Panel Rejects Philadelphia Assault Weapons Ban, Gun Purchase Limit

[friendly_iconoclast]

From Law.com, via Second Amendment Dems:

http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202431612993

Panel Rejects Philadelphia Assault Weapons Ban, Gun Purchase Limit
Zack Needles
06-22-2009

The Pennsylvania Commonwealth Court struck down two Philadelphia ordinances -- one dealing with a ban on assault weapons and the other requiring that only one handgun be purchased per 30-day period -- in an en banc decision handed down Thursday.

In the same opinion, however, the court also upheld three other city ordinances dealing with seizure of firearms from persons who pose a risk of imminent harm to themselves or others, prohibiting the acquisition and possession of firearms by persons subject to a protection from abuse order and requiring that gun owners report lost or stolen firearms to law enforcement within 24 hours of realizing they're missing.

A seven-judge en banc panel voted unanimously to allow those three ordinances to stand but was split 6-1 in its decision to enjoin the city from enforcing the two others...

Further discussion in the linked article, and full decision here:

http://www.aopc.org/OpPosting/Cwealth/out/1305CD08_6-18-09.pdf

[ananda]

1. Sad.

What is the matter with judges these days?

This country is so lost.

[friendly_iconoclast]

2. What's so sad? They upheld the PA state constitution and PA state law

What's your problem with that?

[Fire_Medic_Dave]

3. They upheld the reasonable laws and struck down the others, nothing sad about it.

[Tim01]

4. I'm going to think of some stuff I don't like, make up a label, and try to get them banned.

I'm going to start with the Prius. My old shit box Geo that's like 15 years old gets 42 miles per gallon. That is with old technology and a plain gas engine. An expensive hybrid car is just an expensive "I care so very much" sign. Ever seen the nickel mines that get the nickel for those batteries? Awful.

So, the Prius and vegans. Both are well meaning with a bad result. Creating plastic is more damaging to the planet than wearing leather.


So. "Eco-Nanny-Nhreats". That's it. the ENTs. I want them banned because I don't like them. I find them offensive. I'm sure I am right about this because it is how I feel.



March on D.C. June 25 2010. Join me in eradicating the world of these awful ENTs.

Oh, and the term gunhead. It is an offensive word. Nobody is allowed to think it. Unless it is a term of endearment between gun guys, that's ok.

[hack89]

7. Respect for civil rights is a good thing. nt

[bossy22]

5. this is the complete opposite of sad

its a good thing. PA has a law which basically says that only the state government can regulate firearms and therefore a city isnt allowed to enact its own controls....philly tried to, and this was the result

[Will E Orwontee]

6. Good for now but . . .

Philly is wanting this to get to the PA high court. Some in city government see the '08 overwhelmingly Democrat judicial elections as instilling a new "mindset" in the state supreme court . . . So what was once unconstitutional and violative of state preemption law could now be entirly legitimate and pure as the driven snow.

Well, that's what they are counting on . . .

[bossy22]

8. dont think that will happen

the understanding preemption law is pretty straight foward, it was designed to make firearm regulation a matter of state government power only

plus i dont really see the PA supreme court taking this case....its settled law

[Will E Orwontee]

9. I don't share your certitude . . .

I live in Philly and keep a close eye on these things and I won't breathe easy until these laws are in a coffin and securely nailed shut.

I too believe the preemption law should be applied as an ironclad rule but I don't trust any of the new, very politically aligned judges to do the right thing.

Just for everyones info, the pertinent law and rulings state:

18 Pa. Crim. Stat. §6120(a) -- "General rule. No 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."

The state constitution secures the citizen's right to arms, Art I, §21:

"The right of the citizens to bear arms in defense of themselves and the State shall not be questioned"

And the PA Supreme Court interpreted Section 21 as follows in 1996:

"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.” -- Ortiz v. Commonwealth

Understand, this is also the same court that said the permanent retention by the Pennsylvania State Police of handgun buyer's personal information and the make, model and serial number of the gun purchased does not violate 18 Pa.C.S. §6111(b)(1.1)(v) (emphasis added):

"Unless it has been discovered pursuant to a criminal history, juvenile delinquency and mental health records background check that the potential purchaser or transferee is prohibited from possessing a firearm pursuant to section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), no information on the application/record of sale provided pursuant to this subsection shall be retained as precluded by section 6111.4 (relating to registration of firearms) by the Pennsylvania State Police either through retention of the application/record of sale or by entering the information on a computer, and, further, an application /record of sale received by the Pennsylvania State Police pursuant to this subsection shall be destroyed within 72 hours of the completion of the criminal history, juvenile delinquency and mental health records background check."

Here is the aforementioned 18 Pa.C.S. §6111.4:

"Notwithstanding any section of this chapter to the contrary, nothing in this chapter shall be construed to allow any government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership within this Commonwealth . . ."

The PASC ruled that because it is a "data base" not a "sales record" and certainly not a "registry" the above statute is not violated.

anybudy 'splain dat to me cuz im not traned in da law . . .

The way I read the statute no records (specifically sales records) shall be maintained by any means (specifically computerized) by any government agency (specifically PSP) with respect to the sale or transfer of any firearms, period. Seventy-two hours after an approved background check, any record of the sale / transfer in government hands is to he destroyed.

The only sale records required to be maintained is at the dealer where the firearm was purchased / transfered. Federal law mandates that FFL dealers are required to keep the 4473 for 20 years after the transaction and it is never to be stored electronically.

So, until these new laws are declared dead and Philly is left zero wiggle room to enact or enforce future unconstitutional and illegal gun laws, I'll retain the right to remain un-trusting and vigilant.

[bossy22]

15. i understand your position

but i respectably disagree...i think the language and the intent of the preemption law is clear enough that any court could see what its intention was.

MY personal belief is the PA supreme court won't even take the case...cause i dont see any legal issue here which requires clarification...both lower courts agreed, there are already numerous precedents that were set already.

[old mark]

10. What IS sad is that the mayor of Philadelphia and the Governor of PA

would attempt to pass laws that are patently against the PA Constitution. The Philadelphia District Attourney, Lynn Abraham, TOLD the Mayor last year she would not enforce any of those bills if they were enacted into law becaue they are unconstitutional. The Governor knew it, the Mayor knew it, they just could not resist the chance for cheap publicity and support from the anti gun lobby.

It was all bullshit all along.

mark

[JonQ]

11. That darn constitution

imagine what we could accomplish if we'd just shred that old rag and let our politicians do as they pleased.

[spin]

12. True, we would be real slaves...

rather then just the serfs we are now.

[happyslug]

13. Here is the Actual Opinion.

http://www.aopc.org/OpPosting/Cwealth/out/1305CD08_6-18-09.pdf

The article based on the opinion is poorly written mostly because the Ordinances were NOT declared Unconstitutional or Constitutional. The Ordinances were "upheld" on the legal technically that the Plaintiffs had no standing to challenge said ordinances NOT that said Ordinances were constitutional:

The three Ordinances that the trial court held that Plaintiffs lacked standing to challenge are: Bill No. 080017,“Imminent Danger Ordinance;” Bill No. 080018-A, “Protection From Abuse Ordinance;” and Bill No. 080032-A, “Lost or Stolen Gun Ordinance.” Because we agree with the trial court’s determination that the Plaintiffs failed to establish any injury sufficient to confer standing with respect to these three Ordinances, we affirm and adopt that portion of the opinion of then Judge Jane Cutler Greenspan,8 entered in National Rifle Association v. City of Philadelphia, (April Term, 2008, No. 1472, filed June 30, 2008).

i.e. The ordinances regarding, Imminent Danger, Abuse, and lost or stolen weapons have to be challenged by someone who had been abused or lost, had a weapon stolen OR subject to the Imminent Danger Ordinance, NOT by the NRA on the grounds it MIGHT affect one of their members.

As to the other two ordinances:
Accordingly, we affirm the order of the trial court permanently enjoining the City from enforcing the provisions of the Assault Weapons
Ordinance and the Straw Purchaser Ordinance.

[happyslug]

14. self delete