PA Preemption - New law triggers war of words over firearms :: 12/14/2014

Here’s the funny thing about the fight over whether cities like Pittsburgh can pass local gun-control ordinances. While gun-rights activists are deploying the heavy artillery, the ordinances’ defenders are arguing, in no small part, for the right to fire blanks.

The battle concerns state Act 192, which became law last month. Under the act, any Pennsylvanian legally permitted to own a gun can sue a Pennsylvania municipality over a gun ordinance — even if the plaintiff doesn’t live there.

“Anybody can sue Castle Shannon, even if they live in Scranton,” said Castle Shannon Mayor Donald Baumgarten. “It’s insane.”

Castle Shannon is one of 30 municipalities that has passed a so-called “lost-and-stolen” ordinance in recent years. The laws, which have been championed by gun-control advocacy group CeaseFirePA, require gun owners to report when firearms go missing. Supporters say that can help police track weapons they discover, and reveal “straw purchasers” who buy firearms for criminals and later claim the guns were misplaced.

But CeaseFirePA’s executive director, Shira Goodman, could not identify a single case in which a gun owner has been cited under any local ordinance. That includes the three cities — Philadelphia, Pittsburgh, and Lancaster — that joined a November lawsuit to overturn Act 192.

“I don’t think [lost-and-stolen] was intended to punish people,” said Ms. Goodman. Local governments “use it as kind of a motivational tool. To be sued for an ordinance no one has been harmed by doesn’t seem fair.”

The lack of enforcement “should tell you [lost-and-stolen] was meant to be a political statement,” countered Kim Stolfer, the president of Firearm Owners Against Crime. “It’s a way for anti-gun groups to castigate people who own guns.”

Lost cause

But lost-and-stolen laws presented a conundrum for pro-gun activists: The fact that the laws haven’t been enforced has helped keep them on the books. Courts typically require a plaintiff to be harmed by a law in order to challenge it, and efforts to challenge Pittsburgh and Philadelphia’s ordinances failed because no plaintiff qualified.

Mr. Stolfer noted that for 40 years, state law has said, “[n]o county, municipality, or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components.” Based on that, said Mr. Stolfer, “Why can’t [local officials] learn to shut up?”

Act 192 seems intended to teach that lesson. It allows lawsuits not just from gun enthusiasts, but from groups representing them — such as Mr. Stolfer’s organization, or the National Rifle Association. And if the suit is successful, the municipality must pay the plaintiff’s legal costs.

“We passed a bill giving an outside organization the power to sue our own people,” said state Sen. Daylin Leach, a southeastern Pennsylvania Democrat who joined the suit to overturn Act 192. The law, he said, “is like the NRA daydreaming: If you could have erotic fantasies about a bill, what would it be?”

Lost-and-stolen ordinances aren’t the only ones in the crosshairs. Joshua Prince, a Berks County lawyer who overturned a gun ban in Erie parks earlier this year, said other local laws could come under fire, including some that bar guns from government meetings.

Most of those ordinances, Mr. Prince said, are simply gathering dust. But municipalities sometimes threaten enforcement powers they don’t have: “We’ll see ‘no firearm’ signs at township buildings and in the parks.”

It’s unclear what impact Act 192 might have on other Pittsburgh rules: City Solicitor Lourdes Sanchez-Ridge did not respond to a request for comment. But Mr. Stolfer said security at facilities like the City County Building, where gun owners must check their weapons at the entrance, would be unchanged because they house courtroom facilities protected by state law.

Duquesne University law professor Bruce Ledewitz says that while “municipalities are playing games” by passing their own gun laws, compelling them to pay plaintiffs’ legal fees is “unfair,” and not typically sanctioned under state law.

Legislators, he said, “are in effect bullying the municipalities.”

Legal duel

The lawsuit challenging Act 192 paints an unflattering picture of Harrisburg’s legislative process. It recounts how the gun language was added to a seemingly unrelated bill — a measure penalizing the theft of metals like copper and aluminum — at the close of the legislative session.

Things were confused enough, in fact, that legislative leaders and Gov. Tom Corbett originally signed an earlier version of the law that lacked the gun provisions. They signed the correct version days later. But the lawsuit contends the legislation still violates the state constitution, which requires that “[n]o bill shall be passed containing more than one subject.”

“Other than the fact that they both employ the English language, there was no connection between these bills,” Mr. Leach said.

(Legislators weighed attaching the gun provisions to another measure, House Bill 1796, that also related to preempting local ordinances. But that measure was intended to shield domestic-violence victims from ordinances concerning nuisance tenants: Its sponsor, state Rep. Todd Stephens, D-Horsham,, said legislators determined “domestic violence and guns don’t mix.”)

Republican legislative leaders, who are named as defendants, have pledged to fight the suit. Stephen Miskin, spokesman for the House Republicans, acknowledged that confusion attended the bill’s signing, but said, “It’s nothing that hasn’t happened before.

“In the end,” he added, “the legislation did only one thing: It reiterated supremacy of state law.”

Mr. Leach said the lawsuit probably won’t prevent Act 192 from becoming effective next month.

Mr. Stolfer said that before suing anyone, his group would write to local governments and say, “Comply with the law now and nothing will happen. But we’ll take action if you force us to” by not rescinding the laws.

Some municipalities have already repealed their lost-and-stolen measures because they “don’t want to face a lawsuit,” said Ms. Goodman of CeaseFirePA. Others, like Castle Shannon, are preparing to do so.

“It’s a shame, but what are you going to do?” said Mr. Baumgarten. Gun groups “have all the power.”

Lancaster Mayor J. Richard Gray decried Harrisburg for not acting on gun-violence concerns itself. “I’d be willing to give up lost-and-stolen,” he said, “if people would get reasonable.”

Chris Potter: cpotter@post-gazette.com or 412-263-2533

http://www.post-gazette.com/news/state/2014/12/14/New-law-triggers-war-of-words-over-firearms/stories/201412120015