Why Philly can’t make stronger gun laws, and the legal battle to get that changed

Pennsylvania has some laws on the books known as “preemption” statutes, and they stop municipalities from enacting tighter regulations.

An anti-violence rally in March 2021 at Philadelphia City Hall

An anti-violence rally in March 2021 at Philadelphia City Hall

Kimberly Paynter / WHYY
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The lawsuit to let Philly enact stronger gun safety laws appears headed for the Pa. Supreme Court, after a lower court rejected the argument that not doing so violates residents’ constitutional right “to enjoy and defend life and liberty.”

In dismissing the suit along party lines last week, Commonwealth Court also declared firearms legislation a statewide matter best handled by the Pa. legislature, instead of city government.

The decision comes on the heels of two mass shootings that shook the nation — at an elementary school in Uvalde, Texas, and a grocery store in Buffalo, New York — and as Philadelphia continues to experience a rate of shootings over 50% higher than in pre-pandemic times.

Previous legal attempts to allow Pennsylvania cities to pass their own gun regulations have been unsuccessful, decade after decade. What’s the reasoning behind that? And why’d Philly try again? Here’s what to know.

Who brought the lawsuit, and why?

Pennsylvania has some laws on the books known as “preemption” statutes. They stop cities — “preempt” them — from being able to make tighter gun control laws than exist at the state level.

In practice, that means Pa. municipalities can’t have their own firearm permitting processes or set limits on the number of guns purchased within a certain time period. They can’t make parks and playgrounds into gun-free zones, can’t ban assault weapons, and can’t outlaw “straw purchases” where people buy guns for others.

A year and a half ago, after shootings skyrocketed during pandemic lockdowns, Philadelphia joined advocacy group CeaseFirePA to sue the Commonwealth of Pennsylvania and Pa. General Assembly.

The lawsuit was brought on behalf of Philly and Pittsburgh residents who have been directly impacted by gun violence. It argued that the legislature has “refused” to pass its own “evidenced-based gun safety legislation” while also stopping municipalities from enacting their own “sensible policies” to curb gun violence.

That not only prevents residents from “enjoy[ing] and defend[ing] life and liberty,” the petitioners said, but it also “endangers the lives” of their communities by exposing them to the “direct risk” of gun violence — a “state-created danger.”

The suit asked Commonwealth Court to declare that stopping municipalities from passing their own gun control measures is a violation of rights under the Pennsylvania Constitution.

It also asks the court to simply stop the state from enforcing the firearm preemption statutes in the future.

Didn’t Philly try a similar lawsuit before?

Yes, several times.

A 1970s court decision stopped Philadelphia from making its own gun laws contrary to the state ones, and in the 1990s, a set of Philadelphia City Councilmembers unsuccessfully asked the state Supreme Court to invalidate the state’s preemption laws so that the city could pass its own ban on assault weapons.

In 2007, now-City Council President Darrell Clarke and former City Councilmember Donna Reed Miller sued the state, arguing the legislature had created a “state of danger.” That case wasn’t successful either.

What happened so far this time?

The group filed the most recent suit in October 2020, and the court held a hearing in June 2021.

A judges panel decided 3-2 last Thursday to dismiss the suit with prejudice, meaning the petitioners cannot sue again over the same claim in the same court again.

The decision came along party lines, with Republicans in the majority.

What was the reasoning behind the court’s decision?

The court’s opinion cited a past Pa. Supreme Court decision that called gun legislation “substantive matters of statewide concern” — and therefore a legislature issue rather than one for local government to address.

The decision also said Philadelphia didn’t present any arguments that would make it legal for judges to intervene in what they call a legislative issue. “[I]t is the legislature that is charged with enacting laws and social policy, not the courts,” wrote Judge Patricia McCollough.

The decision also rejected the idea that Pennsylvania’s preemption statutes fall under the “state-created danger” doctrine, saying that only applies when a specific person or group could foreseeably be harmed by it — not the general public.

Is this the end of the line for the suit?

Probably not. The city will “most likely” appeal the case to the state Supreme Court, per Mayor Jim Kenney, which means the petitioners still have another shot. The Pa. Supreme Court has a Democratic majority, unlike the Commonwealth Court panel that dismissed this round.

In a statement, City Council President Darrell Clarke called the Commonwealth Court’s ruling “disappointing — but not surprising.”

“We always expected we would be arguing the case for Philadelphia residents’ constitutional rights to be free of uncontrolled gun violence in the state Supreme Court,” Clarke said, “and that’s where this case is now headed in all likelihood.”

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