IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Navarro, :

Petitioner :

:

v. :

:

Pennsylvania State Police, : No. 1510 C.D. 2022

Respondent : Submitted: December 4, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: January 10, 2024

Richard D. Navarro (Petitioner) petitions pro se for review of the 

October 3, 2022 adjudication and order (Adjudication) of an administrative law 

judge of the Office of the Attorney General (ALJ)1that denied his application for 

return of a firearm (Application) based on a disqualifying criminal conviction. Upon 

review, we affirm.

This Court briefly outlined the underlying facts and procedural posture 

of this matter in a previous memorandum opinion as follows:

1 We observe that the ALJ who filed the Adjudication at issue in the instant appeal differs

from the ALJ who filed the ALJ decision at issue in our previous memorandum opinion in this 

matter. See Adjudication; Findings and Reasons for Denial of Requested Relief dated Jan. 25, 

2018; see also Navarro v. Pa. State Police (Pa. Cmwlth., No. 1433 C.D. 2017, filed May 17, 2018), 

aff’d, 212 A.3d 26 (Pa. 2019). However, because the fact that different ALJs presided over the 

various stages of the proceedings has no bearing on this Court’s resolution of the matter herein, 

we make no distinction between the two ALJs in this memorandum opinion.
2

On November 20, 2013, Petitioner pleaded guilty to 

two counts of forgery,[1] both graded as misdemeanors of 

the first degree.[2] The trial court sentenced Petitioner the 

same day to 24 months’ probation.

[1] 18 Pa.C.S. §§ 4101(a)(1) & (3).

[2] 18 Pa.C.S. § 4101(c).

On October 3, 2016, Petitioner submitted the 

Application, which was denied after a Pennsylvania 

Instant Check System (PICS) report indicated Petitioner 

had disqualifying criminal convictions. Petitioner timely 

challenged the denial. By letter dated December 23, 2016, 

[] Pennsylvania State Police (PSP) informed Petitioner 

that it had confirmed the denial of the Application 

pursuant to Section 922(g) of the Federal Gun Control Act 

(GCA)[3] based on his disqualifying 2013 first-degree 

misdemeanor forgery convictions.

[3] 18 U.S.C. §§ 921-931.

Petitioner timely appealed the PSP determination, 

and a hearing took place before an ALJ on July 7, 2017. 

On August 15, 2017, the ALJ denied the Application. On 

September 12, 2017, Petitioner appealed to this Court.

Navarro v. Pa. State Police (Pa. Cmwlth., No. 1433 C.D. 2017, filed May 17, 2018)

(Navarro I), slip op. at 1-2 (some footnotes omitted), aff’d, 212 A.3d 26 (Pa. 2019) 

(Navarro II). However, because the ALJ made no findings regarding the interstate 

or foreign commerce status of the firearm that Petitioner requested be returned, this 

Court determined that it lacked necessary information to properly determine whether 
3

the firearm should not be returned pursuant to Section 922(g).2 See Navarro I, slip 

op. at 5. Accordingly, the Court vacated the ALJ’s decision and remanded the matter 

for further findings. See id.

PSP appealed to the Supreme Court of Pennsylvania, which granted the 

appeal and concluded as follows:

[T]he Commonwealth Court did not err in determining the 

ALJ must make findings regarding the interstate or foreign 

commerce status of a firearm before affirming PSP’s 

decision to deny transfer to [Petitioner]. PSP clearly 

presented “accurate” record information to the extent it 

included a conviction for a crime punishable by up to five 

years’ imprisonment. However, the information was 

incomplete to the extent it failed to show the firearm in 

question moved in interstate or foreign commerce, a 

required element of the prohibition under federal law on 

which PSP relied. As the Commonwealth Court here 

properly found, the federal prohibition of Section 922(g) 

simply cannot apply absent some proof the firearm at issue 

moved in interstate or foreign commerce. We agree with 

the panel’s conclusion the evidence relating to such 

commerce need not be extensive and may be satisfied by 

showing the gun was manufactured outside Pennsylvania 

(or that the gun otherwise crossed state lines). 

Navarro II, 212 A.3d at 54.

2

In the Adjudication, the ALJ states that in Navarro I, this Court found the ALJ had 

correctly determined that Petitioner’s guilty pleas to forgery constituted disqualifying convictions 

under the GCA. See Adjudication at 2-3. We observe that the Court did not so find in Navarro I, 

but instead simply explained that such a finding, together with evidence that the firearm sought to 

be purchased, possessed, or received, moved in interstate commerce, is necessary to trigger Section 

922(g) of the GCA. See Navarro I, slip op. at 2-5. However, because the ALJ on remand made 

the required findings of fact discussed in Navarro I, we will address the question of disqualifying 

convictions now in this memorandum opinion.
4

Following our Supreme Court’s decision in Navarro II, the ALJ 

conducted an evidentiary hearing in compliance with this Court’s remand order. The 

ALJ then issued the Adjudication, finding as a fact that Petitioner had pleaded guilty 

to two counts of forgery graded as misdemeanors of the first degree, which offenses 

were punishable by imprisonment of up to five years. See Adjudication at 5-6. 

Further, based on PSP’s exhibits entered into evidence at the hearing,

3

the ALJ also 

found that “[t]he firearm that [Petitioner] sought to have returned to him was 

manufactured by Bushmaster Firearms International in Windham, Maine[,]” and 

that, “[i]n order to be in Pennsylvania, the firearm had to cross state lines and move 

in interstate commerce given that it was manufactured in Maine.” Id. at 6. 

Accordingly, the ALJ concluded that PSP satisfied its burden to prove that Petitioner 

is prohibited by law from receiving or possessing a firearm, that the firearm in 

question moved in interstate commerce, and that PSP properly denied the 

Application. See Adjudication at 8. Petitioner timely appealed the Adjudication to 

this Court.4

In the instant appeal, Petitioner alleges that Section 922(g) of the GCA

violates the United States Constitution’s Commerce Clause5and is therefore

3 Petitioner stipulated at the hearing that PSP’s exhibits depicted his gun and that the gun 

was stamped with an indication that it was manufactured by Bushmaster Firearms International,

Windham, Maine. See Notes of Testimony, August 30, 2021, at 7.

4

“On appellate review, we will affirm the decision of an administrative agency unless 

constitutional rights were violated, an error of law was committed, the procedure before the agency 

was contrary to statute, or any finding of fact made by the agency and necessary to support its 

adjudication is unsupported by substantial evidence.” Pa. State Police v. Slaughter, 138 A.3d 65, 

70 n.5 (Pa. Cmwlth. 2016); see also 2 Pa.C.S. § 704.

5

See U.S. Const. art. I, § 8, cl. 3 (allowing Congress “[t]o regulate Commerce with foreign 

Nations, and among the several States, and with the Indian Tribes”).
5

unconstitutional on its face. See Petitioner Br. at 6-10. Accordingly, Petitioner 

argues that the ALJ erred in upholding the PSP’s determination that he is precluded 

from possessing a firearm. We disagree.

The Pennsylvania Uniform Firearms Act of 19956requires PSP to 

determine whether potential transferees of firearms are prohibited from receipt or 

possession of a firearm under state or federal law.7 The GCA states in pertinent part:

(g) It shall be unlawful for any person --

(1) who has been convicted in any court of a crime 

punishable by imprisonment for a term exceeding 

one year;[8]

6

18 Pa. C.S. §§ 6101-6187.

7 The Pennsylvania Uniform Firearms Act of 1995 provides, in relevant part, as follows:

(a) Administration.--The Pennsylvania State Police shall have the 

responsibility to administer the provisions of this chapter.

(b) Duty of Pennsylvania State Police.--

(1) Upon receipt of a request for a criminal history, juvenile 

delinquency history and mental health record check of the potential 

purchaser or transferee, the Pennsylvania State Police shall 

immediately during the licensee’s call or by return call forthwith:

(i) review the Pennsylvania State Police criminal 

history and fingerprint records to determine if the 

potential purchaser or transferee is prohibited from 

receipt or possession of a firearm under Federal or 

State law[.]

18 Pa.C.S. § 6111.1.

8 The GCA expressly excludes “any State offense classified by the laws of the State as a 

misdemeanor and punishable by a term of imprisonment of two years or less” from the term “crime 

punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 921(a)(20)(B). We note 

that this exclusion is inapplicable to this case, however, as Petitioner was convicted of forgery 
6

. . . .

to ship or transport in interstate or foreign commerce, or 

possess in or affecting commerce, any firearm or 

ammunition; or to receive any firearm or ammunition 

which has been shipped or transported in interstate or 

foreign commerce.

18 U.S.C. § 922(g)(1). 

Petitioner’s facial challenge9to the constitutionality of the GCA merits

no relief. Petitioner alleges that the GCA violates the Commerce Clause of the 

Unites States Constitution.10 See Petitioner Br. at 9-15. We do not agree.

graded as a first-degree misdemeanor, which is punishable by up to five years of imprisonment. 

18 Pa.C.S. §§ 1104, 4101(c).

9 Two kinds of constitutional statutory challenges exist: challenges that attack a statute on 

its face and those that attack a statute as it is applied in a particular case. Lehman v. Pa.

State Police, 839 A.2d 265, 275 (Pa. 2003).

A facial attack tests a law’s constitutionality based on its text alone 

and does not consider the facts or circumstances of a particular 

case. An as-applied attack, in contrast, does not contend that a law 

is unconstitutional as written but that its application to a particular 

person under particular circumstances deprived that person of a 

constitutional right. . . .

Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011). For the purpose of issue 

preservation, as-applied constitutional challenges must be raised before the ALJ. Lehman, 839 

A.2d at 276. We observe that Petitioner claimed that he had raised such a challenge and PSP 

argued against the same in the previous appeal of this matter. However, Petitioner neither raised 

nor briefed an as-applied constitutional challenge in the instant appeal. 

10 We observe that, prior to remand, Petitioner challenged Section 922(g)(1) of the GCA 

based on alleged violations of the Second and Tenth Amendments of the United States Constitution 

in addition to his claim based on the Commerce Clause. However, Petitioner did not raise or argue 

these claims anew in his brief in the instant appeal following remand, and those arguments are 

therefore now waived. See Boniella v. Commonwealth, 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 
7

Initially, Petitioner challenges the constitutionality of GCA Section 

922(g) as a perversion of the intent of the United States Constitution’s Commerce 

Clause. Petitioner cites to the United States Supreme Court’s decision in United 

States v. Lopez, 514 U.S. 549 (1995), to support his argument that Section 922(g) 

violates the Commerce Clause. In Lopez, the Supreme Court struck down Section 

922(q) of the GCA, which prohibited firearms possession within 1,000 feet of school 

grounds, as beyond the Commerce Clause because “[t]he [GCA] neither regulate[ed] 

a commercial activity nor contain[ed] a requirement that the possession be connected 

in any way to interstate commerce.” 514 U.S. at 551. However, unlike the GCA 

section examined in Lopez, Section 922(g) of the GCA includes a commerce-related 

jurisdictional element.11 Therefore, multiple federal courts have rejected the 

argument that Section 922(g) violates the Commerce Clause. See United States v. 

Gateward, 85 F.3d 670, 672 (3d Cir. 1996) (listing cases); see also United States v. 

2008) (noting that a court will not consider arguments that are not properly raised and developed 

in a brief).

11 Specifically, Section 922(g) provides:

(g) It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by 

imprisonment for a term exceeding one year;

. . . .

to ship or transport in interstate or foreign commerce, or possess in 

or affecting commerce, any firearm or ammunition; or to receive any 

firearm or ammunition which has been shipped or transported in 

interstate or foreign commerce.

18 U.S.C. § 922(g)(1) (emphasis added).
8

Wells, 98 F.3d 808, 811 (4th Cir. 1996). Petitioner is incorrect in his argument that 

Section 922(g) of the GCA violates the Commerce Clause.12

Our determination that the GCA is constitutional renders this matter 

relatively simple. The GCA precludes individuals convicted of crimes punishable 

by a term of imprisonment exceeding one year from possessing firearms. 18 U.S.C. 

§ 922(g). The Pennsylvania Uniform Firearms Act of 1995 requires adherence to 

the GCA. Petitioner was convicted of two counts of forgery graded as first-degree 

misdemeanors, each of which carries a maximum punishment of five years’ 

incarceration. 18 Pa.C.S. §§ 1104, 4101(c). Accordingly, federal law prohibits 

Petitioner from possessing a firearm, and PSP properly determined such. Further, 

the evidence presented at the hearing following remand established that the firearm 

in question moved in interstate commerce. Thus, the ALJ explained:

[] PSP has presented compelling and undisputed evidence 

that in 2013, [Petitioner] entered guilty pleas to two counts 

of forgery graded as misdemeanors of the first[ ] degree in 

the Cumberland County trial court for which he received 

probation. Because the first-degree misdemeanors were 

(and are) punishable by a maximum term of incarceration 

of five years, he is prohibited from possessing or receiving 

any firearm that has been shipped or transported in 

interstate or foreign commerce under 18 U.S.C. § 922(g)(1). 

[] PSP has also presented compelling and undisputed 

evidence that the firearm which [Petitioner] sought to have 

returned to him and to possess was manufactured in the 

12 We acknowledge that Petitioner’s brief quotes sections of the Federalist Papers, 

specifically Federalist Paper 42, to support the argument that Section 922(g) of the GCA is 

unconstitutional. See Petitioner Br. at 8-9. We acknowledge the historical value of the Federalist 

Papers, that venerable collection of essays drafted by Alexander Hamilton, James Madison, and 

John Jay to convince the various states to accept the newly drafted federal Constitution. We 

decline, however, to adopt Petitioner’s argument that Section 922(g) violates the Commerce 

Clause, which argument has been rejected by multiple Federal courts as discussed supra, based on 

Petitioner’s personal interpretation of the meaning of Federalist Paper 42.
9

state of Maine and moved in interstate commerce. In light 

of this, I find that Section 922(g)(1) applies to prohibit 

[Petitioner] from receiving or possessing a firearm.

Adjudication at 7-8.

We find no error of law or violation of Petitioner’s constitutional or 

procedural rights in the ALJ’s decision. The case is as straightforward as it appears: 

substantial evidence supports the ALJ’s findings that (1) Petitioner is subject to the 

prohibitions of the Pennsylvania Uniform Firearms Act of 1995 and GCA Section 

922(g)(1) by virtue of having been convicted of crimes punishable by up to five 

years’ imprisonment, and (2) the firearm in question moved in interstate commerce. 

Accordingly, the ALJ properly affirmed PSP’s determination.

For the foregoing reasons, we affirm the Adjudication.

___________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Navarro, :

Petitioner :

:

v. :

:

Pennsylvania State Police, : No. 1510 C.D. 2022

Respondent :

O R D E R

AND NOW, this 10th day of January, 2024, the October 3, 2022 

adjudication and order of the administrative law judge of the Office of the Attorney 

General is AFFIRMED.

___________________________________

CHRISTINE FIZZANO CANNON, Judge