J-A13003-25
2025 PA Super 167
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE RANDOLPH JR. :
:
Appellant : No. 487 WDA 2024
Appeal from the Judgment of Sentence Entered November 7, 2023
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005559-2022
BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.
OPINION BY BOWES, J.: FILED: JULY 31, 2025
Andre Randolph Jr. appeals from the aggregate sentence of four to eight
years in prison arising from his convictions for persons not to possess a firearm
and carrying a firearm without a license. We affirm.
By way of background, on March 11, 2022, Appellant was observed in
possession of a handgun in a bar located in Munhall, Pennsylvania. After
investigation, the Commonwealth charged Appellant with the above offenses.
Appellant was prohibited from possessing firearms due to his prior convictions
in 2005 of two counts of possession with intent to deliver (“PWID”) controlled
substances.
Notably, prior to the trial on the above firearms offenses, Appellant filed
a motion to dismiss the persons not to possess charge, asserting that the
applicable criminal statute, 18 Pa.C.S. § 6105(a)(1), was unconstitutional
insofar as it violated his right to bear arms pursuant to the Second Amendment
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of the United States Constitution. Following a hearing wherein the
Commonwealth provided oral argument and Appellant’s counsel rested upon
the motion, the trial court denied the motion.
The case proceeded to a jury trial, at the conclusion of which Appellant
was convicted of all offenses. The trial court later sentenced Appellant as
indicated hereinabove. He timely filed a post-sentence motion and a
supplement, which was denied by operation of law after more than 120 days
elapsed without a decision.
This timely appeal followed. The trial court ordered Appellant to file a
statement of errors complained of on appeal,1 and Appellant timely complied
following the grant of an extension of time. The court authored a responsive
Rule 1925(a) opinion. Appellant presents two issues for our review:
I. Whether the trial court erred in denying [Appellant’s] motion
to dismiss count one – persons not to possess firearms
because [§] 6105(a)(1), as applied to [Appellant], violated
his rights under the Second Amendment and the Fourteenth
Amendment of the United States Constitution?
II. Whether the trial court erred in denying [Appellant’s] motion
to dismiss count one – persons not to possess firearms
because [§] 6105(a)(1) is facially unconstitutional under the
Second Amendment and Fourteenth Amendment of the
United States Constitution?
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1 We remind the trial court that it is required to include in its Rule 1925 order
“the address to which the appellant can mail the Statement.” Pa.R.A.P.
1925(b)(3)(iii).
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Appellant’s brief at 5 (some capitalization altered). In addition to the merits
brief supplied by the Allegheny County District Attorney’s Office, we have
received an amicus curiae brief from the Pennsylvania Office of the Attorney
General (“OAG”).
We begin our review with the pertinent legal tenets. The
constitutionality of a criminal statute “is a question of law for which our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Farmer, 329 A.3d 449, 451 (Pa.Super. 2024) (citation
omitted), appeal granted, 44 MAL 2025,
2025 WL 1873446 (Pa. July 8, 2025).
Further, in both facial and as-applied challenges, Appellant bears a heavy
burden to demonstrate that the law “clearly, palpably, and plainly violates the
constitution.”
Id. at 455 n.5 (citation omitted). The Supreme Court of the
United States has also stated that “when legislation and the Constitution brush
up against each other, a court’s task is to seek harmony, not to manufacture
conflict.” United States v. Rahimi,
602 U.S. 680, 701 (2024).
Our Crimes Code defines the crime in question as follows:
(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, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1). Appellant’s prohibition arises from subsection (c),
which forbids firearm possession by “[a] person who has been convicted of an
offense under . . . The Controlled Substance, Drug, Device and Cosmetic Act,
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or any equivalent Federal statute or equivalent statute of any other state, that
may be punishable by a term of imprisonment exceeding two years.” 18
Pa.C.S. § 6105(c)(2). The parties do not dispute that Appellant’s former PWID
convictions rendered him subject to the statutory prohibition on possession of
firearms in accordance with the statute.
Appellant’s argument on appeal is premised upon § 6105’s purported
transgression of the Second Amendment of the United States Constitution,
which states: “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.
Before addressing the arguments of the parties, we examine the binding
case law invoked by Appellant’s claims. In particular, the Supreme Court of
the United States has considered several constitutional challenges implicating
the Second Amendment. In District of Columbia v. Heller, 554 U.S. 570
(2008), the High Court struck down a Washington D.C. law that prohibited
individuals from keeping firearms in their homes unless they were licensed to
do so and additionally required that the firearms be stored in a locked and
inoperable state. The Court found the restriction to be akin to a total ban on
handgun possession in the home, amounting to a “prohibition on an entire
class of arms” that Americans overwhelmingly choose for the lawful purpose
of self-defense.
Id. at 628. Importantly, in explaining its rationale, the
Supreme Court expounded:
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Like most rights, the right secured by the Second Amendment is
not unlimited. From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was
not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose. For example, the
majority of the 19th-century courts to consider the question held
that prohibitions on carrying concealed weapons were lawful
under the Second Amendment or state analogues. 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 (internal citations omitted, emphasis added).
Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010),
the Court recognized that the right to bear arms is incorporated by the
Fourteenth Amendment and, thus, applies to the states. Significant for our
purposes, a plurality reiterated that McDonald and Heller did not affect the
law prohibiting criminals from possessing firearms:
We made it clear in Heller that our holding did not cast doubt on
such longstanding regulatory measures as “prohibitions on the
possession of firearms by felons and the mentally ill,” “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.” We repeat
those assurances here.
McDonald, 561 U.S. at 786 (internal citations omitted).
Twelve years thereafter, in New York State Rifle & Pistol Assoc. v.
Bruen, 597 U.S. 1 (2022), the High Court ruled unconstitutional a New York
law prohibiting persons from carrying handguns for self-defense unless they
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demonstrated a special need for self-protection distinguishable from that of
the general community. In so doing, the Court held that means-end scrutiny,
such as strict or intermediate scrutiny, does not apply in the context of
analyzing Second Amendment constitutional challenges. Instead, the Court
articulated the following two-part test that controls our current review:
We reiterate that the standard for applying the Second
Amendment is as follows: When the Second Amendment’s plain
text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then
justify its regulation by demonstrating that it is consistent with
the Nation’s historical tradition of firearm regulation. Only then
may a court conclude that the individual’s conduct falls outside
the Second Amendment’s “unqualified command.”
Id. at 24 (citation omitted).
Expounding on the first prong, the Supreme Court found that the
petitioners in that case were “two ordinary, law-abiding, adult citizens” whose
proposed course of conduct, concealing handguns in public, was
presumptively protected by the Second Amendment. Id. at 31-23. The Court
then provided additional guidance concerning the second part of the analysis,
concerning the tradition of regulating firearms:
The test that we set forth in Heller and apply today requires
courts to assess whether modern firearms regulations are
consistent with the Second Amendment’s text and historical
understanding. In some cases, that inquiry will be fairly
straightforward. For instance, when a challenged regulation
addresses a general societal problem that has persisted since the
18th century, the lack of a distinctly similar historical regulation
addressing that problem is relevant evidence that the challenged
regulation is inconsistent with the Second Amendment. Likewise,
if earlier generations addressed the societal problem, but did so
through materially different means, that also could be evidence
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that a modern regulation is unconstitutional. And if some
jurisdictions actually attempted to enact analogous regulations
during this timeframe, but those proposals were rejected on
constitutional grounds, that rejection surely would provide some
probative evidence of unconstitutionality.
Id. at 26.
Nevertheless, the Court warned that “[t]o be clear, analogical reasoning
under the Second Amendment is neither a regulatory [straitjacket] nor a
regulatory blank check. On the one hand, courts should not uphold every
modern law that remotely resembles a historical analogue, because doing so
risks endorsing outliers that our ancestors would never have accepted.” Id.
at 30. “On the other hand, analogical reasoning requires only that the
government identify a well-established and representative historical analogue,
not a historical twin. So even if a modern-day regulation is not a dead ringer
for historical precursors, it still may be analogous enough to pass
constitutional muster.” Id.
The final Supreme Court precedent we examine is Rahimi. There, the
Court upheld the defendant’s conviction of the federal crime of possessing a
firearm while subject to a domestic violence restraining order, in violation of
18 U.S.C. § 922(g)(8). The Court additionally clarified and reinforced its
application of the test articulated in Bruen, specifically the second prong:
A court must ascertain whether the new law is “relevantly similar”
to laws that our tradition is understood to permit, “applying
faithfully the balance struck by the founding generation to modern
circumstances.” Discerning and developing the law in this way is
“a commonplace task for any lawyer or judge.”
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Why and how the regulation burdens the right are central
to this inquiry. For example, if laws at the founding regulated
firearm use to address particular problems, that will be a strong
indicator that contemporary laws imposing similar restrictions for
similar reasons fall within a permissible category of regulations.
Even when a law regulates arms-bearing for a permissible reason,
though, it may not be compatible with the right if it does so to an
extent beyond what was done at the founding. And when a
challenged regulation does not precisely match its historical
precursors, “it still may be analogous enough to pass
constitutional muster.” The law must comport with the principles
underlying the Second Amendment, but it need not be a “dead
ringer” or a “historical twin.”
Rahimi, 602 U.S. at 692 (cleaned up, emphasis added). Notably, the
Court concluded that “[a]n individual found by a court to pose a
credible threat to the physical safety of another may be temporarily
disarmed consistent with the Second Amendment.”
Id. at 702
(emphasis added).
However, the Court also provided the following word of caution:
[I]n holding that [18 U.S.C. §] 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.”
“Responsible” is a vague term. It is unclear what such a rule
would entail. Nor does such a 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. 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.
Id. at 701-02 (cleaned up).
Since Rahimi, this Court has addressed constitutional challenges to
§ 6105 arising in a variety of contexts. In Commonwealth v. Jenkins, 328
A.3d 1076 (Pa.Super. 2024), appeal granted, 18 MAL 2025,
2025 WL 1874050
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(Pa. July 8, 2025), Jenkins attacked the constitutionality of that statute when
his underlying prohibition stemmed from his being a fugitive from justice. He
argued that “the Commonwealth failed to meet its burden to demonstrate that
the statute is consistent with this nation’s historical tradition of firearm
regulation.” Id. at 1088 (citation omitted). In affirming, we recounted the
applicable law from Bruen and Rahimi. This Court did not make an express
determination as to whether Jenkins fell within “the people” identified in the
Second Amendment, instead going to the second part of the Bruen test,
stating that Jenkins was similarly situated to the defendant in Rahimi. Id. at
1088 (“Pursuant to Rahimi, we must determine if the disarmament of
fugitives under [§] 6105 is consistent with principles that underpin our
tradition of firearm regulations.”).
The Jenkins panel then examined historic surety laws and laws
disarming vagrants to find that § 6105’s prohibition is analogous to those:
When the Supreme Court issued its June 2024 opinion in Rahimi,
it emphasized that the key consideration is whether the
challenged regulation is consistent with the principles that
underpin our regulatory tradition. The lengthy historical analysis
above reveals that disarming people similarly situated to [Jenkins]
is not only part of this nation’s history of firearm regulation, but
also of Pennsylvania’s history.
Id. at 1096 (citation omitted).
In Farmer, a case decided several weeks after Jenkins, the appellant
presented an attack to § 6105 when his prior conviction prohibiting him from
possessing a firearm was for felony robbery. We affirmed in an analysis that
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began by recounting a brief history of some of the federal cases discussed
above, including Heller, Bruen, and Rahimi. The panel first concluded that
Farmer fell within “the people” identified in the Second Amendment, and thus
the first part of the Bruen test was satisfied. Farmer, 329 A.3d at 455.
However, we found that Farmer’s challenge did not survive examination of the
second component, concerning whether the regulation is consistent with the
Nation’s historical tradition of firearm regulation:
The Supreme Court’s Rahimi opinion, particularly its “how” and
“why” analysis with regard to “going armed” laws, provides an
avenue for upholding felon firearms bans such as that of § 6105,
at least temporarily. The common law “going armed” laws
prohibited the use of dangerous weapons to terrify people and
imposed forfeiture of weaponry as a punishment. 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 [18
U.S.C.] § 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 v. Attorney General, 69 F.4th 96 (3d Cir. 2023)
(“Range I”)], 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.
Id. at 458 (cleaned up). Accordingly, we rejected Farmer’s as-applied
challenge to § 6105.
Finally, we recently revisited the matter of whether a felon is entitled to
protection pursuant to the Second Amendment in Commonwealth v.
McIntyre, 333 A.3d 417 (Pa.Super. 2025). In that case, this Court rejected
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McIntyre’s facial challenge to § 6105 after finding that his as-applied challenge
was waived for failure to raise it in the trial court. Id. at 430-31. McIntyre
had previously been convicted of burglary, robbery, and aggravated assault.
In contravention to Farmer, the panel held that McIntyre did not satisfy the
first part of the Bruen test by establishing that he is one of “the people”
covered by the Second Amendment, explaining as follows:
Based on all the above, we agree that Bruen does not stand for
the principle that convicted violent offenders such as McIntyre are
“the people” who have a right to possess arms under the Second
Amendment. Bruen in no way said that felons are protected
under the Second Amendment, nor can its decision, with its hyper
focus on “law-abiding” citizens, be read as providing the necessary
support for such a determination.
Instead, Bruen reinforced Heller, which unequivocally stated that
its holding that individuals had a right to bear arms under the
Second Amendment did not in any way call into doubt the
government’s ability to prohibit felons from possessing firearms.
Therefore, under Heller, we find that the plain text of the Second
Amendment does not cover McIntyre and his possession of a
firearm as a convicted offender. This conclusion negates any need
to examine Bruen’s second question, i.e. whether [§] 6105’s
prohibition against convicted felons and certain other convicted
offenders from possessing firearms is consistent with this Nation’s
history of firearm regulation.
Id. at 430 (cleaned up).2
As-applied Constitutional Challenge
With this background in mind, we first consider Appellant’s as-applied
constitutional challenge of § 6105. We have recounted that, in such a
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2 Notably, McIntyre was not an en banc decision of this Court.
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challenge, “the court determines whether a law with some permissible
applications is unconstitutional as applied to Appellant’s actions in this case.”
Farmer, 329 A.3d at 451 (citations omitted).
A. Bruen Step One
Pursuant to Bruen, the first step of the analysis is to consider whether
the plain text of the Second Amendment covers the individual’s conduct. See
Bruen, 597 U.S. at 24. In this case, this presents a question as to whether
Appellant is one of “the people” protected thereby. Appellant provides a
substantial argument as to this issue in his brief and reply brief, ultimately
relying on Farmer for the proposition that he is shielded by the Second
Amendment. See Appellant’s brief at 19-27; Appellant’s reply brief at 1-4.
The Commonwealth does not contest this point in light of this Court’s decision
in Farmer, though it contends that Farmer was wrongly decided.3 See
Commonwealth’s brief at 12-13.
Notwithstanding the apparent contradiction between Farmer and
McIntyre, we conclude that Appellant has satisfied the first component of the
Bruen test.4 As noted above, the Farmer Court held that, in the context of
____________________________________________
3 The parties submitted their briefs to this Court prior to the McIntyre
decision. None has sought leave to provide additional briefing concerning that
case.
4 With respect to McIntyre, which held that felons are not the law-abiding
people discussed by the U.S. Supreme Court, we find that we are bound by
(Footnote Continued Next Page)
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an as-applied challenge to § 6105, “the people” encompasses all Americans,
even criminals. See Farmer, 329 A.3d at 455. The Court’s rationale applies
equally to Appellant’s as-applied contest herein, despite his being convicted
of a different underlying felony.
Hence, while we are generally bound by both cases, we must follow
Farmer’s conclusion as to the first step of Bruen, as it was decided earlier in
time and because the McIntyre panel was unable to overrule that portion of
the decision. We therefore agree with Appellant that he is one of “the people”
protected by the Second Amendment, despite having prior felony convictions.
A. Bruen Step Two
The second component of Bruen requires that the government “justify
its regulation by demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.” Bruen, 597 U.S. at 24. Appellant contends
that the Commonwealth failed at the underlying hearing to meet its burden of
____________________________________________
its holding only to the extent it does not contradict Farmer. This is because
the McIntyre panel lacked the ability to overturn an earlier precedent from
this Court. See, e.g., Halpern v. Ricoh U.S.A., Inc., 299 A.3d 1023, 1029
n.5 (Pa.Super. 2023) (“[I]t is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court, except in circumstances where
intervening authority by our Supreme Court calls into question a previous
decision of this Court.” (citation omitted)). While on its surface it seems that
McIntyre may be distinguished from Farmer since it involved only a facial
constitutional challenge to § 6105, contrasted with Farmer’s as-applied attack,
this difference appears to lack constitutional significance. Stated another way,
the cases are factually and procedurally distinct, but not in a manner material
to the Bruen analysis.
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showing that people convicted of non-violent offenses, like PWID, were
historically subject to firearm prohibitions. See Appellant’s brief at 31. He
specifically cites many of the cases discussed above, relying primarily on a
non-binding Third Circuit decision in Range I, in which the Court of Appeals
for the Third Circuit found that the federal counterpart to § 6105 was
unconstitutional insofar as it prohibited a person from possessing a firearm
based upon a prior misdemeanor food stamp fraud conviction.5
Appellant further cites authority for the proposition that his underlying
prohibiting offense is not one of “violence.” Id. at 30-33. For example, he
highlights that the United States Sentencing Guidelines and Armed Career
Criminal Act both define “crime of violence” and neither entails PWID. Id. at
33-35. He also argues that, while felons were traditionally subject to death
and forfeiture of property in Colonial America, as the Commonwealth
contended at the hearing, the category of “felons” was much narrower than
today and would not have included a crime like PWID. Id. at 35-36. Appellant
additionally maintains that seizure of property in that era was somewhat
different than the total firearm possession ban imposed by § 6105 when, for
____________________________________________
5 Range I was remanded by the U.S. Supreme Court for reconsideration in
light of Rahimi. On remand, the Third Circuit again found the statute
unconstitutional as applied to Range, noting that his offense of lying to obtain
food stamps was not one where he “pose[d] a clear threat of physical violence
to another.” Range v. Attorney General United States, 124 F.4th 218,
230 (3d Cir. 2024) (“Range II”). Range II was rendered after Appellant
submitted his brief to this Court, and he has not filed any supplemental brief
discussing this more recent decision.
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instance, the government only confiscated weapons used in the commission
of an offense. Id. at 36. He concludes that the nation’s founders could have
included a broad statutory scheme to prohibit drug traffickers from possessing
firearms, but it did not do so. Id. at 41. Therefore, he avers that the
Commonwealth cannot demonstrate an adequate historical tradition of
regulating persons in his situation.
In its Rule 1925(a) opinion, the trial court first noted that at the hearing
on Appellant’s motion, counsel rested on the motion itself, which largely cited
Bruen and the now-vacated Range I. See Trial Court Opinion, 8/5/24, at 5-
6. It further reiterated the proposition from Rahimi that “[o]ur tradition of
firearm regulation allows the Government to disarm individuals who present
a credible threat to the physical safety of others.” Id. at 8. The court explicitly
rejected Appellant’s position that firearms regulations are limited to those who
committed “crimes of violence,” instead focusing on language from the courts
that prohibit felons more generally from possessing firearms. Id. It
concluded that, concerning Appellant’s PWID conviction, it was “unwilling to
find that this criminal conduct does not pose a threat to public safety, such
that our government has no right to regulate firearm possession against this
class of felon.” Id. at 9.
The Commonwealth, in its brief, devotes the majority of its argument to
discussing the factually-similar but non-binding case of United States v.
Jackson, 110 F.4th 1120 (8th Cir. 2024), contending that § 6105 “is
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consistent with this nation’s historical tradition of firearm regulation.” See
Commonwealth’s brief at 23. In that case, the Eighth Circuit rejected a
defendant’s challenge to 18 U.S.C. § 922(g) premised upon a prior drug
conviction, stating:
[W]e conclude that legislatures traditionally employed statusbased restrictions to disqualify categories of persons from
possessing firearms. Whether those actions are best
characterized as restrictions on persons who deviated from legal
norms or persons who presented an unacceptable risk of
dangerousness, Congress acted within the historical tradition
when it enacted § 922(g)(1) and the prohibition on possession of
firearms by felons. Consistent with the Supreme Court’s
assurances that recent decisions on the Second Amendment cast
no doubt on the constitutionality of laws prohibiting the possession
of firearms by felons, we conclude that the statute is constitutional
as applied to Jackson. The district court properly denied the
motion to dismiss the indictment.
Jackson, 110 F.4th at 1129. In light of this language, the Commonwealth
posits: “The fact that [A]ppellant’s conviction was not a violent felony is of no
moment; however, it should not go without notice that drug trafficking is an
inherently dangerous occupation and prohibiting drug dealers from possessing
firearms is equally consistent with the historical tradition of disarming
dangerous persons.” See Commonwealth’s brief at 23.
For its part, the OAG in its amicus brief chiefly advocates that § 6105 is
constitutional because it satisfies both the “why” and “how” of being
historically rooted within our nation’s history of firearm regulation. It
highlights that the country has since the 1770s disarmed classes of people
thought to pose a risk to others, and has used convictions of crimes to
establish such classes. See Amicus brief at 8-22. In this vein, it states:
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Thus, not only does [§] 6105(c)(2), as applied to drug traffickers
like [Appellant], share a “why” with historical gun restrictions, but
it also shares a “how” with them, and a less restrictive one at that.
Like traditional gun restrictions imposed on vagabonds, outlaws,
habitual criminals, and highwaymen, [§] 6105 identifies a
category of persons deemed too dangerous to possess a weapon,
and makes it a crime for such persons to do so. And as other
early American laws, such as the sedition laws, [§] 6105 uses a
criminal conviction as a proxy for dangerousness, predicating
disarmament upon a conviction for a dangerous offense. Lastly,
as applied to [Appellant], [§] 6105 is actually less restrictive than
many traditional laws because it provides a way for [Appellant] to
restore his right to bear arms. Section 6105 therefore achieves
its history-based goal of reducing crime and gun violence, by
burdening the right in a manner similar to how the right has been
burdened for at least two and a half centuries.
Id. at 22. The OAG also notes that at least twenty-one different federal courts
have “rejected as-applied challenges to laws prohibiting convicted drug
traffickers from possessing firearms” in the past few years, including the
Eighth Circuit in Jackson. Id. at 25-28.
Based upon our review of the jurisprudence, including the Supreme
Court’s most recent discussion in Rahimi, we conclude that the prohibition
imposed on Appellant by § 6105 “is consistent with the Nation’s historical
tradition of firearm regulation.” Bruen, 597 U.S. at 24. As noted, the Rahimi
Court stated that “[a]n individual found by a court to pose a credible threat to
the physical safety of another may be temporarily disarmed consistent with
the Second Amendment.” Rahimi, 602 U.S. at 702. Here, the trial court
specifically found that Appellant’s prior convictions for PWID placed him in the
category of persons who would pose a credible threat to others. This was
supported by the Commonwealth’s argument at the hearing. See N.T.
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Hearing, 8/8/23, at 16 (“[D]rug trafficking is inherently a violent offense. It
indicates a willingness on the part of the drug trafficker to defend his business
by any means necessary, and most drug dealers do possess firearms.”).
Our position is consistent with the U.S. Supreme Court’s repeated
admonition that Heller and its progeny “should [not] be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons[.]”
Heller, 554 U.S. at 626. Moreover, as numerous courts have recounted in
their opinions, categories of people have historically been disarmed despite
not having actually engaged in violent behavior. See, e.g., Jackson, 110
F.4th at 1126-27 (discussing colonial regulations that prohibited certain
classes of persons from owning firearms, such as those who fail to swear a
loyalty oath); see also Jenkins, 328 A.3d at 1092 (highlighting firearms
prohibitions relating to sureties and vagrants).
Furthermore, as we astutely observed in Farmer:
From the earliest days of the common law, firearm
regulations have included provisions barring people from misusing
weapons to harm or menace others. 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. “Going armed” laws “prohibited
riding or going armed, with dangerous or unusual weapons, [to]
terrify the good people of the land.” Punishment included
imprisonment and forfeiture of weaponry.
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.” That is,
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[18 U.S.C.] § 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.
Farmer, 329 A.3d at 454 (cleaned up).
Hence, America’s history of prohibiting certain classes of people from
having firearms, particularly those that could pose a higher risk of danger to
society, provides a “historical analogue” required by Bruen for § 6105, even
if it is not a “historical twin.” See Bruen, 597 U.S. at 30. Additionally, our
holding aligns with the federal court cases cited by the OAG that have
addressed this nearly identical issue and concluded that the dangerous
combination of drugs and firearms permits the government’s regulation. See
Amicus brief at 25-28 (citing, by way of example, Jackson, United States
v. Birry, 2024 WL 3540989 (M.D. Pa. 2024), and United States v. Daniels,
2024 WL 4906482 (E.D. Pa. 2024)).
In reaching this decision, we necessarily conclude that Appellant’s
arguments to the contrary are unpersuasive. Although he devotes a
significant portion of his brief to describing that PWID is not a “crime of
violence,” that contention is unavailing since “crime of violence” is not the
term utilized by the U.S. Supreme Court throughout its recent case law.
Instead, the Rahimi Court highlighted that firearm prohibitions may apply to
those that pose a “credible threat” to the safety of another. Drug traffickers
fit that mold.
Next, although Appellant is correct that there is no identical provision
from the founding era restricting drug traffickers from having firearms, likely
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arising from the lack of existence of this crime in that era, that does not entitle
him to relief. It is clear that “historical analogues” are close enough to show
that § 6105 has a historically rooted “how” and “why” of restricting firearm
possession. No “dead ringer” is required. See Bruen, 597 U.S. at 26.
Finally, as the OAG identifies, the ban imposed pursuant to § 6105 is
not permanent because Pennsylvania law permits restoration of gun rights in
certain circumstances. See, e.g., 18 Pa.C.S. § 6105(d) (allowing for
application to the court of common pleas for relief from the disability imposed
by this section); see also 18 Pa.C.S. § 6105.1 (outlining procedure for
restoration of firearms rights restricted by § 6105). Section 6105 is then, in
that sense, less restrictive than some of the historical laws that permanently
disarmed individuals without any conviction simply because they belonged to
a certain class.
In short, Appellant’s as-applied constitutional challenge fails, and no
relief is due.6
____________________________________________
6 Although not discussed by any of the parties, we are cognizant that a panel
of this Court held to the contrary in a non-binding decision. See
Commonwealth v. Anderson, 332 A.3d 1259,
2024 WL 5205507, *6
(Pa.Super. 2024) (non-precedential decision) (finding that the Commonwealth
failed to meet its burden of showing a history or tradition of disarming those
convicted of nonviolent drug offenses). Anderson is readily distinguishable
because the panel specifically determined that the Commonwealth’s principal
brief, less than three pages in length, failed to cite Rahimi or the relevant
authorities guiding this Court’s review, instead relying solely on noncontrolling case law, and that the prosecution wholly neglected to address the
“how” and “why” analysis called for in Bruen. See Anderson,
2024 WL
5205507, *6.
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Facial Constitutional Challenge
In his second claim on appeal, Appellant raises a facial constitutional
challenge to § 6105(a)(1), arguing generally that “the absence of founding-
era laws that imposed a similarly broad punitive burden on Americans’ Second
Amendment rights” renders this section unconstitutional under Bruen. See
Appellant’s brief at 41-42.
The Supreme Court of the United States has recounted that a facial
attack “is the most difficult challenge to mount successfully, because it
requires a defendant to establish that no set of circumstances exists under
which the Act would be valid.” Rahimi, 602 U.S. at 693 (cleaned up,
emphasis added). See also U.S. v. Stevens,
599 U.S. 460, 472 (2010) (“To
succeed in a typical facial attack, [an appellant] would have to establish ‘that
no set of circumstances exists under which [the statute] would be valid,’ . . .
or that the statute lacks any ‘plainly legitimate sweep.’”7 (cleaned up)). Our
High Court has recognized this same standard when addressing such facial
constitutional challenges in other contexts. See, e.g., Commonwealth v.
____________________________________________
7 The Pennsylvania Supreme Court explained:
[U]nder the “plainly legitimate sweep” standard, a statute is only
facially invalid when its invalid applications are so real and
substantial that they outweigh the statute’s “plainly legitimate
sweep.” Stated differently, a statute is facially invalid when its
constitutional deficiency is so evident that proof of actual
unconstitutional applications is unnecessary. For this reason (as
well as others), facial challenges are generally disfavored.
Clifton v. Allegheny County, 969 A.2d 1197, 1223 n.37 (Pa. 2009) (citation
omitted).
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Hunte, ___ A.3d ___, 2025 WL 1703981, *8 (Pa. June 17, 2025) (“A statute
is facially unconstitutional only where no set of circumstances exists under
which the statute would be valid.” (citation omitted)).
In Rahimi, the Court reiterated that in order for the government to
prevail in defending against such a claim, it “need only demonstrate that [the
statute] is constitutional in some of its applications.” Rahimi, 602 U.S. at
693. In that vein, the Court rejected Rahimi’s facial challenge, highlighting
on two separate occasions that the criminal statute in question could be
applied lawfully to Rahimi himself.
Id. at 693, 700.
Following this logic, we deem that Appellant’s claim of facial
unconstitutionality likewise fails. Since we have already concluded that
§ 6105 is constitutional as applied to Appellant, his facial challenge cannot
succeed because he has not demonstrated that “no set of circumstances exists
under which the [statute] would be valid.” Id. at 693; see also Hunte, 2025
WL 1703981, *8.8 Nor has Appellant shown, or attempted to argue in his
brief, that § 6105(a)(1) “lacks any plainly legitimate sweep.” Stevens, 599
U.S. at 472. Appellant accordingly is not entitled to relief based on this
position.
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8 Although not binding on this Court, we note that this position is consistent
with federal law. See, e.g., U.S. v. Decastro,
682 F.3d 160, 163 (2nd Cir.
2012) (“It follows that a defendant who fails to demonstrate that a challenged
law is unconstitutional as applied to him has necessarily failed to state a facial
challenge, which requires him to establish that no set of circumstances exists
under which the statute would be valid.”) (cleaned up).
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For the above reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
DATE: 7/31/2025
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