Why sue the City of Harrisburg over Its Illegal Gun Laws?

In our last post, we issued a press release over the US Law Shield’s lawsuit against the City of Harrisburg over its illegal gun laws. See US Law Shield Sues City of Harrisburg Over Its Illegal Gun Laws

Some people have asked “Why sue the City?” and “Aren’t these gun laws just ‘common sense laws’ to protect people in a city that is filled with gun violence?”

The answers are simple.

The slippery slope

This is where all gun grabbers begin. They begin by framing all local gun laws as “common sense.” They claim that the laws will reduce gun violence when there is no data to support that whatsoever. Has the city of Harrisburg’s gun violence per capita gone down since the enacting of these illegal laws? No!

Then the next thing that they do is pass a law that requires gun registration because that, they claim, will reduce crime. When crime doesn’t go down, they seek new laws like magazine restrictions. Then when crime doesn’t go down, they pass a law that says certain types of weapons for example “assault rifles” (the modern sporting rifle) must be banned in the city despite the fact that a super majority of criminal firearm acts are not carried out with these weapons. Crime, not surprisingly, doesn’t do down. Then they pass a law that takes guns away from citizens.

It is a slippery slope that leads to the end that when guns are outlawed only outlaws will have guns.

Our History as Pennsylvanians

Further, guns and state legislature based gun laws are historically part of Pennsylvania. We are a hunting and shooting sport culture. Pennsylvanians have enjoyed strong rights to keep and own firearms as we outlined in this post: The modern history of Pennsylvania Concealed Carry: What makes Pennsylvania a “Shall Issue” state?

Article 1 Section 21 of the Declaration of Rights (the Pennsylvania State Constitution) is very clear. It reads “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

Before Act 192 of 2014, there was 18 PS 6120 which made local laws over guns and ammo illegal as the state legislature totally pre-occupies the field. Act 192 of 2014 did not change this. It just made it more feasible for gun owners to sue to get these illegal laws off the books.

Preemption law makes sense

We have uniform laws and rules for a reason. No one benefits when people who want to be law abiding become accidental criminals. Having uniform laws passed by the legislature and signed by the Governor conveniently allows for everyone to be placed on fair notice of what is legal and illegal. It provides a necessary check and balance to make sure that our ancient right to keep and bear arms is not infringed. Most of all, it just makes sense.

Preemption isn’t something new. We have had it in transportation related law in Pennsylvania as well as in other areas. Many states have it when it comes to gun laws. Our federal government has it in copyright and trademark law as well. Our state has had preemption in gun laws ever since 18 PS 6120 was originally passed in 1974, as amended in 1988, then again in 1994, then again in 1999, and finally in 2014. That’s 40 years!

Imagine if a municipality was allowed to make up its own traffic laws. If the City Council of Harrisburg and the Mayor suddenly decided that they wanted to outlaw driving on the right side of the road and only driving on the left hand side of the road on city owned roads were legal. Can you imagine that mess? State roads and interstates versus the crazy left hand drive only roads of the city? It would be a large safety issue. You’d have to keep track as to which roads are city, which are state, and which are interstate. What if you are wrong? You, trusting on state law driving on the right side of the road, would suddenly become an unintentional criminal by violating the law when on a city road. The same thing holds true with firearms. It is a safety issue.

But the City has said that they don’t enforce the ordinances, what is the big deal?

According to public reports by the Chief of Police, at least one of the ordinances the police routinely cite when violated. Our position is simple. If they have no intent to use these ordinances, then simply rescind them. Recall that just months ago when Representative Marty Flynn, D-Scranton exchanged gunfire with his would be assailants, that situation where all people agree was in self-defense, is against the ordinances of Harrisburg.

Why not use someone who actually lives in the City as a representative plaintiff?

The Capital City, Harrisburg, is The People’s City. Everyone should feel welcome in the Capital City. Right now, law abiding gun owners cannot. Further, those who live outside the City of Harrisburg have absolutely no say in the passage of these laws. They are not represented. They cannot vote for city council. They cannot vote for Mayor. But they are bound by these ordinances. This is precisely why we have a state legislature. It allows for robust debate and a wide cross-section of all who are citizens of this great state. Further, this is a right that we are talking about. A fundamental enshrined right in the Bill of Rights, not some trivial matter. Such a thing commands respect and a deliberative process in our state legislature.

Additionally, it takes courage to stand up to the government. Being named in a lawsuit that will be all over the media and will forever be on the books is far from an act of anonymity. Most citizens who are law abiding citizens value their privacy. While there are many USLS members that live in the city, few want the microscopic examination and notoriety that comes with such a lawsuit.

Isn’t this just all about Attorney’s Fees?

It’s not. There is no denying that there is a provision under Act 192 that allows for attorney’s fees. However, if Act 192 is declared unconstitutional, the lawsuit still carries on as Justin J. McShane suing as an individual. In such a case where there is no Act 192 in operation, attorney’s fees are not typically awarded.

The legal question

In essence, the legal question is simple. It is technically stated as:

Are the various City of Harrisburg ordinances which regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components in the City of Harrisburg violative of state preemption laws which were passed by the legislature and signed by the Governor as Act 192 of 2014, which gives the legislature the total and complete authority to pass gun laws and which completely occupies the field of gun-related laws in the state?

Here is the law as it stands:

6120. Limitation on the regulation of firearms and ammunition

(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.

(a.1) No right of action.–

(1) No political subdivision may bring or maintain an action at law or in equity against any firearms or ammunition manufacturer, trade association or dealer for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to either the lawful design or manufacture of firearms or ammunition or the lawful marketing or sale of firearms or ammunition to the public.

(2) Nothing in this subsection shall be construed to prohibit a political subdivision from bringing or maintaining an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision.

(a.2) Relief.–A person adversely affected by an ordinance, a resolution, regulation, rule, practice or any other action promulgated or enforced by a county, municipality or township prohibited under subsection (a) or 53 Pa.C.S. § 2962(g) (relating to limitation on municipal powers) may seek declaratory or injunctive relief and actual damages in an appropriate court.

(a.3) Reasonable expenses.–A court shall award reasonable expenses to a person adversely affected in an action under subsection (a.2) for any of the following:

(1) A final determination by the court is granted in favor of the person adversely affected.

(2) The regulation in question is rescinded, repealed or otherwise abrogated after suit has been filed under subsection (a.2) but before the final determination by the court.

(b) Definitions.–As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Dealer.” The term shall include any person engaged in the business of selling at wholesale or retail a firearm or ammunition.

“Firearms.” This term shall have the meaning given to it in section 5515 (relating to prohibiting of paramilitary training) but shall not include air rifles as that term is defined in section 6304 (relating to sale and use of air rifles).

“Person adversely affected.” Any of the following:

(1) A resident of this Commonwealth who may legally possess a firearm under Federal and State law.

(2) A person who otherwise has standing under the laws of this Commonwealth to bring an action under subsection (a.2).

(3) A membership organization, in which a member is a person described under paragraph (1) or (2).

“Political subdivision.” The term shall include any home rule charter municipality, county, city, borough, incorporated town, township or school district.

“Reasonable expenses.” The term includes, but is not limited to, attorney fees, expert witness fees, court costs and compensation for loss of income.

Why just Sue the City of Harrisburg – Aren’t there other municipalities too?

The Mayor of the City of Harrisburg has  repeatedly stated publicly that he is critical of Act 192 of 2014 and will not seek to have the illegal Harrisburg gun laws rescinded. He does not have a legal leg to stand on. Although he has professed to respect the 2nd Amendment, he is not a member of a shooting or hunting club that we could discover. It is unknown if he even owns a gun. And if he does, we would invite him to come out and shoot with us to discuss this or his claimed respect for the 2nd amendment. He was given the opportunity to seek to rescind the illegal laws. He has refused and vowed to fight. That is his choice as the elected leader. Now he will have to answer for it in both the Court of law as well as the Court of public opinion. He has given the verbal middle finger to the legislature and has decided to stand publicly in violation of the law. It is time for the Capital City to learn that it must follow the laws that are passed in the Capital.

Here is the lawsuit itself: U.S.L.S. ex rel. Hoover v. Harrisburg FILE STAMPED 1-13-15

Here are the Ordinances as they actually read that are called into question by this lawsuit: Harrisburg City Ordinances