Pennsylvania Firearm Law Clarification
Gettysburg Pennsylvania USA
DISCLAIMER: This post is not asking for legal advice or whether anyone should act in reliance on this interpretation. I am solely asking for individual interpretations of the statutory language and discussion of how the provision should be read.
Another disclaimer: To be clear, I’m not looking for anyone to affirm my interpretation. I’m specifically looking for someone to disprove it. If I’m overlooking a statute, case, or alternative reading of (b)(3) that defeats my interpretation, that’s exactly what I want someone to show me. Please stop saying “ask a lawyer”. If someone proves me wrong it skips the necessity for a lawyer
I’m trying to get some outside opinions on the interpretation of Pennsylvania’s prohibited offensive weapons statute, 18 Pa.C.S. §908, specifically subsection (b)(3). I’m not asking whether relying on this interpretation in real life would be a good idea. I’m interested in how the statute should actually be construed and how a Pennsylvania court would likely read it.
§908(a) generally prohibits making, repairing, selling, dealing in, using, or possessing an “offensive weapon.” The definition includes things such as machine guns, sawed-off shotguns, and firearms specially made or adapted for silent discharge.
§908(b)(1) contains specific defenses, including a defense based on compliance with the National Firearms Act.
But §908(b)(3) separately states in its entirety:
“This section shall not apply to any person who makes, repairs, sells or otherwise deals in, uses or possesses any firearm for purposes not prohibited by the laws of this Commonwealth.”
The part I’m trying to understand is what independent legal effect (b)(3) has.
It does not say “firearms permitted by this section” or “firearms not prohibited by §908.” It says the entire section “shall not apply” when a firearm is involved for “purposes not prohibited by the laws of this Commonwealth.”
If “the laws of this Commonwealth” includes §908 itself in the way that determines the answer, there seems to be a circularity problem: the firearm is prohibited because §908 applies, and (b)(3) cannot make §908 inapplicable because §908 prohibits it. That seems dangerously close to saying, “This section shall not apply when this section already does not prohibit the conduct.”
There is also a surplusage issue. §908 already has the specific NFA-compliance defense in (b)(1). That defense predates the current (b)(3). The legislature later added (b)(3), using substantially broader language and saying the entire section “shall not apply.” If NFA compliance or some other existing exception was supposed to be the only route, what independent work was the later-added (b)(3) intended to perform?
There’s another interesting piece of context. Pennsylvania’s firearm-preemption statute, §6120, uses the same distinctive phrase, “purposes not prohibited by the laws of this Commonwealth.” §6120 is obviously a different type of statute—it limits municipal firearm regulation rather than creating an exception to §908—so I’m not claiming the two provisions have the same legal effect. But it raises the question whether the same phrase should carry a similar meaning: firearm activity that Pennsylvania law otherwise does not prohibit.
Another point that seems important is the difference in wording. §908(b)(1) expressly establishes defenses. §908(b)(3) instead says “This section shall not apply.” That sounds more like a limitation on the scope of §908 itself than merely another affirmative defense.
I’ve looked for Pennsylvania appellate decisions actually interpreting (b)(3). So far I have not found a reported case where a court squarely applied (b)(3) to a firearm and decided whether an otherwise §908-covered firearm was exempt because it was possessed or used for a purpose not otherwise prohibited by Pennsylvania law. I also haven’t found a reported appellate decision squarely rejecting that interpretation. Most §908 cases either involve non-firearms, criminal use of the weapon, prohibited possessors, unlawful carrying, or simply never address (b)(3).
So my questions for anyone familiar with Pennsylvania statutory interpretation are:
- Does “purposes not prohibited by the laws of this Commonwealth” mean purposes not independently prohibited elsewhere under Pennsylvania law?
- How would the rule against statutory surplusage affect the interpretation?
I’m especially interested in how a Pennsylvania attorney would expect a judge to interpret the provision from the text and statutory structure, rather than whether anyone thinks testing the argument personally would be wise. I don’t want any input on federal law. I keep up with federal law regularly and do not need clarification on that part.