Gun Possession FAQs
What happens if I am arrested with a gun and drugs? If I have a permit to carry in Pennsylvania, can I take my gun to New Jersey? What if I feel my rights have been violated? We answer questions like these and many more on our gun possession frequently asked questions page.
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Who can’t get a gun in Pennsylvania and what about the 2nd Amendment?
While Second Amendment to the United States Constitution gives us the “right to bear arms” Pennsylvania, New Jersey and every other state can put restrictions on that right. Unlike other amendment, the 2nd Amendment isn’t totally binding on individual states through the 14th Amendment’s Due Process Clause.
Despite this Constitutional right, Pennsylvania and other states like New Jersey can prohibit a person from possessing a weapon if he or she is convicted of certain offenses either in that state or outside of it. If a person is convicted of one of these offenses he or she may not possess, use, control, sell, transfer, or obtain a firearm. Pennsylvania, under Section 6105 of its Uniform Firearms Act, provides a person with 60 days from the date of conviction to sell or transfer their weapons. A person who violates Section 6105 (VUFA) commits a felony of the second degree and may be charged with other felonies such as violating Section 6106 (VUFA) (carrying a firearm without a license, except if it’s in your home or place of business), 6110.2 (VUFA) (possession of firearm with altered or obliterated serial numbers), and 6108 (VUFA) (carrying a firearm on the city streets of Philadelphia) which is a misdemeanor charge. A person violates section 6105 if they possess a weapon and have been convicted of any of the following types crimes:
- Member of a Corrupt organization
- Involuntary manslaughter
- Aggravated assault
- Unlawful restraint
- Involuntary deviant sexual intercourse
- Receiving stolen property if charged as a felony
- Making false reports to law enforcement if it involved the theft of a firearm
- Witness intimidation
In addition to these offenses a person who has been convicted under the Controlled Substance Drug, Device, and a Cosmetic Act (aka – Possession with the Intent to Deliver – PWID) with the equivalent federal statute or a statute of a different state is also prohibited from carrying a firearm if the maximum punishment exceeds two years. A person is also prohibited under section 6105 if they have been adjudicated incompetent or involuntarily committed. While Pennsylvania can prohibit convicted felons along with other potentially violent people from possessing a firearm it can also prohibit drunk drivers with three or more DUI convictions.
In Pennsylvania, if you are convicted of DUI on three or more separate occasions within a five (5) year period the Commonwealth can deny you a weapons permit. In addition to denying you a permit if you were to carry a firearm with three (3) or more convictions for a DUI you can be found guilty of section 6105, 6106, and 6108 of the Uniform Firearms Act. Pennsylvania can pose these restrictions despite the 2nd Amendment and the Due Process Clause of the Fourteenth Amendment. These restrictions are permissible under Pennsylvania law and don’t violate United States Constitution. The United States Supreme Court in the case of McDonald v. Chicago ruled that the 2nd Amendment applies to state and local governments. The court, however, didn’t explicitly state that the “privileges or immunities” Clause of the Fourteenth Amendment applies to the state.
The Privileges or Immunities Clause states that “no state should make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. Since the Supreme Court did not explicitly say that this clause applies to individual states, Pennsylvania along with other jurisdictions, like New Jersey, may make laws restricting the possession and/or use of firearms. This Supreme Court decision, however, does allow the person to keep a firearm in their home without any restrictions. In the McDonald case, the City of Chicago attempted to impose a city wide band on handguns which the Supreme Court found unconstitutional.
While the State of Illinois and can pass laws or ordinances restricting the use of handguns it cannot eliminate them. The McDonald case dealt with a 76 year old man who wanted to keep firearms in his home. The City of Chicago however, since 1982, had prohibited handgun ownership without registrations. Chicago had not approved a gun registration since 1982 and therefore to own a gun, even in your home, was illegal. If you have questions about your constitutional rights or criminal defense, call our office at (215) 240-7377. You may also want to read my book, Commonwealth v. You; it’s over 100 pages to commonly asked questions about criminal defense and its FREE.
Gun (VUFA) Crimes in Pennsylvania: Loaded or Unloaded – Does it matter?
I’ve written previous articles on violations of the Uniform Firearms Act in Pennsylvania (VUFA). The most common offenses that we see in our criminal defense practice in Philadelphia are violations of Section 6105, 6106, 6108, and 6110.2. These crimes can be graded as felonies and misdemeanors depending on the circumstances surrounding the arrest and the person’s prior criminal history. Under Section 6105(a)(1), a person is guilty of a felony of the second degree if he’s convicted of carrying a weapon as a “prohibited person” after being convicted of a “enumerated felony.” Whether the firearm is loaded or unloaded it’s still a felony of the second degree but the offense gravity score (OGS) drops from a 10 to a 9. Under the same section the conviction for 6105 is a misdemeanor if the person is prohibited from carrying a firearm due to a conviction for an enumerated misdemeanor.
An enumerated misdemeanor would include such offenses as certain multiple driving under the influence (DUI) charges, and certain drug misdemeanor charges. In addition, a person who is the subject of an active protection from abuse order (PFA) commits a misdemeanor of the first degree if he intentionally or knowingly fails to relinquish a gun, firearm, weapons or ammunition upon the issuance of such an order. If the gun or firearm is loaded the offense gravity score for this offense is a 5 but it’s a 4 if the gun is unloaded.
A person who is prohibited from carrying a gun or a firearm can also commit a violation of Section 6106 if he is found with the weapon outside of his home or place of business. Under Section 6106(a)(1), a person commits a felony of a third degree if this person is already ineligible under Section 6105. It is still a felony of the third degree if the gun or firearm is unloaded but the offense gravity score drops from a 9 to a 7. A violation of section 6106(a)(2) is a misdemeanor of the first degree if a person is eligible to carry a gun or a firearm and is committing no other criminal acts at the time of his arrest. If the gun is loaded the offense gravity score is a 4 and if the gun or firearm is unloaded it is a 3. Under Section 6110.2(a), a person commits a felony of a second degree if the gun is loaded. While it’s still a felony of the second degree if the gun is unloaded the offense gravity score drops from a 10 to a 9.
Gun and firearm offenses are serious and it is important that your attorney understand the different elements of each of these offenses. I encourage you to read my monthly newsletter for updates on these crimes and visit our free download section for a copy of my latest book, “What Everyone Should Know About Guns, Drugs, and Defense Attorneys in Pennsylvania”.
Pre-Trial Intervention (PTI) for Out-of-State Gun Offenders in New Jersey: What factors will the prosecution consider?
I’ve written previous articles on the Graves Act, the unlawful possession of a gun or firearm, and the mandatory minimum sentences that come with that conviction under the Act. Despite this mandatory minimum, the prosecution is still permitted to agree to a waiver of this requirement and even pre-trial intervention (PTI) in certain circumstances for out of state visitors who unlawfully possess a weapon in the Garden State.
Before getting to these requirements in Jersey, it’s important to understand that the prosecution won’t cut a person a break if that person comes to New Jersey and has a prior conviction or some other issue that wouldn’t allow them to carry the weapon in the first place (i.e. 6105 – VUFA – Pennsylvania).
I also encourage you to read my previous article on transporting a gun or firearm through this state and the requirements for lawful transportation. In the event, however, that you fail to lawfully transport a weapon through New Jersey and you’re arrested for the unlawful possession of a firearm in the state, the prosecution will consider the following with regards to a waiver of the Graves Act mandatory minimum and a PTI application:
• Minimal exposure of the firearm to persons in New Jersey
o This means that the prosecution will consider whether the gun or firearm was kept in the car or motor vehicle at all times and whether the Defendant carried, or planned, to carry the firearm or gun on or about his person and outside of the vehicle. Further, traveling through the state on an interstate highway for example with few or any stops presents less of a danger than a longer visit with multiple visits and likely interactions with non-motorists in the state. A loaded firearm is also looked at much differently than an unloaded firearm which obviously presents less of an immediate risk to persons with whom the defendant interacted with during their time in the state.
• The defendant is otherwise a law abiding person.
o This is a huge part of the PTI process for a Graves Act offense. The prosecution will consider the nature and severity of the other crime or offense which led to the police’s discovery of the gun or firearm. These would include a traffic stop, an ordinance violation, a disorderly person’s offense, or some other crime. Obviously if a person is charged with another indictable crime (in addition to the gun) this would go against the person’s possible PTI application. The prosecution will also consider a person’s other pending cases, prior criminal record, and juvenile record in or out of the state.
• The defendant informing police of the presence of the firearm in response to a question (i.e. Is there anything the car that I should know about?).
o Volunteering information about the presence of a gun or firearm is especially important because it tends to confirm that a person didn’t realize that possession of the firearm was unlawful in the State.
• Circumstances which lead to the confusion about New Jersey’s law regarding guns and firearms.
o While everyone is presumed to know the law (ignorance isn’t a legal defense), a claim of ignorance is viewed with greater skepticism if the person was on actual notice that carrying a weapon outside of his home state could be considered a crime (i.e. Does a person’s out of state carry permit advise them that carrying is limited to that particular state?).
The bottom line is that there is no exact formula that the prosecution will use to accept or deny a PTI Application for an out of state person who carries a gun or a firearm in New Jersey. The prosecution will weigh the above mitigating aggravating circumstances and make a determination as to whether there are compelling reasons to justify a person’s admission into this special program. In closing, it’s important to consider that even if a person isn’t accepted into PTI the prosecutor can still invoke a “safety valve” to the Graves Act pursuant to NJSA 2C:43-6.2 which will allow a person to serve a non-custodial (no jail) sentence.
A Permit to Carry a Gun in New Jersey: Is it always necessary?
In New Jersey it’s a crime for a person to knowingly possesses a handgun outside of his home or place of business without first obtaining a permit to carry it (2C:39-5). A person who violates this section of New Jersey’s Criminal Justice Code commits a crime of the second degree for unlawful possession of a weapon. There are, however, exceptions for a person who carries a gun, rifle, or shotgun outside of their home or place of business. Before explaining the law, keep in mind that unlike a hand gun, carrying a rifle or a shot gun doesn’t require a permit to carry but rather a firearms purchaser identification card.
The most common situations where a person could be arrested for unlawful possession of a weapon but fall under an exception is traveling to and from a firing range or a place where he/she was hunting or fishing in a case of a rifle or shotgun. If you are transporting a handgun, shotgun, or rifle through New Jersey, it needs to be carried unloaded and contained in a closed and fastened case, gun box, securely tight package, or locked in the trunk of an automobile in which it is being transported. This matter of transporting the weapon also applies to situations where a person is traveling through the Garden State with a weapon from a different state where that person maintains or has the proper authority to carry the weapon.
If you’re traveling through the Garden State, the firearm and the ammunition must be locked in a container other than the vehicle’s glove compartment or console. The firearm must be unloaded and neither it, nor the ammunition, that is being transported can be readily or directly accessible from the passenger compartment of the transporting car or vehicle. Federal law (18 US Code§ 926(a)) is what New Jersey uses as a guide to determine if a person is lawfully transporting a firearm or gun through the state.
If you’re driving through New Jersey, you don’t need to give the state notice that you are doing so with a firearm provided you’re in compliance with those federal laws. The federal law however will only protect you if meet all of the following requirements:
- The possession of the firearm was lawful in the state where the journey began;
- The possession of the firearm will be lawful in the state where the journey will end;
- The person transporting the firearm is doing so with a lawful purpose;
- The firearm is unloaded;
- The gun or firearm isn’t directly accessible from the passenger compartment of the vehicle;
- The ammunition isn’t directly accessible from the passenger compartment of the vehicle;
- If the vehicle doesn’t have a passenger compartment that is separate (most cars and trucks/ SUVs) the firearm and ammunition must be in a locked container other than the vehicles glove box or console;
- The person is not any of the following: a convicted felon, a fugitive from justice, or an illegal alien.
- The person isn’t any of the following:
- The person has been adjudicated to be mentally defective
- The person has been committed to a mental institution
- The person has been dishonorably discharged from the armed services
- Or renounced his United States citizenship.
It’s very important that you’re aware of the weapons laws in New Jersey as the Graves Act subjects even a first time offender to a mandatory minimum state prison sentence. While there are waivers under the Graves act and other alternatives to it, the prosecution isn’t obligated to agree to them. The Act specifically requires that a person convicted of the unlawful possession of a firearm must serve 42 months in prison before becoming eligible for parole.
Prosecutors, however, aren’t permitted to categorically deny the defendant who applies for pre-trial intervention (PTI). There is, however, a rebuttable presumption that a person charged with a Graves Act crime isn’t eligible for PTI. PTI is only available for second degree offenses if there are “compelling and extraordinary reasons to justify diverting the case from ordinary prosecution”. If a person isn’t eligible for PTI the prosecutor may file a motion pursuant to NJSA2C:43-6.2 to reduce the stipulated 42 month prison sentence to one (1) year or in some cases a non-custodial probation.
What Defines “Unlawful Purpose” of a Gun or Firearm in New Jersey?
Weapons charges are extremely serious in the State of New Jersey especially those involving the use of one for an unlawful purpose under the Graves Act. Before getting to that crime it’s important to understand that similar to Pennsylvania weapons charges don’t merge for the purposes of sentencing. This means that a person can be convicted of the possession of a gun or firearm without a permit or registration and the possession of that same firearm for an unlawful purpose.
In the Garden State the possession of a weapon for an unlawful purpose is a crime of the second degree if that weapon is a firearm, explosive or destructive device and the prosecution establishes that the defendant used it against property or the person of another.
If the weapon isn’t a firearm but nonetheless still used for an unlawful purpose against the person or property of another, it’s a crime of the third degree. In these cases, the prosecution must establish beyond a reasonable doubt the following 4 elements:
- The item was a firearm or other weapon or explosive or destructive device;
- The defendant possessed it (constructive or actual);
- The defendant had a purpose to use it against the person or property of another;
- It was going to be used unlawfully.
While a gun or a firearm used against the person or property of another are both graded as crimes of the second degree, there’s an important distinction between property and person. Under New Jersey’s Graves Act, there’s mandatory parole ineligibility if the crime is committed with a gun and against a person as opposed to property. With regards to the unlawful purpose element of this criminal offense, the prosecution doesn’t have to prove a specific purpose or plan to act unlawfully.
The prosecution (aka “the State”) only has to present enough evidence for the judge or jury to draw a legitimate inference as to that unlawful purpose. The shooting of a BB gun, for instance, would permit that inference. This criminal purpose only has to exist at the time that the offense occurred. The test for unlawful purpose isn’t whether the defendant’s belief was reasonable but rather whether it was an honest belief that he/she needed the weapon for self-defense for instance. The belief therefore can be honest but unreasonable and still be sufficient to negate the mental state required for conviction. If the weapon, gun or firearm is used in the commission of a crime (robbery, burglary, and aggravated assault) it merges with that principal act. The gun charge wouldn’t merge, however, if the prosecution proves that the defendant had a “broader unlawful purpose”.
For more information on gun charges in New Jersey I encourage you to subscribe to my monthly newsletter, read my blog, or call our office. Check out one of my other articles on New Jersey’s Gun Laws right now. While Pennsylvania and New Jersey share border and bridges, they handle gun crime differently. Never assume that compliance with Pennsylvania gun laws equals compliance with New Jersey’s often stricter laws.
The Top 5 Questions About Guns and Firearms in New Jersey
In addition to handling cases in the Commonwealth of Pennsylvania (VUFA offenses) our criminal defense law firm handles illegal gun and firearm crimes in the State of New Jersey. The Graves Act is the Garden State’s version of Pennsylvania Uniform Firearms Act. It’s the State’s main statute covering the unlawful or illegal use of a firearm. N.J.S.A. 2C:43-6(c),
Remember, that gun crimes in New Jersey not only involve a strong defense at trial but also equally strong representation during a pre-trial motion to suppress evidence. This motion focuses on reasonable suspicion and probable cause to search and seize the gun. For now, however, I want to focus on some common questions from clients in this area. During our initial consultation with clients charged with weapons offenses in New Jersey we’ve found that most of their questions focus on the five following areas:
- What is the legal way to buy a handgun (including a BB gun)?
To buy or purchase a handgun in the state of New Jersey you must present the seller with a valid permit to purchase a handgun along with one additional form of identification. The information on the handgun purchase permit obviously must match the other identification. It’s the responsibility of the seller to forward on the copies of the completed permit to the appropriate authority.
- How does a person obtain a firearm purchaser identification and/or a permit to purchase a handgun in New Jersey?
A person can apply at his or her local police department but if you’re an out of state resident you must apply at the nearest New Jersey State police station. It is important to keep in mind, however, that an out of state resident may only apply for a firearms purchaser identification card.
- How does a person apply for a permit to carry a handgun in New Jersey?
A New Jersey resident must apply with the police department located where they reside or the New Jersey State Police if the police authority that services your area. Out of state residents must apply for a permit to carry at the New Jersey State Police Station.
- If I move to New Jersey from another state like Pennsylvania, can I still continue to possess my firearm?
Firearms which have been legally acquired in a different state are permitted in New Jersey if the owner establishes residency in the state. An owner, however, may voluntarily register the firearm by completing a voluntary form with the New Jersey State Police or the local police department. Please remember that this isn’t the same as a license to carry a handgun!
If a person inherits a firearm he or she is not required to have a firearm purchaser identification card or a handgun purchase permit. If, however, the person isn’t qualified to acquire or possess the firearm or handgun he or she may retain the weapon but can’t hold it longer than 180 days.
- How may a person transport a firearm through New Jersey?
If you’re traveling through the state of New Jersey, your firearm must be kept unloaded and in a closed and fastened case, gun box, or locked in the trunk of an automobile. The ammunition must be kept in a separate container and locked in the trunk of the automobile. If the vehicle doesn’t have a trunk, the ammunition must be kept in a separate compartment and not in the vehicle’s glove box.
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When is “holding a gun for a friend” not a crime in Pennsylvania? Violations of the Uniform Firearm Act (VUFA)
Everyone has done at least one or two favors for a friend or family member when that person goes away on vacation or some other trip. In most situations the “favor” is picking up mail, turning on a sprinkler, or some other minor obligation. There are cases, however, where a person asks that a neighbor or friend hold a gun or firearm for them for safe keeping because of fear of a break in or some other unfortunate event. Everyone likes doing favors but it is important to understand that when it comes to a gun or a firearm that favor could lead to serious criminal consequences under certain circumstances. Pennsylvania’s Uniform Firearms Act covers all matters related to guns or firearms in Pennsylvania and these crimes are often called “VUFA Offenses”.
The most common offenses under the Act are violations of Section 6105, 6106, 6108, and 6110.2. Any gun crime requires either the actual or constructive possession of the weapon in order for the prosecution to establish guilt beyond a reasonable doubt. If the prosecution or District Attorney can’t establish possession, a judge or jury will not find a person guilty because it is an element in any of these charges. Taking possession of a gun is a serious matter because it exposes you to potential criminal liability in the event that police come into your home for any reason. While the police need a search warrant to search your property (except under certain circumstances), the plain view doctrine allows them to make an arrest or confiscate an item based simply them seeing it.
Section 6110.2 makes it a crime in Pennsylvania to possess a weapon (gun or firearm) that has an altered or obliterated serial number. If a friend or family member gives you a gun to hold you shouldn’t accept it if the serial number is altered or obliterated. The defense of, “I’m just holding it for a friend” isn’t good enough and while it may make a difference when it comes to sentencing, you are still guilty of a felony and potentially subject to jail time even for a first offense. This is all assuming that the police’s presence in your home was for a non-criminal or minor matter. If it was for something more serious (i.e. drugs) you would obviously face those criminal charges as well.
Similar to Section 6110.2, Section 6105 makes it a crime to possess a weapon if you are a convicted felon or a person convicted of certain numerated offenses in Pennsylvania which have to do a crime of violence or victim crimes (rape, stalking, kidnapping). Like 6110.2 the mere possession of the gun or firearm is a crime and the offense of “holding it” for a friend on the ride isn’t a defense in a court in Pennsylvania.
Holding it for a friend is not a defense in a gun or firearm crime but if the gun is found in your home you can’t be convicted of Section 6106 or 6108. Both of these crimes require that the firearm not only be in your possession but be found outside of your home or place of business. These are the only situations where “holding it” for a friend would not lead to a criminal conviction.
In or out of the house: Does it matter for your Pennsylvania gun charge?
The successful defense of any criminal charge requires a strategy. When it comes to gun or firearm charges in Pennsylvania, this strategy must begin at the pre-trial level with a motion to suppress evidence and continue at the trial level with arguments based on actual vs. constructive possession as well as direct and circumstantial evidence. Within these categories is the credibility of witnesses. I have written articles on all of these topics but it’s important not ignore the elements of certain commonly charge gun offenses.
Remember that in a criminal prosecution in Pennsylvania, the district attorney must establish each element beyond a reasonable doubt. This is a high burden of proof and much more of a burden than what is required at a preliminary hearing, a motion to suppress evidence, a motion to quash or a civil trial. The most common gun and firearm offenses in Philadelphia are violations of Section 6105, 6106, 6110.2, and 6108 under Pennsylvania’s Uniform Firearm’s Act.
If you are charged with Section 6105 or Section 6110.2, it’s important to realize that your status and or the status of the firearm are critical elements of the offenses in addition to your either constructive or actual possession of the gun or firearm. Unlike sections 6106 or section 6108, your location is irrelevant to the Commonwealth’s burden of proof. You can’t be convicted under section 6106 or 6108 if you are in your home or your place of business. These sections specifically require you to be somewhere outside of these areas.
With regards to Section 6105, you are prohibited from carrying a gun or a firearm if you have been convicted of certain “enumerated offenses” which pertain to violence and/or illegal drugs or narcotics. Under Section 6110.2, it’s illegal to possess a gun or firearm with an obliterated serial number. As you can see, these criminal charges (aka VUFA charges) don’t involve a specific location so it pointless to argue about it during a trial or a pre-trial motion. It’s common for someone to face a number of “VUFA” charges based on one (1) gun or firearm found in their possession. People are often shocked to see that they are charged with three or four criminal charges based one incident.
If you are charged with the illegal possession of gun or firearm, your Pennsylvania Criminal Defense lawyer must evaluate all possible avenues for your defense at trial and during the pre-trial stage. I encourage you read my free book on criminal defense and my monthly newsletter for more on these topics