A state appellate court panel has rejected the contention by a Chester County man that his conviction on charges that he illegally possessed a handgun was unconstitutional because of a U.S. Supreme Court ruling cutting down laws regulating gun ownership.
In a 41-page decision, the state Superior Court ruling by President Judge Anne Lazarus, President Judge Emeritus Jack Panella and Senior Judge James Gardner Collins said they did not believe the claim that the state’s law prohibiting a person from possessing a firearm if they had been convicted of a list of 38 offenses was invalidated by the higher court’s ruling in the case of a New York law struck down in 2022.
The Supreme Court case, referred to as Bruen, after the New York superintendent of police, held that gun control laws must be consistent with the United States’ historical tradition of firearm regulation. Thus, if convicts in the 19th century were permitted to own or possess firearms, the court suggested, then they could not be prohibited from doing so today.
But the Chester County District Attorney’s Office, and the judge who presided over the man’s trial in 2022, now Senior Judge Jeffrey Sommer, said that the court’s decision in Bruen made a distinction between “law-abiding” persons and those who had been found guilty of serious crimes.
In an email sent to prosecutors in the D.A.’s Office last month after the panel issued its ruling, written by Panella, Deputy District Attorney Gerald Morano, who argued the case on appeal, said that the panel “found that convicted violent offenders such as (defendant Jonathan) McIntyre are not considered as the law-abiding ‘people’ who have a right to possess arms under the Second Amendment.
“Further, the court noted that the plain text of the Second Amendment does not cover McIntyre and his possession of a firearm as a convicted offender,” Morano told his colleagues. “Therefore, the McIntyre Court found that it did not need to address the nation’s history of firearm regulation.”
Similar arguments have been made by attorneys for other defendants found guilty of the same crime in county courts. The March 25 decision would seem to put those appeals on hold and could affect cases across the state. Panella agreed that it was a case of “first impression.”
“Post Bruen, DA’s Offices across the state have faced a slew of motions contesting whether it is constitutional to prevent dangerous felons from possessing firearms,” said county District Attorney Chris de Barrena-Sarobe in an email Tuesday. “In defendant McIntyre’s case, he had been previously convicted of burglary, robbery, and aggravated assault. Through the work of this office — particularly Chief of Appeals Jerry Morano — we were able to ensure that felons like Mr. McIntyre remain legally prohibited from possessing guns. This result helps keep communities across Pennsylvania safe.”
McIntyre’s defense attorney, Brian McCarthy of Exton, said he was looking into what options he and his client would have going forward.
“We believe that it is an important issue,” McCarthy said in a brief comment inside the county Justice Center Tuesday. “We are pursuing all avenues of appellate review” including asking the full Superior Court to take up the matter or asking the state Supreme Court to consider it.
McIntyre, 42, of Malvern was charged by Willistown police in May 2020 after his family complained that he had taken a gun from their home, where he was living after being released from prison. McIntyre testified that he knew that he was not supposed to possess weapons, but said he did not take the gun to hold on to it. Rather, he carried it from his family’s house to an area in Malvern near the Malvern Fire Company on East King Street.
He buried the gun there and later led police to the spot after the family reported the gun missing. He contended that he had been afraid to have the gun in the house where he was living because it could violate his probation, but that he stopped short of reporting its whereabouts until after being confronted by local police.
Sommer, who presided over the trial, sentenced him to five to 20 years in state prison. He is currently being held in SCI Mahanoy on a parole violation.
In rejecting the appeal disputing the jury’s verdict on constitutional grounds, Sommer ruled last year that far from being a nation where restrictions on gun ownership and registration were lax and ceded near-unfettered rights to the people where firearms were involved, there were dozens of laws that regulated guns and who could own them.
In an 18-page opinion, Sommer said, “If the trial court were to look at laws restricting gun ownership in 18th century American history, it would find a plethora or support of gun ownership restrictions,” Sommer wrote. “There is irrefutable historical truth that the framers and adopters of the Second Amendment were, on the whole, supporters of regulated liberty.”
As examples of such restrictions, Sommer pointed to the fact that colonial governments enrolled male citizens in state militias, which kept precise track of “all weapons owned by each man and their readiness for use, and that such governments enacted more than 600 laws governing weapons.
Between the early 17th century and just after the Civil War, states enacted “over 36 carry restrictions,” Sommer said, citing a 2013 article about weapons legislation in the early 20th century. “Many gun laws addressed the issue within this appeal, preventing felons, foreigners, or other dangerous persons from owning firearms.”
“Gun laws regulating who may own and carry are as old, if not older than this country,” Sommer declared. “For (McIntyre) to argue that Bruen is a return to the past and the intent of the framers, it is in error and unsupported by the historical legal research.”
In the Superior Court decision, Panella wrote that the Bruen case did not directly address the question of whether felons or other convicted offenders could possess firearms under the Second Amendment. “That is because Bruen made clear the case at hand involved and applied only to ‘law-abiding’ citizens. Its decision was clearly rooted in. That premise.
“We agree with (Sommer) that the repetitive highlighting of the right of ‘law-abiding’ citizens does not buttress McIntyre’s assertion that Bruen commands a conclusion that the Second Amendment protects the possession. Of firearms by those who, like McIntyre, have been convicted of several violent felonies.”
To contact staff writer Michael P. Rellahan call 610-696-1544.
