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July 27, 1971

Charles F. ECKERT

Harold K. Wood, District Judge.

The opinion of the court was delivered by: WOOD


HAROLD K. WOOD, District Judge.

 Defendant has moved to dismiss plaintiff's cause of action brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983 et seq. Plaintiff seeks to enjoin the Commonwealth and its agents from acting pursuant to the provisions of the Pennsylvania Uniform Firearms Act, 18 P.S. § 4628, which he alleges are violative of the Second Amendment of the United States Constitution.

 Plaintiff challenges the following provisions of the Act: that portion of § 4628(e) which provides, with certain exceptions, that "No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor;" those portions of § 4628(e) and (f) which provide that before obtaining a license to carry a concealed firearm or registering a firearm, one must pay a fifty cent fee; and those portions of § 4628(e) and (f) which provide that registration of a firearm and a license to carry firearms may be revoked by the issuer at any time upon written notice to the holder. Plaintiff contends that each of the above provisions infringes on his right to bear arms under the Second Amendment.

 We conclude that plaintiff's claims are without merit and the Commonwealth's motion to dismiss will be granted. The Supreme Court of the United States has held that the Second Amendment was not adopted to guarantee the right of the individual to bear arms, but rather to protect the states "in the maintenance of their militia organizations against possible encroachments by the federal power." United States v. Tot, 131 F.2d 261 (3rd Cir. 1942), reversed on other grounds, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). Therefore, unless possession of arms bears a reasonable relationship to the preservation or efficiency of a well-regulated militia, there is no Second Amendment right to such possession. United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939).

 Plaintiff also challenges that portion of Section 4628(f) of the Act which requires payment of a license fee of fifty cents by persons desiring to carry firearms for protection but exempts from such payments those persons exhibiting resident hunters' licenses for the current license year. Plaintiff alleges that this provision is impermissibly discriminatory in favor of persons with resident hunters' licenses.

 We need not reach the merits of this contention as we find that plaintiff does not have standing to challenge this portion of the Act. Section 4628(f) provides that a license to carry a firearm may be issued if it appears that the applicant has good reason and is a suitable person to carry a firearm. The applicant must then pay the fifty cent fee. Plaintiff applied for a license and the application was denied on the ground that he had not shown sufficient reason to carry a firearm. Consequently, plaintiff never reached the point where he was compelled to pay the fifty cent fee, nor where he was denied a license because he refused to do so. He has therefore suffered no injury under the provisions of § 4628(f) and does not have standing to challenge it. Association of Data Processing Service v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970).

 Finally, we note that plaintiff seeks to enjoin state officers from acting under a statute of statewide application which is attacked on grounds of constitutionality. However, as his claims do not, on their face and in view of settled case law, present a substantial federal question of constitutionality, there is no necessity to convene a three-judge court under 28 U.S.C. § 2281 et seq. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); United States ex rel. Horne v. Pennsylvania Board of Parole, 234 F. Supp. 368 (E.D. Pa. 1964).


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