Month: June 2009

The NRA has prevailed in the appeal of Philadelphia’s firearms regulations in Commonwealth Court.   The decision can be found here.  NRA tried to restore standing to challenge the other ordinances, including “Lost and Stolen,” but Commonwealth Court failed to reverse the lower court’s decision.  There is language in this decision that suggest that the “Lost and Stolen” ordinance would also be found in violation of preemption once we have a case that doesn’t have standing or ripeness problems:

Councilpersons, Darrell L. Clarke and Donna Reed Miller, filed an action seeking to have the court declare that seven gun ordinances passed by City Council and signed by then-Mayor John Street could take immediate effect and that Section 6120 was unconstitutional and did not apply to those ordinances because the ordinances did not regulate the “carrying or transporting” of firearms. The City argued that the General Assembly’s inclusion of the qualifying phrase “when carried or transported,” in Section 6120 indicated their intention to limit preemption of local firearms regulation accordingly, and would allow local regulation of any uses of firearms which does not involve carrying or transporting them. The City further argued that because our Supreme Court in Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996), did not address the qualifying phrase “when carried or transported,” it was not controlling. However, in rejecting the City’s arguments, we concluded that:

Given Schneck and Ortiz, we cannot agree with this construction of the Firearms Act. The ordinances struck down in those cases were not qualitatively different in that respect from those at issue here. While Petitioners point out that the qualifying phrase ‘when carried or transported’ was not specifically discussed in Ortiz, in light of its broad and unqualified language, we cannot distinguish Ortiz on this basis.

Clarke, 957 A.2d at 364.

Similarly here, the fact that the Court in Ortiz did not discuss the statutory language relied upon by the City does not provide a legitimate basis for us to ignore its holding. Unfortunately, with respect to the matter before us, while we may agree with the City that preemption of 18 Pa. C.S. § 6120(a) appears to be limited to the lawful use of firearms by its very terms, we believe, however, that the crystal clear holding of our Supreme Court in Ortiz, that, “the General Assembly has [through enactment of § 6120(a)] denied all municipalities the power to regulate the ownership, possession, transfer or [transportation] of firearms,”9 precludes our acceptance of the City’s argument and the trial court’s thoughtful analysis on this point. As the Supreme Court stated in Ortiz:

Because the ownership of firearms is constitutionally protected, its regulation is a matter of statewide concern. The constitution does not provide that the right to bear arms shall not be questioned in any part of the commonwealth except Philadelphia . . . where it may be abridged at will, but that it shall not be questioned in any part of the commonwealth. Thus, regulation of firearms is a matter of concern in all of Pennsylvania, not merely in Philadelphia . . . and the General Assembly, not city council[ ], is the proper forum for the imposition of such regulation.

545 Pa. at 287, 681 A.2d at 156.

Accordingly, we affirm the order of the trial court permanently enjoining the City from enforcing the provisions of the Assault Weapons Ordinance and the Straw Purchaser Ordinance.

I think this ruling sets us up very nicely for a future court battle on all these Lost and Stolen ordinances, provided the Supreme Court is unwilling to revisit Ortiz, which I suspect it won’t.  The City of Philadelphia is losing on virtually all their arguments.  These ordinances were never about Lost and Stolen guns, or Assault Weapons, but were merely a means for the City to regain the ability to violate the Pennsylvania Constitution at will, so it could ban guns.  It’s looking increasingly unlikely that ploy wil work.