Clarke v. House of Representatives, decided today by the Pennsylvania Commonwealth Court, so holds, reaffirming similar decisions in the past. The Pennsylvania Constitution grants cities home rule powers in matters of local, as opposed to statewide, concern. Darrell Clarke and Donna Miller, members of the Philadelphia City Council, argued that gun laws were such local matters, and the state law preempting local gun laws was thus unconstitutional. But the court reaffirmed the contrary view, citing the Pennsylvania Supreme Court's earlier conclusion that
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 that 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.
An interesting example of how constitutional provisions do more than just directly override contrary legislation: I expect that Pennsylvania courts would interpret the constitutional provision as not itself trumping certain state regulations of guns -- but the constitutional status of the right is seen as supporting the state's decision to trump similar local regulations of guns.
The state in question obviously isn't Oregon, Colorado, Wisconsin or Ohio.
The Philadelphia City Council must be chock full of racists.
Talk to anyone in the gun control movement in the winter of last year and they expected a national victory for gun control banking on justice Kennedy as the swing vote. Instead it went the other way leaving Cities like Philly high and dry in pushing further gun control laws on to their respective State legislatures. The Gun-control movements 20 year policy of pushing gun control from the cities up now has a big problem.
Now, its true that the 14th amendment incorporation is still in question so there is no assurance that Philly would loose a Supreme Court case on its authority to prohibit or regulate firearms. But the gun-control movement doesn't want to even risk it. They have in fact been advising cities that have pending court cases to abandon the laws in question. Anything to prevent the issue of the 2nd Amendment being ruled as a restriction on a regular city or a State. Right now the gun control movement is using the argument that the Heller ruling only applies against the Federal District in which the City of Washington exists.
I recall once getting a lecture from a relative in the Pennsylvania State Police about the "Philly rule" -- that as a practical matter Philadelphia authorities don't honor state concealed carry laws, and if you're caught in Philadelphia, even with a totally legal concealed gun, it's going to get VERY unpleasant for you. This particular relative refused to carry when he visited Philadelphia while off duty just because he didn't want to be rousted, even tho he was a State Trooper.
Once before at a time when it was subject to great political pressure, the Pennyslvania Suprteme Court rose to the occasion in a pre-emption case, although the case involved federal preemption of state law. See Pennyslvania v. Nelson, 350 U.S. 497 (1956), affirming 377 Pa. 58, 104 A.2d 133. Halting the prosecution of an admitted Communist Party member, the state court held the federal Smith Act, which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act, which proscribes the same conduct. That ruling was affirmed by the U.S. Supreme Court in a 6-3 vote.
I just wish the Pennyslvania Supremes were similarly principled in capital cases.
1) Take the plain language of the state's pre-emption law
2) Grasp onto one provision of it: when carried or transported for purposes not prohibited by the laws of this Commonwealth
3) Claim that Philadelphia's anti-gun ordinances don't apply to carrying and transportation, and therefore fall outside the pre-emption law, even though it would render other parts of the law redundant and useless!
4) Thus she can destroy the pre-emption law altogether by having the exception swallow the rule in one gulp.
This is the kind of dishonest judicial interpretation that greatly expands government power at the expense of our individual liberties. We need to make sure that this judge does not advance any further than her present position.
The District Attorney, City Council and Mayor Nutter are under enormous pressure to reduce the seemingly out of control violence that is occurring against police officers and citizens. While statistically, murders are lower this year both nationally and in Philadelphia, violent crimes in Philadelphia seem to have remained steady. On a daily basis, violent crimes in my city are often occurring during the day and within the business and historic districts. This, in my view, is unprecedented.
Given all these dire statistics, I still believe the language in the PA Constitution Article 1 Section 21 is one of the most forceful and emphatic in the Union (The right of the citizens to bear arms in defense of themselves and the State shall not be questioned). The current Mayor has focused his attention for example on the issue "straw purchases" but even the most recent police officer murder was caused by a firearm allegedly "straw purchased" in South Carolina.
The more pressing issue in Philadelphia are generations of a dysfunctional citizenry that have remained immune from political critique. An honest assessment of the "root causes" of this violence would be too controversial for City Council and the Mayor. They have neither the political will nor the courage to elevate the political discourse beyond the dead-end litigation strategy post-Heller and now post-Clarke.