IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlos P. Maglas, :

Petitioner :

: No. 1772 C.D. 2016

v. :

: Argued: September 14, 2017

Pennsylvania State Police, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: January 4, 2018

Carlos P. Maglas petitions for review from the October 5, 2016 order 

of an administrative law judge (ALJ) denying his appeal from the determination of 

the Pennsylvania State Police (PSP) rejecting Maglas’ application to purchase a 

firearm. As we are precluded from addressing the constitutional issue of sufficient 

notice because Maglas failed to raise this issue in his petition for review, we are 

constrained to affirm. 

The relevant facts are not in dispute. On September 10, 2014, Maglas 

submitted an application to purchase a firearm. PSP denied Maglas’ application 

because he was convicted in 2005 of Driving Under the Influence of Alcohol or 

Controlled Substance (DUI), a first-degree misdemeanor under the Vehicle Code.1 

 

1

75 Pa.C.S. §§101-9805.
2

The DUI conviction rendered Maglas ineligible to purchase a firearm under section 

922(g)2 of the Federal Gun Control Act (GCA), 18 U.S.C. §922(g). Maglas filed a 

Pennsylvania Instant Check System (PICS) challenge to PSP’s decision on 

September 16, 2014. On October 6, 2014, PSP upheld the denial of Maglas’ 

application on the basis of the DUI conviction.

Maglas filed a timely appeal to the Pennsylvania Office of Attorney 

General on October 23, 2014. A hearing was held before an ALJ on July 16, 2015. 

Maglas, who did not personally appear, was represented by counsel at the hearing, 

where PSP presented evidence of the 2005 DUI conviction. Maglas’ counsel did not 

contest the evidence, but rather argued that the General Assembly never intended for

persons convicted of DUI to be prohibited from purchasing firearms under the 

Pennsylvania Uniform Firearms Act of 1995.3 (Transcript from Firearm Appeal 

Hearing, 7/16/15, at 14-23.) Maglas’ counsel did not introduce any evidence or raise 

any constitutional issues at the hearing. (Id.)

On October 5, 2016, the ALJ issued a decision denying Maglas’ 

administrative appeal. The ALJ determined that PSP’s rejection of Maglas’ 

application was proper. He ruled that Maglas was prohibited from purchasing a 

firearm under Section 922(g) of the GCA because Maglas’ DUI conviction was 

 

2 Section 922(g) of the GCA provides, “[i]t 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 receive any firearm . . . which has been shipped or transported in interstate or 

foreign commerce.” 18 U.S.C. §922(g). Section 921(a)(20) of the GCA further states that “[t]he 

term ‘crime punishable by imprisonment for a term exceeding one year’ does not include . . . any 

State offense classified by the laws of the State as a misdemeanor and punishable by a term of two 

years or less.” 18 U.S.C. §921(a)(20). 

3 Act of December 6, 1972, P.L. 1482, as amended, 18 Pa.C.S. §§6101-6187.
3

punishable by a maximum of five years of incarceration.

4

 The ALJ noted that PSP 

was required under state law to review an individual’s application to purchase a 

firearm “to determine if the potential purchaser . . . is prohibited from receipt . . . of 

a firearm under Federal or State law.” 18 Pa.C.S. §6111.1(b)(1)(i). The ALJ 

concluded:

It is clear, pursuant to Pennsylvania’s Uniform Firearm 

Act, that PSP was mandated to determine whether 

[Maglas] was precluded from purchasing a firearm under 

either Federal or State law. It is equally clear that 

[Maglas] is precluded from purchasing a firearm under 

Federal law due to his DUI conviction graded as a firstdegree misdemeanor with a five year maximum sentence.

(ALJ Disposition, 10/5/16, at 4.) This appeal followed.

This Court’s review of an order sustaining a decision by PSP to deny 

an application to purchase a firearm is limited to determining whether the necessary 

findings of fact are supported by substantial evidence, whether an error of law was 

committed, or whether constitutional rights were violated. Freeman v. Pennsylvania 

State Police, 2 A.3d 1259, 1260 n.2 (Pa. Cmwlth. 2010). Presently, Maglas does not 

argue that the ALJ’s findings were unsupported by substantial evidence or that the 

ALJ committed an error of law. Rather, Maglas argues that the application of the 

GCA in this instance violates his rights under the Second Amendment.5 Maglas also 

does not argue that the GCA is facially unconstitutional. Instead, he contends that 

his particular circumstances are beyond the scope of what the legislature intended to 

prohibit when it enacted section 922(g) of the GCA, 18 U.S.C. §922(g), and 

 

4

See Section 3803(b)(4) of the Vehicle Code, 75 Pa.C.S. §3803(b)(4), grading Maglas’ 

2005 DUI conviction as a first degree misdemeanor. 

5

“A well regulated Militia, being necessary to the security of a free State, the right of the 

people to keep and bear arms, shall not be infringed.” U.S. CONST. amend. II.
4

therefore, the application of the statute in this instance is unconstitutional. In support 

of this argument, Maglas sets forth in his brief a series of factual statements intended 

to show that “he is no more dangerous than a typical law-abiding citizen and poses 

no continuing threat . . . .” (Maglas Brief, 1/25/17, at 14-15.)

A citizen who seeks to challenge the constitutionality of a gun 

regulation as-applied has a significant evidentiary burden. Binderup v. Attorney 

General of the United States of America, 836 F.3d 336, 341 (3d Cir. 2016). In 

District of Columbia v. Heller, the United States Supreme Court held that the Second 

Amendment protects the right of “law-abiding, responsible citizens to use firearms 

in defense of hearth and home,” but that such a right was “not unlimited.” 554 U.S. 

570, 626, 634-35 (2008). The Heller court also ruled that “longstanding prohibitions 

on the possession of firearms by felons” were “presumptively lawful regulatory 

measures” consistent with historical limitations on the breadth of the Second 

Amendment right. Id. at 626-27. In United States v. Marzzarella, 614 F.3d 85, 96-

97 (3d Cir. 2010), the court adopted a framework for evaluating as-applied 

challenges. One year later, the court applied the Marzzarella framework in United 

States v. Barton, 633 F.3d 168, 174-75 (3d Cir. 2011). The opinion of the court in 

Binderup6reflects the court of appeals’ synthesis of Marzzarella and Barton, 

resulting in the emergence of a particular test or framework for the evaluation of asapplied Second Amendment challenges. This framework was recently discussed in 

Zedonis v. Lynch, 233 F. Supp. 3d 417 (M.D. Pa. 2017).

To prevail in an as-applied challenge to a presumptively valid 

regulation restricting Second Amendment rights, a challenger must prove that “the 

challenged law imposes a burden on conduct falling within the scope of the Second 

 

6 Binderup was a fractured, plurality decision. See Zedonis v. Lynch, 233 F. Supp. 3d 417 

(M.D. Pa. 2017).
5

Amendment’s guarantee.” Id. at 425 (quoting Binderup, 836 F.3d at 346). To do 

so, the challenger

must (1) identify the traditional justifications for excluding 

from Second Amendment protections the class of which 

he appears to be a member, . . . and then (2) present facts 

about himself and his background that distinguish his 

circumstances from those persons in the historically barred 

class . . . .

Binderup, 836 F.3d at 347. With respect to the first hurdle, the Binderup court noted 

that the historical basis for “stripping felons”7 of Second Amendment rights “dates 

back to our founding era.” Id. at 349. 

If the challenger successfully identifies the traditional justifications for 

excluding Second Amendment protections from his class, he must then distinguish 

himself from that class. Id. at 347. To do so, a challenger like Maglas must show 

that “there is a ‘strong reason’ why his 2005 DUI conviction was not a ‘serious 

offense.’” Zedonis, 233 F. Supp. 3d at 426.

“[T]here are no fixed criteria for determining whether 

crimes are serious enough to destroy Second Amendment 

rights.” [Binderup, 836 F.3d at 351]. The Binderup court 

rejected the notion that all crimes subject to §922(g)(1)’s 

prohibition should be considered serious because of the 

crimes’ maximum possible punishment. Id. at 350. 

Rather, the court acknowledged that some State 

misdemeanors subject to §922(g)(1), although being 

punishable by more than two years’ imprisonment, “may 

be ‘so tame and technical as to be insufficient to justify the 

ban’” on firearms possession. Id. (quoting United States 

v. Torres–Rosario, 658 F.3d 110, 113 (1st Cir. 2011)). 

Reasoning that Heller stated that felon-in-possession 

firearm bans were “presumptively lawful,” and that 

 

7

“Traditionally, ‘felons’ are people who have been convicted of and crime ‘that is 

punishable by death or imprisonment for more than one year.’” Binderup, 836 F.3d at 347 

(citations omitted).
6

“presumptions are rebuttable,” the court indicated that “to 

determine whether . . . [an individual is] shorn of [his] 

Second Amendment rights, Heller requires us to consider 

the maximum possible punishment but not to defer blindly 

to it.” [Binderup, 836 F.3d at 350–51].

The Binderup court recognized that “the category of 

serious crimes changes over time as legislative judgments 

regarding virtue evolve,” and therefore set forth a 

seemingly non-exhaustive list of factors for courts to 

consider in evaluating whether challengers have presented 

sufficient facts at step one to “distinguish[ ] their 

circumstances from persons historically excluded from the 

right to arms.” Id. at 351, 353. The court instructed that, 

in evaluating an as-applied challenge to the 

constitutionality of §922(g)(1), we should consider: (1) 

whether a state classifies the offense as a misdemeanor or 

felony; (2) whether an offense involves violent criminal 

conduct, i.e., that violence (actual or attempted) is an 

element of the offense; (3) the severity of the sentence 

imposed on the challenger; and (4) whether there is crossjurisdictional consensus regarding the seriousness of the 

disqualifying crime. Id. at 351–52.

Zedonis, 233 F. Supp. 3d at 427. 

If a challenger makes the showing required by Binderup, the burden 

then shifts to the government to show that §922 of the GCA supports a legitimate 

government interest (e.g., promoting public safety), and that the means employed to 

advance that interest are reasonable and appropriate. Binderup, 836 F.3d at 353. In 

other words, the statute or regulation at issue must survive intermediate scrutiny. Id. 

at 356. 

Section 703(a) of the Administrative Agency Law provides:
7

(a) General rule.--A party who proceeded before a 

Commonwealth agency under the terms of a particular 

statute shall not be precluded from questioning the validity 

of the statute in the appeal, but such party may not raise 

upon appeal any other question not raised before the 

agency (notwithstanding the fact that the agency may not 

be competent to resolve such question) unless allowed by 

the court upon due cause shown.

2 Pa.C.S §703(a). PSP argues that Maglas waived his Second Amendment challenge 

by failing to raise it before the ALJ. A careful review of the record confirms PSP’s 

assertion that the issue was not addressed to the ALJ.

In Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003), our 

Supreme Court considered whether a prospective gun-buyer with a disqualifying 

criminal conviction waived a constitutional challenge when he failed to raise it 

before the ALJ. The Supreme Court expressly ruled that as-applied constitutional 

challenges must be raised before the ALJ to preserve such claims for review. Id. at 

276. However, the prospective gun-buyer argued that the application of the waiver 

rule in his case was inappropriate because “he was denied the opportunity to raise 

them before the ALJ because the ALJ disavowed having jurisdiction to review 

constitutional claims.” Id. at 274. The fact that the ALJ in Lehman expressly 

advised the prospective gun-buyer that “those arguments would be more 

appropriately made, if necessary, to the Commonwealth Court, since we do not have 

the mandate to consider constitutional issues” factored into the Supreme Court’s 

disposition in that case: remand so that the prospective gun-buyer could develop his 

constitutional arguments. Id. at 276.

PSP argues that Lehman’s express ruling that as-applied constitutional 

challenges must be raised before the ALJ to preserve such claims for review compels 

a finding of waiver in this case. PSP’s argument, however, fails to address a pre-
8

hearing letter from the Office of Attorney General to Maglas’ counsel. The letter 

states:

You should understand that the only issue which can be 

heard during this proceeding is whether the criminal 

history records maintained by the Pennsylvania State 

Police are accurate. If you do not dispute the accuracy of 

the criminal history records, but you want to raise other 

reasons in support of the restoration of your firearms 

rights, you should contact a lawyer and explore other 

avenues of relief.

(Certified Record, Item 5, Letter from Leigh Ann Snyder to Peter Daley, 6/15/15) 

(emphasis in original). This language is similar to the problematic language in 

Lehman where a prospective gun-buyer was denied an opportunity to litigate an asapplied challenge before the ALJ. However, in this case, Maglas has not argued that 

the pre-hearing letter prejudiced him in any way; i.e., he has not complained that he 

was procedurally prevented from raising his Second Amendment challenge before 

the ALJ as required by Lehman. 

Moreover, we note that Maglas did not raise his Second Amendment 

challenge in his petition for review to this Court. The petition for review merely 

reiterates the statutory argument presented unsuccessfully to the ALJ. (Petition for 

Review, 10/26/2016, ¶¶ 5-6.) Maglas has not offered any argument that there exists 

good cause for this Court to consider his Second Amendment claim when he failed 

to raise and preserve this issue below. Hence, because this issue has been waived, 

the Court must affirm the decision of the ALJ.

__________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlos P. Maglas, :

Petitioner :

:

v. : No. 1772 C.D. 2016

:

Pennsylvania State Police, :

Respondent :

ORDER

AND NOW, this 4th day of January, 2018, the order of the 

administrative law judge, dated October 5, 2016, is hereby affirmed.

__________________________________

PATRICIA A. McCULLOUGH, Judge