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Proposed Preemption Language

Currently our state’s preemption statute says this:

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.

This has been interpreted by some to mean local municipalities have some power to regulate guns, despite the Courts saying otherwise. I would propose Pennsylvania adopt a variation on Washington State’s language, which is unambiguous:

The General Assembly hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the Commonwealth, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Codes and ordinances enacted by counties, cities, townships, other municipalities or political subdivisions are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

And we also have Rep. Metcalfe’s proposed bill which adds some teeth to the preemption language:

Remedies for unlawful regulation.–Notwithstanding any other provision of law, upon finding that a county, municipality or township in any manner regulated the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components in violation of subsection (a) or 53 Pa.C.S. § 2962(g) (relating to limitation on municipal powers), a court shall direct the county, municipality or township to pay actual damages and reasonable attorney fees and costs to a party who successfully challenges the regulation.

I think we need both Rep. Metcalfe’s bill and a rewrite of the preemption language to make it crystal clear to local governments that they may not touch the area of firearms. Sadly, I don’t think attorneys fees will be any deterrent to Philadelphia, who will be happy to waste city taxpayer dollars on challenges, and then run poor mouthing to Harrisburg for more of our taxpayer dollars. I would like to see appropriations from Harrisburg to Philadelphia be contingent on them not passing unlawful ordinances.

20 Responses to “Proposed Preemption Language”

  1. Flight-ER-Doc says:

    I think Metcalfs bill should sever absolute immunity from prosecution for these illegal acts….make the DA, Mayor, CoP, street cops, whoever PERSONALLY liable for the cost of these illegal charges and they will stop, RFN.

  2. I’m with Flight ER Doc. Make the persons in power legally responsible for their misuse of government power in a court of law. They won’t be so quick to misuse their power if their own salary is at stake.

  3. Oh and I disagree that Washington’s preemption statute is better. Discharge of firearms is one of the things localities should be able to legitimately regulate. Shooting guns in your backyard is perfectly reasonable in a rural area, but not in the suburbs or the city.

  4. Stew says:

    In line with Jeff and Doc, is there a way to hold the officeholders who vote in favor of preempted ordinances personally liable?

    What about said individuals being criminally liable for infringing on civil liberties?

  5. Robb Allen says:

    Here in Florida, we have HB45 which does exactly that – allow charges to be brought against anyone who violates preemption.

    In fact, we have a flurry of new bills being introduced to make the Gunshine state even better when it comes to gun laws.

  6. Jacob says:

    I think it is already possible for someone to bring a lawsuit. I believe there is something in states and/or federal law which basically says that politicians and police cannot be sued for performing their duties, but that immunity does not apply when police try to enforce an illegal law.

  7. Flight-ER-Doc says:

    Jacob, there is 18USC1983 which prohibits depriving anyone of their civil rights under the color of authority.

    http://www.law.cornell.edu/uscode/42/1983.html

    The problem is that the abusers claim they’re doing their job, and not depriving anyone of their rights…and the jurisdictions taxpayers pay for their defense, and penalty: If a suit goes against them. Bringing a federal civil rights case is always hard, especially now with the Obama/Holder Department of Racial Justice….

    Severing the absolute immunity enjoyed by these thugs (especially the attorneys/judges) will stop it, NOW. It’s high time that these people start enjoying the benefits, and penalties, of their actions.

  8. Jacob says:

    Yes, but they know this law would be illegal so the police would not have immunity. It would not stop the city council from passing the law, and I don’t believe councilmembers could be sued for doing so, but no police agency would enforce it because they know each officer who tried to enforce it could be sued personally. This is why nobody is trying to enforce the local lost & stolen laws.

  9. Mobo says:

    I have a feeling that none of these local laws will ever be enforced. They probably intend to hang them over our heads just to intimidate us. They must know that none of this can survive a challenge, so they will take care not to enforce these laws just so they can keep them on the books.

    It is infuriating that these laws can’t be challenged on thier face, rather than waiting for some poor sap to put himself in legal jeapordy befor anything can be done about it. Worse yet, you can bet your last dollar that the test case (if one ever comes) will not be favorable to us. They can pick and choose which villain to use as a test case, and we can not.

  10. Sebastian says:

    Police have qualified immunity, meaning immunity only when acting according to the law. Politicians generally have absolute immunity when acting in their legislative role. But I’m not sure whether that applies to municipalities, since they are not technically sovereigns under the law. Certainly the state has the power to waive whatever immunity they might have.

  11. Adam Z says:

    As a Philly resident it irkes me to no end that this kind of happy-horse-crap is being proposed and even chuckled at by someone in the City Council. Then my personal tax dollars are going to pay to “defend” this asinine proposed law and fines.

    Absolutely, we need to nip this in the bud once and for all. Perhaps some of the readers from PAFOA, FOAC, etc. can put the bug in the ear of their local legislators or even Metcalfe to make his proposed language even tougher. Such as language
    in the WA State Preemption or HB 45 in FL. Whichever language would not only be stronger but also impose penalties on legislators that bring up this nonsense.

    On last nights NRANews, Cam was talking about this point so the NRA is of course aware of this situation. Perhaps they can also help push this type of stronger Preemptive language/legislation in the next cycle.

  12. Alpheus says:

    Unlimited immunity of judges and lawyers–particularly DAs–opens the door to tyranny. When a judge or a lawyer does something wrong, they should be held accountable.

    Come to think about it, unlimited immunity for anyone in power is a bad idea–it allows for all sorts of abuse to go unchecked!

  13. Jacob says:

    Don’t expect this sort of thing to stop until you can show you can hurt local officials at election time for doing things like this. You’re sending a very clear message to the statehouse that either you don’t care about issues and/or that you are too politically impotent to deal with them.

  14. Flight-ER-Doc says:

    Absolute immunity for judges and DA’s resulted in that little problem in Penna with judges sentencing kids to private juvenile detention facilities…that they had financial interests in. And what happened to them?

    Eventually, they got into trouble. How much damage was done to the kids terrorized, in many cases for trivial offenses, and is the punishment commensurate?

    Further, while the Judges got disbarred and jailed, what about the rest of the enablers?

  15. The problem of municipalities overstepping their authority and trying to regulate that which they may not is illustrative of what is wrong with the pro-gun movement. In an attempt to avoid spending a little money, pro-gunners have tried to deal with anti-gun forces by courting legislators and other politicians. We need to spend our money on something we have more control over.

    We need to sue them.

    One possible lawsuit in response to this lost-and-stolen ordinance is an action based on 18 USC 1962 (c), the Civil RICO Act. Under this act “It shall be unlawful for any persons employed by . . . any enterprise engaged in . . . interstate commerce, to conduct . . . such enterprise’s affairs through a pattern of racketeering activity.” “Racketeering activity” includes certain indictable crimes, but it also includes mail and wire fraud.

    Municipalities are not immune to Civil Rico actions, nor are billionaire-sponsored organizations who counsel municipalities.

    I and other attorneys have been looking at this possible course of action, but funding (spending money) and legal staffing needs to be worked out. This is major litigation and will require a fair amount of money even if the legal work is donated.

    Anti-gunners need to know that when they do something illegal they will be called to task and it will cost them money, and maybe even being branded a “racketeer.” Right now all they know is that a few pro-gun politicians will be unhappy and something may happen five years down the road.

    Not good enough. They need to be served with a complaint within a few weeks of their wrongdoing and they need to prepare themselves for battle after that.

    Have you ever been sued? I’ve seen people have nervous breakdowns after learning they are being sued. Imagine the strain on one’s family, the stigma attached, and the worry that something may go wrong and defendants will end up losing their houses. Not only that, but they will have to spend hours of hard work in consultation with their lawyers finding papers, rehearsing testimony and hoping that they dont get slaughtered. Finally, they have to appear at trial and try to make the case they are not racketeers.

    Run this past them a few times and we will spend a lot less time dealing with this bullshit. Right now they count on us doing what we have always done–rely on politicians. That hasnt worked out too well.

  16. Sebastian says:

    You can’t use RICO in this matter. I was in a talk with Alan Gura a year ago when someone raised this issue, and it’s basically a non-starter.

  17. Sebastian: I’m not sure why you think Alan Gura has a better handle on this than someone who has spent quite a bit of time researching it. Admittedly, there are unresolved questions about the applicability of the statute to these facts, but the questions are unresolved. Simply because Gura says it wont work doesn’t end the discussion. Even if the municipalities were exempted because of the interstate commerce requirement (and that isnt certain) the billionaire-sponsored organization that counsels them operates in several states.

    In any event, the point is that whether this statue applies or not, this approach (resistance through litigation) applies and the pro-gun movement in general seems not to know it.

  18. Jacob says:

    You cannot sue legislators for the bills the sponsor or how they vote. That won’t fly anywhere.

  19. That’s right Jacob. That’s why you bypass them.

  20. Sebastian says:

    I figured winning two major landmark cases before the Supreme Court should count for something when it comes to formulating legal strategies to defend Second Amendment rights.

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