Do Pennsylvania municipalities have any power to regulate firearms? According to a recent Commonwealth Court decision, they do not.
In Firearm Owners Against Crime v. City of Pittsburgh, 1754 C.D. 2019 (Pa. Cmwlth. 2022), gun-rights organizations and individuals challenged three Pittsburgh firearms regulations. The first prohibited the discharge, loading, brandishing, displaying or pointing at a person of certain firearms designated as assault weapons. The second prohibited loading, fitting, brandishing, displaying or discharging ammunition from large capacity magazines. The third empowered courts to issue Extreme Risk Protection Orders prohibiting possession of firearms by persons shown to pose an imminent risk of harm to others.
The Commonwealth Court held that all three ordinances were preempted by Section 6120 of the Pennsylvania Uniform Firearm Act (UFA), which provides that “no county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of the Commonwealth.” The Court rejected the City’s argument that Section 6120 preempts regulation of ownership, possession, transfer or transportation, but not the use of firearms and concluded that that all municipal firearm regulation is preempted by the UFA.
The Court’s decision relies heavily on the Pennsylvania Supreme Court’s opinion in Ortiz v. Commonwealth and its progeny. These decisions may not be as controlling as the Court’s opinion makes them out to be. Ortiz itself concerned Pittsburgh and Philadelphia’s efforts to totally ban certain types of weapons. The language relied up by the Commonwealth Court in Firearm Owners Against Crime and other post-Ortiz decisions cited therein—“the General Assembly, not city councils is the proper forum for the imposition of such regulation”—was employed by the Ortiz Court specifically in response to the question of whether the UFA is a substantive statute on matters of statewide concern such that the authority of home rule municipalities to enact conflicting regulation is restricted. Ortiz concludes that the regulation of firearms is a matter of concern in all Pennsylvania but does not directly examine the preemptive scope of Section 6120 because, there, it was undisputed that the challenged ordinances attempted to regulate the possession, ownership and control of firearms. Like the ordinances at issue in Ortiz, almost all of the local ordinances addressed in the other cases cited by the City Pittsburgh Court can similarly be interpreted to limit the ownership, possession or transfer of firearms.
Notwithstanding that Ortiz does not meaningfully address the preemptive scope of Section 6120, the Commonwealth Court has interpreted it to mean that Section 6120 precludes all local regulation of firearms. This has led to decisions in apparent tension with rules of statutory construction, as has been noted in dissents by Judge Smith-Ribner in NRA v. City of Philadelphia and Clarke v. House of Representatives, both relied upon by the City of Pittsburgh Court. For example, in both National Rifle Association (NRA) v. City of Philadelphia and Firearm Owners Against Crime v. Lower Merion Township, the Commonwealth Court held that the “crystal clear holding” of Ortiz compels the conclusion that Section 6120 forecloses local regulation of the unlawful use of firearms, even though Section 6120 by its very terms, prohibits only regulation of “lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of the Commonwealth.” Thus, Commonwealth Court’s interpretation of Ortiz led to the dubious conclusion that “no cognizable distinction exists between regulating lawful activity and unlawful activity,” effectively rendering meaningless the General Assembly’s use of the term “lawful.”
Similarly, the Court in City of Pittsburgh held that Section 6120, as construed by the cases applying Ortiz, must be understood to repeal statutes expressly empowering Second Class Cities to “regulate, prevent and punish the [public] discharge of firearms” and to “regulate or to prohibit and prevent . . . the unnecessary discharging of firearms” in public places. Despite the statutory mandate that a general provision in a statute and a special provision in another statute must be construed, if possible, so that effect may be given to both, the Court rejected the City’s argument that interpreting Section 6120 to limit only the possession, ownership and transfer, but not use or discharge, of firearms would allow all three statutes to be construed consistently. In so holding, the Commonwealth Court opined not only that Section 6120’s preemptive force cannot be squared with the statutes empowering regulation of the discharge of firearms, but that it is “unascertainable” what the General Assembly even meant by the phrase “unnecessary discharge of firearms.”
This is not to say that City of Pittsburgh entirely lacks a compelling supporting rationale. The Court aptly notes that the acts prohibited by the ordinances pertaining to assault weapons and large capacity magazine—using, discharging, loading, displaying and brandishing—are difficult to separate from the ownership and possession of firearms, local regulation of which is expressly prohibited by Section 6120. It is even more difficult to construe the ordinance creating Extreme Risk Protection Orders as anything but a restriction on ownership and possession of firearms.
For now, Judge Smith-Ribner may be correct: Total preemption in this area of law may not be as clear as the Commonwealth Court presumes, at least until the Supreme Court issues a definitive answer in the matter. Notably, the Supreme Court has held no fewer than six times since Ortiz that local regulation is entirely preempted in only three areas: alcoholic beverages, anthracite strip mining, and banking. With the City filing a Petition of Allowance of Appeal to the Pennsylvania Supreme Court, Firearm Owners Against Crime v. City of Pittsburgh may provide the Supreme Court the opportunity to definitively decide whether firearms are to be added to that list.
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