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Giffords Law Center to Prevent Gun Violence. 2021 ‘Preemption of Local Laws in Pennsylvania.’ Other Laws & Policies. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 8 May

Relevant contents

Local Authority to Regulate Firearms in Pennsylvania

Pennsylvania law provides 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."

Section 6120(a) has been interpreted to preempt local ordinances banning assault weapons. In Ortiz v. Commonwealth, 681 A.2d 152, 155 (Pa. 1996), the Supreme Court of Pennsylvania struck down local assault weapon bans in Philadelphia and Pittsburgh under what is now subsection 6120(a). The court found that the legislature had "denied all municipalities the power to regulate the ownership…transfer or possession of firearms." The court stated that the Pennsylvania Constitution "requires that home rule municipalities…not perform any power denied by" the legislature. The court also noted that firearm regulation is "a matter of concern in all of Pennsylvania," and the legislature "is the proper forum for the imposition of such regulation."

Similarly, in Schneck v. Philadelphia, 383 A.2d 227 (Pa. Commw. Ct. 1978), a lower court held that section 6120(a) preempted a city ordinance requiring a license for the acquisition of a firearm within the city.

On the other hand, a lower court has held that section 6120(a) does not preempt ordinances which regulate firearm possession that is already unlawful. Thus, where plaintiffs attempted to carry firearms into a courthouse in violation of an ordinance which forbids the possession of firearms in any county facility, and where state law already barred the possession of firearms in courthouses, the ordinance was not preempted. Later, in Minich v. County of Jefferson, 919 A.2d 356 (Pa. Commw. Ct. 2007), the court rejected a claim that the county lacked authority to enact the same ordinance. The court held that the county had authority to enact the ordinance pursuant to 16 Pa. Stat. Ann. § 509(c), which allows county commissioners to prescribe fines and penalties for violations of a "public safety" ordinance.

In Clarke v. House of Representatives, 957 A.2d 361 (Pa. Commw. Ct. 2008), an intermediate appellate court held that section 6120(a) preempted all seven ordinances enacted by the City of Philadelphia in May of 2007. These ordinances would have:

- Limited handgun purchases to one per month;
- Mandated the reporting of lost or stolen firearms;
- Required a local license to acquire a firearm or bring a firearm into Philadelphia;
- Required annual renewal of this license;
- Allowed a firearm to be confiscated from someone posing a risk of harm;
- Prohibited the possession or transfer of assault weapons; and
- Required anyone selling ammunition to report the ammunition and the purchaser to the police department.

Among other things, the City argued that section 6120(a)'s reference to firearms and ammunition "when carried or transported" allows local governments to regulate uses of firearms and ammunition that do not involve carrying or transporting them. The court rejected this argument, relying on Schneck and Ortiz. The court also rejected the City's argument that the Ortiz decision should be revisited because of "changing circumstances, particularly the increase in gun violence in Philadelphia." This decision has since been affirmed, without a published opinion, by the Supreme Court of Pennsylvania.

In Nat'l Rifle Assn. v. Philadelphia, an intermediate appellate court held that section 6120(a) preempted two ordinances adopted by Philadelphia in June 2008. More specifically, one ordinance would have banned assault weapons and the second ordinance would have prohibited any person from acting as a "straw purchaser" by purchasing a handgun on behalf of an ineligible person. Despite the City's argument that both of these ordinances only regulated activity that was already unlawful, the court held that the Supreme Court of Pennsylvania's decision in Ortiz was controlling.

Section 6120(a.1) provides:

(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.

Section 6120(a.1) has been held to preclude negligence suits by local jurisdictions against gun manufacturers. In Philadelphia v. Beretta, 126 F. Supp.2d 882 (E.D. Pa. 2000), aff'd, 277 F.3d 415 (3d Cir. 2002), Philadelphia and a number of civic organizations sued several gun manufacturers, alleging that the defendants' marketing and distribution schemes were responsible for allowing access to firearms by criminals and other prohibited purchasers, harming Philadelphia's residents. Liability was predicated on the defendants' alleged negligence and the creation of a public nuisance.

The federal 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." 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."

Other state laws also restrict the ability of municipalities to enact firearm laws. Title 53, Pa. Cons. Stat. Ann. § 2962(g) states that "a municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms." Cities in Pennsylvania, however, may regulate the "unnecessary firing and discharge of firearms in or into the highways and other public places…." Second class cities (those containing a population of between 250,000 and 1,000,000) may also "regulate, prevent and punish the discharge of firearms … [and] prevent and punish the carrying of concealed deadly weapons." Third class cities (those containing a population under 250,000 and which have not elected to become a "city of the second class A") may "regulate, prohibit, and prevent the discharge of guns … within the city and … prevent the carrying of concealed deadly weapons."

Title 16, Pa. Stat. Ann. § 6107-C states that second class counties (those having a population between 800,000 and 1,500,000) may not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.

Title 53, Pa. Stat. Ann. § 46202(30) states that boroughs (incorporated areas having a population of at least 500 residents) may regulate, license, and fix the time of opening and closing of shooting galleries. Similarly, section 56531 states that first class townships (those having a population of at least three hundred inhabitants to the square mile) may regulate, license and fix the time of opening and closing of shooting galleries…

[Editor's note: The Giffords Law Center to Prevent Gun Violence regularly updates its webpages with new data as US gun regulation evolves state by state. For the most up-to-date information on US gun laws, please refer to the Giffords URL below]

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