—and why—Appellant, based on his criminal history, poses a threat
of violence—it restricts Appellant’s Second Amendment right. And this case,
as distinct from both Rahimi and Range, involves a criminal conviction for a
felony that involved the use of a firearm. Given the United States Supreme
Court’s treatment of the “going armed” laws in its Rahimi opinion, we can
safely conclude that our nation does indeed have a history and tradition of
disarming people like Appellant. We therefore find that Appellant’s
constitutional challenge to Section 6105, on an as applied basis, has no merit.
Judgment of sentence affirmed.
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12 The firearm prohibition at issue in Rahimi was temporary, and the High
Court cabined its holding as such. Rahimi, 602 U.S. at 702. The
constitutionality of the length of Appellant’s ban is not before us. We note,
however, that under 18 Pa.C.S.A. 6105(c), a person may make application to
a court for relief from the disability imposed under § 6105.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/23/2024
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