The main differences between state and Federal gun charges in PA

differences state and Federal gun charges
There are large differences between state and Federal gun charges. We own guns. We understand gun law. We’ll represent you in state and federal court with gun charges. Let’s take a look at the differences in the laws.

What are names and the elements of the illegal possession of gun charges in PA versus the federal system?

Pennsylvania state-based prosecution

Under Pennsylvania State law the major firearms offense in Pennsylvania for illegal possession of a gun is called “Persons not to possess, use, manufacture, control, sell or transfer firearms.” You can read the statute here: 18 PS § 6105. For anyone to be guilty of this offense, the government must prove beyond a reasonable doubt the following:

  1. a person must have been “convicted of an offense enumerated [in this section]” or exhibit conduct that meets one of the other listed categories; and
  2. “possess, use, control, sell, transfer or manufacture . . . a firearm in this Commonwealth.”

Subsection (b) of this statute lists 37 felonies that count as disqualifying convictions for this purpose. If you are convicted of any of these felonies, you may not possess firearms. There are also several other categories under which possession of a firearm is illegal. These groups include persons addicted to controlled substances, dishonorably discharged from the military, or committed to mental institutions, as well as several other groups. Pennsylvania also adds to these individuals who have been convicted of three or more DUIs in the past five years.

Federal-based prosecution

The federal government has a similar but slightly different law called “Unlawful Acts.” You can read the law here: 18 U.S.C. § 922(g) For a defendant to be guilty of this crime, the government must prove beyond a reasonable doubt

  1. the accused is part of one of the prohibited categories; and
  2. the accused possess, transport, or ship a firearm.

All of the federally prohibited categories are the same as Pennsylvania’s categories except DUI convicts, who are not barred federally.

The major distinction is that federal law does not list any included felonies. They just simply state that the prohibition covers anyone convicted of any felony. The federal definition of a felony is any offense where the total authorized maximum sentence is greater than one year. It does not require one year be imposed just that the authorized punishment is one year or more.

There is one “out” that Pennsylvanian’s have that other state’s don’t have. In states like PA that have state misdemeanors that are punishable by more than one year, such as Pennsylvania misdemeanor of the second degree, those unique folks convicted of a PA M3 or PA M2 can possess firearms. However, if the misdemeanor is a crime of domestic violence, then they are subject to the same firearms restrictions as felons.

What other Pennsylvania gun charges exist?

Carrying a Firearm without a license

Under certain conditions, Pennsylvania State authorities can prosecute someone for concealed carry of a firearm without a license. Except for cities of the first class (Philadelphia) as long as someone is not a prohibited person, a license to carry a firearm is not needed to open carry a firearm.

The government must prove the following elements beyond a reasonable doubt to gain a conviction for “Carrying a Firearm without a License” under § 6106(a) 

  1. the accused carried a firearm (basically meaning a modern handgun-it does not include a long gun or NFA item) on one’s person or in one’s vehicle (with some exceptions);
  2. the accused did not have a valid license to do so.  

Our Pennsylvania Supreme Court recently declined to announce a bright line rule as to what is concealed and what is not. This leaves it up to the jury to decide on a fact by fact basis.

This law does not apply to members of law enforcement or military, or to private citizens who are traveling to and from recreational target shooting and some other exceptions that are beyond the scope of this article. Further, there is a “sportsman’s permit” exception, which allows those who have a hunting license to carry their firearms to and from the location where they are hunting, as well as while doing so. (§ 6106(b)-(c)).

Minor in Possession of a Firearm
Minor in Possession of a Firearm

Minor in Possession of a Firearm

One final PA firearms law to note prohibits “minors” (under 18 years old) from possessing firearms (modern handguns). In Pennsylvania, this is governed by § 6110.1 “Possession of firearm by minor.” There are two elements to this offense:

  1. the accused is under the age of 18; and
  2. that person possessed or transported a firearm (basically a modern handgun) within Pennsylvania.

Only two exceptions exist:

  1. the possession occurs under parental supervision or
  2. when the under 18 year old is lawfully hunting or trapping.

Additionally, the government can charge any adult who gives a minor a firearm to a minor under § 6110.1(c) (“Responsibility of adult.”) The elements of the crime are:

  1. an adult who
  2. knowingly delivers; and
  3. intentionally delivers;
  4. a firearm to a minor.

To knowingly deliver a firearm to a minor, an adult would have to be “practically certain” his/her conduct (delivery of the firearm) will cause the result (possession by the minor) (§ 302(b)(2)) To intentionally deliver a firearm to a minor, an adult would have to have delivery be his “conscious object,” meaning it is his purpose to do so. (§ 302(b)(2))

Here are some more differences between state and Federal gun charges.

What are some other federal firearms charges that the feds charge?

Juveniles and handguns

Federal law only prohibits juveniles (same definition as “minor”) from possessing handguns or their ammunition, an offense governed by § 922(x). The elements of this offense are

  1. a juvenile,
  2. knowingly possessed a handgun or handgun ammunition.

The definition of knowing here is the same as before, meaning the child must be aware that he or she is possession of a handgun. This statute also contains a provision like Pennsylvania’s “Responsibility of adult” offense. The elements of this offense are an adult must

  1. sell, deliver, or otherwise transfer;
  2. a handgun or its ammunition;
  3. to someone the adult knows or reasonably believes to be a minor.

This means that not only is it possible to be guilty of this offense if you deliver a handgun to someone who you are aware is a minor, but also if you suspect they may be one and have a reason for this suspicion.  Several exceptions exist, like in cases where the gun is needed for employment, is used under parental supervision, or in accordance with law. (§ 922(x))

Other federal charges, statutes and the maximum penalties

Charge Code Max
Sale of illegal firearms (transferring an NFA item without a proper form of FFL) 18 USC 922 10 years
False statements on the 4473 form or straw man purchase 18 USC 922(a)(6) 10 years
Illegal possession of a prohibited firearm (violation of the NFA act) 18 USC 922(o) 10 years
Use of Firearm or Possession of Firearm during drug dealing or violent crime 18 USC 924(c) varies depending on conduct
Illegal sale of Firearm without a FFL (in the business of) 18 USC 922(a) 5 years
Violation of the Gun Free School Zones Act 18 USC 921(a)(25) an 18 USC 922  5 years

Additional recommended reading: 

Additional charges that FFLs can face

An FFL is a federal firearms licensee. If a person is “engaged in the business of” selling or transferring firearms (federal definition), that person must be an FFL. If he or she is not, then they are subject to prosecution.

Federal law on firearms mostly concerns the licensing of dealers who do business across state and national borders. This means that only licensed dealers may buy and sell firearms across these boundaries. (§ 922(a)) There are also prohibitions against licensed dealers selling to persons not present on the date of transfer (§ 922(c)), transporting packages containing firearms without written notice, (§ 922(e)) and the sale or transportation of stolen firearms (§ 922(i)-(j)) and firearms without a serial number (§ 922(k)). 

Can I be prosecuted in both state and federal court for gun charges?

Yes. For over 170 years, the courts have said it is possible. It does happen. The courts have found that the federal government and the state government are separate and distinct sovereigns. As such, someone can be twice prosecuted for the same exact conduct in both federal and state court. Any sentences, by US Code, must run consecutive (one right after the other) if that happens. This simultaneous prosecution for the same events does not violate double jeopardy.

What is the definition of firearm/gun and the difference between PA and the federal definition?

In legal scenarios, the term used for gun charges is “firearm charges”. The federal definition of a “firearm” is broader than most would assume. It means any weapon that can be used to expel a projectile via an explosion. It also means the frame of such a weapon, or the silencer of a firearm, or “any destructive device.” (§ 921) The statutes define a “destructive device,” as anything from bombs to grenades to propellable rockets.

This definition differs from the one Pennsylvania law offers. While the federal definition specifies the functions of “firearms,” the Pennsylvania definition specifies the lengths of weapons that fit in this category. Specifically, a Shotgun with a less-than 18-inch barrel, a 16-inch or less barreled rifle, and a pistol, revolver, rifle, or shotgun with a total length less than 26 inches all count as “firearms.” (§ 6102). It also explains how the barrel of a firearm is to be measured. (From the muzzle to the face of the “closed action, bolt, or cylinder”). The term “firearm” in PA specifically does not cover long guns. 

Interestingly, and to add to the confusion, Pennsylvania occasionally adopts the federal definition of a firearm in some places in the law. These sections include § 6106(e) “Firearms not to be carried without a license,” and § 9712(e) “Sentences for offenses committed with firearms.”

So the definitions in PA as to what makes something a firearm is a difference between state and Federal gun charges.

Does possession or using a firearm result in mandatory minimums or sentencing enhancements in the state and federal system? If so, what does the government have to prove to get the mandatories or enhancements?

Here are some more differences between state and Federal gun charges.

Frequently, firearms charges come with heavy sentences. In the federal system this is governed by § 924, which details the minimum sentences for all the above-mentioned offenses. Specifically, as we talked about above, when it comes to possession, brandishing or discharging a firearm during drug dealing or a crime of violence under 924(c), do have mandatory minimum sentences depending on the conduct. In the federal system the 922(g) charge in and of itself does not carry with it any mandatory minimum charge. See 18 USC 924(c)(1). A statutory maximum sentence under 924(c) is a life sentence. Here are some of the mandatory minimums: 

  • Using or Carrying or possession “in furtherance of” drug trafficking or a crime of violence= 5 year mandatory minimum
  • Brandishing (displaying) a firearm “in furtherance of” drug trafficking or a crime of violence= 7 year mandatory minimum
  • Discharging (firing) a firearm “in furtherance of” drug trafficking or a crime of violence= 10 year mandatory minimum
  • Possession of a SBR, SBS or AR-like firearm “in furtherance of” drug trafficking or a crime of violence= 10 year mandatory minimum
  • Possession of a machine gun (more than one bullet per pull of the trigger), DD or suppressor “in furtherance of” drug trafficking or a crime of violence= 30 year mandatory minimum

If you have a prior enhancement under 924(c) the mandatory minimum if 25 years. If you have a prior enhancement under 924(c) and the new charge has an enhancement under 924(c) involving a machine gun (more than one bullet per pull of the trigger), DD or suppressor, then the mandatory minimum is life.

Pennsylvania gun charge mandatory minimums

On the books in PA, Pennsylvania law also has minimums for firearms offenses. We can find these at § 9712 and § 9712.1. These state laws deal exclusively with the use of firearms while committing other offenses. Therefore, under Pennsylvania law, “ordinary” possession offenses do not carry mandatory minimums.

The reality of PA mandatory minimum for gun charges

Luckily, several United States Supreme Court Cases have ruled that any fact that would lead to a mandatory minimum being used needs to be proven by a jury. (Apprendi), (Alleyne). Accordingly, the provisions in § 9712 and § 9712.1 that say these facts may be determined solely by a judge have been ruled unconstitutional. (Newman), (Valentine) This is a good thing because it prevents a judge from increasing a person’s sentence on a whim at sentencing. It forces the government to prove the existence of this firearm in the criminal context beyond a reasonable doubt.

Additional recommended reading:

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PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.