Taking on Gun Safety Preemption in Pennsylvania


PA Lawsuit Taking on Preemption of Local Gun Safety Laws Dismissed; City of Philadelphia and Families of Gun Violence Victims Vow to Appeal

May 27, 2022 — The City of Philadelphia, residents of Philadelphia and Allegheny County who have lost family members to gun violence, and CeaseFirePA plan to appeal a decision released yesterday afternoon from Commonwealth Court dismissing their lawsuit challenging Pennsylvania’s Firearm Preemption Laws. These laws, they claim, violate the Pennsylvania State Constitution’s fundamental right to life and liberty for residents of communities facing high rates of gun violence by blocking Philadelphia and other municipalities from enacting common-sense local gun laws.

In a 3-2 decision, the Commonwealth Court of Pennsylvania sitting en banc dismissed the case, first filed in October 2020 against the Commonwealth of Pennsylvania and leaders in the state legislature. In a plurality opinion, the Court sustained preliminary objections filed by legislative leaders and claimed that dismissing the case was required under precedent from previous cases that did not find Pennsylvania Firearm Preemption Laws to be unconstitutional.

“It is shameful for our state legislature to handcuff local lawmakers, preventing them from even enacting gun safety laws their residents are demanding with a unified voice. Firearm preemption must end in Pennsylvania. We will appeal” – Mimi McKenzie, legal director

The plurality opinion asserts that Pennsylvania’s Firearm Preemption Laws were drafted to ensure that Pennsylvanians “would not be subjected to varying and differing firearm regulations as they travel from town to town.” Ensuring this uniformity statewide by blocking local gun regulation “directly furthers a legitimate government interest,” the opinion reads.

“Therefore, even if the General Assembly was aware that certain geographical areas and/or members of society could potentially be exposed to gun violence on a greater scale, the General Assembly had a legitimate, countervailing government interest in passing [Firearm Preemption Laws],” the opinion reads.

Philadelphia faced its most violent year on record in 2021. There were 486 fatal shootings, a 112% increase from 2017. More than 2,300 Philadelphians were shot, including 213 children. In their petition for review, petitioners described several evidence-based local gun safety regulations that the City of Philadelphia has passed, all of which were blocked by Pennsylvania’s Firearm Preemption Laws. These include a law prohibiting guns from playgrounds and recreation centers, laws requiring gun licensing, and laws limiting residents to one gun purchase per month.

A concurring opinion, however, noted that it felt constrained to uphold Pennsylvania’s Firearm Preemption Laws under precedent, but recognized that “local conditions may well justify more severe restrictions than are necessary statewide.” The concurring opinion approvingly quotes a previous Commonwealth Court concurring opinion in a case involving gun safety regulations, stating that it is not “consistent with simply humanity to deny basic safety regulations to citizens who desperately need them.”

Two judges joined a dissenting opinion. “Pennsylvania’s municipalities have an important duty to protect the health, welfare, and safety of their citizens,” the opinion reads. “In my view, protecting citizens against the threat of gun violence lies at the heart of this duty.”

The petitioners are represented by the City of Philadelphia Law Department, the Public Interest Law Center, and Hogan Lovells US LLP. The Philadelphia Inquirer covered the decision last night.

Parties and attorneys involved in the case released the following statements:

“We’re incredibly disappointed that the court has again refused to allow the City the authority to help address the gun violence crisis that is devastating the City, Commonwealth and nation,” said Philadelphia Mayor Jim Kenney. “Too many lives are lost or irredeemably shattered to stop fighting.”

“Last year, Philadelphia experienced record highs in gun homicides and shootings. This year so far, that violent pace is ongoing and unrelenting,” said Philadelphia City Council President Darrell L. Clarke. “Philadelphians – as well as our fellow citizens in other Pennsylvania cities and towns – have a constitutional right to life and liberty, and the Commonwealth and General Assembly, by their utter failure to enact stronger gun laws, are violating those constitutional rights. We will urgently bring our case now to the Pennsylvania Supreme Court, and pray for relief there as soon as possible.”

“We are still looking at the decision and disappointed overall,” said Adam Garber, executive director of CeaseFirePA. “But we are encouraged that for the second time this year Commonwealth Court judges have recognized that firearm preemption should be revisited and reevaluated, and that Pennsylvanians’ right to life and liberty should be considered. Now it’s time for the PA Supreme Court to determine local officials can safeguard their residents’ lives.”

“Our clients and hundreds of thousands of Philadelphians face the escalating threat of gun violence every day,” said Mimi McKenzie, legal director at the Public Interest Law Center. “And every day, community organizations, churches, and families are making herculean efforts to stem the tide in the neighborhoods hit hardest by gun violence: working class and poor Black and Latino communities that have faced disinvestment for decades. It is shameful for our state legislature to handcuff local lawmakers, preventing them from even enacting gun safety laws their residents are demanding with a unified voice. Firearm preemption must end in Pennsylvania. We will appeal.”

“The fractured opinion in this case, together with the one in City of Philadelphia v. Armstrong and the never ending gun violence on our streets, make clear the need for the Supreme Court of Pennsylvania to address these issues,” said Hogan Lovells partner Virginia Gibson. “Between the two cases, four judges of the Commonwealth Court have now recognized the need to, at the very least, revisit the supreme court’s Ortiz decision to give cities in Pennsylvania a fighting chance to address gun violence. We will urge the Court to do so in our appeal.”