I laugh when the elitists and busybody extremists who comprise much of the opposition to the right to keep and bear arms whinge that owning and carrying a firearm involves less bureaucracy than purchasing an automobile. Laws related to firearms in the United States are so labyrinthine that they require a team of attorneys to keep things straight. Heck, some of the regulations are occasionally dreamed up by the people tasked with enforcing them. The stakes are high . . .
An innocent mistake may result in years in prison and losing your right to own firearms and (in some jurisdictions) your right to vote — for life. It’s small wonder that people just trying to go about their business in an honest, lawful fashion sometimes find themselves run out of town by regulations that don’t explicitly ban their trade, but are designed to harass and otherwise encourage them to consider a different line of work.
In constitutional law, this is known as a “chilling effect,” which my trusty copy of Black’s Law Dictionary (6th ed.) defines as “any law or practice which has the effect of seriously discouraging the exercise of a constitutional right….” Courts have found “a number of cases that constitutional violations may arise from the deterrent, or “chilling” effect of governmental action that falls short of a direct prohibition against the exercise of the First Amendment.” See Reporters Comm. for Freedom of the Press v. American Telephone & Telegraph Co., 593 F.2d 1030, 1052.
It’s important to keep that in mind when we consider Bass Pro Shops’ policy concerning online ammunition sales to customers in the city of Pittsburgh, Pennsylvania. A Pittsburgh-area man who posts under the username ‘Emptymag’ on the Pennsylvania Firearm Owners Association forum recently experienced firsthand the results of this chilling effect.
As a shooting sports hobbyist, Emptymag is always on the lookout for good deals on ammunition and firearms accessories. In December 2014, he noticed that Bass Pro was offering an online sale on .22 Long Rifle ammunition. With visions of hundreds of rounds of ammunition under his Christmas Tree dancing in his head, he placed an order. To his surprise, he promptly received this cancelation notice:
We take great pride in providing you with the best possible service. However, we regret to inform you that we are unable to process your order because the items you requested are restricted from the shipping address on your order. Your order has been cancelled, and you have not been charged. We sincerely apologize for the inconvenience, but look forward to serving you in the future!
Confused, Emptymag immediately reached out to Bass Pro’s online customer support. The representative he chatted with directed him to a notice on basspro.com:
Ammunition is restricted from sale to CT, DC, IL, MA, NJ, NY, Annapolis, MD, Los Angeles, Sacramento, Oakland, Berkeley, San Jose, Carson City, Santa Ana, Santa Clara, Marin County, Contra Costa County, and San Francisco, CA, New Orleans, LA, St. Paul City, MN, Pittsburgh, and Philadelphia, PA.
Since I am a resident of Pittsburgh, I tried placing my own ammo order from Bass Pro, and received a similar cancelation notice. I spoke directly with a friendly customer service representative who explained that Bass Pro was trying to comply with a Pittsburgh municipal ordinance. As the ordinance requires photo identification and record keeping for all retail sales of ammunition within Pittsburgh city limits, and since Bass Pro’s online site was not set up to accommodate these requirements, they were canceling online ammunition orders from the city of Pittsburgh.
Fair enough. It is important to scrupulously follow the law, particularly when it applies to products such as firearms and ammunition. There’s one problem, though.
Pennsylvania’s legislature long ago preempted (at 18 Pa.C.S. § 6120) all local laws in the Commonwealth relating to the regulation of firearms or ammunition. Any laws in Pennsylvania regulating those two subjects can only come from the legislature in Harrisburg, not from township, borough, city, or county administrations. Laws enacted by municipalities in defiance of the pre-emption law are unenforceable.
As an aside, the legislature has carved out some special rules for cities that have more than one million in population, (called “cities of the first class”), but Philadelphia is the only municipality that qualifies as a “city of the first class” [insert your own Philly joke here] under the statute.
When you boil it all down, Bass Pro has decided to follow a Pittsburgh ordinance that on its face violates Pennsylvania’s Uniform Firearms Act. Attempts were made to contact Bass Pro’s communications director and a manager, but I have yet to hear from them regarding why they chose this policy. I can speculate, however, that they might be concerned that some repression-minded politician in Pittsburgh might decide to liven up his career by trying to prosecute a disfavored company for violating a municipal firearms ordinance.
Even if Bass Pro managed to win on the merits in Pennsylvania courts, it still might stir up a hornet’s nest of costly retirbution from the ranks of politicans, bureaucrats from the FBI and ATF, and certain elements in the media. After all, Bass Pro is already in the crosshairs of the EEOC for alleged ethnic discrimination in hiring practices (despite an apparent lack of plaintiffs).
The winds of change, however, may picking up a little in the Keystone state. Pennsylvania enacted a law last year that would not require gun owners to show that they were actually harmed by ordinances that violated Pennsylvania’s preemption of municipal laws on firearms and ammunition. Lawsuits are currently being filed challenging several municipal statutes under that law. (There is also another lawsuit claiming that the new law violates Pennsylvania’s constitution filed by several cities–including Pittsburgh).
Of course, none of that helps our friend Emptymag who was denied a little Christmas cheer due to Pittsburgh’s unenforceable laws. To make matters worse, he doesn’t even live within the city limits of Pittsburgh. According to Bass Pro’s own policy, he should have been in the clear. I suppose that whatever team manages Bass Pro’s online sales system was so concerned about obeying Pittsburgh’s unenforceable law that they were a little over-inclusive in their verboten zones. So as it stands right now, if you live in Pittsburgh, or just close to it, you’ll have to shop elsewhere for your online ammunition needs. Bass Pro loses business; citizens lose a choice from whom to buy.
And that’s what a chilling effect is all about, Charlie Brown.
The opinions expressed in this article are solely my own; the references to statutory and case law are made for background reference, and do not reflect legal advice, nor do they establish a attorney-client relationship in any manner whatsoever. Case law and statutes change over time, and no guarantee is made that any information relating to the law is accurate. If you need legal advice, you are urged consult your local bar association for recommendations on hiring an attorney licensed to practice in your jurisdiction.