Clarke v. House of Representatives of the Commonwealth

957 A.2d 361, 2008 Pa. Commw. LEXIS 464, 2008 WL 4366068
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 26, 2008
Docket493 M.D. 2007
StatusPublished
Cited by12 cases

This text of 957 A.2d 361 (Clarke v. House of Representatives of the Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarke v. House of Representatives of the Commonwealth, 957 A.2d 361, 2008 Pa. Commw. LEXIS 464, 2008 WL 4366068 (Pa. Ct. App. 2008).

Opinions

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

[363]*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 [364]*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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

M. Miller v. County of Lancaster
Commonwealth Court of Pennsylvania, 2025
Gun Owners of America, Inc. v. City of Philadelphia
Commonwealth Court of Pennsylvania, 2024
L.J. Anderson v. City of Pittsburgh
Commonwealth Court of Pennsylvania, 2022
S. Crawford v. The Com. of PA - 562 M.D. 202
Commonwealth Court of Pennsylvania, 2022
City of Philadelphia v. R.T. Armstrong
Commonwealth Court of Pennsylvania, 2022
Leach v. Commonwealth
118 A.3d 1271 (Commonwealth Court of Pennsylvania, 2015)
Dillon v. City of Erie
83 A.3d 467 (Commonwealth Court of Pennsylvania, 2014)
National Rifle Ass'n v. City of Philadelphia
977 A.2d 78 (Commonwealth Court of Pennsylvania, 2009)
Fross v. County of Allegheny
612 F. Supp. 2d 651 (W.D. Pennsylvania, 2009)
Clarke v. House of Representatives of the Commonwealth
957 A.2d 361 (Commonwealth Court of Pennsylvania, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
957 A.2d 361, 2008 Pa. Commw. LEXIS 464, 2008 WL 4366068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-house-of-representatives-of-the-commonwealth-pacommwct-2008.