Assuming the Mayor of Pittsburgh gets his way, tomorrow the City Council will vote on enacting several new gun bans, all of which face immediate questions in terms of their legality. The new laws include a ban on various types of “assault weapons” including rifles, handguns and shotguns. There are also bans on a variety of firearms accessories and the introduction of a new “red flag” law.
As our friend Jeff Duntez points out, even if they didn’t face significant Second Amendment issues, most of these laws aren’t permitted under existing state law. (Emphasis in original)
Section “a” of Pennsylvania Law 18 Pa.C.S.A. § 6120 states Limitation on the regulation of firearms and ammunition. (a) General rule.–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 this Commonwealth.
In other words, only the state can pass gun laws.
That seems fairly straightforward and would apply to most, though not all of the new regulations. The state law covers firearms, ammunition and ammunition components. The new Pittsburgh laws also delve into things such as bump stocks, which don’t fall under those classifications. Further, a bump stock isn’t really a component of a firearm since the removal of the accessory wouldn’t disable the firearm or even impede it from its original design operation. (Plus, bump stocks are highly problematic and we should look at banning them anyway.)
Pittsburgh has done a fairly thorough job of attempting to define an “assault rifle” in such a way that their legislation wouldn’t be seen in the courts as overly broad. For example, banned rifles would need to be semiautomatic as well as accepting a detachable magazine. But they would also have to have at least two additional features from a list including things such as a folding stock, pistol grip, bayonet mount or a flash suppressor.
Still, none of those provisions get them around the state law Jeff cites above. So how do they plan to get over that bar? By citing a section of the state constitution guaranteeing “the rights of all people to ‘peace, safety and happiness.’” Yeah… I don’t think that’s going to fly in a court of law. Plus, Jeff directs us to a report from the Daily Caller which notes that this strategy has been tried before and it failed in the courts every time.
In the 1996 case Ortiz v. Pennsylvania, the Supreme Court of Pennsylvania settled the question as to whether Pittsburgh and Philadelphia could restrict commonly-owned semi-automatic firearms. In finding that they could not, the court stated;
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 and Pittsburgh, where it may be abridged at will, but that it shall not be questioned in any part of the commonwealth.
All in all, the laws that Pittsburgh is trying to pass at a municipal level aren’t all that unusual compared to other state and municipal legislation around the country. (They’re bad laws, to be sure, and fly in the face of the Second Amendment. They’re just not really unusual.) What makes this case somewhat more unique is the fact that the Commonwealth of Pennsylvania has a barrier in place reserving the right to create gun control laws to the state.
If the people of Pittsburgh (and Philadelphia as well) really want to try to go down this path, they will first need to win enough state elections to alter the existing law, freeing up cities, towns and counties to pass their own gun laws. Of course, that can work out to be a double-edged sword too.