By Angela Couloumbis of Spotlight PA and Stephen Caruso of Spotlight PA
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HARRISBURG — While Pennsylvania voters might look to the General Assembly to take action on new gun laws after the massacre of nearly 20 children in Texas, the judiciary will likely determine the direction of the commonwealth’s firearms policies in the coming months.
Three distinct suits are being appealed to the state’s highest court, all arguing that cities and municipalities in Pennsylvania should be allowed to pass their own gun laws.
The suits — which involve the state’s two largest cities, Philadelphia and Pittsburgh — seek to either loosen or overturn a nearly three-decade-old precedent that gives the legislature the sole authority to regulate gun ownership throughout the state.
Advocates for and against stricter gun policies in Pennsylvania say court action could have broad consequences. In one of the cases involving Philadelphia, the state Supreme Court is being asked to strike down as unconstitutional a 1995 law that preempts local jurisdictions from enacting stricter gun regulations — which could in turn force the legislature to rewrite it.
“Ours is a full-on attack on the firearm preemption,” said Mimi McKenzie, legal director of the Public Interest Law Center in Philadelphia and one of the attorneys handling the case.
In that lawsuit, the city of Philadelphia argued that the legislature’s steadfast refusal to strengthen laws aimed at reducing rising gun violence has prevented local governments from taking actions to protect their constituents.
The city — which brought the suit with CeaseFirePA, a nonprofit that seeks to reduce gun violence, and residents who have lost loved ones to firearms — said that gun violence disproportionately impacts low-income communities and communities of color, and that the state’s preemption law has endangered their lives, health, and safety in violation of the state constitution.
A panel of state appellate court judges disagreed.
Last week, Commonwealth Court dismissed the lawsuit in a 3-2 decision. It cited, among other factors, precedent from previous cases — including a key state Supreme Court ruling affirming the legislature’s exclusive right to write gun laws — that unsuccessfully sought to give local governments more say in regulating firearms.
Judge Patricia McCullough, a Republican who wrote the opinion, said legislators wrote the law to ensure that “citizens of the Commonwealth would not be subjected to varying and differing firearm regulations as they travel from town to town.”
Even if the legislature was aware that certain parts of the state could potentially be exposed to greater gun violence, it “had a legitimate, countervailing government interest” in passing laws to ensure uniformity.
But in an unusual move, the court amended its decision shortly after it was issued to include a nod to the need for more public discourse on guns.
And another judge suggested it might be time for the state’s highest court to reconsider precedent.
In a concurring opinion, Judge Renee Cohn Jubelirer, a Republican, highlighted the toll that gun violence takes on certain communities, which she said could justify stricter restrictions than those that exist in state law. She said the “novel” constitutional arguments raised by the city could provide a basis for the state Supreme Court to reexamine the preemption question.
Jubelirer quoted a senior judge in a separate case involving gun preemption laws, who wrote, “It is neither just to impose unnecessarily harsh limits in communities where they are not required nor consistent with simple humanity to deny basic safety regulations to citizens who desperately need them.”
In the Pittsburgh case, McCullough again wrote the majority opinion, which was also issued last week. Along with her colleagues on the bench, she sided with a coalition of pro-gun access groups who sued the city when it passed stricter gun measures, including an assault weapons ban, after the Tree of Life synagogue mass shooting. The 2018 massacre left 11 people dead in America’s deadliest antisemitic attack.
The city of Pittsburgh argued that the legislature had not preempted all firearms regulations at the local level. McCullough disagreed, saying lawmakers had made their uniformity intentions “unambiguous.”
But she again acknowledged the national debate over how to address gun violence.
“The precious lives lost to senseless violence in our nation is beyond tragic,” she wrote. “The systemic issues and divisiveness in this once united nation are painfully apparent. The pressing need for peaceful public discourse with respect for our “inalienable rights to Life, Liberty and the pursuit of Happiness” is imperative … for “[a] house divided against itself cannot stand.”
In a third lawsuit, decided earlier this year again by McCullough, the judge again upheld the state’s preemption on local gun ordinances. That case also is being appealed to the state Supreme Court.
The high court could decide not to accept that case, which was originally filed in Common Pleas Court and centers around a Philadelphia ordinance involving reporting lost and stolen firearms. Similarly, the justices could reject taking on the case involving the city of Pittsburgh, which also originated in a lower court.
But McKenzie said that because the Public Interest Law Center’s case challenging Pennsylvania’s preemption law as unconstitutional was filed at the appellate level, there is an automatic right of appeal to the state Supreme Court.
“They will have to address it in one way or another,” she said.
Inaction on guns isn’t new or unique to Pennsylvania. In recent years, Democratic Gov. Tom Wolf has called for stricter gun laws. But Republicans, who by and large oppose curbing gun access, have had near-total control of the General Assembly for the past three decades.
Parkland, Florida’s Stoneman Douglas High School shooting in 2018, however, spurred Pennsylvania lawmakers to take some action.
In that year’s budget, legislative leaders approved $70 million for school safety, meant to cover everything from metal detectors to more police in schools.
The Pennsylvania House Judiciary Committee at the time also called up a slew of bills for a vote, including legislation that would have mandated universal background checks. It failed to advance by a single vote.
The only related proposal to make it all the way to Wolf’s desk was Act 79, which made it quicker and easier for law enforcement to seize firearms from convicted domestic abusers.
The bill passed with wide bipartisan support, but nearly half of House Republicans opposed it. One pro-gun access legislator said it was “ramrodded through” the General Assembly; another argued on the state House floor that lives would not be saved “until we start addressing the root of the problem, getting the love of God and the love of our neighbors back into our hearts,” according to the Legislative Journal.
In the fall of 2019, gun control again jumped to the top of the national agenda after mass shootings in El Paso, Texas, and Dayton, Ohio, that eventually claimed 33 lives.
Wolf again asked the legislature to ban assault weapons, institute universal background checks, and pass an extreme risk protection — or “red flag” — law. The latter proposal would allow police, with a judge’s order, to seize an individual’s guns if the person is at risk of harming themself or others, and had support from former President Donald Trump and other Republicans.
Despite those endorsements, state Rep. Rob Kauffman (R., Franklin) declined to advance such legislation out of his committee.
“We will not be considering red flag in the House Judiciary Committee so long as Chairman Kauffman is chairman,” Kauffman said at the time.
Instead, the committee advanced bills that would increase prison sentences for gun crimes and ease the laws that control where, when, and which weapons an individual can carry. Just one proposal of the bunch reached Wolf’s desk. The governor vetoed it.
Under pressure from conservative activists, most Republicans, with support from some Democrats, sent two more bills that would loosen gun laws to Wolf’s desk last year, including a proposal to allow for permitless concealed carry in the commonwealth. The governor also vetoed those bills.
Democrats in the legislature largely support stricter gun laws, including expanding background checks, mandatory reporting for lost and stolen guns, and requiring gun owners to lock up their firearms in a safe when not in use.
Unhappy with inaction by Republicans, House Democrats tried to force a rare floor vote on an assault weapons ban just days after the Uvalde school shooting.
The measure failed 87-111 nearly along party lines.
“No matter how many moments of silence there are, no matter how many tweets there are saying ‘thoughts and prayers,’ no matter how many times we seem to march and rally, when we get to this state capitol, nothing happens,” House Minority Leader Joanna McClinton (D., Philadelphia) said after the vote. “The laws don’t change.”
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