Limerick Township Violates Preemption!?

[billamj]

GunLawyer001 - I'll take your word for it, you are the professional here, but it sure smells like rotten eggs to me.

[exceltoexcel]

I'll find a court rulling for you.

[exceltoexcel]

In Pennsylvania, Philadelphia passed an ordinance, approved by the mayor on June 17, 1993, regulating the ownership of assault weapons. A city councilman filed for declaratory and injunctive relief to enjoin the Commonwealth's preemption of the Philadelphia regulation and to declare the state's action to be in violation of the state's constitution , the home rule charter and the Home Rule Enabling Act, 53 Pa. C.S. 13101 et seq. The City of Pittsburgh which passed a similar ordinance in November, 1993 intervened after oral argument. The matter was subsequently dismissed. An appeal followed. Ortiz v Com., 545 Pa. 279 (1996).

Article 9, Section 2 of the Constitution of Pennsylvania provides the basis for home rule charters. However, in pertinent part it reads:

A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time. (italics added)

Following the enactment of the two ordinances, Pennsylvania's General Assembly passed House Bill 185, amending Title 18 of the Crimes Code, including the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. 6101-6124. The amendment appears at 18 Pa.C.S. 6120 and provides:

(a) General rule. - No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

(b) Definition. - For the purpose of this section, the term "firearms" has the meaning given in section 5515 (relating to prohibiting of paramilitary training) but shall not include "air rifles" as defined in section 6304 (relating to sale and use of air rifles).

One argument the cities raised was that the power of home rule municipalities may be restricted only when the General Assembly enacts statutes on matters of statewide concern. The Court agreed with the parties premise, but stated that the issue of firearm regulation is such an issue, citing Article 1, Section 21 of the Constitution of Pennsylvania which provides:

The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

The Court explained:

"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, {I'm guessing LIMERICK as well } where it may be abridged at will, but that 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."

In Hilly v City of Portland, 582 A 2d. 1213 (Me. 1990), the Supreme Judicial Court of Maine considered whether the concealed firearms statute, 25 M.R.S.A. 2001-2006 was constitutional. The Court also considered whether the City of Portland's denial of plaintiff's renewal application for a permit to carry a concealed weapon was legal.

[GunLawyer001]

To answer your earlier question: Yes, I have a Juris Doctorate, and I did pass the bar on my first try. I've been practicing for over 10 years.

I believe that I already alluded to Philadelphia being pre-empted when they tried to redefine "prohibited offensive weapons", which appears in the Commonwealth Crimes Code, to include "assault weapons" within the borders of the City of Philadelphia. Not just on City property, EVERYWHERE within the City, including your home, your gun range, your storage facility, your place of business, EVERYWHERE. That's why I said above that if you're legal in your car in Bucks county, you can drive through Philadelphia legally.

That case doesn't support your position.

[exceltoexcel]

"but that shall not be questioned in any part of the commonwealth"

I think limerick township park is part of the commonwealth

Firearms/Hunting. The Home Rule Law prohibits home rule municipalities from regulating the transfer,
ownership, transportation or possession of firearms.11 Although Philadelphia's enabling legislation does not
include this limitation, the courts invalidated two firearms ordinances because they conflicted with the Uniform
Firearms Act.12 The Supreme Court upheld the General Assembly’s preemption of Philadelphia and Pittsburgh’s
attempts to regulate assault weapons.13

[danp]

Originally Posted by exceltoexcel

Did you pass the bar, is your JD in copywrite law?

If GunLawyer01 is who I think it is they are fully qualified to answer such a question and I'm inclined to give them a very, very large benefit of the doubt in knowing the law better than all the rest of us combined.

We might not like what they're saying, but last time I checked they're the only lawyer here and they're giving us exactly what we were hoping for: An informed legal opinion that would cost us boatloads of money to get otherwise so let's give them some respect here. Questioning their credentials simply because their legal interpretation differs from the one we were hoping is just not polite.

[knight0334]

Originally Posted by danp

GunLawyer,
First off thanks a million for taking the time to provide us with this information. Even though it is not what we were thinking I'm sure we're all extremely happy to have someone (with experience) provide a legal viewpoint to all of this.

I do have one question however.

What prevents a locality from simply claiming that their entire town/city/etc is private property and banning guns on all of their private property?

I don't mean to make the issue more complicated than it is but it's my understanding that in most states (including PA) even a homeowner doesn't actually own the land itself and it is in fact owned by the government, they just give you permission to build/live on it.

The streets, parks and even buildings of a municipality can never be private property unless deed is held by an individual or corperation. Government on any level is just an entity, it isnt fixed body or private individual/corperation. Assets aquired, whether right-of-way or land are public domain if purchaced with funds from taxes or duties. Basicaly, if a town purchases a right-of-way or plot of land from an individual with moneys from taxes(local or grants from higher Gov'ts), it is now your land, my land, and everyone elses' land - thus public property.

The only way a municipality can make a park or any other place "off limits" is if they dont use public revenue to upkeep, maintain, or build a park ON privately owned land. And for that, they would need the real landowner to make the criteria as well.

[exceltoexcel]

The district court, in upholding the constitutionality of section 6120, held that the state "legislature may contract the power of home rule municipalities such as Philadelphia." Id. at 892. Finding the city's lawsuit was based on power it could only have received from the state legislature, and that this power had been revoked by section 6120, the court dismissed the action, stating that "the power to regulate firearms within the state [by legislation or litigation] now lies exclusively with the state legislature." Id. at 890.

i think that pretty much says it all.

[exceltoexcel]

Originally Posted by danp

If GunLawyer01 is who I think it is they are fully qualified to answer such a question and I'm inclined to give them a very, very large benefit of the doubt in knowing the law better than all the rest of us combined.

We might not like what they're saying, but last time I checked they're the only lawyer here and they're giving us exactly what we were hoping for: An informed legal opinion that would cost us boatloads of money to get otherwise so let's give them some respect here. Questioning their credentials simply because their legal interpretation differs from the one we were hoping is just not polite.

I'm not intending to be rude, there are many different aspects of law and one versed in one aspect doesn't necessarily have the credentials to evaluate another.

I wouldn't go to a cardiovascular surgeon when I need neurosurgeon. While I respect his opinion I have yet to hear an argument against "in any manner"

Nor would I tell you how to program a web page when I'm an VB developer specialising in Excel VBA. I might have an opinion on it and one that is better than people with no training but that doesn't make me suited either way. I'm more interested in discussing the topic and not private property rights.

I might not be correct but have yet to see one single posting of law that would substantiate any of these claims, no case law, no general judges opinions, nothing other than his opinion. While I respect his opinion I need something more substantial than that. I've have tons of opinons and laws posted. Yet not one scrap of rebuttle text from him thats from a legal source. I hope I havn't offended him, that isn't my intention.

[billamj]

But they are not saying that you can not own or transport within their jurisdiction, they are saying that you may not posess one on twonship land. We may not like it, but this is a case where it is what it is. We could always request from our various state legislators that they expand the definitions, but until they do we have to go with state law as it has been found.