Harrisburg Mayor Eric Papenfuse
Harrisburg Mayor Eric Papenfuse (Shutterstock)
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From the Associated Press . . .

People can sue to challenge a city’s gun restrictions even if they have not been charged with violating them, Pennsylvania’s highest court ruled Wednesday.

A divided state Supreme Court said that Firearm Owners Against Crime and other plaintiffs have legal standing to take on the Harrisburg city gun ordinances. At issue are local laws with criminal penalties for discharging a gun outside a gun range, possessing guns in parks, failing to report lost or stolen guns within two days or unaccompanied children having firearms outside their homes.

The majority opinion in the 4-3 decision said the plaintiffs do not have to wait until they are charged with violating the ordinances before challenging them on constitutional grounds. The decision comes after years of work by Republicans in the state Legislature to prevent local governments from enacting gun laws that are more restrictive than what the state law imposes, and to widen who may sue to overturn such ordinances.

Kim Stolfer, who heads up the firearm owners’ group, said Wednesday he expects the case to return to a lower court where the underlying merits of their case will be decided.

“No citizen should face prosecution for exercising a constitutional right,” Stolfer said. “And that’s essentially what Harrisburg wanted us to go through to be qualified in this action to take on their illegal ordinances.”

Harrisburg Mayor Eric Papenfuse, a defendant along with the city and its police chief, said the lost-and-stolen ordinance has helped city police take on the illegal gun trade, an enforcement effort that removed 153 illegally possessed guns from Harrisburg’s streets this year.

He called the decision a dangerous precedent.

“We absolutely plan to defend our ordinances with all of our might,” Papenfuse said Wednesday. “I think the ruling was good news for lawyers and the gun lobby but terrible news for both the residents of Harrisburg and the residents of the commonwealth.”

The court decision centered on the legal issue of standing, or who is allowed to sue and under which circumstances, under the Pennsylvania Declaratory Judgments Act.

People generally need to show they have been harmed by a law in order to challenge it, but Justice Sallie Mundy outlined several cases in which that standard has been modified to permit lawsuits that put people in the position of complying with a law or giving up their rights.

Justice David Wecht, voting with the majority, wrote in a concurrence that standing “has evolved” to permit pre-enforcement review of governmental enactments.

“We do not require plaintiffs to violate laws or regulations and subject themselves to sanctions for engaging in protected conduct as the price of admission to the courthouse,” Wecht wrote.

In a dissent, Justice Max Baer said the plaintiffs have not claimed they engaged in conduct prohibited by law or that they intend to.

“Accordingly, I would hold that (they) have failed to establish a substantial, direct and immediate interest sufficient to afford them standing,” Baer wrote.

And Justice Christine Donohue said “mere ownership of a firearm does not establish an immediate or direct interest in the ordinances.”

The city ordinances in question were passed in 1821, 1905, 1951 and, in the case of the lost-and-stolen gun reporting requirement, 2009.

Adam Garber with CeaseFire PA, a group that seeks to reduce gun violence, said the decision will not make the state safer.

“This decision could scare local officials who are searching for innovative and new solutions to a public health crisis that is claiming the lives of their constituents on a daily basis,” Garber said in an email.

Firearm Owners Against Crime is a gun rights group that is regularly involved in lobbying and rallying on related issues in the state Capitol. It claims about 1,600 members. The other two plaintiffs, members of the group, are a Harrisburg resident and a man who works in the city, both concerned they could be prosecuted for violating the ordinances.

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    • But…the constitutional rights of a voting minority may be threatened while at the same time that minority has no chance of getting the government to vote in their favor. They have no legislative redress. They need the “court of last resort”.

    • We already have a pre-emption law. That’s the problem. No one can actually challenge a violation of the pre-emption law until someone is charged with a crime under the violation. That’s why it’s in the court.

    • Rant 7, the law wasn’t overturned. This was a standing case, i.e., can pltfs sue before being charged with a crime. Also, it’s Harrisburg violating the state’s preemption law.

  1. If a law restricts what a person can do they would have been harmed by compliance even if they were not charged in violation thereof. I can not have a full auto due to the FOPA of 86, it has deprived me of that (thereby causing me harm) although I have not made a post 86 MG.

    I should be allowed to seek injunctive relief thereof.

    • They only won the argument for standing because of Pennsylvania state law. If you want to challenge the Hughes Amendment or NFA, you’ll have to get standing by violating the law, getting arrested, and facing a $200k/10 year penalty.

  2. Anyone subject to the protections of the Constitution should be allowed to challenge the constitutionality of laws without having to prove “standing”. The mere inclusion as a citizen should be enough to prove standing. Some SCOTUS cases have recently been declared moot on the federal level simply because the court sat on them so long to make them so.

    • ^This! Yeah, the case where minors cannot purchase even rifles, yet minors can and do get hunting tags. And I believe some states have made the age at 21, which I can’t fathom since we have people 18 or older in the military. So they are old enough to join the military, but not old enough to own their own gun. What jackass came up with that idea… oh, wait, answered my own question.

  3. Hopefully we will be seeing forthcoming law suits against the other major cities in PA with similar crap on the books.

    Allentown still has a prohibition of any carrying of guns on the books but they never charge anyone under it as they know perfectly well that it would give that person standing to sue. Once that happened they would be ruled against as it is a clear violation of preemption.

  4. This should be the case in all cases where the second amendment is concerned. Nothing like trying to protect your rights under the constitution and if you lose, you get massive fines and/or jail time. It pushes a lot of people to have to comply (in my case, it could hurt my family severely if I were arrested for not complying with an unconstitutional law). Imagine, for those who have AR’s or AK’s, that Biden were to get the ATF to change the law regarding automatic weapons so that semi-auto rifles are included (which without legislative approval, is illegal anyways). If he still applied that, we have to take it to court, which takes time. So if someone has an AR or AK, they either have to register it or they could face jail time (and have all of their guns confiscated, not just the one semi-auto… talk about some messed up crap right there). And if they fight in the courts and lose, they lose big. It’s like the government doesn’t want the regular people to win. So yeah, this is what we need at the federal level. Along with this, if someone tries to fight in the court and loses, they should be afforded the chance to comply since they were trying to show it was unconstitutional in the first place.

    • Mike,

      “It’s like the government doesn’t want the regular people to win.”

      That is true in many regards. Having said that, the more accurate way to state the situation is that the Ruling Class structures government and laws for their benefit. Whenever government structure and laws benefit the Working Class, that is a coincidence and not by design.

  5. Some of these are not laws, they are city ordinances. They did not go through the state legislature. Maybe the state should bar cities/counties from making these ordinances and require that rules on firearms have to go through the state.

    • that’s kinda not correct. Ordinances are laws, just a specific type of law. An ordinance is a law (a local ‘limited’ statute) passed and enacted by a lower-level jurisdiction of municipal government (a municipal corporation, e.g. incorporated), it just doesn’t have force statewide. Ordinances fall into the area of municipal law not state law and are limited by the power granted the municipal corporation in the state constitution or statutes or through the legislative grant of a municipal charter.

  6. “In a dissent, Justice Max Baer said the plaintiffs have not claimed they engaged in conduct prohibited by law or that they intend to.”

    Baer forgets, or refuses to see how it applies here, the 5th Amendment of the U.S. Constitution. They are not required to “self incriminate” by making such a claim, which would indeed bring these anti-2nd Amendment, anti-self-protection governing bodies war hammer down on Firearm Owners Agianst Crime, and other such groups and individuals

  7. ““This decision could scare local officials who are searching for innovative and new solutions to a public health crisis that is claiming the lives of their constituents on a daily basis,” Garber said in an email.”

    People shooting other people may be a crisis, but it is not a public HEALTH crisis.

    They don’t need innovative or new solutions. The old solution works, put criminals in jail and keep them there.


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