Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
ARDMORE >> With passage of a new Pennsylvania law this past fall, townships and boroughs across the Commonwealth have hastened to revise or repeal local gun regulations.
Lower Merion Township will not be joining them.
After a two-hour discussion Jan. 7 during which emotions often ran high, the board of commissioners declined to begin a process to revise a provision of code that addresses the carrying or discharge of firearms in township parks, despite the threat of a lawsuit.
The township, like many other municipalities, had recently received a letter from an attorney representing a gun rights organization indicating it could face a costly legal challenge of existing code.
Urged by several residents not to be “bullied,” commissioners in an 11-3 committee vote maintained that the current parks code complies with state law, and that a challenge likely would not be successful.
For those who asked the board to “stand firm,” it was a victory more in principle than in any practical effect. As word that the matter was on this week’s agenda got around in recent days, the reaction from many residents reportedly was “shock” that the carrying of firearms in parks is permitted. The board’s action – or rather, decision not to act - does not change that fact.
The provision in question, contained in Chapter 109 of the township code, states that “No person, except authorized members of the Police Department, shall carry or discharge firearms of any kind in a park without a special permit, unless exempted.”
On Nov. 6, Gov. Tom Corbett signed into law Act 192 of 2014, passed in the final days of the 2013-2014 session of the General Assembly. The law generally establishes criminal penalties for the theft of “secondary metals” such as copper and aluminum wire, but was amended to also include provisions that expand the rights of groups like the NRA to challenge local gun ordinances, providing them with what some speakers this week termed “special standing.” In addition, Act 192 provides that, in a successful challenge, the municipality would be liable for all legal costs.
After previous legislation that reinforced the state’s sole authority to regulate guns, Lower Merion Township, like many others, had revised its code in 2011 with the current language addressing firearms in parks. It was believed that the phrase “unless exempted” implicitly applied to those who had a permit to carry a concealed weapon or who legally carried an unconcealed weapon.
In an interview this week, however, Township Manager Ernie McNeely said he had alerted commissioners that, with passage of Act 192, a further revision to make it explicit that firearms are not prohibited in township parks might be needed, to avoid a legal challenge.
On Dec. 22, McNeely said, the township received a letter from the Firearms Industry Consulting Group, a division of Prince Law Offices PC of Bechtelsville. The firm has “sent letters all over the state” regarding potential challenges, McNeely said.
Within days after Corbett signed the legislation, three Pennsylvania cities, Philadelphia, Pittsburgh and Lancaster, and several Democratic legislators announced they would sue in Commonwealth Court to have it overturned.
Among the legislators seeking to have it overturned is state Sen. Daylin Leach, whose 17th District includes Lower Merion Township. Leach and the others contend the legislation is unconstitutional, because it violates “single subject” and “original purpose” rules for state legislation, in that it tacked the issue of standing of groups to sue onto an act dealing with theft of metals.
Because it is unclear how long it may take for action in Commonwealth Court, McNeely had said it “still may be prudent” for Lower Merion to revise its code. There was a question that the current language could be interpreted as a prohibition. This week, commissioners were asked to consider authorizing advertisement for public hearing next month of a revision, removing references to the carrying of firearms, but retaining the prohibition against discharge of firearms in parks.
At Wednesday night’s meeting, more than a dozen township residents addressed the board on the topic, overwhelmingly urging the township not to bow to pressure. Several, perhaps mistaking the current code provision, asked commissioners to keep a “ban” on guns in parks, or asked township leaders to put such a ban in place, something they have acknowledged they cannot do under state laws.
Among the speakers was Nancy Gordon, a co-founder and current president of CeaseFirePA, an organization that works to reduce gun violence, including by supporting gun control measures. Like some others, she said there is reason to believe Act 192 will be overturned on constitutional issues, and asked Lower Merion to hold off on action until the outcome of the court case is known.
“People can’t smoke in parks,” pointed out David Broida. “You’re telling me second-hand smoke is more dangerous [than guns]?” he mused. As to the risk of a legal challenge, he suggested pro-bono help might be available to take on a case. Furthermore, “For us on this side of the issue, spending the money to defend this is a wise use of taxpayer money.”
Lawrence Fine noted that township solicitor Gilbert High had told the board that existing code complies with state law. Instead of changing its rule, he suggested, Lower Merion might explore joining the suit challenging Act 192, “as a demonstration of the position of this community.”
Taking a different view, William Wheatley, who identified himself as an NRA member and the holder of a permit for concealed carry, invoked Second Amendment rights, and went further to assert that “all statistics available prove armed communities are safer than unarmed communities,” to scoffing by some other audience members. Whether Lower Merion’s board acts or not, he pointed out Pennsylvania’s “preemption statute still stands.” “If you restrict more than the state allows,” he said, “you will be sued.”
Jerry Francis was one who admitted he had assumed guns were banned in parks. Many other residents may, like him, believe township parks are “a safe haven.” His request: “At least table this issue so the community can get up to speed.”
Tabling the matter was one option some members of the board considered. Others, however, said there should be no reason to put off a decision.
None were more outspoken in the latter view than Commissioner Daniel Bernheim. “The chances of a reasonable court upholding [Act 192] are somewhere between slim and zero,” he assessed. But further, Bernheim told his colleagues, “The fact that somebody has threatened us [with a lawsuit] should be completely irrelevant.”
If it should come to that, Bernheim said he is confident enough that the township would prevail that he would not only offer his services as an attorney to litigate the case for free, and stand ready “to pay out of my own pocket any fee we would pay.” “We need not amend [the code], and we need not do so under the pressure of others,” he said.
Commissioner Jenny Brown said she understood some speakers’ fear of guns. It was for that reason, she said, that she learned to handle a gun safely “to educate myself,” and in fact has gone on to become skilled in marksmanship. But Brown said the overriding issue for her was that “failing to act this evening is simply failing to avoid attorneys’ fees” if a group sues over the park rule.
To bring the matter to a conclusion, Commissioner Scott Zelov, who chairs the Parks and Recreation Committee, first moved to table a vote on advertising the proposed code revision. That motion failed on a 6-8 vote.
Brown then moved to recommend advertisement, gaining only the votes of Commissioners Lewis Gould and Phil Rosenzweig in favor.
With no recommendation for action approved, the matter will not move forward for further consideration by the board.