For the Defense - Vol. 7, Issue 3 - 45

53 Pa.C.S. § 2962(g), which in relation to home rule and
optional plan governments, provides: " A municipality
shall not enact any ordinance or take any other action
dealing with the regulation of the transfer, ownership,
transportation or possession of firearms. "
There are also firearm range protection statutes found
in 35 P.S. §§ 4501, 4502. However, these are just the
statutory provisions regarding preemption.5
of the Pennsylvania Constitution.
Non-statutory
preemption also occurs in the form of field preemption,6
and, as discussed below, preemption stemming from Article
1, Sections 21 and 257
While a legion of precedent developed regarding
Section 6120, the first case where the Pennsylvania
Supreme Court weighed in on firearm preemption was
in Ortiz v. Commonwealth.8
In Ortiz, Philadelphia and
Pittsburgh sought to regulate, among other things,
assault weapons and large capacity magazines. While the
Court reviewed Section 6120 in Ortiz, it appears based on
the Court's holding that it decided the matter not under
Section 6120, but rather, pursuant to Article 1, Section 21
of the Pennsylvania Constitution, as it declared:
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. Thus, regulation
of firearms is a matter of concern in all of
Pennsylvania, not merely in Philadelphia
and Pittsburgh, and the General Assembly,
not city councils, is the proper forum for the
imposition of such regulation.9
Nevertheless, more recently, in Commonwealth v. Hicks,10
the Court cited Ortiz and declared that the " General
Assembly's reservation of the exclusive prerogative to
regulate firearms in this Commonwealth, [is] codified
at 18 Pa.C.S. § 6120 " (emphasis added). Thus, the Court
left the issue open to debate and any challenge to an
unlawful ordinance should raise both Section 6120 and
Article 1, Section 21.
Against this backdrop, the Commonwealth Court has
issued numerous decisions - all, except one,11
finding that
where standing existed to challenge the ordinances, the
ordinances violated Section 6120. For example, in Firearm
Owners Against Crime v. Lower Merion Twp.12
v. City of Erie,13
and Dillon
the Commonwealth Court held that
municipalities may not regulate firearms and ammunition
in city parks, including the discharge of firearms. In Clarke
v. House of Representatives,14
the court held that the City
Vol. 7, Issue 3 l For The Defense 45
of Philadelphia's ordinances were in direct contravention
of Section 6120 which, among other things, limited
handgun purchase to one per month, prohibited straw
purchasers, prohibited possession and transfer of assault
weapons, mandated reporting of lost and stolen firearms,
and required a license to acquire a firearm.
In City of Philadelphia v. Armstrong,15
the court found
that the City of Philadelphia's recently enforced lost and
stolen firearm ordinance, which required an individual to
report any lost or stolen firearm to police, was unlawful,
pursuant to Section 6120. In Nat'l Rifle Ass'n v. City of
Philadelphia,16
while the court found that the plaintiffs
lacked standing to challenge three of the ordinances, it
found they did have standing to challenge the assault
weapon and straw purchasers ordinances and that those
ordinances were violative of Section 6120. More recently,
the court en banc reassessed its analysis of standing for
purposes of challenging an unlawful ordinance and
declared: " Our precedent in NRA/Pittsburgh and NRA/
Philadelphia is untenable and must be overruled because
it affords greater access to the courts to challenge the
facial constitutionality of ordinances to scofflaws than
to law-abiding citizens. It makes little sense to wait for
Appellants to break the law, which we presume they do
not want to do, before they can challenge it. " 17
Of course, the elephant in the room is where we started:
the Commonwealth Court's most recent decision in Firearm
Owners Against Crime v. City of Pittsburgh.18
In April of
2019, the City of Pittsburgh enacted three ordinances
regulating assault weapons, large capacity magazines, and
extreme risk protection orders. The same day they were
enacted, Firearm Owners Against Crime, Firearms Policy
Coalition, and Firearms Policy Foundation, in addition to
three individual plaintiffs, filed suit pursuant to Section
6120 and Article 1, Sections 21 and 25. The Allegheny
County Court of Common Pleas, on the grounds of field
preemption, found that the ordinances were unlawful in
toto. The City appealed, which led to the Commonwealth
Court's en banc ruling that the ordinances, in toto, were
violative of Section 6120.19
To no surprise, as City officials
stated at the enactment of the ordinances that they
intended to take these ordinances to the Pennsylvania
Supreme Court, on June 27, 2022, the City petitioned for
allowance of appeal.
As there are three firearm preemption-related cases
it seems likely that the Court will take up one
PANTONE
currently pending before the Pennsylvania Supreme
Court,20
or more of the cases in the next six to twelve months.
In the event the Court does wade into the fray, it will
be interesting to see whether it finds the regulation of
firearms to be preempted via statute, field preemption,
Article 1, Sections 21 and 25, or all the above.
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For the Defense - Vol. 7, Issue 3

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