Clarke v. House of Representatives of the Commonwealth

OPINION BY

President Judge LEADBETTER.

Before this court are the preliminary objections of the House of Representatives of the Commonwealth of Pennsylvania (House), the Senate of the Commonwealth of Pennsylvania (Senate) and the National Rifle Association1 (NRA) to the complaint seeking declaratory judgment filed in our original jurisdiction by Philadelphia City Councilpersons Darrell L. Clarke and Donna Reed Miller (Petitioners).

In May of 2007, the Philadelphia City Council passed seven gun ordinances (Ordinances) which were subsequently signed by Mayor John Street. Bill 040117-A limits handgun purchases to one per month and prohibits straw purchases and sales. Bill 060700 mandates the reporting of lost or stolen firearms. Bill 040136-A requires a license in order to acquire a firearm within Philadelphia or bring a firearm into Philadelphia. Bill 040137 requires the annual renewal of a gun license. Bill 040312 states that a firearm can be confiscated from someone posing a risk of harm. Bill 040315 prohibits the possession or transfer of assault weapons. Bill 040118-A requires that any person selling ammunition report the purchase and the purchaser to the Police Department.

The First Class City Home Rule Act2 (Home Rule Act), under which the Home Rule Charter of the City of Philadelphia was adopted, states that “Mot-withstanding the grant of powers contained in this act, no city shall exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are ... [applicable in every part of the Commonwealth ... [and][a]pplicable to all the cities of the Commonwealth....” The Home Rule Act thus prohibits Philadelphia, or any city in Pennsylvania, from exercising powers which conflict with mandates of the General Assembly.

The Ordinances were passed despite a statutory limitation in Section 6120(a) of the Uniform Firearms Act3 (Firearms Act) which states that “[n]o 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.” Mindful of this provision, the Ordinances all contained the following statement: “This Ordinance shall become effective upon the enactment of authorizing legislation by the Pennsylvania General Assembly.”4

*363Petitioners seek judgments declaring that each of the Ordinances may take immediate effect, that Section 6120 is unconstitutional and that Section 6120 does not apply to any of the Ordinances to the extent they do not regulate the carrying or transporting of firearms. The House has filed preliminary objections based upon ripeness and failure to state a claim upon which relief may be granted. The Senate has filed preliminary objections based upon lack of standing, res judicata, collateral estoppel, non-justiciability, failure to state a claim upon which relief may be granted, and scandalous or impertinent matter. The NRA has filed preliminary objections based upon lack of standing, res judicata, scandalous or impertinent information, non-justiciability, and failure to state a claim upon which relief may be granted.

In examining the preliminary objections asserting failure to state a claim upon which relief may be granted, we turn first to the argument that the Ordinances are unenforceable because they conflict with a state statute, and Petitioners’ countervailing argument that that Section 6120 is unconstitutional because it infringes on the power of Philadelphia to pass and enforce local gun regulations. The City claims that gun regulation is a local, not a statewide, concern. In Schneck v. City of Philadelphia, 34 Pa.Cmwlth. 96, 383 A.2d 227 (1978), we examined a Philadelphia ordinance which regulated the acquisition and transfer of firearms. At that time, Section 6120(a) contained language identical to that of the current version, except that it banned regulation of firearms only, not ammunition or components. Specifically, “[n]o county, municipality or township may in any manner regulate the lawful ownership, possession or transportation of firearms when carried or transported for purposes not prohibited by the laws of this commonwealth.” We enjoined Philadelphia from enforcing the ordinance because “[w]e believe[d] that this statute clearly preempted] local governments from regulating the lawful ownership, possession and transportation of firearms, and we also believe[d] that Philadelphia’s ordinance attempted] to regulate firearms in the manner indicated in the statute as prohibited.” Schneck, 383 A.2d. at 229-30.

Another Philadelphia gun ordinance later came before this court and then our Supreme Court. See Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996), aff'g Ortiz v. Commonwealth, 655 A.2d 194 (Pa.Cmwlth.1995). In Ortiz, the cities of Pittsburgh and Philadelphia passed ordinances banning certain types of assault weapons. Our Supreme Court characterized the matter before the courts as follows:

The sum of the case is that the Constitution of Pennsylvania requires that home rule municipalities may not perform any power denied by the General Assembly; the General Assembly has denied all municipalities the power to regulate the ownership, possession, transfer or possession of firearms; and the municipalities seek to regulate that which the General Assembly has said they may not regulate. The inescapable conclusion, unless there is more, is that the municipalities’ attempt to ban the possession of certain types of firearms is constitutionally infirm.

Ortiz, 545 Pa. at 283-84, 681 A.2d at 155. The court went on to conclude:

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, where it may be abridged at will, but *364that it 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.

Ortiz, 545 Pa. at 287, 681 A.2d at 156.

The Ordinances before us are not materially different from those presented in Schneck and Ortiz. Each one seeks to regulate firearms-an area that both Section 6120 and binding precedent have made clear is an area of statewide concern over which the General Assembly has assumed sole regulatory power. As we stated in Schneck, “it is a well-established principle of law that where a state statute preempts local governments from imposing regulations on a subject, any ordinances to the contrary are unenforceable.” 383 A.2d at 229.

In attempting to uphold the Ordinances, Petitioners argue that Section 6120’s qualifying phrase “when carried or transported” leaves room for municipalities to regulate any uses of firearms which do not involve carrying or transporting them. Petitioners argue that if the General Assembly intended to preempt any and all municipal gun control, it would have done so instead of including this limitation. Given Schneck and Ortiz, we cannot agree with this construction of the Firearms Act. The ordinances struck down in those cases were not qualitatively different in that respect from those at issue here. While Petitioners point out that the qualifying phrase “when carried or transported” was not specifically discussed in Ortiz, in light of its broad and unqualified language, we cannot distinguish Ortiz on this basis. Moreover, this language was at issue in Schneck, 383 A.2d at 230 (Crumlish, Jr., J., dissenting). There, the dissenting opinion quoted the trial court’s discussion:

In an even broader inquiry, is the declared “limitation” on the power of a municipality to regulate “lawful ownership, possession or transportation of firearms’ confined, as defendants assert, to certain statutorily enumerated events only, i.e., ‘when carried or transported for purposes not prohibited by the laws of this Commonwealth.” Or, as asserted by plaintiffs, has the total field of the regulation of firearms been preempted by the Commonwealth so that this clause, which invites a more limited intention, is to be modified by interpretation?

Id. The majority concluded that Section 6120 “clearly preempts local governments from regulating the lawful ownership, possession and transportation of firearms[.]” Id. at 229-30. Thus we must conclude that binding precedent precludes our accepting Petitioners’ argument on this point.

Nonetheless, Petitioners argue that the rationale in Ortiz has been called into question by the recent decision in Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401 (2007). In Nutter, our Supreme Court found that because the Election Code5 addressed certain subjects on an extremely comprehensive level, its failure to address campaign finance limits indicated that the General Assembly did not intend to foreclose local regulation in that arena. 595 Pa. at 365, 938 A.2d at 416. However, the Election Code does not contain language of explicit preemption like that of the Firearms Act, and so the Nutter decision is neither controlling nor even particularly informative in the present context. Petitioners also argue the rationale in the Ortiz decision should be revisited because *365of changing circumstances, particularly the increase in gun violence in Philadelphia. While we understand the terrible problems gun violence poses for the city and sympathize with its efforts to use its police powers to create a safe environment for its citizens, these practical considerations do not alter the clear preemption imposed by the legislature, nor our Supreme Court’s validation of the legislature’s power to so act.

Finally, even if we were not constrained by the factors cited above, the very terms of the Ordinances would preclude our granting the relief requested. The Ordinances specifically provide that they will become effective only when authorized by the General Assembly, and it is undisputed that the General Assembly has not done so. Accordingly, even if the law recognized the Philadelphia’s power to act in this area in derogation of the legislative prohibition, the city has not done so.

Because Petitioners’ complaint failed to state a claim upon which relief may be granted, we must sustain the preliminary objections.

Judges COHN JUBELIRER and LEAVITT did not participate in the decision of this case.

ORDER

AND NOW, this 26th day of September, 2008, the preliminary objections of the House of Representatives of the Commonwealth of Pennsylvania, the Senate of the Commonwealth of Pennsylvania and the National Rifle Association to the complaint filed in the above-captioned matter are hereby SUSTAINED and the complaint is DISMISSED with prejudice.

. The preliminary objections filed by the NRA as an intervenor were also filed on behalf of the individual intervenors Vincent K. Gay, Gordon V. Gay, Jon Mirowitz, Eugene Wal-worth, John Olexa and Charles H. Cox.

. Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157.

. 18 Pa.C.S. §§ 6101-6162.

.Since this case was argued, City Council passed and Mayor Michael Nutter signed five new gun laws. Four of those laws appear to be identical to four of the Ordinances, except the new laws do not contain this language concerning the General Assembly. However, the new laws do not specifically repeal the Ordinances, and they are not part of the record in this case. Thus they do not affect our consideration of the case sub judice.

. Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.