A long legal battle over whether anyone in the U.S. can sue a Pennsylvania town to overturn a local gun ordinance — even if they don’t live in the state — may have reached a turning point.
In late March, a Pennsylvania federal judge ruled that a gun group, Firearm Owners Against Crime, doesn’t have legal standing to sue to overturn two gun ordinances enacted by Harrisburg. Those laws, which were allowed to stand, bar guns in local parks and prohibit the discharge of firearms in the city.
The ruling comes nine months after an appellate court declared unconstitutional a 2014 law — Act 192 — that permitted outside groups, like the National Rifle Association, to sue municipalities with gun laws tougher than those on state books. Pennsylvania, along with most other states, doesn’t allow cities and towns to enforce more restrictive gun laws, a legal concept known as preemption. But until Act 192, a plaintiff had to live in the specific city with the gun ordinance in question, and had to prove they were “injured” by it.
Act 192 ushered in the most aggressive firearms preemption blitz in the country. The law held that if a plaintiff wins a preemption challenge, the town must pay damages and all legal costs. But if the town won, the plaintiff did not face that same financial burden.
Fearing expensive lawsuits, nearly 100 Pennsylvania municipalities scrambled to roll back their gun ordinances. “We’re basically being forced to repeal these laws at gunpoint,” Det Ansinn, the president of the Doylestown Borough Council, wrote on his Facebook page when the act passed.
But some larger cities that could better afford the cost of litigation held fast. A legal firestorm ensued.
Just days after 192 passed, Philadelphia, Pittsburgh, and Lancaster sued top state elected officials. The NRA then sued those cities. Harrisburg was sued by both Firearm Owners Against Crime, which is a local gun group, and a Texas-based outfit called U.S. Law Shield.
Harrisburg lost the initial rounds of the legal fight. In February 2015, a state court struck down three of the city’s five gun ordinances: a requirement to report a lost or stolen gun within 48 hours, a prohibition on the possession of firearms by anyone under 18, and a ban on gun sales and transfers during a state of emergency.
That left two ordinances still in effect: the ban on guns in local parks and a prohibition on the discharge of firearms in the city. The fight over those laws was taken up in federal court. On March 24, Judge Yvette Kane dismissed the lawsuit brought by Firearm Owners Against Crime, ruling the group did not have legal standing to sue.
Preemption, in the constitutional context, refers to the pecking order of legislation: Federal trumps state; state trumps local. It was pioneered as a policy-making strategy by the tobacco companies in 1965, when the industry used preemption to challenge new local clean air ordinances that were stricter than federal standards.
The gun lobby began using preemption as a tool in 1980s, when the NRA, working in conjunction with more extreme gun-rights groups, filed a flurry of lawsuits challenging local firearm ordinances. Since then, the number of states passing laws totally or partially barring cities and towns from having their own gun rules has jumped from seven to 45.
In its original form, Act 192 never addressed preemption, or firearms — it set penalties for scrap metal thefts. But right before the vote, a GOP lawmaker attached to it a four-year-old gun bill that removed the requirement that a plaintiff must be directly affected by a gun ordinance to sue over it, opening the door for anyone to sue any Pennsylvania town.
There are more than 2,600 municipalities in Pennsylvania. Supporters of Act 192 argue that replacing a patchwork of rules with unified state standards protects gun owners from inadvertently violating local laws when carrying their weapons across town lines.
“I think a lot of lawmakers agreed with the premise that they need a unified firearms code,” says Jeff Dempsey, program director for Ceasefire PA, which helped organize cities and legislators to serve as plaintiffs in the lawsuit brought by Philadelphia, Pittsburgh, and Lancaster. “What they didn’t agree with was having cities targeted financially.”
The stitching together of two unrelated subjects may prove to be Act 192’s undoing. A state court, ruling in June, held that the law was unconstitutional on the basis that it violates the single-subject rule, which says legislation may only address one main issue.
Arguments regarding the constitutionality of Act 192 are being heard in Pennsylvania Supreme Court, and a decision is expected by the summer.